1 of 1 DOCUMENT
CITY OF SANTA BARBARA et al., Petitioners, v. THE SUPERIOR
COURT OF SANTA BARBARA COUNTY, Respondent; TERRAL JANEWAY et
al., Real Parties in Interest.
S141643
SUPREME COURT OF CALIFORNIA
41 Cal. 4th 747; 2007 Cal. LEXIS 7603
July 16, 2007, Filed
PRIOR HISTORY:
Superior Court of Santa Barbara County, No. 1111681, Thomas Pearce Anderle.
Court of Appeal of California, Second Appellate District, Division Six, No.
B176810.
City of Santa Barbara v. Superior Court, 135 Cal. App. 4th 1345 [38 Cal. Rptr.
3d 434, 2006 Cal. App. LEXIS 84] (Cal. App. 2d Dist., 2006)
COUNSEL: Stephen P. Wiley, City Attorney, Janet K. McGinnis, Assistant City
Attorney; Haight, Brown & Bonesteel, Peter Q. Ezzell, Nancy E. Lucas; Jarvis,
Fay & Doporto and Andrea J. Saltzman for Petitioners.
Dennis J. Herrera, City Attorney (San Francisco), Joanne Hoeper, Chief Trial
Deputy, and Donald P. Margolis, Deputy City Attorney, for League of California
Cities and California State Association of Counties as Amici Curiae on behalf of
Petitioners.
Jane H. Adams for California Park & Recreation Society as Amicus Curiae on
behalf of Petitioners.
Chapman, Glucksman & Dean, Arthur J. Chapman and Cynthia R. Lane for Sierra Club
as Amicus Curiae on behalf of Petitioners.
Manning & Marder, Kass, Ellrod, Ramirez and Anthony J. Ellrod for International
Health, Racquet and Sportsclub Association and California Clubs of Distinction
as Amici Curiae on behalf of Petitioners.
Prindle, Decker & Amaro, Michael L. Amaro and Jack C. Nick for Bally Total
Fitness Corporation and 24 Hour Fitness USA, Inc., as Amici Curiae on behalf of
Petitioners.
Agajanian, McFall, Weiss, Tetreault & Crist, Paul L. Tetreault and William D.
Anthony for National Association of Stock Car Racing, Inc., and The California
Speedway Corporation as Amici Curiae on behalf of Petitioners.
No appearance for Respondent.
Grassini & Wrinkle and Roland Wrinkle for Real Parties in Interest.
JUDGES: George, C. J., with Werdegar, Chin, and Corrigan, JJ., concurring.
Concurring and dissenting opinion by Kennard, J., with Moreno, J., concurring.
Dissenting opinion by Baxter, J.
OPINION BY: George
OPINION
GEORGE, C. J.--The mother of Katie Janeway, a developmentally disabled
14-year-old, signed an application form releasing the City of Santa Barbara and
its employees (hereafter the City or defendants) from liability for "any
negligent act" related to Katie's participation in the City's summer camp for
developmentally disabled children. Katie drowned while attending the camp, and
her parents (plaintiffs, real parties in interest in the present proceedings)
commenced this suit. The Court of Appeal below (1) held unanimously that the
agreement embodied in the application form was effective and enforceable insofar
as it concerned defendants' liability for future ordinary negligence, but (2)
concluded, by a two-to-one vote, that a release of liability for future gross
negligence generally is unenforceable, and that the agreement in this case did
not release such liability.
In granting review, we limited the issue to be briefed and argued to the
second issue--whether a release of liability relating to recreational activities
generally is effective as to gross negligence. 1 As explained below, we answer
that question in the negative, and affirm the judgment rendered by the Court of
Appeal. We conclude, consistent with dicta in California cases and with the vast
majority of out-of-state cases and other authority, that an agreement made in
the context of sports or recreational programs or services, purporting to
release liability for future gross negligence, generally is unenforceable as a
matter of public policy. Applying that general rule in the case now before us,
we hold that the agreement, to the extent it purports to release liability for
future gross negligence, violates public policy and is unenforceable.
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Subsequent to hearing oral argument, we directed the parties to brief the first
issue decided by the Court of Appeal--whether the release in this case is
enforceable as to any form of negligence. After consideration of the briefing,
however, we decline to address that issue.
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I
The relevant facts were properly set forth by the Court of Appeal below, and
we adopt that recitation with minor supplementation and stylistic changes.
The City has provided extensive summer recreational facilities and activities
for children, including a camp for children with developmental disabilities 2
--Adventure Camp. Katie Janeway, who suffered from cerebral palsy, epilepsy, and
other similar developmental disabilities, participated in Adventure Camp in
1999, 2000, 2001, and 2002.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2 The
Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4501 et
seq.) defines "developmental disability" as "a disability that originates before
an individual attains age 18 years, continues, or can be expected to continue,
indefinitely, and constitutes a substantial disability for that individual. As
defined by the Director of Developmental Services, in consultation with the
Superintendent of Public Instruction, this term shall include mental
retardation, cerebral palsy, epilepsy, and autism. This term shall also include
disabling conditions found to be closely related to mental retardation or to
require treatment similar to that required for individuals with mental
retardation, but shall not include other handicapping conditions that are solely
physical in nature." (Id., § 4512, subd. (a).)
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Adventure Camp was conducted from noon until 5:00 p.m. on weekdays for
approximately three weeks in July and August. Camp activities included swimming,
arts and crafts, group games, sports, and field trips. In 2002, as in prior
years, swimming activities were held on two of five camp days each week in a
City swimming pool.
In 2002, the application form for Adventure Camp included a release of all
claims against the City and its employees from liability, including liability
based upon negligence, arising from camp activities. 3 Katie's mother, Maureen
Janeway, signed the release. She had signed similar releases covering Katie's
participation in the camp in prior years.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3 The last
section of the one-page form containing the release, signed in late June 2002,
provided in relevant part (and in very small type): "CITY OF SANTA BARBARA
RELEASE AGREEMENT[.] IN CONSIDERATION OF BEING PERMITTED TO PARTICIPATE IN THIS
CITY ACTIVITY OR USE OF ANY CITY FACILITIES IN CONNECTION WITH THIS ACTIVITY,
THE UNDERSIGNED AGREES TO THE FOLLOWING: [¶] 1. THE UNDERSIGNED HEREBY RELEASES,
WAIVES, DISCHARGES AND COVENANTS NOT TO SUE THE CITY OF SANTA BARBARA, ITS
EMPLOYEES, OFFICERS AND AGENTS (hereinafter referred to as 'releasees') from all
liability to the undersigned, his or her personal representatives, assigns,
heirs and next of kin for any loss, damage, or claim therefore on account of
injury to the person or property of the undersigned, whether caused by any
negligent act or omission of the releasees or otherwise while the undersigned is
participating in the City activity or using any City facilities in connection
with the activity. [¶] 2. THE UNDERSIGNED HEREBY AGREES TO INDEMNIFY AND HOLD
HARMLESS the releasees from all liability, claims, demands, causes of action,
charges, expenses, and attorney fees ... resulting from involvement in this
activity whether caused by any negligent act or omission of the releasees or
otherwise. [¶] 3. THE UNDERSIGNED HEREBY ASSUMES FULL RESPONSIBILITY FOR AND
RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE while upon City property or
participating in the activity or using any City facilities and equipment whether
caused by any negligent act or omission of releasees or otherwise. The
undersigned expressly agrees that the foregoing release and waiver, indemnity
agreement and assumption of risk are intended to be as broad and inclusive as
permitted by California law ... . [¶] I acknowledge that I have read the
foregoing and that I am aware of the legal consequences of this agreement,
including that it prevents me from suing the City or its employees, agents or
officers if I am injured or damaged for any reason as a result of participation
in this activity. ... [¶] IF THE PARTICIPANT IS A MINOR, his or her custodial
parent or legal guardian must read and execute this agreement. I hereby warrant
that I am the legal guardian or custodial parent of who
is a minor, and
agree, on my own and said minor's behalf to the terms and conditions of the
foregoing agreement. [¶] Adult name (please print) ... ." (Original
capitalization.) Katie's mother printed and signed her name; the space for the
minor's name was left blank, but Katie's name was written earlier, at the top of
the form containing the release.
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Maureen Janeway disclosed Katie's developmental disabilities and medical
problems to the City, specifically informing the City that Katie was prone to
epileptic seizures, often occurring in water, and that Katie needed supervision
while swimming. In addition, the City was aware that Katie had suffered seizures
while attending Adventure Camp events in 2001. She had a seizure when sitting on
the pool deck and another seizure at the skating rink. Paramedics were called
after her seizure on the pool deck. Nevertheless, Maureen Janeway indicated that
Katie was a good swimmer, and she never sought to prevent or restrict Katie's
participation in the swimming portion of Adventure Camp.
Based upon the information provided by Maureen Janeway and Katie's history of
seizures, the City took special precautions during the Adventure Camp swimming
activities in 2002. The City assigned Veronica Malong to act as a "counselor."
Malong's responsibility was to keep Katie under close observation during the
camp's swimming sessions. Previously, Malong, a college student, had worked for
one year as a special education aide at the middle school attended by Katie.
Malong had observed Katie experience seizures at the school, and she received
instruction from the school nurse regarding the handling of those seizures.
Malong also attended training sessions conducted by the City concerning how to
respond to seizures and other first aid matters.
Katie participated in the first swimming day at the 2002 Adventure Camp
without incident. On the second swimming day she drowned.
Approximately one hour before drowning, while waiting to enter the locker
room at the pool, Katie suffered a mild seizure that lasted a few seconds.
Malong observed the seizure and sent another counselor to report the incident to
a supervisor. According to the pleadings, the supervisor stated that the report
never was received. Malong watched Katie for approximately 45 minutes following
the mild seizure. Then, receiving no word from her supervisor, Malong concluded
that the seizure had run its course and that it was safe for Katie to swim.
Malong sat on the side of the pool near the lifeguard, watching the deep end
of the pool. In addition to the Adventure Camp participants, there were as many
as 300 other children in the pool area. Malong watched Katie jump off a diving
board and swim back to the edge of the pool. At Malong's insistence, Katie got
out of the pool and rested for a few minutes. Malong then asked Katie whether
she wished to dive again, and Katie said she did. Katie dove into the water,
bobbed to the surface, and began to swim toward the edge of the pool. As Katie
did so, Malong momentarily turned her attention away from Katie. When Malong
looked back no more than 15 seconds later, Katie had disappeared from her sight.
After Malong and others looked for Katie somewhere between two and five minutes,
an air horn blew and the pool was evacuated. Lifeguards pulled Katie from the
bottom of the pool, and she died the next day.
Katie's parents, Terral and Maureen Janeway, filed a wrongful death action
alleging the accident was caused by the negligence of the City and Malong.
Relying upon the release, defendants moved unsuccessfully for summary judgment
and summary adjudication. Defendants then sought relief in the Court of Appeal,
filing a petition for writ of mandate. (Code Civ. Proc., § 437c, subd. (m)(1).)
As noted earlier, the appellate court denied the petition, holding (1) the
agreement was effective and enforceable insofar as it concerned defendants'
liability for future ordinary negligence, but (2) concluding a release of
liability for future gross negligence generally is unenforceable, and the
agreement in this case did not validly release such liability. As observed
above, we address only the second holding.
II
A
(1) We begin by defining the terms that underlie the issue presented.
"Ordinary negligence"--an unintentional tort--consists of a failure to exercise
the degree of care in a given situation that a reasonable person under similar
circumstances would employ to protect others from harm. (See, e.g., Donnelly v.
Southern Pacific Co. (1941) 18 Cal.2d 863, 869 [118 P.2d 465] (Donnelly).)
"Gross negligence" long has been defined in California and other
jurisdictions as either a " ' "want of even scant care" ' " or " ' "an extreme
departure from the ordinary standard of conduct." ' " (Eastburn v. Regional Fire
Protection Authority (2003) 31 Cal.4th 1175, 1185-1186 [7 Cal. Rptr. 3d 552, 80
P.3d 656] (Eastburn), and cases cited; accord, Colich & Sons v. Pacific Bell
(1988) 198 Cal.App.3d 1225, 1240 [244 Cal. Rptr. 714] (Colich); Kearl v. Board
of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052-1053 [236 Cal.
Rptr. 526]; see also, e.g., Prosser & Keeton, The Law of Torts (5th ed. 1984) §
34, pp. 211-212 (Prosser and Keeton); 57A Am.Jur.2d (2004) Negligence, § 227, p.
296.) 4
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4 By
contrast, "wanton" or "reckless" misconduct (or " 'willful and wanton
negligence' ") describes conduct by a person who may have no intent to cause
harm, but who intentionally performs an act so unreasonable and dangerous that
he or she knows or should know it is highly probable that harm will result. (
Donnelly, supra, 18 Cal.2d 863, 869; see, e.g., Prosser & Keeton, supra, § 34,
pp. 213-214.)
The definition of gross negligence set forth above is not universally
followed; some jurisdictions define that term as tantamount to "wanton" or
"reckless" misconduct. (Prosser & Keeton, supra, § 34, pp. 211-212; 57A
Am.Jur.2d, supra, Negligence, § 232, p. 301; see also post, fn. 23.)
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B
As observed in Gardner v. Downtown Porsche Audi (1986) 180 Cal.App.3d 713,
716 [225 Cal. Rptr. 757] (Gardner), "[t]raditionally the law has looked
carefully and with some skepticism at those who attempt to contract away their
legal liability for the commission of torts." Courts and commentators have
observed that such releases pose a conflict between contract and tort law. On
the one hand is the freedom of individuals to agree to limit their future
liability; balanced against that are public policies underlying our tort system:
as a general matter, we seek to maintain or reinforce a reasonable standard of
care in community life and require wrongdoers--not the community at large--to
provide appropriate recompense to injured parties. 5
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -5 See,
e.g., Heil Valley Ranch, Inc. v. Simkin (Colo. 1989) 784 P.2d 781, 784 (releases
of future tort liability "stand at the crossroads of two competing principles:
freedom of contract and responsibility for damages caused by one's own negligent
acts"); Hanks v. Powder Ridge Restaurant Corp. (2005) 276 Conn. 314 [885 A.2d
734, 742] (Hanks) ("exculpatory provisions undermine the policy considerations
governing our tort system").
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The traditional skepticism concerning agreements designed to release
liability for future torts, reflected in Gardner, supra, 180 Cal.App.3d 713, and
many other cases, long has been expressed in Civil Code section 1668 (hereafter
cited as section 1668) which (unchanged since its adoption in 1872) provides:
"All contracts which have for their object, directly or indirectly, to exempt
any one from responsibility for his [or her] own fraud, or willful injury to the
person or property of another, or violation of law, whether willful or
negligent, are against the policy of the law."
C
In Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.
Rptr. 33, 383 P.2d 441] (Tunkl), we applied section 1668 in the context of a
release required by a nonprofit research hospital as a condition of providing
medical treatment. In that case, the plaintiff had signed a contract releasing
the operators of the hospital--the Regents of the University of California--"
'from any and all liability' " for " 'negligent ... acts or omissions of its
employees' " so long as the hospital used due care in selecting those employees.
(60 Cal.2d at p. 94.) Thereafter, the plaintiff sued for ordinary negligence
based on the treatment received from two of the hospital's doctors.
(2) Turning to section 1668, Justice Tobriner's unanimous opinion for the
court noted that past decisions had differed concerning the reach of that
statute (Tunkl, supra, 60 Cal.2d 92, 96-97), but that those decisions agreed in
one significant respect: they consistently "held that [an agreement's]
exculpatory provision may stand only if it does not involve [and impair] 'the
public interest.' " (Id., at p. 96.) Exploring the meaning and characteristics
of the concept of "public interest" as illuminated by the prior cases (id., at
pp. 96-98), we read those precedents as recognizing a general rule that an"
exculpatory clause which affects the public interest cannot stand." (Id., at p.
98, italics added.)
Tunkl next addressed the "factors or characteristics" that underlie the
concept of "public interest" in the context of an agreement releasing liability
for future ordinary negligence. (Tunkl, supra, 60 Cal.2d 92, 98.) In passages
widely quoted and followed or adopted as a guide by numerous out-of-state
decisions addressing the enforceability of such agreements, 6 we wrote: "The
social forces that have led to such characterization are volatile and dynamic.
No definition of the concept of public interest can be contained within the four
corners of a formula. The concept, always the subject of great debate, has
ranged over the whole course of the common law; rather than attempt to prescribe
its nature, we can only designate the situations in which it has been applied.
We can determine whether the instant contract does or does not manifest the
characteristics which have been held to stamp a contract as one affected with a
public interest." (Tunkl, supra, 60 Cal.2d at p. 98.)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -6 For
example, see Hanks, supra, 885 A.2d 734, 742-744; Berlangieri v. Running Elk
Corp. (2003) 134 N.M. 341 [76 P.3d 1098, 1109-1113]; Moore v. Hartley Motors,
Inc. (Alaska 2001) 36 P.3d 628, 631; Dalury v. S-K-I, Ltd. (1995) 164 Vt. 329
[670 A.2d 795, 797-799] (Dalury); Kyriazis v. University of West Virginia (1994)
192 W. Va. 60 [450 S.E.2d 649, 653-655] (Kyriazis); Wagenblast v. Odessa School
Dist. (1988) 110 Wn.2d 845 [758 P.2d 968, 971-973] (Wagenblast); Milligan v. Big
Valley Corp.(Wyo. 1988) 754 P.2d 1063, 1066-1067; Krohnert v. Yacht Systems
Hawaii, Inc. (1983) 4 Haw. App. 190 [664 P.2d 738, 744]; Jones v. Dressel (Colo.
1981) 623 P.2d 370, 376-378; Porubiansky v. Emory University (1980) 156 Ga. App.
602 [275 S.E.2d 163, 167-169]; Olson v. Molzen (Tenn. 1977) 558 S.W.2d 429, 431.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
(3) We found in the prior cases a "rough outline" of the "type of transaction
in which exculpatory provisions will be held invalid," explaining: "[T]he
attempted but invalid exemption involves a transaction which exhibits some or
all of the following characteristics. It concerns a business of a type generally
thought suitable for public regulation. The party seeking exculpation is engaged
in performing a service of great importance to the public, which is often a
matter of practical necessity for some members of the public. The party holds
himself out as willing to perform this service for any member of the public who
seeks it, or at least for any member coming within certain established
standards. As a result of the essential nature of the service, in the economic
setting of the transaction, the party invoking exculpation possesses a decisive
advantage of bargaining strength against any member of the public who seeks his
services. In exercising a superior bargaining power the party confronts the
public with a standardized adhesion contract of exculpation, and makes no
provision whereby a purchaser may pay additional reasonable fees and obtain
protection against negligence. Finally, as a result of the transaction, the
person or property of the purchaser is placed under the control of the seller,
subject to the risk of carelessness by the seller or his agents." (Tunkl, supra,
60 Cal.2d 92, 98-101, fns. omitted.)
(4) We continued our analysis in Tunkl by stressing that considerations of
public policy did not bar all contracts releasing future liability for
negligence, 7 and by drawing a distinction between such permissible releases and
those that implicate at least some of the circumstances described above. (Tunkl,
supra, 60 Cal.2d 92, 101.) We commented that when certain of these
characteristics are present, the transaction is such that "the releasing party
does not really acquiesce voluntarily in the contractual shifting of the risk,"
and further that when the "service is one which each member of the public,
presently or potentially, may find essential to him," the releasor "faces,
despite his economic inability to do so, the prospect of a compulsory assumption
of the risk of another's negligence." (Id., at p. 101.) 8 Applying the public
interest characteristics articulated above to the facts of the transaction then
before us in Tunkl, we concluded that the release exhibited not only some of
those characteristics, but all of them, and that the contract of exculpation for
negligence committed by the hospital's employee doctors "affect[ing] the public
interest" was invalid. (Id., at pp. 101-102.) 9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -7 We
observed: "[O]bviously no public policy opposes private, voluntary transactions
in which one party, for a consideration, agrees to shoulder a risk which the law
would otherwise have placed upon the other party ... ." (Tunkl, supra, 60 Cal.2d
92, 101.)
8 In this regard we also observed: "The public policy of this state has been,
in substance, to posit the risk of negligence upon the actor; in instances in
which this policy has been abandoned, it has generally been to allow or require
that the risk shift to another party better or equally able to bear it, not to
shift the risk to the weak bargainer." (Tunkl, supra, 60 Cal.2d at p. 101.)
9 Commenting further on the concept of "public interest," we emphasized the
public's concern with respect to some types of otherwise private agreements: "We
must note, finally, that the integrated and specialized society of today,
structured upon mutual dependency, cannot rigidly narrow the concept of the
public interest. From the observance of simple standards of due care in the
driving of a car to the performance of the high standards of hospital practice,
the individual citizen must be completely dependent upon the responsibility of
others. The fabric of this pattern is so closely woven that the snarling of a
single thread affects the whole. We cannot lightly accept a sought immunity from
careless failure to provide the hospital service upon which many must depend.
Even if the hospital's doors are open only to those in a specialized category,
the hospital cannot claim isolated immunity in the interdependent community of
our time. It, too, is part of the social fabric, and prearranged exculpation
from its negligence must partly rend the pattern and necessarily affect the
public interest." (Tunkl, supra, 60 Cal.2d 92, 104.)
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D
In subsequent decisions, California courts have invalidated releases of
liability for future ordinary negligence under the analysis set forth in Tunkl,
supra, 60 Cal.2d 92, when, guided by Tunkl's public interest discussion, the
court determines that a particular release concerns a service that transcends a
purely private agreement and affects the public interest. (E.g., Henrioulle v.
Marin Ventures, Inc. (1978) 20 Cal.3d 512, 517-520 [143 Cal. Rptr. 247, 573 P.2d
465] [release of liability for negligence by residential landlord]; Gavin W. v.
YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662 [131 Cal. Rptr. 2d
168] [release of liability for negligence by provider of childcare services];
Pelletier v. Alameda Yacht Harbor (1986) 188 Cal.App.3d 1551 [230 Cal. Rptr.
253] [release of liability for negligence by provider of harbor boat berth];
Gardner, supra, 180 Cal.App.3d 713 [release of liability for negligence by auto
repair shop]; Vilner v. Crocker National Bank (1979) 89 Cal.App.3d 732 [152 Cal.
Rptr. 850] [release of liability for negligence relating to banking services];
Akin v. Business Title Corp. (1968) 264 Cal. App. 2d 153 [70 Cal. Rptr. 287]
[release of liability for negligence by escrow company]; see also Health Net of
California, Inc. v. Department of Health Services (2003) 113 Cal.App.4th 224 [6
Cal. Rptr. 3d 235] (Health Net) [exculpatory clause related to managed health
care for Medi-Cal beneficiaries]; see generally 1 Witkin, Summary of Cal. Law
(10th ed. 2005) Contracts, §§ 662-665, pp. 739-746 (Witkin).) Other
jurisdictions have held similar releases in various analogous contexts to be
unenforceable under a Tunkl-influenced analysis. (See, e.g., Vodopest v.
MacGregor (1996) 128 Wn.2d 840 [913 P.2d 779, 783] (Vodopest) [invalidating,
under Washington law, a release related to medical research]; Wagenblast, supra,
758 P.2d 968, 971-973 [invalidating, under Washington law, releases related to
interscholastic public high school activities, including athletic teams and
cheerleading].)
E
As the parties observe, no published California case has upheld, or voided,
an agreement purporting to release liability for future gross negligence. Some
decisions have stated, in dictum, that such a release is unenforceable. (Farnham
v. Superior Court (1997) 60 Cal.App.4th 69, 74 [70 Cal. Rptr. 2d 85]
["exemptions from all liability for ... gross negligence ... have been
consistently invalidated"]; Health Net, supra, 113 Cal.App.4th 224, 234
[liability for future gross negligence cannot be released].) Others carefully
have specified that liability for "ordinary" or "simple" negligence generally
may be released (that is, so long as doing so is consistent with Tunkl, supra,
60 Cal.2d 92)--thereby implicitly differentiating gross negligence from the
class of conduct as to which liability generally may be released. 10 Indeed, for
more than three decades, Witkin has asserted that California law categorically
bars the prior release of liability for future gross negligence: "The present
view is that a contract exempting from liability for ordinary negligence is
valid where no public interest is involved ... . [¶] But there can be no
exemption from liability for intentional wrong [or] gross negligence ... ." (1
Witkin, supra, Contracts, § 660, pp. 737-738, italics added; see also 1 Witkin,
Summary of Cal. Law (9th ed. 1987) Contracts, § 631, p. 569 [same]; 1 Witkin,
Summary of Cal. Law (8th ed. 1973) Contracts, § 485, pp. 411-412 [essentially
identical]; 1 Witkin, Summary of Cal. Law (7th ed. 1960) Contracts, § 200, p.
226 ["The Contracts Restatement declares that a person can contract to exempt
himself from liability for ordinary negligence, but not for gross negligence"].)
As defendants observe, however, Witkin does not cite any relevant California
decision in support of that proposition.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -10 See
Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal.App.3d 134, 150
[277 Cal. Rptr. 887] (Buchan) (generally, contracts that " 'seek to exempt one
from liability for simple negligence' " are valid); Madison v. Superior Court
(1988) 203 Cal.App.3d 589, 599 [250 Cal. Rptr. 299] (Madison) (same); Hulsey v.
Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 342 [214 Cal. Rptr. 194] (
Hulsey) (§ 1668 "does not invalidate contracts which seek to except one from
liability for simple negligence" [italics omitted]).
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On the other hand, as defendants and their amici curiae 11 also observe, a
number of cases have upheld agreements insofar as they release liability for
future ordinary negligence in the context of sports and recreation programs, on
the basis that such agreements do not concern necessary services, and hence do
not transcend the realm of purely private matters and implicate the "public
interest" under Tunkl, supra, 60 Cal.2d 92. Our lower courts have upheld
releases of liability concerning ordinary negligence related to gymnasiums and
fitness clubs, 12 auto and motorcycle racing events, 13 ski resorts and ski
equipment, 14 bicycle races, 15 skydiving or flying in "ultra light" aircraft,
16 and various other recreational activities and programs such as horseback
riding, white-water rafting, hypnotism, and scuba diving. 17 Most, but not all,
other jurisdictions have held similarly. 18 In light of these decisions, some
more recent appellate decisions have concluded categorically that private
agreements made "in the recreational sports context" releasing liability for
future ordinary negligence "do not implicate the public interest and therefore
are not void as against public policy." (Benedek, supra, 104 Cal.App.4th at pp.
1356-1357.)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -11 Amici
curiae supporting defendants are: (1) the National Association of Stock Car
Racing, Inc. (NASCAR), and the California Speedway Corporation; (2) Bally Total
Fitness Corporation and 24 Hour Fitness USA, Inc.; (3) the Sierra Club; (4) the
League of California Cities and the California State Association of Counties;
and (5) the International Health, Racquet, and Sportsclub Association and the
California Clubs of Distinction.
12 See Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351 [129 Cal. Rptr.
2d 197] (Benedek); Lund v. Bally's Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733
[93 Cal. Rptr. 2d 169]; Sanchez v. Bally's Total Fitness Corp. (1998) 68
Cal.App.4th 62 [79 Cal. Rptr. 2d 902]; Leon v. Family Fitness Center (#107),
Inc. (1998) 61 Cal.App.4th 1227 [71 Cal. Rptr. 2d 923]; YMCA of Metropolitan Los
Angeles v. Superior Court (1997) 55 Cal.App.4th 22 [63 Cal. Rptr. 2d 612] (YMCA
); Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158 [21 Cal.
Rptr. 2d 245].
13 See Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007
[54 Cal. Rptr. 2d 330] (Allabach); National & Internat. Brotherhood of Street
Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934 [264 Cal. Rptr. 44];
Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606 [246 Cal. Rptr. 310];
Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1 [236 Cal. Rptr.
181]; Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d 119 [225 Cal.
Rptr. 359]; McAtee v. Newhall Land & Farming Co. (1985) 169 Cal.App.3d 1031 [216
Cal. Rptr. 465].
14 See Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253 [128
Cal. Rptr. 2d 885] (Platzer); Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th
354 [114 Cal. Rptr. 2d 265]; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th
1358 [59 Cal. Rptr. 2d 813]; Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608 [55
Cal. Rptr. 2d 818]; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715 [22
Cal. Rptr. 2d 781].
15 See Buchan, supra, 227 Cal.App.3d 134; Bennett v. United States Cycling
Federation (1987) 193 Cal.App.3d 1485 [239 Cal. Rptr. 55]; Okura v. United
States Cycling Federation (1986) 186 Cal.App.3d 1462 [231 Cal. Rptr. 429].
16 See Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748 [29 Cal.
Rptr. 2d 177]; Powers v. Superior Court (1987) 196 Cal.App.3d 318 [242 Cal.
Rptr. 55]; Hulsey, supra, 168 Cal.App.3d 333.
17 See Guido v. Koopman (1991) 1 Cal.App.4th 837 [2 Cal. Rptr. 2d 437]
(horseback riding); Saenz v. Whitewater Voyages, Inc. (1991) 226 Cal.App.3d 758
[276 Cal. Rptr. 672] (Saenz) (white-water rafting); Hohe v. San Diego Unified
Sch. Dist. (1990) 224 Cal.App.3d 1559 [274 Cal. Rptr. 647] (Hohe) (hypnotism
demonstration); Madison, supra, 203 Cal.App.3d 589 (scuba diving).
18 See, e.g., cases cited in Vodopest, supra, 913 P.2d 779, 783-784; Hanks,
supra, 885 A.2d 734, 752-753 and footnote 5 (dis. opn. of Norcott, J.); Arango
and Trueba, Jr., The Sports Chamber: Exculpatory Agreements Under Pressure
(1997) 14 U. Miami Ent. & Sports L.Rev. 1, 10-16 (Arango and Trueba); 57A
American Jurisprudence Second (2004) Negligence, section 65, pages 135-136; but
see cases cited post, part IV.C.2.b.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
III
In the absence of an authoritative discussion in any California opinion
concerning the enforceability of an agreement releasing liability for future
gross negligence, we consider the law of other jurisdictions. We find that the
vast majority of decisions state or hold that such agreements generally are void
on the ground that public policy precludes enforcement of a release that would
shelter aggravated misconduct. (See, e.g., Xu v. Gay (2003) 257 Mich. App. 263
[668 N.W.2d 166, 170] (Xu); Zavras v. Capeway Rovers Motorcycle Club (1997) 44
Mass. App. Ct. 17 [687 N.E.2d 1263, 1265] (Zavras); Wolf v. Ford (1994) 335 Md.
525 [644 A.2d 522, 525]; New Light Co. v. Wells Fargo Alarm Servs. (1994) 247
Neb. 57 [525 N.W.2d 25, 29-31] (New Light); Wheelock v. Sport Kites, Inc. (D.
Hawaii 1993) 839 F. Supp. 730, 736 (Wheelock) [applying Hawaii law]; Boyce v.
West (1993) 71 Wn. App. 657 [862 P.2d 592, 597] (Boyce); Sommer v. Federal
Signal Corp. (N.Y. 1992) 79 N.Y.2d 540 [593 N.E.2d 1365, 1370-1371, 583 N.Y.S.2d
957]; Buckner v. Varner (Tenn.Ct.App. 1990) 793 S.W.2d 939, 941; Wade v. Watson
(N.D.Ga. 1981) 527 F. Supp. 1049, 1051-1052 [applying Ga. law]; Shelby Mut. Ins.
v. Grand Rapids (1967) 6 Mich. App. 95 [148 N.W.2d 260, 262].)
A
The text writers reflect this majority rule. For example, in Champion,
Fundamentals of Sports Law (1990), the author observes: "[I]t is universally
held that a release will not bar a claim for gross negligence. That is true even
though the same exculpatory clause would bar an [action] for simple negligence."
(Id., § 11.2, p. 209, italics added; see also id., § 11.6, p. 215.) Leading
treatises are in accord; indeed, some of them state categorically that any
attempt to release liability for future gross negligence is "void" as against
public policy. 19 Yet other treatise writers and law review authors have offered
similar, albeit slightly moderated characterizations of the law, 20 reflecting
the circumstance that there are at least a handful of cases from a few
jurisdictions that, without discussing the general rule or authorities set forth
above, enforce contracts releasing liability for future gross negligence in the
context of agreements signed by motor vehicle racing participants. 21
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -19 See 6A
Corbin on Contracts (1962) section 1472, pages 596-597 ("It is generally held
that those who are not engaged in public service may properly bargain against
liability for harm caused by their ordinary negligence in performance of a
contractual duty; but such an exemption is always invalid if it applies to harm
wilfully inflicted or caused by gross or wanton negligence" [italics added, fn.
omitted]); 15 Corbin on Contracts (rev. ed. 2003) section 85.18, page 455 ("The
general rule of exculpatory agreements is that a party may agree to exempt
another party from tort liability if that tort liability results from ordinary
negligence. Courts do not enforce agreements to exempt parties from tort
liability if the liability results from that party's own gross negligence,
recklessness, or intentional conduct" [italics added]); 8 Williston on Contracts
(4th ed. 1998) section 19:23, pages 291-292 ("An attempted exemption from
liability for a future intentional tort or crime, or for a future willful or
grossly negligent act is generally held void ..." [italics added, fns.
omitted]); see also Lindahl, 2 Modern Tort Law (2002) section 22:2, page 22-2
(?It is well settled that one may not by contract exculpate himself or herself
from liability for willful and wanton conduct or gross negligence" [italics
added, fns. omitted]); 57A American Jurisprudence Second, supra, Negligence,
section 58, pages 127-128 ("It has been held that a person may not exonerate
himself or herself from liability for intentional torts, for willful or wanton
misconduct, or for gross negligence by the use of exculpatory language; such a
provision is void as against public policy. Thus, to the extent that agreements
purport to grant exemption for liability for willful or grossly negligent acts,
they are wholly void, and an injured party may recover for acts of gross
negligence despite a valid release for negligence" [italics added, fns.
omitted]).
20 For example, see 1A Speiser et al., The American Law of Torts (2003)
section 5:39, pages 540-541 ("The courts are pretty well agreed that by use of
exculpatory language, one may not exonerate himself of liability for intentional
tort, for wilful or wanton misconduct, or for gross negligence"); Connell and
Savage, Releases: Is There Still a Place for Their Use by Colleges and
Universities? (2003) 29 J.C. & U.L. 579, 603 ("Courts generally agree that one
may not exonerate himself or herself from liability for willful or wanton
misconduct, for gross negligence, or for intentional torts, even if there is
broad exculpatory language"); Nelson, The Theory of the Waiver Scale: An
Argument Why Parents Should Be Able to Waive Their Children's Tort Liability
Claims (2002) 36 U.S.F. L.Rev. 535, 552 (Nelson) (regarding purported releases
of liability for gross negligence or recklessness, "courts generally agree that
the heightened public policy interests in dissuading such conduct outweigh the
individual right to contract," and "[m]ost states ... prohibit waivers from
releasing claims for gross negligence or anything else rising above 'garden
variety' negligence"); King, Exculpatory Agreements for Volunteers in Youth
Activities--The Alternative to "Nerf (R)" Tiddlywinks (1992) 53 Ohio St. L.J.
683, 728 (King) ("a majority of courts ... hold that exculpatory agreements are
unenforceable if defendant's conduct constituted gross negligence"); see also
Arango and Trueba, supra, 14 U. Miami Ent. & Sports L.Rev. 1, 13 (noting that
recreational releases attempting to exculpate for gross negligence have been
voided on public policy grounds); Holcomb, The Validity and Effectiveness of
Pre-Injury Releases of Gross Negligence in Texas (1998) 50 Baylor L.Rev. 233,
241; Springer, Releases: An Added Measure of Protection from Liability (1987) 39
Baylor L.Rev. 487, 502-503.
21 See Maness v. Santa Fe Park Enterprises, Inc. (1998) 298 Ill. App. 3d 1014
[700 N.E.2d 194, 196?199, 233 Ill. Dec. 93] (enforcing agreement releasing
liability for "negligence or gross negligence," and declining to recognize a
tort claim for "outrageous misconduct"); Theis v. J & J Racing Promotions
(Fla.Dist.Ct.App. 1990) 571 So.2d 92, 94 (release of liability for "negligence"
"must be construed as intended to encompass all forms of negligence, simple or
gross"); Barnes v. N.H. Karting Assoc. (1986) 128 N.H. 102 [509 A.2d 151, 155]
(enforcing release of liability for "negligence," and declining to "create" a
cause of action for gross negligence); Valeo v. Pocono Intern. Raceway, Inc.
(1985) 347 Pa. Super. 230 [500 A.2d 492, 493] (release for "negligence" also
releases for gross negligence).
Two other decisions, both concerning burglar alarm services, uphold a release
as to gross negligence, but allow suit to proceed on other grounds. (See Tessler
and Son, Inc. v. Sonitrol Sec. Systems (App.Div. 1985) 203 N.J. Super. 477 [497
A.2d 530, 533] (release of liability for "negligence" also released gross
negligence "in the circumstances of this case"; the court allowed the action to
proceed on a theory of "wanton misconduct"--that is, recklessness); L. Luria &
Son, Inc. v. Honeywell, Inc. (Fla.Dist.Ct.App. 1984) 460 So.2d 521 (release of
liability for "negligence" and limitation of damages also releases liability for
gross negligence; court allowed the matter to proceed on a fraud theory).)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
B
The reasoning of the foregoing out-of-state decisions holding that liability
for future gross negligence never can, or generally cannot, be released, is
based upon a public policy analysis that is different from the "public interest"
factors considered under Tunkl, supra, 60 Cal.2d 92. Tunkl's public interest
analysis focuses upon the overall transaction--with special emphasis upon the
importance of the underlying service or program, and the relative bargaining
relationship of the parties--in order to determine whether an agreement
releasing future liability for ordinary negligence is unenforceable. By
contrast, the out-of-state cases cited and alluded to above, declining to
enforce an agreement to release liability for future gross negligence, focus
instead upon the degree or extent of the misconduct at issue, as well as the
"public policy to discourage" (or at least not facilitate) "aggravated wrongs."
(Prosser & Keeton, supra, § 68, p. 484.) Those cases hold, in essence, that an
agreement that would remove a party's obligation to adhere to even a minimal
standard of care, thereby sheltering aggravated misconduct, is unenforceable as
against public policy. (E.g., New Light, supra, 525 N.W.2d 25, 29-31; Zavras,
supra, 687 N.E.2d 1263, 1265; Wheelock, supra, 839 F. Supp. 730, 736.)
IV
Defendants and their supporting amici curiae argue that we should not be
guided by these out-of-state cases and authorities, for three reasons. They
assert that (1) enforcement of agreements releasing liability for future gross
negligence is mandated by section 1668, and a contrary rule would violate both
that statute and the holding in Tunkl, supra, 60 Cal.2d 92; (2) many
out-of-state decisions supporting the proposition that future gross negligence
cannot be released are distinguishable and hence inapt; and (3) considerations
of public policy, properly understood, mandate not the majority rule--generally
voiding releases of liability for future gross negligence--but the opposite,
that is, a rule enforcing releases of liability for future gross negligence.
A
1
Defendants and some of their supporting amici curiae observe that section
1668, which as noted ante, part II.B, bars enforcement of agreements releasing
one from responsibility for his or her "own fraud, or willful injury to the
person or property of another, or violation of law, whether willful or
negligent," does not list gross negligence as one of the types of liability that
may not be released. They contrast section 1668's language with section 2175 of
the Civil Code (also enacted in 1872), which specifies that common carriers may
not enforce releases of liability for future gross negligence. Defendants and
their amici curiae argue that section 1668 thus represents an implied
legislative determination to allow releases of liability for gross negligence,
as long as the release does not affect the public interest under the principles
of Tunkl, supra, 60 Cal.2d 92; and they assert section 1668 precludes courts
from voiding releases on any public policy basis not set forth in that statute.
In this respect we agree with the Court of Appeal below, which observed that
section 1668 "has not been ... interpreted to authorize any and all releases
that are not expressly invalidated." As the lower court also noted, "Tunkl
itself went beyond the language of Civil Code section 1668 to invalidate
releases of liability for negligence under certain circumstances ... ." To be
more explicit: our unanimous decision in Tunkl, supra, 60 Cal.2d 92, did
precisely what defendants and their supporting amici curiae assert is precluded
by section 1668--our decision found a release of liability for future ordinary
negligence void on public policy grounds other than those set forth in section
1668. Indeed, Tunkl sets forth a categorical rule: Any exculpatory clause (even
one releasing liability for future ordinary negligence) is unenforceable if it
relates to a transaction that adequately exhibits at least some of the six
characteristics set forth in that case, and thereby "affects the public
interest." We could not accept the statutory argument advanced by defendants and
their supporting amici curiae, without at the same time fundamentally
undermining and effectively overruling Tunkl--and we decline any implied
invitation to do so. 22 Accordingly, we reject defendants' argument that, by
enacting section 1668 more than 130 years ago, our Legislature established a
policy generally allowing releases of liability for future gross negligence, and
hence a policy precluding this court from adopting, on public policy grounds,
the opposite--and clearly majority--rule.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -22 In this
regard, the analysis proposed in Justice Kennard's concurring and dissenting
opinion, post, appears problematic and internally inconsistent. That opinion
argues, post, in part II, that because section 1668 does not list gross
negligence as a matter that may not be released, a court-made rule embracing the
clear majority approach and generally invalidating releases of liability for
gross negligence usurps the Legislature's authority. Justice Baxter's dissenting
opinion, post, embraces this view as well. But as noted above, Tunkl itself sets
forth a similarly categorical rule: Pursuant to Tunkl, no exculpatory clause
(even one releasing liability for future ordinary negligence) that relates to a
transaction adequately exhibiting at least some of the six characteristics set
forth in that case, and that thereby "affects the public interest" (Tunkl, supra
, 60 Cal.2d 92, 98) is enforceable. Accordingly, if the statutory construction
analysis employed by Justice Kennard's concurring and dissenting opinion were
consistently applied, Tunkl itself would be viewed as a usurpation of
legislative authority. And yet neither of the separate opinions in this case
adopts that view. Indeed, Justice Kennard's concurring and dissenting opinion,
post, in part III, far from questioning Tunkl, embraces and extends it in a
novel manner.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
2
We also reject the similar argument, advanced by defendants and their amici
curiae, that we may not recognize or employ, as a basis for invalidating a
release, any public policy rationale different from that set out in our decision
in Tunkl, supra, 60 Cal.2d 92.
As we have observed ante, at part III.B, the out-of-state decisions and other
authority holding agreements releasing liability for future gross negligence to
be unenforceable are based, not on Tunkl's public interest,
"transaction-focused" analysis, but instead upon a separate and different public
policy rationale focusing upon the degree or extent of the misconduct at issue,
in order to discourage (or at least not facilitate) aggravated wrongs.
Defendants and their amici curiae, however, assert that if a particular
agreement releasing liability for "negligence" is, as the Court of Appeal found
in the present case, enforceable under the Tunkl public interest analysis (an
issue that, as observed ante, at fn. 1, we do not address), then, also pursuant
to Tunkl, such an agreement "can and should be enforced for all
negligence"--that is, ordinary and gross negligence. Justice Baxter, in his
dissenting opinion in this matter, post, embraces the same view.
We did not address in Tunkl whether an agreement purporting to release
liability for future gross negligence could be enforced; we considered only the
circumstances in which a release of liability for the type of negligence at
issue in that case--future ordinary negligence--might be unenforceable. Our
recognition in Tunkl that the concept of "public interest" is dynamic, not
static; our refusal to rigidly ?prescribe its nature"; and our explication of
only a "rough outline" of the type of transaction as to which a release of
liability for ordinary negligence would be unenforceable (Tunkl, supra, 60
Cal.2d at p. 98), all belie the suggestion that we now should read Tunkl as
implicitly foreclosing a different public policy analysis in the context of an
agreement purporting to release liability for future gross negligence.
Certainly, nothing in Tunkl is inconsistent with the public-policy-based
majority rule described above. Nor can Tunkl reasonably be read to stand for the
proposition that, assuming Tunkl's public interest factors do not preclude
enforcement of an agreement releasing liability for future ordinary negligence,
this same agreement also should, or even may, be construed and enforced to
release liability for future gross negligence.
B
Defendants contend that many out-of-state decisions supporting the
proposition that liability for future gross negligence cannot be released arise
in jurisdictions that define this form of negligence not as California does (as
either (1) a failure to exercise even slight care, or (2) an extreme departure
from the ordinary standard of conduct--see ante, pt. II.A), but instead define
that term as conduct tantamount to wanton, reckless, or willful misconduct. 23
Even if some decisions arguably are distinguishable on that basis, however,
significant other out-of-state authority is not so readily distinguishable.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -23 See,
e.g., Xu, supra, 668 N.W.2d 166, 169-170; see generally 57A American
Jurisprudence Second, supra, Negligence, section 59, page 128 (asserting that in
the context of reviewing contractual releases of liability, gross negligence is
viewed as tantamount to recklessness--but citing for that proposition only one
New York decision, Lubell v. Samson Moving & Storage, Inc. (N.Y.App.Div. 2003)
307 A.D.2d 215 [763 N.Y.S.2d 30, 31-32]).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
For example, the State of Washington, which views gross negligence consistent
with the California definition, has long held void and unenforceable any
attempted release of liability for a negligent act that "falls greatly below the
standard established by law for protection of others." (Vodopest, supra, 913
P.2d 779, 783, italics added.) 24 The same approach appears to apply in
Massachusetts, which also long has viewed gross negligence consistent with the
California definition. (See Zavras, supra, 687 N.E.2d 1263, 1265-1266 & fn. 4
[noting general rule that liability for "ordinary" negligence may be released,
but that liability for "gross? negligence--defined as the " 'absence of slight
diligence, or the want of even scant care' "--may not]; see also Sharon v. City
of Newton (2002) 437 Mass. 99 [769 N.E.2d 738, 748, fn. 12] (Sharon) [citing
Zavras with approval].) Similarly, Nebraska, which also long has viewed gross
negligence consistent with the California definition, has refused to permit the
release of liability for such future conduct. (New Light, supra, 525 N.W.2d 25,
30-31 [defendant barred from insulating itself for damages caused by its own
gross negligence, defined as failure to employ even "slight care" in the
performance of its duty].) In other words, it appears that these states--and
Washington in particular, for many decades--have enforced what is effectively
the same rule that defendants and their amici curiae assert should be rejected
as unwarranted and unworkable in California.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -24 See also
Scott v. Pacific West Mt. Resort (1992) 119 Wn.2d 484 [834 P.2d 6, 10] (Scott);
McCutcheon v. United Homes Corp. (1971) 79 Wn.2d 443 [486 P.2d 1093, 1095]
(tracing this rule to the Rest. of Contracts, § 574, com. a., p. 1080, which in
turn defines "gross negligence" as "conduct falling greatly below" "the standard
established by law for the protection of others against unreasonable risk of
harm"); see generally Boyce, supra, 862 P.2d 592, 597, and cases cited (
exculpation agreement releases liability for "ordinary," but not "gross,"
negligence--and leaves the plaintiff free to allege and establish an action for
gross negligence).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
C
Ultimately, defendants and their amici curiae argue that rejection of the
majority rule described above, and adoption of the opposite rule proposed by
them, is mandated by public policy, as they perceive it. They stress the
asserted uncertainty of the gross negligence standard and argue that unless
providers of recreational services and related programs can be assured that
agreements purporting to release liability for future gross negligence will be
enforced, (1) subsequent suits against recreational service providers--private,
public, for-profit, or nonprofit--will not be readily resolvable in favor of
defendants on summary judgment, with the result that unwarranted liability will
be threatened or imposed, and (2) service providers will react by greatly
restricting, or simply declining to afford, such services or programs in
California.
1
We do not agree that adoption of the foregoing majority rule in the setting
of the definition of "gross negligence" employed in this state (failure to
exercise even slight care, or an extreme departure from the ordinary standard of
conduct) would prove unworkable, or that application of such a standard would
frustrate the proper termination of suits on summary judgment or foster untoward
liability. As the parties acknowledge, the same definition long has been
employed in cases applying numerous California statutes that confer limited
immunity for negligence while expressly exempting immunity for "gross
negligence." 25 Despite the concerns of defendants and their amici curiae, in
light of the experience under these statutes it does not appear that the
application of a gross negligence standard, as defined in California, has a
tendency to impair the summary judgment process or confuse juries and lead to
judgments erroneously imposing liability. To the contrary: "These statutes
reflect the sound legislative judgment that, under a gross negligence standard,
meritless suits will typically be disposed of by summary judgment; that when a
case goes to trial the jury, instructed on this standard, will be less likely to
confuse injury with fault; and that verdicts reflecting such confusion will be
more readily reversed, whether by the trial or appellate court, than under an
ordinary negligence standard." (Kahn v. East Side Union High School Dist. (2003)
31 Cal.4th 990, 1020 [4 Cal. Rptr. 3d 103, 75 P.3d 30] (conc. opn. of Werdegar,
J.).) 26 In this respect, we emphasize the importance of maintaining a
distinction between ordinary and gross negligence, and of granting summary
judgment on the basis of that distinction in appropriate circumstances. (See
Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358 [257 Cal. Rptr.
356] ["Generally it is a triable issue of fact whether there has been such a
lack of care as to constitute gross negligence" --"but not always"]; see also,
e.g., Eastburn, supra, 31 Cal.4th 1175, 1185-1186 [trial court properly
precluded amendment of a complaint to allege gross negligence]; DeVito v. State
of California (1988) 202 Cal.App.3d 264, 272 [248 Cal. Rptr. 330] [summarily
concluding that a complaint "alleges no facts showing 'an extreme departure from
the ordinary standard of care' "].)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -25 For
example, see Civil Code section 2175 (granting qualified immunity for common
carriers); Government Code section 831.7, subdivision (b) (qualified immunity of
public entity or employee for hazardous recreational activity on public
property); Civil Code section 1714.2, subdivision (b) (qualified immunity of
person rendering cardiopulmonary resuscitation at emergency scene); Business and
Professions Code section 2727.5 (qualified immunity of registered nurse
rendering care at scene of emergency but outside scope of employment).
26 The Court of Appeal below similarly rejected "the view that gross
negligence lacks clear limits," observing: "The law is filled with difficult
distinctions, yet our juries have managed to fulfill their role in making
factual determinations based on them. There is no reason to believe that a jury
will be unable to distinguish between ordinary and gross negligence, or that
instructing the jury would be more difficult than instructing the jury in a
variety of other circumstances where lines between liability and nonliability
must be drawn with some acumen. (See Pratt v. Western Pac. R. R. Co. (1963) 213
Cal. App. 2d 573, 579-580 [29 Cal. Rptr. 108] [consider[ing] jury instruction
under statute preventing common carrier from releasing liability for gross
negligence].)"
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
2
As defendants observe, some cases and other authorities assert, albeit
without citing any empirical evidence, that upholding agreements releasing
liability for future negligence is necessary in order to ensure the continued
availability of sports recreation and related programs. (E.g., Hohe, supra, 224
Cal.App.3d 1559, 1564; YMCA, supra, 55 Cal.App.4th 22, 27-28.) 27 Defendants and
their amici curiae embrace this broad premise and argue by analogy that the same
principle applies with respect to agreements releasing liability for future
gross negligence.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -27 See
also, e.g., Allabach, supra, 46 Cal.App.4th 1007, 1016 (asserting that, with
regard to properly released negligence claims, " '[d]efense costs are
devastating' " and that " '[u]nless courts are willing to dismiss such actions
without trial, many popular and lawful recreational activities are destined for
extinction' "); see generally Sharon, supra, 769 N.E.2d 738, 747-748; Zivich v.
Mentor Soccer Club (1998) 82 Ohio St. 3d 367, 371-372 [696 N.E.2d 201] (Zivich);
King, supra, 53 Ohio St. L.J. 683, 689 (reporting survey results from 1986 and
asserting that "fear of liability exposure and of litigation in general is
damaging ... efforts at volunteer recruitment"); Judges, Of Rocks and Hard
Places: The Value of Risk Choice (1993) 42 Emory L.J. 1, 29-34 (reporting
anecdotal information from the late 1980's and early 1990's, and limited
empirical evidence revealing that the rock climbing industry and related service
providers are "deeply concerned about the issue of tort law and its impact on
risk choice"); Heidt, The Avid Sportsman and the Scope for Self-Protection: When
Exculpatory Clauses Should Be Enforced (2004) 38 U. Rich. L.Rev. 381, 382
(Heidt) (recounting anecdotal reports of decreased availability of opportunities
in various jurisdictions to use three-meter diving boards, ride mechanized bulls
or horses unaccompanied, or rent power boats for water-skiing); see also Arango
and Trueba, supra, 14 U. Miami Ent. & Sports L.Rev. 1, 30-33 (questioning
whether certain recreation industries can "surviv[e]" unless agreements
releasing liability for future negligence are upheld); Roseman-Orr, Recreational
Activity Liability in Hawaii: Are Waivers Worth the Paper on Which They Are
Written? (1999) 21 U. Haw. L.Rev. 715, 729 and footnote 114 (noting legislative
testimony of charter service provider that lawsuits will " 'end up running our
business out of business' "); Benard, Little League Fun, Big League Liability
(1997) 8 Marq. Sports L.J. 93, 122 (noting the "perception" of the threat of
liability exposure and statements made at congressional hearings supporting the
Volunteer Protection Act of 1997, 42 U.S.C. § 14501 et seq. [which grants
immunity for negligence that causes injury to volunteers, but not for gross
negligence; see id., § 14503(a)(3) ]); but see Popper, A One-term Tort Reform
Tale: Victimizing the Vulnerable (1998) 35 Harv. J. on Legis. 123, 146
(asserting that only anecdotes, and no empirical evidence, were offered to
support the Volunteer Protection Act: "Beyond the rhetoric and natural
inclination to assist charities, virtually no facts were placed before Congress
to justify the deprivation of the entitlement to due care"); Heidt, supra, 38 U.
Rich. L.Rev. 381, 434 ("Given the multitude of explanations for why an activity
disappears--from changing consumer tastes, to the appearance of substitute
activities--no explanation can be put forth with confidence. As others have
emphasized, even industry experts may not be able to distinguish when an
activity is abandoned due to consumer preference from when it is abandoned due
to increased liability"); Nelson, supra, 36 U.S.F. L.Rev. 535, 555 (as of 2002,
"doomsday predictions of runaway liability for recreational sports leagues" have
not been borne out in practice).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Defendants assert that unless recreation service providers dependably can
enforce agreements to release liability for both future ordinary negligence and
future gross negligence, "the inevitable result will be fewer--and more
expensive--programs," and that (quoting Allabach, supra, 46 Cal.App.4th 1007,
1016) ultimately, " ' "many popular and lawful recreational activities are
destined for extinction." ' "
The various amici curiae in support of defendants echo and amplify these
predictions. For example, amici curiae NASCAR and the California Speedway
Association assert that limiting agreements releasing liability to future
ordinary negligence, while not permitting the release of liability for future
gross negligence, ultimately will "deprive [the public] of the ... opportunity
to participate and recreate in many ... cherished [pastimes]," including being
spectators at NASCAR and similar motor vehicle racing events. Likewise, amici
curiae Bally Total Fitness Corporation and 24 Hour Fitness USA, Inc., claim the
appellate decision below, enforcing the release as to negligence but not as to
gross negligence, "[wreaks] havoc on recreational providers," leading them to a
"precipice from which there will be no return." Similarly, the brief of the
International Health, Racquet, and Sportsclub Association and California Clubs
of Distinction twice declares that "the effect of [enforcing a release as to
negligence but not as to gross negligence] cannot be overstated"--and suggests
that unless releases of liability for future gross negligence are enforced,
there will be "far reaching and devastating consequences," rendering commercial
health and racquet clubs "a thing of the past." Amici curiae Sierra Club, League
of California Cities, and California State Association of Counties make similar,
albeit slightly less strident, assertions.
We are sensitive to the policy arguments advanced by defendants and their
amici curiae that caution against rules triggering wholesale elimination of
beneficial recreational programs and services--and we are especially sensitive
to the concerns relating to the continued availability of programs such as the
one here at issue, serving the recreational needs of developmentally disabled
children. But we find no support for such broad predictions in the present
setting.
a
Although, as noted, some cases and authorities assert that upholding releases
of liability for ordinary negligence may help ensure the continuation of sports
recreation and related programs (see ante, at fn. 27), we do not discern in
those cases any discussion of an asserted corresponding need to recognize and
enforce agreements releasing liability for future gross negligence, 28 and
indeed we find little supporting that position even in the law review literature
upon which defendants rely. 29 We also find it significant that, as observed
ante, part IV.B, the States of Washington, Massachusetts, and Nebraska all
effectively bar release of liability for gross negligence, as that term is
defined in California. We would expect that if, based upon the experience of
these sister states, there existed substantial evidence supporting the ominous
forecasts of defendants and their amici curiae concerning the future of
recreational services in California under the same system, defendants and their
amici curiae would highlight that information. And yet, no such information has
been provided to us.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -28 In fact,
some cases have been careful to distinguish between ordinary and gross
negligence in this context. For example, when, in order to help ensure the
continued availability of recreational services, the Supreme Judicial Court of
Massachusetts, in Sharon, supra, 769 N.E.2d 738, enforced agreements by parents
releasing " 'any and all actions, causes of action, [and] claims' " (id., at p.
741) of minor children, the court stressed that its holding "is ... limited to
the claims before us--and those claims concern ordinary negligence." (Id., at p.
748, fn. 12.) The court in Sharon further noted, with apparent approval, that
cases and authorities have held releases "effective against liability for
ordinary negligence" but not for "gross negligence," and the court observed that
the defendant in the case before it "specifically disavows any contention that
the release here would relieve it from liability for gross negligence ... ." (
Ibid.)
29 Defendants cite two law review articles arguing, contrary to the clear
majority rule, that gross negligence and even recklessness should be subject to
exculpation. (See Heidt, supra, 38 U. Rich. L.Rev. 381, 383 [asserting that
courts should enforce such contracts and "routinely dismiss" related suits on
summary judgment "without the need for further discovery of the circumstances
surrounding the injury"]; King, supra, 53 Ohio St. L.J. 683, 728-731
[questioning the "wisdom" of declining to enforce releases for "recklessness or
gross negligence" because, assertedly, "[t]hese concepts lack clear parameters,"
and arguing that, "especially ... in situations involving volunteers, when the
danger of risky behavior motivated by greed is absent," exculpation of liability
for gross negligence should be allowed].)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
b
Indeed, if the premise of defendants and their amici curiae were
correct--that is, if failing to enforce agreements releasing liability for
future gross negligence would imperil the very existence of sports and
recreational industries--we at least would expect to see some analogous evidence
in the experience of those states that prohibit even agreements releasing
liability for future ordinary negligence. Ordinary negligence, after all, occurs
much more commonly than gross negligence, and hence judicial decisions holding
unenforceable any release of liability for ordinary negligence would, under the
theory of defendants and their amici curiae, pose a much greater threat to the
continued availability of recreational sports programs than would a rule holding
unenforceable releases of liability for gross negligence generally. And yet, as
explained below, in numerous contexts concerning recreational sports and related
programs, courts categorically have voided agreements releasing liability for
future ordinary negligence without (so far as we can discern) triggering in any
substantial degree the dramatically negative effects predicted by defendants and
their amici curiae.
Many thousands of contracts that have been entered into, releasing liability
for future ordinary negligence in the context of recreational sports and related
programs, are unenforceable in most states. This is so because, although courts
in California 30 and a few other states 31 have enforced agreements, signed by
parents, releasing liability for future ordinary negligence committed against
minor children in recreational and related settings, that position apparently
represents a minority view. "A clear majority of courts ... have held that a
parent may not release a minor's prospective claim for negligence." (Hawkins ex
rel. Hawkins v. Peart (2001) 2001 UT 94 [37 P.3d 1062, 1065-1066] [voiding
agreement signed on behalf of minor releasing liability for future negligence
concerning horseback riding], and cases and other authorities cited.) 32
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -30 See Hohe
, supra, 224 Cal.App.3d 1559, 1565 (summarily finding enforceable a release
signed by parent on behalf of high school student later injured in a hypnosis
demonstration); Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th
1112, 1120 [75 Cal. Rptr. 2d 801] (enforcing release signed by mother on behalf
of high school cheerleader injured during practice, and asserting: "It is well
established that a parent may execute a release on behalf of his or her child");
see also Platzer, supra, 104 Cal.App.4th 1253 (enforcing skiing-related release
signed by parent on behalf of eight year old; decision assumes without
discussion that a parent may execute a release on behalf of his or her child).
31 Decisions by the high courts of Massachusetts and Ohio, citing policy
considerations, have enforced releases signed by parents on behalf of their
minor children. (See Sharon, supra, 769 N.E.2d 738, 744-748; Zivich, supra, 696
N.E.2d 201, 204-207.) Moreover, a Colorado Supreme Court decision declining to
enforce such releases, Cooper v. Aspen Skiing Co. (Colo. 2002) 48 P.3d 1229,
1232-1237, has been abrogated by state legislation. (Colo. Rev. Stat. (2005) §
13-22-107, subds. (3) & (4) [allowing parents to release minor child's future
claim of ordinary negligence, but not any claim for a "willful and wanton act or
omission, a reckless act or omission, or a grossly negligent act or omission"].)
32 Accord, Hojnowski v. Vans Skate Park (App.Div. 2005) 375 N.J.Super. 568
[868 A.2d 1087, 1096-1101] (Hojnowski), and cases and other authorities cited
(skateboarding); Scott, supra, 834 P.2d 6, 10-12, and cases cited [ski race
lesson]; 67A Corpus Juris Secundum (2002) Parent and Child, sections 275 and
276, pages 381-383; see also Nelson, supra, 36 U.S.F. L.Rev. 535; King, supra,
53 Ohio St. L.J. 683, 714-715, 759 (noting, and recommending legislative
abrogation of, the majority rule).
Plaintiffs and real parties in interest have not raised this issue in the
present wrongful death action, apparently because the agreement in this case
(see ante, fn. 3) clearly was addressed not only to claims by a minor, but as
well to claims by parents. (See Scott, supra, 834 P.2d 6, 12 [even though a
parent's release may not bar a minor's claim, a "conspicuous and clear
exculpatory clause can serve to bar the parents' cause of action based upon
injury to their child"].) The validity of a release signed by a parent, on
behalf of (and binding) his or her child, is not presently before us.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In addition, we observe that Vermont has voided agreements releasing
liability for future ordinary negligence in the context of recreational skiing
and racing; 33 Connecticut has acted similarly concerning "snow tubing" and
horseback riding lessons; 34 West Virginia has voided a release of liability for
ordinary negligence executed by a university student who was injured while
playing "club" rugby; 35 and Washington has voided agreements releasing public
school districts from liability for future ordinary negligence related to
interscholastic athletics. 36 Virginia long has categorically and broadly voided
all preinjury releases, even in the recreational sports context. 37 Perhaps most
significantly, the New York legislature, for three decades, has barred
enforcement of agreements between operators of "gymnasium[s]" and places of
"amusement or recreation, or similar establishment[s]," and their paying members
or customers, purporting to release liability for future negligence by the
operator. (N.Y. Gen. Oblig. Law, § 5-326.) 38 Pursuant to this statute, New York
courts have found releases to be void and unenforceable in the context of suits
for personal injuries caused by ordinary negligence related to automobile racing
at commercial racetracks; 39 skiing and ski lessons at resorts; 40 horseback
riding organized and operated by a business firm or riding stable business; 41
recreational parachuting or skydiving lessons; 42 flag football played in a
league run by a corporation; 43 tennis played at a country club at which the
plaintiff was a member; 44 and riding a "mechanical bull" in a bar. 45
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -33 Dalury,
supra, 670 A.2d 795, 797-799 (barring agreements insofar as they broadly purport
to release liability for future negligence related to course design in the
context of recreational skiing; court declined to "undermine the public policy
underlying business invitee law and allow skiers to bear risks they have no
ability or right to control"); Spencer v. Killington, Ltd. (Vt. 1997) 702 A.2d
35, 37-38 (confirming and extending Dalury in context of amateur ski race); see
also Umali v. Mount Snow Ltd. (D.Vt. 2003) 247 F. Supp. 2d 567, 572-575
(applying Dalury to a professional mountain bike race).
34 Hanks, supra, 885 A.2d 734, 741-748 (following the lead of Dalury, broadly
voiding agreements releasing liability for future negligence related to
commercial "snow tubing"); Reardon v. Windswept Farm, LLC (2006) 280 Conn. 153
[905 A.2d 1156, 1160-1162] (voiding release related to injuries sustained by an
experienced horseback rider when thrown by an excited and bucking horse during a
riding lesson).
35 Kyriazis, supra, 450 S.E.2d 649, 653-655.
36 Wagenblast, supra, 758 P.2d 968, 971-973.
37 Hiett v. Lake Barcroft Community Assoc. (1992) 244 Va. 191 [418 S.E.2d 894,
895-897] (Hiett) (adhering to the rule followed in that state since 1890,
"universally" declining to enforce any preinjury release, and voiding a release
signed by a triathlete later seriously injured in the swimming portion of a
race).
38 That statute, enacted in 1976, provides: "Every covenant, agreement or
understanding in or in connection with, or collateral to, any contract,
membership application, ticket of admission or similar writing, entered into
between the owner or operator of any pool, gymnasium, place of amusement or
recreation, or similar establishment and the user of such facilities, pursuant
to which such owner or operator receives a fee or other compensation for the use
of such facilities, which exempts the said owner or operator from liability for
damages caused by or resulting from the negligence of the owner, operator or
person in charge of such establishment, or their agents, servants or employees,
shall be deemed to be void as against public policy and wholly unenforceable."
(See generally Seaquist & Barken, Use of Exculpatory Clauses Is Subject to Wide
Variety Of Definitions and Circumstances (Mar./Apr. 2002) 74 N.Y.St. B.J. 27, 28
[discussing the evolving case law, some of which is described in the text and
fns., post, as "expand[ing] the consumer protection afforded by the statute"].)
As explained in Beardslee v. Blomberg (N.Y.App.Div. 1979) 70 A.D.2d 732 [416
N.Y.S.2d 855, 857-858] (conc. opns. of Kane & Mikoll, JJ.), the New York statute
was enacted in part to abrogate the New York high court's decision in Ciofalo v.
Vic Tanney Gyms (N.Y. 1961) 10 N.Y.2d 294 [177 N.E.2d 925, 220 N.Y.S.2d 962]. In
that case, a gymnasium member signed a release of liability for negligence by
the gym operator, and later was injured when she slipped and fell while using
the gym's facilities. Affirming summary judgment for the defendant gym, the New
York court upheld the release, finding no "interest of the public therein" and
no reason to void the agreement. (Id., at p. 926.)
39 See Owen v. R.J.S. Safety Equipment, Inc. (N.Y. 1992) 79 N.Y.2d 967 [591
N.E.2d 1184, 582 N.Y.S.2d 998]; Petrie v. Bridgehampton Road Races Corp.
(N.Y.App.Div. 1998) 248 A.D.2d 605 [670 N.Y.S.2d 504]; Gilkeson v. Five Mile
Point Speedway (N.Y.App.Div. 1996) 232 A.D.2d 960 [648 N.Y.S.2d 844]; Miranda v.
Hampton Auto Raceway, Inc. (N.Y.App.Div. 1987) 130 A.D.2d 558 [515 N.Y.S.2d 291]
; Gaskey v. Vollertsen (N.Y.App.Div. 1985) 110 A.D.2d 1066 [488 N.Y.S.2d 922].
40 See Rogowicki v. Troser Management Inc. (N.Y.App.Div. 1995) 212 A.D.2d 1035
[623 N.Y.S.2d 47]; Blanc v. Windham Mountain (N.Y.Sup.Ct. 1982) 115 Misc. 2d 404
[454 N.Y.S.2d 383], affirmed (N.Y.App.Div. 1983) 92 A.D.2d 529 [459 N.Y.S.2d
447].
41 See Applbaum ex rel. Applbaum v. Golden Acres Farm and Ranch (N.D.N.Y.
2004) 333 F. Supp. 2d 31; Filson v. Cold River Trail Rides Inc. (N.Y.App.Div.
1997) 242 A.D.2d 775 [661 N.Y.S.2d 841]; Brancati v. Bar-U-Farm, Inc.
(N.Y.App.Div. 1992) 183 A.D.2d 1027 [583 N.Y.S.2d 660].
42 See Wurzer v. Seneca Sport Parachute Club (N.Y.App.Div. 1978) 66 A.D.2d
1002 [411 N.Y.S.2d 763]; Bacchiocchi v. Ranch Parachute Club, Ltd. (N.Y.App.Div.
2000) 273 A.D.2d 173 [710 N.Y.S.2d 54].
43 See Williams v. City of Albany (N.Y.App.Div. 2000) 271 A.D.2d 855 [706
N.Y.S.2d 240].
44 See Leftow v. Kutsher's Country Club Corp. (N.Y.App.Div. 2000) 270 A.D.2d
233 [705 N.Y.S.2d 380].
45 Meier v. Ma-Do Bars, Inc. (N.Y.App.Div. 1985) 106 A.D.2d 143 [484 N.Y.S.2d
719].
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
We brought the cases from these six states (Connecticut, Utah, Vermont,
Virginia, Washington, and West Virginia) and the New York statute to the
parties' attention and solicited supplemental briefing concerning defendants'
policy argument that enforcing releases of liability for future ordinary
negligence, but not for future gross negligence, would lead to the demise or
substantially diminished availability of recreational services and programs.
Thereafter, pursuant to a request by defendants, we allowed additional
supplemental briefing. The ensuing briefing, however, disclosed no empirical
study suggesting that holdings such as those described above, precluding the
release of liability for future ordinary negligence (or for that matter, similar
holdings under Tunkl, supra, 60 Cal.2d 92), 46 have triggered the predicted
elimination or even widespread substantial reduction of the affected services or
programs. Indeed, defendants forthrightly concede in their supplemental briefs
that they found no empirical support for such assertions.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -46 As
observed ante, part II.D, pursuant to Tunkl, supra, 60 Cal.2d 92, California
courts long have voided agreements releasing liability for future ordinary
negligence in the context of such socially important matters as medical
services, auto repair, banking, and day care--and courts of our sister states
have rendered similar applications of our decision in Tunkl in analogous
contexts.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Defendants caution, however, against any attempt to assess " 'the societal
effects of judicial holdings' " (quoting Choper, Consequences of Supreme Court
Decisions Upholding Individual Constitutional Rights (1984) 83 Mich. L.Rev. 1, 7
), and they suggest that because of legal, economic, social and other
differences between the seven jurisdictions discussed above and California, the
experiences of those states "probably" are not predictive of what might occur in
California if we were to decline to enforce releases of liability for future
gross negligence. Nevertheless, and seemingly in conflict with their own
admonition about attempting to assess the societal effects of judicial holdings,
defendants speculate that the rules employed in the seven jurisdictions
described above, declining to enforce releases of liability for future ordinary
negligence, "may have led or may lead to the diminished availability or even the
demise of recreational services and programs" in those states. Furthermore,
defendants suggest that, even without empirical evidence of any negative effects
in those states, but in light of some law review articles generally predicting
such effects if releases of liability for future ordinary negligence are not
enforced (see ante, fn. 27), we should assume such effects have occurred and
will occur in those jurisdictions, and that such effects also would occur in
California, were we to adopt a rule posing even a comparatively lesser threat to
the continued availability of recreational sports and sports programs--that is,
a rule generally enforcing releases of liability for future ordinary negligence,
but generally declining to enforce releases of liability for future gross
negligence.
We find defendants' arguments unpersuasive. Of course legal, economic,
social, and other differences can make interjurisdictional comparisons inexact.
But that does not mean we should ignore what might be gleaned from the legal
laboratory that is the product of our federal system, under which states may,
and do, undertake different solutions to common problems. 47 The circumstance
that neither defendants nor their supporting amici curiae have found from the
experience of our sister states any substantial empirical evidence supporting
their dire predictions is, we believe, both relevant and telling.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -47 (Cf. New
State Ice Co. v. Liebmann (1932) 285 U.S. 262, 311 [76 L. Ed. 747, 52 S. Ct.
371] (dis. opn. of Brandeis, J.) ["It is one of the happy incidents of the
federal system" that single states may "serve as a laboratory" and undertake
"novel social and economic experiments"].)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Indeed, it appears that the experience of our sister states has not borne out
the predictions of defendants and their supporting amici curiae. In Virginia and
New York, for example--where, as noted above, agreements to release future
liability for ordinary negligence causing personal injury long have been
categorically barred by case law or generally precluded by statute, as construed
by case law--service providers have been subjected to the potential of liability
substantially greater than that facing their counterparts in California and most
other jurisdictions, which (as observed ante, part II.E) generally uphold such
releases. And yet, our research suggests that the predicted demise of
recreational opportunities apparently has not come to pass in Virginia or New
York.
For example, amicus curiae NASCAR's brief predicts the downfall of spectator
auto racing unless agreements releasing liability for future gross negligence
regularly are enforced. According to NASCAR's official Web site, however, of the
31 NASCAR-affiliated major speedways located in the United States and Mexico,
two are, and long have been, located in Virginia, and one is, and long has been,
located in New York. 48 In other words, despite Virginia's and New York's strict
"no release of liability for ordinary negligence" rules, which subject NASCAR to
greater potential liability than the mere "no release of liability for gross
negligence" rule at issue in the present case, NASCAR-sponsored racing appears
not to have disappeared in those states.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -48 See
<http://www.nascar.com/races/tracks/index.html> (as of Jully 16, 2007) (listing
all 31 tracks); <http://www.nascar.com/races/tracks/rir/> (as of July 16, 2007)
(listing all 31 tracks) (Richmond International Raceway, Richmond, Va.);
<http://www.nascar.com/races/tracks/mar/> (as of July 16, 2007) (Martinsville
Speedway, Martinsville, Va.); <http://www.nascar.com/races/tracks/wgi/> (listing
all 31 tracks) (Watkins Glen International, Watkins Glen, N.Y.).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Likewise, amicus curiae Bally Total Fitness Corporation's prediction of
calamity in the health club industry if releases of liability for future gross
negligence are not enforced appears difficult to reconcile with the prevalence
of that corporation's business in those two states. Bally's official Web site
discloses that it operates seven clubs in Virginia, and 36 in New York. 49 Amici
curiae International Health, Racquet, and Sportsclub Association and California
Clubs of Distinction similarly assert that commercial recreational services are
in danger of extinction if releases of liability for future gross negligence are
not enforced. According to the 2002 United States Economic Census (Aug. 2005),
which reports on, among other things, each state's "fitness and recreational
sports center[s]" (including health, fitness, swimming, racquet, and handball
clubs, as well as roller skating and ice-skating rinks), in 2002 there were more
than 750 such business locations in Virginia, and more than 1,800 in New York.
50 Again, despite the strict Virginia and New York rules, which subject
recreational service providers to far greater potential liability than the mere
"no release of liability for gross negligence" rule at issue in the present
case, it does not appear that commercial and organized recreational clubs have
become "a thing of the past" in those states. 51
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -49 See
<http://bally.know-where.com/BallyFitness2/> (as of July 16, 2007), entries for
Virginia and New York.
50 See United States Census Bureau (2002) Business and Government, Economic
Fact Sheet, entries for Virginia and New York
<http://factfinder.census.gov/home/saff/main.html> (as of July 16, 2007).
51 The same appears to be true concerning nonprofit sporting events. For
example, as plaintiffs observe, 14 years after the Virginia Supreme Court in
Hiett, supra, 418 S.E.2d 894, voided an agreement releasing liability for future
ordinary negligence relating to participation in a triathlon, at least 60
triathlons, biathlons, and duathlons were held in Virginia in 2006, and at least
that many have been scheduled for 2007. (See <http://www.trifind.com/va.html>
[as of July 16, 2007].)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Nor are we aware of any empirical evidence to suggest, as defendants
postulate, that a holding declining to enforce an agreement purporting to
release liability for future gross negligence would jeopardize programs, such as
the one here at issue, that provide recreational opportunities for
developmentally disabled children--and indeed, initial research casts doubt upon
such predictions. 52
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -52 At our
request, our court's reference librarians conducted a search for presently
operating camps or programs similar to the one at issue in this case (that is,
programs offering recreational activities for developmentally disabled children)
in four states: California, Utah, Virginia, and Washington. As observed above,
pursuant to case law in the latter three states, no release--even one purporting
to release liability only for future ordinary, and not gross, negligence--would
be enforceable in the context of a recreational camp or program for
developmentally disabled children. If, as postulated, the unenforceability of
releases for gross negligence would be expected to trigger limitation or
curtailment of such camps or programs, we would expect to see such a result all
the more in those jurisdictions that refuse to enforce even releases of
liability for ordinary negligence. And yet initial information collected
suggests no such result, even in jurisdictions that refuse to enforce releases
of liability for ordinary negligence: Our reference staff identified 92 such
camps or programs presently operating in California, six in Utah, 21 in
Virginia, and 16 in Washington. Based upon 2000 and 2006 United States census
figures, it is possible to estimate, for each state, the number of persons ages
five to 15 years who have a mental disability. (U.S. Census Bureau (2003)
Disability Status: 2000 <http://www.census.gov/prod/2003pubs/c2kbr-17.pdf;> [as
of July 16, 2007]; U.S. Census Bur., State & County QuickFacts
<http://quickfacts.census.gov/qfd/states/> [as of July 16, 2007].) From that, it
appears that in each state, such camps or programs are provided at a very
similar camp-to-population ratio: The ratio for California is one camp or
program per approximately 18,000 persons who have a mental disability;
approximate figures for the other states are: Utah, one per 19,500; Washington,
one per 18,000; and Virginia, one per 16,500. Although of course we do not view
this empirical information as dispositive, we note that it fails to provide any
support for the assertions articulated by defendants or their supporting amici
curiae, or the concerns expressed by Justice Baxter, in his dissenting opinion,
post, that finding the release in this case unenforceable as to gross negligence
would be likely to cause programs such as the one here to be severely limited or
cancelled.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
We reject the arguments of defendants and their amici curiae that
considerations of public policy mandate the adoption of a rule under which
agreements releasing liability for future gross negligence always, or even
generally, would be enforced.
V
(5) As then-Justice Traynor observed in Donnelly, supra, 18 Cal.2d 863, the
distinction between "ordinary and gross negligence" reflects "a rule of policy"
that harsher legal consequences should flow when negligence is aggravated
instead of merely ordinary. (Id., at p. 871; accord, e.g., Colich, supra, 198
Cal.App.3d 1225, 1240.)
(6) For the reasons discussed above--that is, adherence to the "public policy
to discourage," or at least not facilitate, "aggravated wrongs" (Prosser &
Keeton, supra, § 68, p. 484)--and consistent with Donnelly, supra, 18 Cal.2d 863
, and the Court of Appeal below, as well as the vast majority of other
jurisdictions, we conclude that public policy generally precludes enforcement of
an agreement that would remove an obligation to adhere to even a minimal
standard of care. 53 Applying that general rule here, we hold that an agreement
purporting to release liability for future gross negligence committed against a
developmentally disabled child who participates in a recreational camp designed
for the needs of such children violates public policy and is unenforceable. 54
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -53 Accord,
Tunkl, supra, 60 Cal.2d at pages 101 and 104 (quoted ante, fns. 8 & 9). It is
well established that our courts, like those of other states, may, in
appropriate circumstances, void contracts on the basis of public policy. Of
course "[t]he determination of public policy of states resides, first, with the
people as expressed in their Constitution and, second, with the representatives
of the people--the state Legislature." (Jensen v. Traders & General Ins. Co.
(1959) 52 Cal.2d 786, 794 [345 P.2d 1].) As we explained in Jensen, " 'unless it
is entirely plain that a contract is violative of sound public policy, a court
will never so declare. "The power of the courts to declare a contract void for
being in contravention of sound public policy is a very delicate and undefined
power, and ... should be exercised only in cases free from doubt." ' " (Id., at
p. 794; see also, e.g., Maryland C. Co. v. Fidelity etc. Co. (1925) 71 Cal.App.
492, 497 [236 P. 210] [in appropriate circumstances "courts, following the
spirit and genius of the law ... of a state, may declare void as against public
policy contracts which, though not in terms specifically forbidden by
legislation, are clearly injurious to the interests of society"]; Tunstall v.
Wells (2006) 144 Cal.App.4th 554, 564 [50 Cal. Rptr. 3d 468] [reiterating and
applying Maryland Casualty Co., in concluding that a will's no contest clause
did not violate public policy] and cases cited; 14 Cal.Jur.3d (1999) Contracts,
§ 136, pp. 425-427.)
54 Justice Kennard's concurring and dissenting opinion, post, reaches the same
result under what appears to be a novel modified version of the six-part Tunkl
analysis. No other court of which we are aware has followed that suggested
course. As observed above, the majority rule that we embrace today does not rely
upon the Tunkl factors, but instead simply holds that an agreement purporting to
relieve an actor of liability for aggravated misconduct generally is
unenforceable as being against public policy. We adopt the rule followed by the
overwhelming majority of jurisdictions, together with its public-policy-based
rationale.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The Legislature, which already has enacted numerous statutes designed to
protect from unfair liability various participants in and sponsors of socially
useful enterprises (see ante, fn. 25), is of course free to enact additional
legislation limiting, as necessary, the liability of specific recreational
service providers. 55 If those who provide such programs or other recreational
sports services believe the viability of their particular industry rests upon
the ability to secure valid releases of liability for future gross
negligence--that is, exoneration for the providers' failure to employ even
"slight care," or for an "extreme departure" from the ordinary standard of
conduct--the proper forum in which to present that policy argument, and to seek
that broad protection, is the Legislature.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -55 See, for
example, Hojnowski, supra, 868 A.2d 1087, in which the New Jersey appellate
court, adhering to the majority rule, declined to enforce a skateboard park's
release of liability for negligence, signed by a parent on behalf of a minor.
The court, citing statutes designed to protect various specific types of sports
programs (such as skiing, tobogganing, sledding, roller skating, and equestrian
activities), observed that if skateboard parks "will be faced with economic
extinction as the result of this decision, then the Legislature can be apprised
of that fact and can act, as it has to protect other industries that it deemed
to be both important and threatened." (Id., at pp. 1099-1100.) (See generally
McCaskey & Biedzynski, A Guide to the Legal Liability of Coaches for a Sports
Participant's Injuries (1996) 6 Seton Hall J. Sport L. 7, 62-63 [citing various
state statutes granting immunity to coaches for negligence, but not for gross
negligence or recklessness]; Arango & Trueba, supra, 14 U. Miami Ent. & Sports
L.Rev. 1, 31-32 [noting qualified immunity provisions enacted in some states
concerning various recreational sports and programs].)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
VI
Defendants and some of their supporting amici curiae assert that by declining
to enforce the release at issue in this case against a possible claim for gross
negligence, we would be (1) recognizing a legal distinction between ordinary
negligence and more aggravated misconduct, and thus (2) in essence recognizing,
in these circumstances, the possibility of a "cause of action" for gross
negligence. 56 They assert we may not properly do either. As explained, we
reject defendants' objections.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -56 Whether
sufficient facts exist in this case to allow the matter to proceed to trial on a
theory of gross negligence is a separate question. As observed post, at footnote
61, the Court of Appeal concluded that there is sufficient evidence, but we do
not address that determination.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
A
Defendants claim our courts "may not distinguish ordinary from gross
negligence absent express legislative authorization." In support of this
proposition, they cite the Legislature's 1874 repeal of statutes recognizing and
defining "slight," "ordinary," and "gross" negligence. (See Walther v. Southern
Pacific Co. (1911) 159 Cal. 769, 775 [116 P. 51].) Amicus curiae NASCAR echoes
this view, asserting that, with respect to gross negligence and ?other grades"
of misconduct such as recklessness and willful misconduct, California "courts
have uniformly agreed that none of [those classifications], in the absence of
specific statutory creation, are to be treated differently [from] 'ordinary'
negligence" and that "there is no legal distinction" between the concepts of
ordinary negligence, gross negligence, and recklessness "in the absence of a
statute."
This assertion inaccurately characterizes the law. For example--and despite
the absence of any statutory authorization for the distinction--we long have
adhered to the common law rule that a contract may be reformed due to mutual
mistake based upon "ordinary negligence," but not when the mistake is based upon
"gross negligence." (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 529 [117 Cal.
Rptr. 2d 220, 41 P.3d 46]; see also Van Meter v. Bent Construction Co. (1956) 46
Cal.2d 588, 594-595 [297 P.2d 644] [allowing reformation upon a showing of gross
negligence].)
Similarly, prior to abandonment of the common law doctrine of contributory
negligence in favor of comparative fault in Li v. Yellow Cab Co. (1975) 13
Cal.3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226] (Li)--and despite the absence of
any statutory authorization for making the distinction--recklessness by a
tortfeasor long was recognized by California courts in order to ameliorate the
harsh effects to a plaintiff of the contributory negligence bar. (See, e.g., 4
Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 668, pp. 2974-2976, and
cases cited.) Now, in the post-Li context, the common law doctrine of assumption
of risk continues to disprove the thesis that absent statutory authority, the
courts are precluded from drawing legal distinctions between ordinary negligence
and more aggravated categories of misconduct. The primary-assumption-of-risk
doctrine involves injury-causing conduct by a defendant who, because of the
setting and the relationship of the parties, owes no legal duty to protect a
plaintiff against ordinary negligence. (Knight v. Jewett (1992) 3 Cal.4th 296
[11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight).) 57 In the context of active sports
coparticipants, for example, this means that a defendant generally has no duty
to eliminate, or protect a plaintiff against, risks inherent in a sport--that
is, against ordinary careless conduct considered to be part of the sport. (Id.,
at pp. 315-316.) And yet, Knight holds, such a defendant nevertheless may be
liable for conduct "so reckless as to be totally outside the range of the
ordinary activity." (Id., at pp. 320-321, italics added.)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -57 Our
decision in Knight explains that an express agreement releasing future liability
for negligence, such as we consider in the present case, similarly can "be
viewed as analogous to primary assumption of risk." (Knight, supra, 3 Cal.4th at
pp. 308-309, fn. 4.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
As shown, pursuant to our common law contract reformation case law and the
assumption-of-risk doctrine, and despite the absence of statutory authorization,
California case law clearly distinguishes between the concepts of ordinary
negligence and other, aggravated forms of misconduct such as gross negligence
and recklessness.
B
Defendants and various supporting amici curiae also assert that California
does not recognize any cause of action for "gross negligence" unless such an
action is directly, or at least implicitly, authorized by one of the numerous
statutes that employ gross negligence as the applicable standard. (See, e.g.,
statutes cited ante, fn. 25.) Defendants and their amici curiae rely upon
Continental Ins. Co. v. American Protection Industries (1987) 197 Cal.App.3d 322
[242 Cal. Rptr. 784] (Continental).
We do not view our holding--that an agreement purporting to release liability
for future gross negligence committed against a developmentally disabled child
who participates in a recreational camp designed for the needs of such children
violates public policy and is unenforceable--as recognizing a cause of action
for gross negligence. 58 In any event, as explained below, the decision in
Continental does not assist defendants.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -58 Our
holding simply imposes a limitation on the defense that is provided by a
release. A plaintiff is not required to anticipate such a defense (see 4 Witkin,
Cal. Procedure (4th ed. 1997) Pleading, § 381, p. 481); instead, the defendant
bears the burden of raising the defense and establishing the validity of a
release as applied to the case at hand. (See Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2006) ¶ 6.436, p. 6-115.) In the
present case, defendants' inability to establish the validity of the release as
it relates to gross negligence means that, in any subsequent jury trial,
defendants would not be entitled to instructions absolving them of liability for
damages resulting from gross negligence. But this, we believe, is different from
recognizing a separate cause of action for gross negligence.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Continental, supra, 197 Cal.App.3d 322, did not concern a release of future
tort liability, but instead a liquidated damages provision of a contract for
burglar alarm services. The provision limited damages for " 'negligence' " to $
250 (id., at p. 328, fn. 4), and the plaintiff, an insurer, sought
unsuccessfully to avoid that clause by amending its complaint to allege not
ordinary negligence, but gross negligence. In affirming the trial court's order
refusing to recognize the plaintiff's cause of action, the appellate court noted
that numerous California decisions had discussed and applied the doctrine of
gross negligence in the context of various statutory provisions establishing
that specific level of negligence as the operative standard in particular
situations (id., at p. 329, fn. 5). The appellate court in Continental also
quoted Prosser and Keeton's comments concerning the " 'difficulty of drawing
satisfactory lines of demarcation' " relating to degrees of negligence, and the
ensuing elimination of the distinction between ordinary and gross negligence " '
in most situations.' " (Id., at p. 330, fn. 7, quoting Prosser & Keeton, supra,
§ 34, p. 211, italics added.) The court then observed that after the decision in
Li, supra, 13 Cal.3d 804, which as noted abandoned the all-or-nothing common law
doctrine of contributory negligence in favor of comparative fault, "the need for
categorization of misconduct into degrees has been radically diminished." (
Continental, supra, 197 Cal.App.3d at p. 330, italics added.) From this, the
court in Continental jumped to the broad conclusion that "any attempt to
categorize gross negligence separately from ordinary negligence is unnecessary"
(ibid., italics added)--and it determined that the trial court properly had
declined to allow the plaintiff to amend its complaint to allege gross
negligence. (Ibid.) Subsequently, two decisions have, in offhand dictum, cited
Continental as standing for the general proposition that "California does not
recognize a distinct cause of action for 'gross negligence' independent of a
statutory basis." (Saenz, supra, 226 Cal.App.3d 758, 766, fn. 9.) 59
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -59 See also
Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 108, footnote 5 [243 Cal.
Rptr. 536], disapproved on other grounds in Knight, supra, 3 Cal.4th 296,
306-309.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
We need not address here the question whether the court in Continental
reached the correct decision in the context of the liquidated damages provision
before it. 60 We conclude, however, that the decision in Continental is
distinguishable in the context of the release at issue in the present case. It
is true that, after Li, in the context of comparative fault analysis, there
typically is no need to distinguish gross negligence from ordinary negligence,
because we now permit fact finders to compare the respective fault of the
parties, regardless of the degree of negligence of each. (Sorensen v. Allred
(1980) 112 Cal.App.3d 717, 725-726 [169 Cal. Rptr. 441] [allowing comparison of
negligent and "willful and wanton" (reckless) conduct].) It also is generally
true that, with the advent of comparative fault, the need to categorize
misconduct into degrees has been "diminished." (Continental, supra, 197
Cal.App.3d 322, 330.) But as acknowledged by the court in Continental, Li's
adoption of comparative fault obviated the need for the distinction only in
"most" situations--not in all. (Id. at p. 330, fn. 7; accord, Bielski v. Schulze
(1962) 16 Wis. 2d 1 [114 N.W.2d 105, 114] [observing that the adoption of
comparative fault, and the abrogation of gross negligence as a general matter,
nevertheless may require that the law continue to recognize gross negligence in
the context of "anticipatory releases and exculpatory clauses"].)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -60 But see
the decision filed two years after Continental in Liberty Furniture v. Sonitrol
(1989) 53 Wn. App. 879 [770 P.2d 1086, 1087-1088] (essentially identical clause
in burglar alarm contract limiting liquidated damages to $ 250 did not preclude
an action based upon gross negligence).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Again, reference to Knight, supra, 3 Cal.4th 296, is illustrative. As noted
above, in the context of primary assumption of risk (that is, liability of
active sports coparticipants for injuries arising from the normal conduct of the
sport), the absence of a duty to protect against ordinary negligence does not
absolve a defendant from liability based upon reckless conduct. Similarly, in
the present situation, it cannot be said that a legal distinction between
ordinary negligence and gross negligence is "unnecessary"--indeed, a theory of
gross negligence, if supported by evidence showing the existence of a triable
issue, is the only negligence-based theory that is potentially open to
plaintiffs.61
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -61 The
Court of Appeal determined that the record supports the conclusion that there
exists a material triable issue regarding gross negligence. We did not grant
review of that issue and thus do not address it here.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
VII
The judgment of the Court of Appeal is affirmed.
Werdegar, J., Chin, J., and Corrigan, J., concurred.
CONCUR BY: Kennard
DISSENT BY: Kennard; Baxter
DISSENT
KENNARD, J., Concurring and Dissenting.--I agree with the majority that the
contractual release of liability at issue in this case is unenforceable as to
gross negligence, but I reach that conclusion for reasons that differ from the
majority's. The majority relies largely on decisions from other jurisdictions to
support a conclusion that releases for gross negligence are inherently and
generally against public policy and unenforceable, but that conclusion cannot be
reconciled with Civil Code sections 1668 and 2175, as I will explain. In my
view, a contractual release of liability for gross negligence, like a
contractual release of liability for ordinary negligence, must be examined in
its specific context to determine whether it is against public policy. In
performing that contextual public policy analysis, I rely on the factors that
this court identified in Tunkl v. Regents of University of California (1963) 60
Cal.2d 92 [32 Cal. Rptr. 33, 383 P.2d 441] (Tunkl).
I
The City of Santa Barbara (the City) runs a summer camp, called Adventure
Camp, for children with developmental disabilities. Katie Janeway, who suffered
from epilepsy, mild cerebral palsy, and other disabilities, started going to the
camp in 1999, and she returned every summer until her death in 2002 at the age
of 14. The City's application form for the camp required the child's parents to
release the City and its employees from all liability for any loss or damage on
account of injury "whether caused by any negligent act or omission of the
releasees or otherwise." Katie's mother signed the year 2002 application form
containing the release provision.
Katie's mother told the City's employees that Katie had seizures and needed
supervision while swimming. The City assigned camp counselor Veronica Malong, a
college student, to supervise Katie during swimming activities. About an hour
before she drowned, Katie had a mild seizure. Malong waited until Katie appeared
to be fully recovered before allowing her to swim. There were about 300 children
in and around the large, Olympic-size swimming pool, which was staffed with five
lifeguards. Katie wanted to use the diving board. That area of the pool was
roped off so only one child would be in the water at a time. Katie dove once
without problem. After a 10-minute rest, Katie dove a second time. Malong saw
her come to the surface and begin swimming toward the side of the pool. Malong
then looked away for no more than 15 seconds, and when she looked back she could
not see Katie. Malong immediately walked to the deep end of the pool to look for
Katie and asked another counselor who was swimming toward the diving board if he
had seen Katie. Malong then got into the pool and swam to the shallow end and
then back to the middle of the pool, searching for Katie. The lifeguard assigned
to watch the diving area finally saw Katie on the bottom of the pool, where she
had been for about five minutes. She was taken to a hospital and died the next
day.
Katie's parents sued the City and Malong for wrongful death, alleging
negligence. Defendants moved for summary judgment, relying on the contractual
release in the application form. The trial court denied the motion, and
defendants petitioned the Court of Appeal for a writ of mandate to reverse that
ruling. Denying the petition, the Court of Appeal concluded that under Tunkl,
supra, 60 Cal.2d 92, the release was valid and enforceable as to any claim for
ordinary negligence, but it also concluded, over the dissent of one justice,
that the release was unenforceable as to a claim for gross negligence.
This court granted review on a single issue, the enforceability of the
release as to a claim for gross negligence.
II
Civil Code section 1668, which has remained unchanged since its enactment in
1872 as part of the original Civil Code, prohibits contractual releases of
liability for "fraud, or willful injury to the person or property of another, or
violation of law, whether willful or negligent." Also unchanged since its
enactment in 1872 is Civil Code section 2175, which provides: "A common carrier
cannot be exonerated, by any agreement made in anticipation thereof, from
liability for the gross negligence, fraud, or willful wrong of himself or his
servants." (Italics added.) The wording of Civil Code section 2175 shows that in
1872 the Legislature was well aware of gross negligence as a distinct category
of wrong and that it chose to bar any agreement releasing a common carrier from
liability for gross negligence. At the very same time, however, the Legislature
omitted gross negligence from Civil Code section 1668's list of wrongful conduct
that could never be the subject of a contractual release of liability.
Only one inference may be drawn: The Legislature made a conscious decision
that releases for gross negligence--unlike releases for fraud, for willful
injury to person or property, and for intentional or negligent violation of
statutory law--are not inherently against the public interest and therefore are
not generally and categorically unenforceable. In holding that contractual
releases of liability for future gross negligence are generally unenforceable
(maj. opn., ante, at p. ___), the majority rejects the Legislature's contrary
decision, effectively rewrites Civil Code section 1668 to insert what the
Legislature deliberately omitted (a general prohibition on contractual releases
of liability for future gross negligence), and in so doing usurps the
Legislature's authority. I do not join in that holding.
III
Of course, the Legislature's decision, as embodied in the text of Civil Code
sections 1668 and 2175, that contractual releases for future gross negligence
are not inherently against the public interest and therefore are not generally
unenforceable, does not mean that such releases are always consistent with the
public interest and therefore enforceable. Instead, the validity of a
contractual release for future gross negligence must be determined by examining
the context in which it occurs. Civil Code section 2175 identifies one context
in which releases for future gross negligence are against the public interest
and thus invalid--when the party seeking exoneration is a common carrier. Civil
Code section 1668 does not preclude courts from determining that releases for
gross negligence are against the public interest and invalid in other situations
as well.
To determine whether the release at issue here is against the public interest
and invalid as applied to gross negligence, I find guidance in this court's
decision in Tunkl, supra, 60 Cal.2d 92. There, this court adopted an analysis to
be used in determining whether a contractual release of future negligence claims
is against the public interest and therefore unenforceable. We identified six
factors or characteristics that "constitute the public interest" and thus
provide "a rough outline of that type of transaction in which exculpatory
provisions will be held invalid." (Id. at p. 98.) For an exculpatory provision
to be held invalid, the transaction to which it relates need only exhibit some
of those characteristics. (Id. at p. 101.) Although this court has never
addressed the issue, it seems logical that, because gross negligence is a more
aggravated form of misconduct than ordinary negligence, the public interest in
deterring gross negligence is greater than the public interest in deterring
ordinary negligence. Accordingly, to invalidate a release as to future gross
negligence, the public interest showing under the Tunkl analysis need not be as
strong or as complete as it would need to be to invalidate a release as to
future ordinary negligence.
Under Tunkl, the first characteristic is that the release "concerns a
business of a type generally thought suitable for public regulation." (Tunkl,
supra, 60 Cal.2d at p. 98, fn. omitted.) Child daycare facilities are subject to
public regulation under the California Child Day Care Facilities Act (Health &
Saf. Code, § 1596.70 et seq.). Although Adventure Camp is exempt from regulation
as a child daycare facility because it is operated for less than 12 weeks in a
12-month period during a time when local public schools are not in session (id.,
§ 1596.792, subd. (g)(1)), the City cannot deny that through the camp program it
does indeed provide childcare services in the course of providing social and
recreational activities for young children who are unaccompanied by their
parents. 1 Accordingly, I conclude that at least insofar as it provides
childcare services, the City's Adventure Camp is engaged in a type of business
that is suitable for public regulation.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 The City
allows parents to accompany their children to camp, but it does not require that
they do so. The analysis here is limited to children not accompanied by parents.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The second characteristic under Tunkl is that "[t]he party seeking
exculpation" (here, the City) "is engaged in performing a service of great
importance to the public, which is often a matter of practical necessity for
some members of the public." (Tunkl, supra, 60 Cal.2d at pp. 98-99, fns.
omitted.) Affording opportunities for developmentally disabled children to
participate in ordinary recreational activities with other children is a service
of great public importance. The Legislature has declared that "developmental
disabilities present social, medical, economic, and legal problems of extreme
importance" that have "an important impact on ... whole communities" (Welf. &
Inst. Code, § 4501, italics added), that "[t]he State of California accepts a
responsibility for persons with developmental disabilities" (ibid.), and that
those persons have rights both "to social interaction and participation in
community activities" and "to physical exercise and recreational opportunities"
(id., § 4502, subds. (f), (g)). Moreover, as I have explained, the City's
program includes childcare services, and childcare itself has vital public
importance. (Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th
662, 672 [131 Cal. Rptr. 2d 168].) Thus, I conclude that, through its
recreational program for developmentally disabled children, the City provides
services that are of great public importance.
In modern urban society, where both parents often hold full-time employment,
many parents lack the time and resources to personally supply a full range of
recreational and social opportunities for their children and instead rely on
recreational camps and similar organized programs. This is particularly true for
parents of children with developmental disabilities, because of the particular
skills and adaptations required in dealing with those disabilities. Thus,
recreational programs like Adventure Camp that are designed for developmentally
disabled children are a "practical necessity" for parents seeking to provide a
full range of ordinary recreational and social opportunities for those children.
I conclude that through Adventure Camp the City provides services that are a
practical necessity for many parents of developmentally disabled children.
The third Tunkl factor is whether "[t]he party holds himself out as willing
to perform this service for any member of the public who seeks it, or at least
for any member coming within certain established standards." (Tunkl, supra, 60
Cal.2d at p. 99, fn. omitted, italics added.) Here, although the City's
Adventure Camp was limited to 20 participants at a time, the City made it
available to any child between the ages of seven and 14 with a qualifying
developmental disability. This circumstance is present.
The fourth Tunkl factor is whether "the party invoking exculpation possesses
a decisive advantage of bargaining strength against any member of the public who
seeks [those] services." (Tunkl, supra, 60 Cal.2d at p. 100, fn. omitted.) This
factor is satisfied. Adventure Camp was limited to 20 children at a time, and
those spots were always taken. Although the City allowed parents to choose which
activities their children would participate in during camp sessions, the City
alone determined the conditions for admission to Adventure Camp. Nothing in the
record suggests that any parent ever bargained, or could have bargained, with
the City concerning the terms of admission to the program.
The fifth Tunkl factor is whether the party seeking exculpation used "a
standardized adhesion contract of exculpation" and did not offer the other party
an option to "pay additional reasonable fees and obtain protection against
negligence." (Tunkl, supra, 60 Cal.2d at pp. 100-101, fns. omitted.) Here, it is
undisputed that the City's terms of participation, including the release, were
offered to parents on a take-it-or-leave-it basis, with no opportunity to obtain
protection against gross negligence for an additional fee.
The sixth Tunkl factor is whether "as a result of the transaction, the person
or property of the purchaser is placed under the control of the seller, subject
to the risk of carelessness by the seller or his agents." (Tunkl, supra, 60
Cal.2d at p. 101, fn. omitted.) Here, as a result of the transaction in which
Katie's parents enrolled her in the City's Adventure Camp, Katie was placed
under the care and supervision of the City's employees, subject to a significant
risk of serious injury if they acted with gross negligence.
I conclude that each of the Tunkl factors is satisfied, at least to some
extent, and that the characteristics of the particular transaction make the
City's contractual release against public policy and unenforceable as to
liability for injury caused by gross negligence. 2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2 I neither
express nor imply any view concerning any other issue. In particular, I do not
address whether the release is enforceable as to ordinary negligence or whether
the evidence presented on the motion for summary judgment would be sufficient to
establish gross negligence by either defendant.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
IV
The City's Adventure Camp provides recreational and social activities to
children with developmental disabilities. Because of the strong public interest
in providing children with disabilities with opportunities for ordinary
recreational activities and social interactions, it is essential that providers
of those opportunities be held to at least a minimal standard of care. Applying
a slight variation of the analysis that this court adopted in Tunkl, supra, 60
Cal.2d 92, I conclude that releases for gross negligence are not enforceable in
this particular context. On this basis, I join the majority in affirming the
Court of Appeal's judgment.
Moreno, J., concurred.
BAXTER, J., Dissenting.--In this matter we must determine whether a commonly
worded release of future liability for negligence utilized by a public entity in
connection with a publicly funded and publicly operated summer recreational
program for developmentally disabled youth is enforceable under Civil Code
section 1668 (section 1668), the statute defining the lawful parameters of
releases in California. I conclude the Legislature has spoken; a full release of
negligence liability, as was expressly agreed to by the parties below, is
generally valid and enforceable under section 1668.
The majority, in contrast, concludes that all releases of future liability
for gross negligence, whether express or implied, are generally unenforceable in
California as contrary to the public policy of this state, and that the specific
release of future negligence liability utilized by the city in this case, to the
extent it implicitly encompasses gross negligence, "violates public policy and
is unenforceable." (Maj. opn., ante, at p. ___.) The majority does not find
section 1668 of much consequence in this matter, a position it must take because
its conclusions and holding are based on policy determinations not discernable
from the controlling statutory language.
I cannot join in the majority's sweeping holding. As this court long ago
observed, "[t]he determination of public policy of states resides, first, with
the people as expressed in their Constitution and, second, with the
representatives of the people--the state Legislature." (Jensen v. Traders &
General Ins. Co. (1959) 52 Cal.2d 786, 794 [345 P.2d 1].) " '[U]nless it is
entirely plain that a contract is violative of sound public policy, a court will
never so declare. "The power of the courts to declare a contract void for being
in contravention of sound public policy is a very delicate and undefined power,
and ... should be exercised only in cases free from doubt." ' " (Ibid.)
The Legislature, not this court, is in the best position to consider the
public interests and determine whether good cause exists to amend section 1668
to uncategorically restrict releases of future tort liability to the extent they
impliedly encompass a release of gross negligence liability. As regards the
release utilized in connection with the public recreational services program for
developmentally disabled youth directly in issue, although I acknowledge the
general concern that grossly negligent misconduct not go unpunished, the public
interests at stake here are far more complex than that one consideration alone.
Whether it is in the public interest to restrict the means by which
municipalities providing socially beneficial services to the public seek to
manage their exposure to the specter of expanding tort liability in connection
with the delivery of those services is a matter properly determined by the
Legislature. I therefore respectfully dissent.
I
Section 1668 provides that contracts having for their object, either directly
or indirectly, the exemption of a party from "responsibility for his own fraud,
... willful injury to the person or property of another, or violation of law,"
are "against the policy of the law." Put otherwise, one cannot lawfully contract
away responsibility and future liability for his or her own acts of fraud,
willful torts, or transgressions of statutory law. Section 1668, unchanged for
135 years and long understood to govern contractual releases of liability,
neither declares nor prohibits releases of future liability for any type of
negligence as being against the policy of the law in California.
The Legislature knows how to specifically proscribe the release of future
liability for gross negligence when it wants to. It did so when it enacted Civil
Code section 2175, which specifically prohibits common carriers from releasing
future liability for gross negligence. In contrast, as Justice Kennard explains,
"The Legislature made a conscious decision that releases for gross
negligence--unlike releases for fraud, for willful injury to person or property,
and for intentional or negligent violation of statutory law--are not inherently
against the public interest and therefore are not generally and categorically
unenforceable. In holding that contractual releases of liability for future
gross negligence are generally unenforceable (maj. opn., ante, at p. ___), the
majority rejects the Legislature's contrary decision, effectively rewrites Civil
Code section 1668 to insert what the Legislature deliberately omitted (a general
prohibition on contractual releases of liability for future gross negligence),
and in so doing usurps the Legislature's authority." (Conc. & dis. opn. of
Kennard, J., ante, at pp. ___-___.)
There is one long-standing caveat to the express limitations placed on
releases in section 1668. In Tunkl v. Regents of University of California (1963)
60 Cal.2d 92 [32 Cal. Rptr. 33, 383 P.2d 441] (Tunkl), this court construed
section 1668 as further precluding enforcement of exculpatory contractual
provisions purporting to release a party from future liability for negligence if
the transaction or subject matter of the contract in question "affects the
public interest." (60 Cal.2d at p. 94.) We emphasized at the outset in Tunkl
that "no public policy opposes private, voluntary transactions in which one
party, for a consideration, agrees to shoulder a risk which the law would
otherwise have placed upon the other party ... ." (Id. at p. 101, italics
added.) But we went on to explain that where the subject matter of a contract
affects the public interest, the relative bargaining positions of the parties
are not the same as in a private, voluntary transaction. With regard to that
category of transactions, "the releasing party does not really acquiesce
voluntarily in the contractual shifting of the risk, nor can we be reasonably
certain that he receives an adequate consideration for the transfer. Since the
service is one which each member of the public, presently or potentially, may
find essential to him, he faces, despite his economic inability to do so, the
prospect of a compulsory assumption of the risk of another's negligence." (Ibid.
)
Observing that the "social forces" that characterize the "public interest"
are "volatile and dynamic," and that "[n]o definition of the concept of public
interest can be contained within the four corners of a formula" (Tunkl, supra,
60 Cal.2d at p. 98), we set forth a nonexclusive six-factor test in Tunkl for
determining when a contractual transaction "affects the public interest." (Id.
at pp. 98-101.) If "some or all" of the factors are present, enforcement of an
exculpatory clause purporting to release liability for future negligence is
prohibited as against the public interest. (Ibid.) The six Tunkl factors are:
(1) the transaction "concerns a business of a type generally thought suitable
for public regulation" (id. at p. 98, fn. omitted); (2) the party seeking
exculpation performs a service "of great importance to the public, which is
often a matter of practical necessity for some members of the public" (id. at p.
99, fns. omitted); (3) the service is offered to the public at large (ibid.);
(4) in the economic setting of the transaction, the party seeking exculpation
has a "decisive" bargaining advantage because the service is "essential" (id. at
pp. 99-100); (5) the person obtaining the service is required to sign a
"standardized adhesion contract of exculpation" (id. at p. 100, fn. omitted);
and (6) the person obtaining the service bears the risk of the other party's
carelessness (id. at p. 101).
The facts of Tunkl serve to illustrate the purpose and proper application of
the rule announced therein. Hugo Tunkl sought admission to the University of
California Los Angeles Medical Center, a hospital operated and maintained by the
Regents of the University of California that held itself out to the public as an
institution that performs medical services for qualified members of the public.
(Tunkl, supra, 60 Cal.2d at pp. 94, 102.) The hospital-patient contract he was
required to sign in order to gain admission to the facility included a form
releasing "The Regents of the University of California, and the hospital from
any and all liability for the negligent or wrongful acts or omissions of its
employees, if the hospital has used due care in selecting its employees." (Id.
at p. 94.) We observed "[t]hat the services of the hospital to those members of
the public who are in special need of the particular skill of its staff and
facilities constitute a practical and crucial necessity [was] hardly open to
question." (Id. at p. 101.) We also cited Health and Safety Code sections
directly subjecting the facility to public regulation. (Ibid.) We then
explained, "In insisting that the patient accept the provision of waiver in the
contract, the hospital certainly exercises a decisive advantage in bargaining.
The would-be patient is in no position to reject the proffered agreement, to
bargain with the hospital, or in lieu of agreement to find another hospital. The
admission room of a hospital contains no bargaining table where, as in a private
business transaction, the parties can debate the terms of their contract. As a
result, we cannot but conclude that the instant agreement manifested the
characteristics of the so-called adhesion contract. Finally, when the patient
signed the contract, he completely placed himself in the control of the
hospital; he subjected himself to the risk of its carelessness." (Id. at p. 102
.)
In consideration of the facts in Tunkl, we had little difficulty concluding
that the contractual terms under which Tunkl was admitted to the hospital
affected the public interest and rendered the release of negligence liability
unenforceable. "[T]he patient ... sought the services which the hospital offered
to a selective portion of the public; the patient, as the price of admission and
as a result of his inferior bargaining position, accepted a clause in a contract
of adhesion waiving the hospital's negligence; the patient thereby subjected
himself to control of the hospital and the possible infliction of the negligence
which he had thus been compelled to waive. The hospital, under such
circumstances, occupied a status different than a mere private party; its
contract with the patient affected the public interest." (Tunkl, supra, 60
Cal.2d at p. 102.)
In the case now before us, Katie Janeway, a 14-year-old developmentally
disabled child, tragically drowned in a city-owned and operated swimming pool
while participating in a part-time summer recreational activities program for
developmentally disabled children while under the supervision of a trained
counselor functioning as a city employee. The tragedy is punctuated by the fact
that the loss of this child occurred under circumstances where everyone
concerned was plainly striving to ensure that Katie might simply enjoy a normal
summer day camp experience notwithstanding her developmental disabilities.
A completed application for enrollment in the Adventure Camp program required
the execution of a form releasing the city and its employees from all liability
"for any loss, damage, or claim therefore on account of injury ... whether
caused by any negligent act or omission of the releasees or otherwise." Maureen
Janeway, Katie's mother, signed the release on the minor's behalf. In doing so,
she agreed to "assume full responsibility for and risk of bodily injury [and]
death" arising from Katie's participation in the program, and further "expressly
agree[d] that the ... release and waiver, indemnity agreement and assumption of
risk are intended to be as broad and inclusive as permitted by California law."
She had signed similar releases covering Katie's participation in the Adventure
Camp program in three prior years.
The express proscriptions of section 1668 are not implicated here--plaintiffs
are not alleging any fraud, willful injury, or violation of a statute by the
city or its employees. The complaint simply alleges wrongful death on a theory
of negligence?gross negligence is not specifically alleged. Defendants moved for
summary judgment on the basis of the release, the City arguing that Adventure
Camp, unlike the hospital in Tunkl, was an elective summer recreational program
for disabled children, enrollment in which did not affect the public interest,
and that accordingly the release of future negligence liability resulting from
injury or death of a camp participant was fully enforceable under section 1668
as interpreted by Tunkl. The trial court denied summary judgment and the city
petitioned for a writ of mandate. The Court of Appeal correctly understood the
principal issue to be whether the contractual agreement through which Katie was
accepted into the Adventure Camp program is of a nature that affects the public
interest within the meaning of Tunkl. If not, then the release signed by the
minor's mother on her behalf is fully enforceable under section 1668, as
construed in Tunkl, and serves to release the city from future liability for
negligence.
Based on analysis of the Tunkl factors, the Court of Appeal concluded that
"the release is valid and enforceable as a matter of law to the extent it
releases the City and [its employees] from liability for acts of ordinary
negligence in the operation of the City's recreational program for disabled
children. Undisputed evidence establishes that the circumstances under which the
release was executed by the Janeways did not have the characteristics of a
contract of adhesion or pertain to an essential activity that was a matter of
practical necessity to them. Therefore, although offering opportunities to
disabled children is clearly beneficial to the public, the 'public interest,' as
that term is used in Tunkl, would not be served by invalidating the release as
to ordinary negligence."
Although the Court of Appeal referred to the enforceable release of "ordinary
negligence" in the passage quoted above, it can be observed that no distinction
is drawn between ordinary and gross negligence in either (1) the allegations of
plaintiffs' complaint; (2) the express wording of the city's release of
negligence liability here in issue; or (3) this court's analysis in Tunkl by
which we concluded section 1668 must be interpreted as invalidating only
contractual releases of future negligence liability that affect the public
interest. The Court of Appeal nonetheless found the distinction pivotal to the
second part of its analysis. Over the dissent of one justice, the Court of
Appeal went on to carve out an exception for gross negligence, concluding that
"the release does not exculpate the City or [its employees] from liability for
conduct constituting gross negligence ... . Public policy and the legitimate
objective of the release dictate that we limit the scope of the release to
ordinary negligence by the City, and exclude the more extreme and aggravated
conduct that constitutes gross negligence."
We granted review solely to consider the correctness of this specific aspect
of the Court of Appeal's holding, for it was without precedent in California. As
the majority acknowledges, until this case, "no published California case has
upheld, or voided, an agreement purporting to release liability for future gross
negligence." (Maj. opn., ante, at p. ___.)
The majority embraces this holding of first impression by the divided Court
of Appeal. It goes much further. The majority does not limit its holding to the
question posed on the facts of the case directly before us--whether a full
release of future liability for negligence utilized by a public entity in
connection with a publicly funded and publicly operated summer recreational
program for developmentally disabled youth is enforceable under section 1668 as
construed in Tunkl. It concludes instead that all releases of future liability
for gross negligence, whether express or implied, are generally unenforceable in
California as contrary to the public policy of this state, and specifically
holds that the broad release of future negligence liability utilized by the city
in this case, to the extent it implicitly encompasses gross negligence,
"violates public policy and is unenforceable." (Maj. opn., ante, at p. ___.)
The majority's conclusions and holding are not limited to releases of future
negligence liability made in the specific context of sports or recreational
activities. They rest on a broader policy concern--the general concern that
aggravated wrongs or grossly negligent misconduct not go unpunished--and
presumably apply to implied as well as express releases of liability for gross
negligence (here the release is silent as to gross negligence), and to public
and private transactions alike, regardless of whether they affect the public
interest within the meaning of Tunkl's interpretation of section 1668.
Unlike the majority, I conclude the city's release of liability for "any
negligent act or omission" leading to injury or death in connection with the
operation of its recreational Adventure Camp program for developmentally
disabled youth is valid and fully enforceable under section 1668 as interpreted
in Tunkl.
California courts have uniformly held that Tunkl does not invalidate releases
of future liability for negligent infliction of injuries in the context of
sports and recreational activities on the reasoning that, although beneficial,
such activities are generally not services essential to the public and thus do
not affect the public interest. (See, e.g., Lund v. Bally's Aerobic Plus, Inc.
(2000) 78 Cal.App.4th 733, 739 [93 Cal. Rptr. 2d 169] [release of liability in
connection with health club/gym membership]; Randas v. YMCA of Metropolitan Los
Angeles (1993) 17 Cal.App.4th 158, 162 [21 Cal. Rptr. 2d 245] (Randas) [release
of liability in connection with YMCA swimming program]; Okura v. United States
Cycling Federation (1986) 186 Cal.App.3d 1462, 1467 [231 Cal. Rptr. 429]
[release of liability in connection with nonprofit-sponsored bicycle race].)
Accordingly, to require a party to sign an exculpatory release as a condition of
participation lacks the compulsion typically found in a contract of adhesion and
would not impair the public interest or violate public policy. (See YMCA of
Metropolitan Los Angeles v. Superior Court (1997) 55 Cal.App.4th 22, 26 [63 Cal.
Rptr. 2d 612]; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372 [59
Cal. Rptr. 2d 813].)
As the Court of Appeal below observed, releases have been enforced not only
for high-risk sports activities, but for less risky recreation, and in
particular, where the recreational activity was directed at or included
participation by children. (See, e.g., Platzer v. Mammoth Mountain Ski Area
(2002) 104 Cal.App.4th 1253 [128 Cal. Rptr. 2d 885] [parents' release of
liability on behalf of eight-year-old child participating in skiing school];
Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559 [274 Cal. Rptr.
647] (Hohe) [parents' and teenager's release of liability in connection with her
participation in school hypnosis demonstration].) Swimming and diving are two of
the recreational activities offered to developmentally disabled children through
Adventure Camp, when authorized by the child's parents or legal guardian. Katie
was swimming and diving in the city pool with the express knowledge and written
consent of her mother when her fatal accident occurred.
Our decision in Tunkl directs courts in this state to determine the validity
of releases of future negligence liability on a case-by-case basis, with
emphasis on whether the type of service being offered is essential to the
public, and whether a disparity of bargaining power compels the party obtaining
the service to sign the release as a contract of adhesion. (Tunkl, supra, 60
Cal.2d at pp. 99-100; see also YMCA of Metropolitan Los Angeles v. Superior
Court, supra, 55 Cal.App.4th at p. 26.)
The first Tunkl factor is whether the release in question concerns "a
business of a type generally thought suitable for public regulation." (Tunkl,
supra, 60 Cal.2d at p. 98, fn. omitted.) Child daycare facilities are subject to
public regulation under the California Child Day Care Facilities Act. (See
Health & Saf. Code, § 1596.70 et seq.) Adventure Camp, however, is exempt from
regulation as a child daycare facility because it is operated for less than 12
weeks in a 12-month period during a time when local public schools are not in
session. (Id., § 1596.792, subd. (g)(1).) Nor is the program subject to
regulation under the Lanterman Developmental Disabilities Services Act. (Welf. &
Inst. Code, § 4500 et seq.) 1 Unlike the facts of Tunkl, which involved a public
hospital subject to direct public regulation under the Health and Safety Code,
plaintiffs here identify no other statute or regulation to support a finding
that the first Tunkl factor applies.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 The
Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4500 et
seq.) expresses legislative goals of integrating individuals with developmental
disabilities into mainstream life, and ensuring that such individuals are
accorded the same rights as others to participate in recreational and other
programs that receive state funds. (Welf. & Inst. Code, §§ 4501, 4502.)
Adventure Camp is exempt from direct regulation under the act.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The second Tunkl factor is that the party seeking exculpation (here, the
city) "is engaged in performing a service of great importance to the public,
which is often a matter of practical necessity for some members of the public."
(Tunkl, supra, 60 Cal.2d at pp. 98-99, fns. omitted.) In its briefing before
this court, the city "does not question that its various recreational services
programs confer an important benefit on the public and that it is important that
people with all kinds of disabilities have an equal opportunity to participate
in these recreational services and programs." But the city points out that the
program here in question was designed to offer the same kinds of recreational
services to developmentally disabled children as the city offered to
nondevelopmentally disabled children. As the city explains, "[it] was not
designed to offer--and did not offer--therapy or any other special service for
children with special needs." As already observed, courts in this state have
uniformly held that Tunkl does not invalidate releases of negligence liability
for injuries arising from sports and recreational activities on the reasoning
that, although beneficial, such activities are generally not services essential
to the public and thus do not affect the public interest. (Ante, at p. ___.)
Indeed, no reported California case until this one has made an exception for an
implied release of gross negligence in any context, whether involving sports or
recreational activities or otherwise.
Nor do plaintiffs point to any California decision or statute declaring that
recreational activities for the developmentally disabled are essential or a
matter of practical necessity within the meaning of the second Tunkl factor. The
Adventure Camp program was offered for only three weeks in the summer of 2002,
and then only for a period of 15 hours per week. There has been no showing that
Adventure Camp was the only program of its kind available to accommodate the
recreational needs of developmentally disabled children in the Santa Barbara
vicinity, and indeed, as the city points out, Katie, either with the assistance
of her parents or other adults trained to attend to her special needs, could
have gone swimming in this city-owned and operated public swimming pool even
without enrolling in the camp program.
The third Tunkl factor is whether "[t]he party holds himself out as willing
to perform this service for any member of the public who seeks it, or at least
for any member coming within certain established standards." (Tunkl, supra, 60
Cal.2d at p. 99, fn. omitted.) Here, although the city's Adventure Camp program
was technically available to any child between the ages of seven and 14 with a
qualifying developmental disability, as a practical matter enrollment was
limited to 20 participants at a time.
The fourth Tunkl factor is whether "the party invoking exculpation possesses
a decisive advantage of bargaining strength against any member of the public who
seeks [those] services." (Tunkl, supra, 60 Cal.2d at p. 100, fn. omitted.)
Although the city determined the basic conditions for enrollment in the camp
program, it allowed parents to exclude activities in which they did not want
their children participating during the camp sessions. The record further
reflects that Katie's parents were offered the opportunity to require her to
wear a flotation device at all times while swimming in the pool during camp.
They felt she was a strong swimmer and declined. The city also indicates
evidence was presented below "showing Katie participated in numerous
recreational activities outside of Adventure Camp, including physical education
at school, Special Olympics volleyball and basketball, horseback riding, and
water sports such as swimming, diving, tubing and water skiing."
The fifth Tunkl factor is whether the party seeking exculpation used "a
standardized adhesion contract of exculpation" and did not offer the other party
an option to "pay additional reasonable fees and obtain protection against
negligence." (Tunkl, supra, 60 Cal.2d at pp. 100-101, fns omitted.) Here, the
city has conceded that the Adventure Camp release was a standard form release
utilized for various city-run recreational programs, and was indeed offered on a
take-it-or-leave-it basis. But according to the city, the activities to which
the release applied were negotiable, and Katie's parents could have also
modified her activities while in the pool to minimize any risks. The Janeways
had the option of customizing Katie's camp experience by substituting other
activities for pool time. They could have restricted or prohibited her swimming
altogether, or given special instructions for that activity, or checked the box
on the form requiring that she use a flotation device at all times, and they
also had the option of sending Katie to camp along with a personal aide of their
own choosing, or to attend camp along with Katie and supervise her themselves.
The sixth and final Tunkl factor is whether "as a result of the transaction,
the person or property of the purchaser is placed under the control of the
seller, subject to the risk of carelessness by the seller or his agents." (
Tunkl, supra, 60 Cal.2d at p. 101, fn. omitted.) As the city explains,
"[A]lthough Katie was admittedly placed under the control of the City when she
participated in Adventure Camp, as has been shown, plaintiffs had many options
for avoiding any risk of carelessness by the City--and could have retained full
control over Katie by attending Adventure Camp with her."
In sum, Adventure Camp provides elective and nonessential recreational
opportunities for developmentally disabled youth on a part-time basis in a
summer day camp setting. Moreover, unlike the release in Tunkl, which the
patient had to sign on a take-it-or-leave-it basis in order to be admitted into
the hospital for critical medical treatment, here the application and release
required to be completed for enrollment of a child in the elective recreational
program have none of the usual attributes of a contract of adhesion. The
Janeways ultimately retained control over whether Katie would swim in the pool
as one of her camp activities, and whether she would be required to wear a
flotation device at all times if she did so. They authorized her to swim and to
dive, and opted not to require her to wear a flotation device when in the pool
participating in those activities. The city, on its part, chose to assign a
trained counselor specifically to keep close watch over Katie while she was
swimming or diving in the pool.
Although the importance of integrating developmentally disabled children into
mainstream society through programs like Adventure Camp cannot be overstated,
elective participation in this particular recreational camp program did not
affect the public interest within the meaning of our analysis and holding in
Tunkl. Nothing else in section 1668, the controlling statutory provision,
proscribes the full release of negligence liability utilized by the City in this
case. As a general matter, in the absence of fraud, overreaching or excusable
neglect, a duly executed release of liability is a lawful "express assumption of
the risk." (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597, fn. 6 [250
Cal. Rptr. 299]; see Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d
333, 339 [214 Cal. Rptr. 194].) " ' "In its most basic sense, assumption of risk
means that the plaintiff, in advance, has given his express consent to relieve
the defendant of an obligation of conduct toward him, and to take his chances of
injury from a known risk arising from what the defendant is to do or leave
undone. [Fn. omitted.] ... The result is that the defendant is relieved of legal
duty to the plaintiff; and being under no duty, he cannot be charged with
negligence." (Prosser & Keeton, Torts (5th ed. 1984) § 68, pp. 480-481, italics
in original.)' [Citation.]" (Madison v. Superior Court, supra, 203 Cal.App.3d at
p. 597, fn. omitted.) The Janeways, like countless parents of children
participating in recreational activities posing some level of inherent risk,
were asked to give up their right to sue for negligence. There is no evidence
establishing that the release in this case, which expressly covered "any
negligent act or omission," fell outside their reasonable expectations, or was
unduly oppressive or unconscionable.
I would therefore hold the release valid and fully enforceable under section
1668 and Tunkl, and stop there. Like Justice Kennard, I conclude the majority
inappropriately relies on decisions from other jurisdictions in support of its
broad holding that public policy generally precludes enforcement of releases of
future liability for gross negligence. (Maj. opn., ante, at p. ___.) That
broader question should not be reached on the facts of this case, which does not
involve a contractual release of negligence liability affecting the public
interest within the meaning of Tunkl, and which does not involve a release of
liability otherwise falling under the express proscriptions of section 1668.
Given that controlling statute, which, even as construed in Tunkl, does not
expressly prohibit the release of future liability for negligence in the context
in which it was utilized here, the broader question considered by the majority
is one more appropriately addressed to the Legislature rather than decided by
this court.
There are competing public policies at play here. One such policy, relied on
by the majority to the exclusion of all others, is the general concern that
grossly negligent misconduct not go unpunished. But enforcement of broad
releases of negligence liability utilized by cities or other public agencies in
the youth recreational services setting may further the public interest by
enabling municipalities to deliver affordable recreational services to children
with developmental disabilities under the same terms as they provide such
services to other children. As several courts have observed, " '[T]he public as
a whole receives the benefit of such waivers so that groups such as Boy and Girl
Scouts, Little League, and parent-teacher associations are able to continue
without the risks and sometimes overwhelming costs of litigation. Thousands of
children benefit from the availability of recreational and sports activities.
Those options are steadily decreasing--victims of decreasing financial and tax
support for other than the bare essentials of an education. Every learning
experience involves risk. ... No public policy forbids the shifting of that
burden.' " (Randas, supra, 17 Cal.App.4th at p. 162, quoting Hohe, supra, 224
Cal.App.3d at p. 1564.)
The Legislature, unlike this court, has the resources and is in the best
position to balance the interests of the public at large and all persons
specifically interested in the availability of publicly funded recreational
services programs for disabled youth. The paramount concern here is to ensure
that the law of releases of liability, as applied to this case, preserves and
advances the public's best interests. It goes without saying that a fundamental
concern in the public's interest is the continued viability of such socially
beneficial programs in these fiscally strapped times. The City Attorney of Santa
Barbara, as a party to the case, and the League of California Cities and the
California State Association of Counties, as amici curiae, suggest that the
unavailability to public entities of broadly worded releases of negligence
liability such as was utilized in this case could stand to compromise the
availability of publicly funded and publicly administered recreational services
programs such as this one. Whether it will ultimately serve the public interest
to restrict the means by which municipalities providing socially beneficial
services to the public seek to limit their exposure to expanding tort liability
in connection with such programs is a matter properly determined by the
Legislature. The answer, for example, may turn on whether insurance or the
ability to self-insure will remain available and cost effective in the face of a
change in the law restricting the scope of releases available to public entities
offering programs such as this one. Unlike the majority, I believe the public
interests at stake here are far more complex than the general concern that
grossly negligent misconduct not go unpunished. The Legislature, not this court,
is in the best position to sort them out and determine whether good cause exists
to enact the formidable revision of the law of releases which the majority
adopts by judicial fiat today.
II
I conclude section 1668 and Tunkl together control this case and dictate that
the release in question be found valid and enforceable. Any further change in
the law of releases of tort liability generally, or the law pertaining to
releases of negligence liability by public entities in connection with publicly
administered recreational services programs specifically, should come from the
Legislature.