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California Supreme Court:
Waiver Releasing City From Duty to Maintain Road Is Invalid
Opinion Says Entity’s Statutory Obligation to Maintain Safe Streets May Not Be Avoided by Release, Finding That Civil Code Section Invalidating Contracts Seeking to Exempt Party From Liability for Breaking Law Applies
By Kimber Cooley, associate editor
The California Supreme Court yesterday held that a municipality may not enforce a release seeking to absolve it from liability for a breach of its statutory duty to ensure that public roadways are safe for foreseeable uses, saying that a Civil Code section invalidating contracts that purportedly exempt parties from liability over violations of law, in contradiction to public policy, applies.
At issue is the interplay between two statutes—Government Code §835, which provides that a public entity is liable for injuries caused by dangerous conditions on its property, and Civil Code §1668, which declares that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for…[a] violation of law, whether willful or negligent, are against the policy of the law.”
In a unanimous opinion, authored by Justice Kelli Evans, the high court said:
“We are not presented with—and this case thus does not require us to decide—whether section 1668 necessarily invalidates anticipatory releases of a claim arising from every statutory violation….Whatever ‘violation of law’ is encompassed by section 1668, though, the statute surely prohibits any effort to release a party from its specific statutory duty to ensure that public roadways are safe for foreseeable uses.”
Justice Leondra Kruger concurred in the opinion but wrote separately to “offer a few observations about the scope” of the decision.
Traumatic Biking Injury
The question arose after plaintiff Ty Whitehead suffered a traumatic brain injury, in March 2017, while participating in a group bicycle training ride ahead of a scheduled AIDS/LifeCycle fundraiser in which volunteers make a week-long trek from San Francisco to Los Angeles.
During the preseason ride, his front tire got stuck in a large pothole on Skyline Boulevard in Oakland, part of the course that participants were instructed to cover. As his bicycle came to an abrupt stop, Whitehead was flipped over the handlebars and hit the back of his head on the pavement.
Earlier that day, he had signed a release form that said:
“To the maximum extent permitted by law, I hereby release, waive, forever discharge and covenant not to sue the Releasees…from all liabilities, claims, costs, expenses, damages, losses and obligations, of any kind or nature…, which may arise or result (either directly or indirectly) from any participation in the Event. ‘Releasees’ [include]…the owners/lessors of the course or facilities used in the Event….(Italics added.)”
The waiver specified that the “Event” includes preseason training rides and added that the “[r]isks associated…may include” the use of public streets “where hazards such as broken pavement and road debris may exist” and possible “negligence or carelessness of…owners/lessors of the course or facility owners (which may include state and local governmental entities).”
Complaint Filed
Whitehead filed a complaint against the City of Oakland in 2018, asserting a claim under §835 and alleging that Skyline Boulevard was in a dangerous condition at the time of his injury. In December 2021, then-Alameda Superior Court Judge Richard Seabolt (now retired) granted a defense motion for summary judgment on the ground that the release barred the plaintiff’s claim.
Seabolt cited the 1963 California Supreme Court case of Tunkl v. Regents of University of California, which held that voluntarily adopted exculpatory clauses in private contracts are unenforceable if they affect the public interest. Applying the framework set out in the opinion, the judge opined:
“Plaintiff has not demonstrated that the subject of the waiver and release he signed affects the public interest.”
Div. Three of the First District Court of Appeal affirmed. Yesterday’s opinion reverses that judgment and remands the matter for further proceedings, including a determination of “whether the doctrine of primary assumption of risk forecloses plaintiff’s claims.”
Validity of Release
Evans said:
“The Court of Appeal….correctly recognized that the validity of the release depended on section 1668….And it acknowledged…that Whitehead’s claim asserted the City had breached its statutory duty to maintain the road in a safe condition for the public….But the Court of Appeal, like the parties, proceeded on the assumption that Tunkl—which…involved the validity of a release concerning a claim that the defendant breached a common law duty— governed the validity of a release concerning a claim that the City breached a statutory duty. This was error.”
She continued:
“Tunkl set forth an analytical model for the particular circumstance where a plaintiff seeks to invalidate an anticipatory release ‘on public policy grounds other than those set forth in section 1668.’…Here, by contrast, Whitehead’s justification for invalidating the release falls neatly within section 1668’s bar on attempts to relieve a party for a ‘violation of law….’ Notably, the Court of Appeal did not cite a single case that has applied Tunkl to sustain a release against an asserted breach of a statutory duty.”
The justice pointed to the court’s 1912 decision in Union Construction Company v. Western Union Telegraph Company, and its progeny, as more applicable to the circumstances at hand.
Statutory Duty
In the Union Construction case, the court found “much force” in the proposition that “i]t would be against…public policy to hold that it is permissible…to stipulate for immunity from liability for a failure to exercise the care and diligence that the statute under which it operates declares it shall exercise.”
Applying that principle, she concluded:
“The narrow issue before us is whether Whitehead’s claim against the City, assuming it is otherwise valid, is barred by the release…We hold that it is not.”
Oakland argues that invalidating the release in this case will have “especially dire consequences for public entities, inevitably increasing their liability.” Rejecting this view, Evans remarked:
“[N]o empirical evidence has been offered to support these assertions….Indeed, in light of the fact that many other jurisdictions similarly decline to enforce anticipatory releases of liability for injuries arising from statutory violations related to public safety—and even violations that are not so cabined—the absence of such evidence is ‘both relevant and telling.’ ”
She added:
“Case law in this state and in other states shows that agreements to exculpate a party for future violations of statutes designed to protect public safety are unenforceable. In this case, the City sought to enforce a release to preclude an action that allegedly arose from a violation of its statutory duty to maintain safe roadways for the public. We have determined that such a release violates section 1668.”
Kruger’s View
Kruger commented:
“I write separately to add a point in response to the City’s arguments about the governing legal framework, as well as to offer a few observations about the scope of today’s decision.”
She said that “I think the City is correct that Tunkl drew no express distinction between releases of statutory claims and common law claims” but explained:
“[T]he City’s main argument for enforcing the liability release here depends not just on Tunkl’s general view of the enforceability of exculpatory clauses, but on application of the more specific guidance Tunkl supplied for determining whether a contract is one that affects the public interest.”
She continued:
“This is where the City goes wrong….The six public interest factors set out in the opinion are…geared to….help identify the public policy interests in a…release of liability for ordinary common law negligence….Tunkl’s…factors…do[] not take into account…how the enactment of legislation imposing specific…duties might properly guide a court’s evaluation of whether it is ‘contrary to public policy’ to allow contracts that prospectively limit liability for future violations of those duties.”
The jurist remarked:
“This brings me to the scope of today’s decision. The majority opinion today does not hold that section 1668 ‘necessarily invalidates anticipatory releases of a claim arising from every statutory violation’; it instead holds only that, whatever the scope of section 1668, ‘the statute surely prohibits any effort to release a party from its specific statutory duty to ensure that public roadways are safe for foreseeable uses.’…The reservation is indisputably appropriate.”
The case is Whitehead v. City of Oakland, 2025 S.O.S. 1174.
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