Release of Liability for All Negligence Arising From Recreational Activities Was Not Effective as to Gross Negligence

In Santa Barbara v. Superior Court (2007) 41 C.4th 747, 62 C.R.3d 527, 161 P.3d 1095, plaintiffs, the parents of a 14-year-old developmentally disabled child who drowned while participating in a city’s recreational program for disabled children, brought a wrongful death action against defendants city and M, a program counselor. Plaintiff mother had signed an application form releasing defendant city and its employees from liability for “any negligent act.” Upon being informed that decedent child was prone to epileptic seizures, often occurring in water, and that she needed supervision while swimming, defendant city assigned defendant M to act as a counselor with the responsibility to keep decedent under close observation during the camp's swimming sessions. While decedent was involved in diving and swimming to the pool’s edge, she had a mild seizure, but after 45 minutes was allowed to resume diving. When decedent was swimming back to the pool’s edge, defendant M looked away for about 15 seconds, and during that time decedent disappeared from sight. After a search of 2 to 5 minutes, which was made more difficult by the presence of approximately 300 non-program children, the pool was evacuated, and decedent was found on the bottom. After plaintiffs filed their wrongful death action, defendants, relying upon the release, moved unsuccessfully for summary judgment. Defendants then filed a petition for mandamus, but the Court of Appeal denied the petition, holding that, although the release was effective insofar as it concerned defendants' liability for future ordinary negligence, it was unenforceable insofar AS it purported to constitute a release of liability for future gross negligence. Addressing only the question whether a release of liability relating to recreational activities generally is effective as to gross negligence, the Supreme Court granted review. Held, affirmed.

(a) C.C. 1668 (1 Summary (10th), Contracts, §660), which invalidates most exculpatory clauses, reflects the traditional skepticism concerning agreements designed to release liability for future torts. With respect to negligence, Tunkl v. Regents of Univ. of California (1963) 60 C.2d 92, 32 C.R. 33, 383 P.2d 441, 1 Summary (10th), Contracts, §662, held that, under C.C. 1668, an exculpatory provision involving ordinary negligence is enforceable, but only if it does not involve and impair the public interest. Accordingly, many decisions have invalidated releases of liability for future ordinary negligence under the public interest analysis set forth in Tunkl, while many other decisions, especially those involving sports and recreation, have upheld similar releases on the ground that they did not affect the public interest. (41 C.4th 744.)

(b) No California case has considered an agreement purporting to release liability for future gross negligence. However, the vast majority of out-of-state decisions hold that these agreements are void on the ground that public policy precludes enforcement of a release that would shelter aggravated misconduct. “The reasoning of the . . . out-of-state decisions . . . is based upon a public policy analysis that is different from the ‘public interest’ factors considered under Tunkl . . . . 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 . . . focus . . . upon the degree or extent of the misconduct at issue,” as well as on the aforementioned public policy against sheltering aggravated misconduct. (41 C.4th 758.)

(c) Because C.C. 1668 does not list gross negligence as one of the types of liability that may not be released, defendants argued that it 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. However, C.C. 1668 has not been interpreted to authorize all releases that are not expressly invalidated. Indeed, Tunkl itself went beyond the language of C.C. 1668 to invalidate releases of liability for negligence under certain circumstances. “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.” (41 C.4th 763.)

d) Also rejected is defendants’ argument that courts may not recognize or employ, as a basis for invalidating a release, any public policy rationale different from that set out in Tunkl. Nothing in Tunkl is inconsistent with the public policy-based majority rule employed by other jurisdictions. Nor can Tunkl reasonably be read to stand for the proposition that, assuming that public interest factors do not preclude enforcement of an agreement releasing liability for future ordinary negligence, the same agreement also should be construed to release liability for future gross negligence. (41 C.4th 764.)

(e) 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, i.e., as either (1) a failure to exercise even slight care, or (2) an extreme departure from the ordinary standard of conduct, but instead define that term as conduct tantamount to wanton, reckless, or willful misconduct. However, even if some decisions arguably are distinguishable on that basis, other out-of-state authority is not so readily distinguishable. For example, Washington, Massachusetts, and Nebraska, all of which view gross negligence consistently with the California definition, refuse to permit the release of liability for this type of negligence. (41 C.4th 765.)

(f) Defendants argued 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 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 these services or programs in California. However, the California definition of gross negligence has long been employed in numerous cases applying statutes conferring limited immunity for ordinary negligence while expressly denying immunity for gross negligence, and, in light of the experience under these statutes, it does not appear that the application of the California gross negligence standard tends to impair the summary judgment process or confuse juries and lead to judgments erroneously imposing liability. Moreover, defendants offered no evidence supporting their assertion that unless recreation service providers can dependably enforce agreements to release liability for both future ordinary negligence and future gross negligence, the inevitable result will be fewer and more expensive programs. Indeed, defendants offered no empirical evidence indicating that this dire prediction has occurred either in states refusing to enforce agreements releasing liability for future gross negligence or in states refusing to enforce agreements releasing liability for future ordinary negligence. (41 C.4th 766.)

(g) 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. (41 C.4th 766.) Therefore, “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.” Parties believing that the viability of their particular industry rests upon the ability to secure valid releases of liability for future gross negligence should petition the Legislature. (41 C.4th 767.)

Three justices concurred in the lead opinion. (41 C.4th 781.) A concurring and dissenting opinion, with one justice concurring, agreed that the release of liability at issue is unenforceable as to gross negligence, but argued that, as with ordinary negligence, this conclusion should have been reached by analyzing the Tunkl factors, instead of by relying on the public policy of discouraging aggravated misconduct. (41 C.4th 782.) A dissenting opinion asserted that, under C.C. 1668, a full release of negligence, which includes gross negligence, is enforceable. (41 C.4th 787.)

Witkin References

On releases from liability generally, see 1 Summary (10th), Contracts, §659 et seq.

On valid releases relating to recreational activities, see 1 Summary (10th), Contracts, §671.

On definition of negligence, see 6 Summary (10th), Torts, §831.