September 28th Newsletter

In City of Santa Barbara v. Superior Court 2007 Daily Journal D.A.R 10807, the Supreme Court of the State of California held that a release of liability relating to recreational activities generally is not effective as to gross negligence.

The City of Santa Barbara (the City) has provided a camp for children with developmental disabilities—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. 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. Katie’s mother, Maureen Janeway, signed the release.

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,” to keep Katie under close observation during the camp’s swimming sessions. Katie participated in the first swimming day at the 2002 Adventure Camp without incident. On the second swimming day she drowned.

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., § 473c, subd. (m)(1).) The appellate court denied the petition. The Supreme Court granted review and affirmed the denial.

The Court 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, while “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.)

The Court observed that the “traditional skepticism” concerning agreements designed to release liability for future torts long has been expressed in Civil Code section 1668, which 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.” In Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 (Tunkl), Justice Tobriner’s unanimous opinion for the court noted that past decisions had differed concerning the reach of that statute, 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.’ ”

The Court in this case acknowledged that no published California case has upheld, or voided, an agreement purporting to release liability for future gross negligence. The Court therefore considered the law of other jurisdictions and affirmed 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.

The Court pointed out that it 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. . . . 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.”

For the reasons discussed above—that is, adherence to the “public policy to discourage,” or at least not facilitate, “aggravated wrongs” . . . , 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. 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.

----Andrea Lynn Rice