By: Lacey Lorenzen, Law Clerk; @Mustafa Hessabi, Chief Counsel
A recent decision by the California Supreme Court may require special districts and other local agencies to review any waivers or release of liability used in conjunction with use of public property, given that those waivers may no longer shield the agency from liability for any “dangerous condition” of the property.
In Whitehead v. City of Oakland, the CA Supreme Court considered whether a release of liability waiver is enforceable when a claim alleges that a public agency negligently violated a statutory duty which resulted in injury. The Court held that the release of liability waiver is not enforceable.
The plaintiff, Ty Whitehead, alleged he suffered a serious head injury during a bike ride for a charity fundraiser because defendant, City of Oakland (“City”), breached its statutory duty under Government Code section 835 to maintain a safe roadway for public use. Whitehead hit a pothole while riding downhill, which caused him to flip forward over the front of the bike and hit his head on the pavement. Whitehead and other participants of the AIDS/Lifecycle event had signed a release of liability that, in part, held the City harmless for “negligence or carelessness in the implementation or enforcement of any rules, regulations or guidelines related to the… maintenance of any equipment, course, competition, facility or service related to the Events.”
The lower courts granted summary judgment to the City based on Whitehead’s release and waiver of liability. However, the California Supreme Court reversed those decisions, finding that the case law that the lower courts applied are not relevant because those involved waivers of “ordinary or gross negligence under common law.” This case is different because it involves the waiver of the negligent violation of statutory law.
The Supreme Court held that the City’s waiver is "against the policy of law" under Civil Code section 1668 which states, “all contracts which…exempt anyone from responsibility for… violation of law… are against the policy of law.” The Court reasoned that Civil Code section 1668 creates a legal duty to public safety that is not waivable even by voluntary releases of liability. Whitehead was biking in a lane on a public street “as a member of the general public might,” and Government Code section 835 “require[s] municipalities to do something about public roadways in appropriate circumstances.” The court did not consider other defenses available to the City, which may be considered on remand.
When utilizing any waivers or release of liability, special districts should consider whether the waiver protects the district against liability from duties imposed by statute.
For questions about this article, contact CSDA Chief Counsel Mustafa Hessabi at mustafah@csda.net.
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