Releases for Gross Negligence In the Context of Sports or Recreational Programs or Services are Void In California

By Michael Reiter, Attorney at Law

Most people have been asked to sign releases at various times, particularly for participation of their children in youth activities.  Are they valid?  They can be in many cases.  But in certain cases, they may be void if there is a public policy reason or statute.  For example, Civil Code section 1668 prohibits contracts which “have for their object, directly or indirectly, to exempt anyone from responsibility for his 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.”  Further, case law in California has prohibited releases of future gross negligence as being void against public policy.  City of Santa Barbara v. Superior Court (2007) 41 Cal.4th  747, 758.

There is an entire inquiry into whether a release is valid, which I won’t discuss here today.  Suffice it to say, you should consult with a personal injury attorney even if there is a release, because it is a technical question.  Most, if not all, personal injury attorneys provide a free consultation in personal injury cases.

In the City of San Barbara case, mentioned above, the mother of a developmentally disabled 14 year-old signed a release purporting to release the City of Santa Barbara and its employees from liability for “any negligent act” related to the child’s participation in a summer camp, run by the City, for developmentally disabled children.  The child drowned, and the parents filed suit.

We conclude . . . 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.

My Torts Professor, Kenneth Manaster, drummed in our heads that “gross negligence” was not a term that we should bandy about, and of course he said it in 1995 or 1996, eleven years before City of Santa Barbara. There is a sort of “folk law” idea of what gross negligence is, perhaps informed by the law of other, non-California states.  In the City of Santa Barbara case, the California Supreme Court distinguishes between ordinary negligence and gross negligence:

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.)  City of Santa Barbara v. Superior Court, 41 Cal. 4th 747, 753-54, 161 P.3d 1095, 1099 (2007).
The procedural posture of the City of Santa Barbara was somewhat unusual.  The City moved for Summary Judgment, lost, and appealed immediately.  The case was set for trial, and then the City settled before the trial started for $2,000,000.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Michael Reiter, Attorney at Law

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Redlands, CA 92373-5235
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