The opinion
IN THE SUPREME COURT OF
CALIFORNIA
TY WHITEHEAD,
Plaintiff and Appellant,
v.
CITY OF OAKLAND,
Defendant and Respondent.
S284303
First Appellate District, Division Three
A164483
Alameda County Superior Court
RG18896233
May 1, 2025
Justice Evans authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Jenkins concurred.
Justice Kruger filed a concurring opinion.
WHITEHEAD v. CITY OF OAKLAND
S284303
Opinion of the Court by Evans, J.
Civil Code section 1668 renders unlawful any contract
that seeks, “directly or indirectly, to exempt any one from
responsibility for his own fraud, or willful injury to the person
or property of another, or violation of law, whether willful or
negligent.” In this case, plaintiff Ty Whitehead alleges he
suffered a serious head injury during a bicycle training ride for
a charity fundraiser because defendant City of Oakland (the
City) breached its statutory duty under Government Code
section 835 to maintain a safe roadway for public use. The trial
court granted summary judgment to the City, and the Court of
Appeal affirmed, on the basis of a release and waiver of liability
that Whitehead signed on the morning of the training ride. The
release and waiver included a provision discharging the ride
organizers, as well as any public entities providing facilities for
the ride, from any liability for negligence. We conclude that
such a release is “against the policy of the law” under Civil Code
section 1668 (section 1668) to the extent it purports to relieve
the City of liability for negligently violating a statutory duty
relating to public safety. We therefore reverse the judgment of
the Court of Appeal.
I. BACKGROUND
Plaintiff Ty Whitehead suffered a traumatic brain injury
in March 2017 while participating in a group training ride in
preparation for AIDS/LifeCycle, a weeklong fundraiser bike ride
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Opinion of the Court by Evans, J.
from San Francisco to Los Angeles. At the time of the injury,
Whitehead was riding downhill on Skyline Boulevard in
Oakland with no other riders in the immediate vicinity.
According to evidence offered by Whitehead, cyclists, even those
not participating in the training ride, were “essentially required
to ride in the center of the lane” when traversing the segment
where the injury occurred. As his front tire went down sharply
into a large, deep pothole near the center of the lane and came
to a stop, Whitehead flipped forward over the front of the bike
and hit the rear of his head on the pavement. Whitehead later
explained that “it’s amazing how just up on the hill a short
distance you can look down the road, and the holes are very hard
to see. The road looks complete just being a little bit up the hill.”
Earlier that day, prior to the training ride, Whitehead and
other participants signed a release form. The document was
entitled “AIDS/LifeCycle® Training Ride GENERAL
INFORMATION AND RELEASE AND WAIVER OF
LIABILITY, ASSUMPTION OF THE RISK, AND INDEMNITY
AGREEMENT.” It included a section entitled “RISKS;
ASSUMPTION OF RISK,” which provided: “I understand that
the Event [defined as the 7-day AIDS/LifeCycle bike ride “and/or
preseason training rides and activities leading up to the 7-day
event”] is potentially a hazardous activity, and that accidents
during the Event could lead to serious injury, death and/or
property damage, both to me and to others. Risks associated
with the Event may include, but are not limited to: [¶] using
public streets and facilities where hazards such as broken
pavement and road debris may exist; [¶] being struck by, or
colliding with, other cyclists, spectators, automobiles, and road
debris; [¶] . . . ; [¶] negligence or carelessness of . . .
owners/lessors of the course or facility owners (which may
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Opinion of the Court by Evans, J.
include state and local governmental entities); [¶] negligence or
carelessness in the implementation or enforcement of any rules,
regulations or guidelines related to the Events and/or in the
selection, use, or maintenance of any equipment, course,
competition, facility or service related to the Events. [¶] I
understand that the Event may expose me to risks other than
those listed above and that the risks may not be reasonably
foreseeable to me, [or the organizers]. [¶] In consideration for
being allowed to participate in the Event, I hereby assume all
risks associated with the Event, even those risks which are not
reasonably foreseeable at this time.”
The “WAIVER AND RELEASE” clause provided: “To the
maximum extent permitted by law, I hereby release, waive,
forever discharge and covenant not to sue the Releasees (as
defined in the next sentence) from all liabilities, claims, costs,
expenses, damages, losses and obligations, of any kind or nature
(whether in law or equity) (collectively the ‘Released
Liabilities’), which may arise or result (either directly or
indirectly) from any participation in the Event. ‘Releasees’
means . . . (B) the owners/lessors of the course or facilities used
in the Event . . . and (D) the directors, officers, officials,
employees and agents of the entities listed in (A)–(C). [¶] For
the avoidance of doubt, the Released Liabilities include all
bodily injury, death and/or property damage I may suffer which
arises or results (either directly or indirectly) from my
participation in the Event, including through any negligence of
the Releasees.” (Italics added.)
Finally, the “INDEMNIFICATION” clause provided: “I
hereby agree to indemnify, defend and hold harmless the
Releasees from all liabilities, claims, costs, expenses, damages,
losses and obligations, of any kind or nature (whether in law or
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Opinion of the Court by Evans, J.
in equity) (collectively, the ‘Claims’), which may arise or result
(either directly or indirectly) from my participation in the
Event.”
One year after the accident, Whitehead sued the City
under Government Code section 835 et seq., alleging that the
public roadway was in a dangerous condition. In December
2021, the trial court granted the City’s motion for summary
judgment on the ground that the release was valid and
enforceable and barred Whitehead’s claim against the City for
liability arising from an allegedly dangerous condition of public
property. That same day, the court denied Whitehead’s motion
for summary adjudication of the City’s release defense. The
court reasoned that “ ‘releases that do not involve transactions
affecting “the public interest” may stand’ ” and concluded that
“Plaintiff has not demonstrated that the subject of the waiver
and release he signed affects the public interest.” In assessing
whether the release implicated the public interest, the trial
court relied exclusively on the multifactor test we announced in
Tunkl v. Regents of University of California (1963) 60 Cal.2d 92
(Tunkl), which evaluated the validity of a release of common law
negligence claims.
The Court of Appeal affirmed. (Whitehead v. City of
Oakland (2024) 99 Cal.App.5th 775 (Whitehead).) Like the trial
court, it relied exclusively on Tunkl and Court of Appeal
decisions applying the Tunkl framework to other common law
negligence claims. We granted review to decide whether the
release relieved the City of liability for harm allegedly caused by
maintaining a public roadway in a dangerous condition in
violation of Government Code section 835.
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Opinion of the Court by Evans, J.
II. DISCUSSION
Courts have traditionally looked with disfavor at
contractual agreements that purport to exculpate a party for
future violations of the law. Such agreements can “pose a
conflict between contract and tort law. On the one hand is the
freedom of individuals to agree to limit their future liability;
balanced against that are public policies underlying our tort
system: as a general matter, we seek to maintain or reinforce a
reasonable standard of care in community life and require
wrongdoers — not the community at large — to provide
appropriate recompense to injured parties.” (City of Santa
Barbara v. Superior Court (2007) 41 Cal.4th 747, 754 (City of
Santa Barbara).)
The Legislature struck the balance between contract and
tort in section 1668 (see City of Santa Barbara, supra, 41 Cal.4th
at pp. 754–755), which has since 1872 provided: “All contracts
which have for their object, directly or indirectly, to exempt any
one 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.”
Admittedly, we have had only limited opportunities to consider
the contours of section 1668. (See Tunkl, supra, 60 Cal.2d at p.
95.)
In Tunkl, we considered whether a hospital could secure a
release from an entering patient for liability arising from
common law ordinary negligence. (Tunkl, supra, 60 Cal.2d at p.
94.) The patient alleged the negligence of two hospital
physicians caused him injury, and the hospital defended on the
ground that the patient had, prior to admission, agreed to
release the hospital “ ‘from any and all liability for the negligent
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Opinion of the Court by Evans, J.
or wrongful acts or omissions of its employees.’ ” (Ibid.) In
assessing whether the release violated public policy (id. at pp.
96–97, 101), we examined whether it exhibited “some or all of
the following characteristics”: “It concerns a business of a type
generally thought suitable for public regulation. The party
seeking exculpation is engaged in performing a service of great
importance to the public, which is often a matter of practical
necessity for some members of the public. The party holds
himself out as willing to perform this service for any member of
the public who seeks it, or at least for any member coming
within certain established standards. As a result of the
essential nature of the service, in the economic setting of the
transaction, the party invoking exculpation possesses a decisive
advantage of bargaining strength against any member of the
public who seeks his services. In exercising a superior
bargaining power the party confronts the public with a
standardized adhesion contract of exculpation, and makes no
provision whereby a purchaser may pay additional reasonable
fees and obtain protection against negligence. Finally, as a
result of the transaction, the person or property of the purchaser
is placed under the control of the seller, subject to the risk of
carelessness by the seller or his agents.” (Id. at pp. 98–101, fns.
omitted.) Although the agreement in Tunkl satisfied “all” of
these characteristics and therefore was invalid, we cautioned
that an invalid agreement to exculpate a party for ordinary
common law negligence “need only fulfill some of the
characteristics above outlined.” (Id. at p. 101.)
In City of Santa Barbara, supra, 41 Cal.4th 747, which
involved the drowning of a child at a summer camp for
developmentally disabled children, we declined to apply the
Tunkl framework to the parents’ cause of action against the
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Opinion of the Court by Evans, J.
camp organizer for gross negligence; we instead employed “a
separate and different public policy rationale.” (City of Santa
Barbara, at p. 764.) The Court of Appeal in that case had
already upheld an agreement releasing the City of Santa
Barbara and its employees “insofar as it concerned [their]
liability for future ordinary negligence” by analyzing the Tunkl
factors, and we did not grant review of that determination. (City
of Santa Barbara, at p. 750.) Our review was limited to the
question of “the enforceability of an agreement releasing
liability for future gross negligence,” an issue in which there was
an “absence of an authoritative discussion in any California
opinion.” (Id. at p. 760.) To analyze this latter question, we
relied “upon a public policy analysis that is different from the
‘public interest’ factors considered under Tunkl, supra, 60
Cal.2d 92.” (City of Santa Barbara, at p. 762.) We also
examined “the law of other jurisdictions,” the vast majority of
which “state or hold” that agreements to relieve a party of
liability for future gross negligence are void as against public
policy. (Id. at p. 760.)
The case before us does not involve a claim for future
ordinary or gross negligence under the common law. The
complaint instead asserts a negligent violation of the City’s
statutory duty (see Gov. Code, § 835 et seq.) to maintain its
streets in a reasonably safe condition for travel by the public.
Consistent with our precedent (and with the law of other
jurisdictions), we conclude that an agreement to exculpate a
party for future violations of a statutory duty designed to protect
public safety is against the policy of the law under Civil Code
section 1668 and is not enforceable.
We first addressed the validity of an anticipatory release
in the face of a claimed violation of a statutory duty over a
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Opinion of the Court by Evans, J.
century ago in Union Const. Co. v. Western Union Tel. Co. (1912)
163 Cal. 298. The case involved a claim that the defendant
telegraph company had failed to deliver certain telegrams. The
defendant company’s failure was not only negligent, we
observed, but also violated a specific statute requiring the
company to use “ ‘great care and diligence in the transmission
and delivery of messages.’ ” (Id. at p. 314.) But each of the
messages had been “written upon a blank provided by the
defendant containing a contract purporting to exempt it from
liability for damages in excess of the charges for transmission.”
(Id. at p. 309.) Under the circumstances, we found “much force”
in the proposition that “ ‘[i]t would be against reason and public
policy to hold that it is permissible for such a company 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.’ ” (Id. at p. 315.) We found it
unnecessary to rest our decision reversing the nonsuit
exclusively on this proposition, however, because we reasoned
that, in light of the above proposition, the release should not be
construed to include a violation of the company’s statutory duty
to deliver a correctly transmitted message “unless no other
meaning can reasonably be deduced.” (Id. at p. 316.)
Subsequent cases have followed and applied the
proposition we identified in Western Union. In Hanna v.
Lederman (1963) 223 Cal.App.2d 786, the tenants’ property
suffered water damage when the fire sprinkler system flooded
the building. The tenants alleged that the sprinkler system, in
violation of a municipal code ordinance, was not equipped with
an audible alarm and that the lack of an audible alarm was a
proximate cause of their losses. (Id. at pp. 787–788, 792.) The
defendant lessors sought to invoke an exculpatory clause in the
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Opinion of the Court by Evans, J.
commercial lease, in which the tenants agreed to waive all
claims against the lessor for damages to their goods and
merchandise. (Id. at pp. 788–789.) The Court of Appeal declined
to enforce the exculpatory clause. It held that “[s]ince the claim
for damages because of negligence embodied in the first cause of
action of each tenant was predicated upon the alleged violation
of . . . the Municipal Code, the exculpatory provision could not
be a defense to that cause of action if the evidence showed such
violation to be a proximate cause of the tenant’s loss.” (Id. at p.
792.) Similarly, in Halliday v. Greene (1966) 244 Cal.App.2d
482, the Court of Appeal declined to enforce an exculpatory
clause in a residential apartment lease when a tenant was
injured during an escape from a building fire. The plaintiffs
alleged that the building had only one exit stairway, in violation
of a general industry safety order. (Id. at p. 488.) The court
reasoned that “[i]f the safety order is applicable, the exculpatory
clause is ineffective”: “Public policy, as expressed in section
1668, prohibits an agreement to relieve one of the consequences
of his violation of the law, and this whether the violation be
wilful or negligent.” (Halliday, at p. 488.)
More recently, the Court of Appeal prevented the State
Department of Health Care Services from relying on a release
included in its agreement with a managed care health plan on
the ground that the release was violative of public policy under
section 1668. (Health Net of California, Inc. v. Department of
Health Services (2003) 113 Cal.App.4th 224, 226–227 (Health
Net).) The release prohibited “recovery of damages (but not
equitable relief) for any violation of statutory or regulatory law
not made part of the parties’ contractual obligations.” (Id. at pp.
226–227.) The health plan alleged that the Department had
unlawfully assigned thousands of default enrollees to a
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Opinion of the Court by Evans, J.
competitor in violation of the Department’s own regulations,
and sought damages for the loss of its equitable share of new
customers. (Id. at p. 230.) In invalidating the release, the court
declared that “California courts have construed the statute
[section 1668] for more than 85 years to at least invalidate
contract clauses that relieve a party from responsibility for
future statutory and regulatory violations.” (Health Net, at p.
235.)
And in Capri v. L.A. Fitness International, LLC (2006) 136
Cal.App.4th 1078, the Court of Appeal declined to enforce a
release to bar the plaintiff’s claim that he slipped and fell on the
fitness club’s pool deck. The plaintiff alleged the club had
allowed algae to grow there, in violation of state and local health
and safety laws, and that the statutory and code violations
proximately caused him to fall. (Id. at pp. 1082, 1085.) Relying
on Hanna, Halliday, and Health Net, the court concluded that
“the plain language of section 1668 invalidates contract clauses
seeking to relieve a party from responsibility for future
statutory and regulatory violations.” (Capri, at p. 1087; see also
Epochal Enterprises, Inc. v. LF Encinitas Properties (2024) 99
Cal.App.5th 44, 62 [“ ‘a party [cannot] contract away liability for
his fraudulent or intentional acts or for his negligent violations
of statutory law’ ”].)
The case law above is consistent with the prevailing rule
in other jurisdictions. (See, e.g., Miller v. Crested Butte, LLC
(Colo. 2024) 549 P.3d 228, 235–236 [“settled precedent from this
court has established that a party cannot discharge its
obligation to perform a statutory duty by way of an exculpatory
agreement”]; JM Family Enterprises, Inc. v. Winter Park
Imports, Inc. (Fla.Dist.Ct.App. 2009) 10 So.3d 1133, 1133 (per
curiam) [“a release or exculpatory clause that attempts to
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Opinion of the Court by Evans, J.
prospectively insulate a party from liability for violating a
statute or ordinance enacted to protect the public is generally
unenforceable as against public policy”]; La Frenz v. Lake
County Fair Board (Ind.Ct.App. 1977) 360 N.E.2d 605, 609
[“where a safety statute enacted for the protection of the public
is violated,” “the obligation and the right created by the statute
are public ones which are not within the power of any private
individual to waive”]; Lee v. Sun Valley Co. (Idaho 1984) 695
P.2d 361, 364 [“while the agreement between Sun Valley and
plaintiff does absolve Sun Valley from common law liabilities, it
does not absolve Sun Valley from liability for possible violation
of the public duty imposed by I.C. § 6-1204”]; Henry v. Mansfield
Beauty Academy, Inc. (Mass. 1968) 233 N.E.2d 22, 24 [“a
contract cannot serve to shield the defendant from responsibility
for violation of a statutory duty”]; James Vault & Precast Co. v.
B&B Hot Oil Serv., Inc. (N.D. 2019) 927 N.W.2d 452, 466 [“a
contractual provision purporting to exempt anyone from
responsibility for a willful or negligent violation of statutory or
regulatory law is against the policy of law and not enforceable”];
Boyd v. Smith (Pa. 1953) 94 A.2d 44, 46 [“when the legislation
in question is, as here, a police measure obviously intended for
the protection of human life . . . public policy does not permit an
individual to waive the protection which the statute is designed
to afford him”]; Finch v. Inspectech, LLC (W.Va. 2012) 727
S.E.2d 823, 832 [“a limitation of liability contractual provision
may be invalidated as contrary to public policy if it absolves a
party of liability for failure to conform to a statutorily imposed
standard of conduct”]; accord, Street v. Darwin Ranch, Inc.
(D.Wyo. 1999) 75 F.Supp.2d 1296, 1300 [“the Court finds no
fault with Plaintiff’s premise that a release agreement is invalid
as against public policy if it conflicts with a standard of care
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Opinion of the Court by Evans, J.
imposed by a safety statute”]; see generally Rest.2d Contracts,
§ 195, com. a [“If, for example, a statute imposes a standard of
conduct, a court may decide on the basis of an analysis of the
statute, that a term exempting a party from liability for failure
to conform to that standard is unenforceable”].)
Whitehead’s claim fits squarely in this category. He
alleges the City had a statutory duty to maintain its roadways
in a safe condition for the public, including for those members of
the public on bicycles. (See Gov. Code, § 835 et seq.; Williams v.
County of Sonoma (2020) 55 Cal.App.5th 125, 132 [“The County
owes a duty to maintain safe roads for all foreseeable uses,
including . . . bicycling as a means of transportation”]; Campbell
v. Palm Springs (1963) 218 Cal.App.2d 12, 22 [“It is a
municipality’s duty to keep its streets and sidewalks in a
reasonably safe condition”].) He further alleges that the pothole
created a dangerous condition in the roadway; that the City
negligently breached its duty by failing to warn of, prevent, or
correct the road’s dangerous condition or designate a bicycle
lane; and that he suffered economic and noneconomic injuries as
a result of the City’s violation of its statutory duty.
We have not been asked to decide whether Whitehead has
adequately supported his claim that the City had a statutory
duty to him, breached it, and thereby caused damages. Those
questions are not before us, and we express no view on them.
(See City of Santa Barbara, supra, 41 Cal.4th at p. 778, fn. 56.)
The narrow issue before us is whether Whitehead’s claim
against the City, assuming it is otherwise valid, is barred by the
release. (See Health Net, supra, 113 Cal.App.4th at p. 235.) We
hold that it is not.
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Opinion of the Court by Evans, J.
The Court of Appeal came to the opposite conclusion. It
correctly recognized that the validity of the release depended on
section 1668. (Whitehead, supra, 99 Cal.App.5th at p. 781.) And
it acknowledged, albeit only in the background section of its
opinion, that Whitehead’s claim asserted the City had breached
its statutory duty to maintain the road in a safe condition for
the public. (Id. at p. 780.) But the Court of Appeal, like the
parties, proceeded on the assumption that Tunkl — which, as
stated above, 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. 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.” (City
of Santa Barbara, supra, 41 Cal.4th at p. 763.) 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, whether willful or negligent.” (See
Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106
Cal.App.4th 662, 670 [“ ‘This section made it clear a party could
not contract away liability for his fraudulent or intentional acts
or for his negligent violations of statutory 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 City disagrees with the reasoning of the cases that
failed to apply Tunkl to releases involving statutory violations.
In its view, the phrase “violation of law” in section 1668 is
sufficiently “expansive” to “encompass[] common-law claims as
well as statutory ones.” From this premise, the City argues that
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Opinion of the Court by Evans, J.
the Tunkl test should apply equally to releases of both types of
violations. The City’s premise, however, is incorrect. If
“violation of law” encompassed the common law as well as
positive law, there would have been no need for the Legislature
to separately prohibit agreements purporting to exempt a party
from responsibility “for his own fraud” or for “willful injury to
the person or property of another.” (§ 1668; see Health Net,
supra, 113 Cal.App.4th at p. 233.) Excluding the common law
from the “law” referenced in section 1668 is the only
construction that gives effect to all the words in the statute.1
Moreover, this construction is consistent with our observation
in City of Santa Barbara, supra, 41 Cal.4th at page 763, that
Tunkl, which involved a claim of common law negligence, set
forth grounds for invalidating an anticipatory release “on public
policy grounds other than those set forth in section 1668.” There
would have been no need for us to reach beyond the statute to
assess a release involving ordinary negligence if ordinary
negligence qualified as a “violation of law” within the terms of
section 1668.
The City, like the Court of Appeal, relies heavily on Okura
v. United States Cycling Federation (1986) 186 Cal.App.3d 1462
(Okura). The City claims Okura “is directly on point”; the Court
of Appeal deemed it “materially indistinguishable” from this
case. (Whitehead, supra, 99 Cal.App.5th at p. 784.) Although
1
At oral argument, the City stated that section 1668 “was
not drafted as well as we might all like.” But we perceive no
drafting anomaly. The canon against surplusage is a venerable
one that predates section 1668’s enactment (see, e.g., People v
Waterman (1866) 31 Cal. 412, 415) and enables a construction
that gives effect to each part of the statute.
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we find there are some similarities between this case and Okura,
there are also some key differences.
The plaintiff in Okura suffered injuries when his bicycle
hit loose debris as he was crossing railroad tracks during a
bicycle race in Hermosa Beach organized by an affiliate of the
United States Cycling Federation. (Okura, supra, 186
Cal.App.3d at pp. 1464–1465.) Prior to the race, the plaintiff
had executed a release that provided in relevant part: “ ‘In
consideration of the acceptance of my application for entry in the
above event, I hereby waive, release and discharge any and all
claims for damages for death, personal injury or property
damage which I may have, or which may hereafter accrue to me,
as a result of my participation in said event. This release is
intended to discharge in advance the promoters, sponsors, the
U.S.C.F., the S.C.C.F., the promoting clubs, the officials, and
any involved municipalities or other public entities (and their
respective agents and employees), from and against any and all
liability arising out of or connected in any way with my
participation in said event, even though that liability may arise
out of negligence or carelessness on the part of the persons or
entities mentioned above.’ ” (Id. at p. 1465.) The trial court
granted summary judgment to the United States Cycling
Federation, its local affiliate, and the City of Hermosa Beach.
The Court of Appeal, relying on the Tunkl factors, affirmed.
(Okura, at pp. 1466–1469.) We do not find Okura illuminating
on the claim presented here, however.
Okura articulated grounds for enforcing the release
against the race organizers but did not purport to offer any
separate analysis of the release with respect to the City of
Hermosa Beach. Indeed, the court’s discussion of the first Tunkl
factor (i.e., whether the transaction “concerns a business of a
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Opinion of the Court by Evans, J.
type generally thought suitable for public regulation” (Tunkl,
supra, 60 Cal.2d at p. 98)) remarked simply that “[n]either the
South Bay Wheelmen nor the United States Cycling Federation
are subject to public regulation”; it made no mention at all of the
municipality’s duty to maintain safe public roadways. (Okura,
supra, 186 Cal.App.3d at p. 1466.) Furthermore, Okura
involved a competitive race on a closed course (id. at p. 1464; cf.
Gov. Code, § 831.7, subd. (b)(3) [classifying “bicycle racing,” but
not “riding a bicycle on paved pathways [or] roadways,” as a
“ ‘Hazardous recreational activity’ ”]); here, by contrast,
Whitehead has presented evidence that he was riding his bike
on an open road, using the lane — as a member of the general
public might — for its intended purpose. Finally, the only cause
of action mentioned in the Okura opinion was one for common
law negligence. (See Okura, supra, 186 Cal.App.3d at p. 1464.)
The court never considered how to analyze a release in the
context of a statutory violation. (Cf. Capri v. L.A. Fitness
International, LLC, supra, 136 Cal.App.4th at pp. 1084–1085
[applying the Tunkl factors and upholding the release as to a
common law negligence cause of action, but deeming the release
unenforceable as to a cause of action based on negligent
violations of the Health & Saf. Code].) We express no view on
whether Okura was correctly decided or whether it might have
been decided differently if the plaintiff had argued that
Hermosa Beach violated a statutory duty. It is sufficient for our
purposes to conclude that Okura’s reasoning does not apply
here.
The City argues next that Government Code section 835
does not represent the kind of “law” contemplated by the bar on
anticipatory releases because section 835 “does not prescribe
any rules or standards public entities must comply with for
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Opinion of the Court by Evans, J.
maintaining their roads or streets” and “[i]n fact, does not
require them to do anything at all.” Section 835, in the City’s
view, “simply describes the limited circumstances under which
a public entity may lose its immunity to liability.”
The City cites no authority for its characterization of
Government Code section 835. Its characterization, moreover,
is contrary to our precedent. As we recognized in Zelig v. County
of Los Angeles (2002) 27 Cal.4th 1112, 1133, under section 835
public entities owe members of the public a “duty not to
maintain public premises in a dangerous condition.” (See also
Williams v. County of Sonoma, supra, 55 Cal.App.5th at p. 132;
Campbell v. Palm Springs, supra, 218 Cal.App.2d at p. 22.) Our
case law thus demonstrates that section 835 does require
municipalities to do something about public roadways in
appropriate circumstances. Whether such circumstances are
present here, of course, is beyond the scope of our opinion. (See
ante, p. 12.)
The City’s interpretation of Government Code section 835
does not make logical sense, either. It is true, as the City
asserts, that section 835 represents a limited waiver of
immunity. But a mere waiver of immunity would not itself
create a cause of action, especially since (as the City repeatedly
observes) no common law claim can lie against a public entity.
(See Gov. Code, § 815, subd. (a).) Accordingly, section 835
represents both a limited waiver of sovereign immunity and an
articulation of a cognizable cause of action. (See Pfleger v.
Superior Court (1985) 172 Cal.App.3d 421, 432 [§ 835 “defines a
form of governmental liability, not an immunity”].) The City’s
assumption that section 835 performs only the former function
finds no support in the statute’s text or in our precedent.
17
WHITEHEAD v. CITY OF OAKLAND
Opinion of the Court by Evans, J.
The City contends next that it should be entitled to enforce
the release because of Government Code section 815,
subdivision (b), which in pertinent part provides that “[t]he
liability of a public entity established by this part . . . is subject
to any defenses that would be available to the public entity if it
were a private person.” But Civil Code section 1668 bars
contracts purporting to exempt “anyone” — public or private —
from responsibility for a “violation of law.” Accordingly,
AIDS/LifeCycle would be equally unable, by virtue of Civil Code
section 1668, to enforce the release against any claim based on
a statutory violation. Government Code section 815 therefore
does not aid the City in this case.
The City advises us that invalidating the release in this
case will have “especially dire consequences for public entities,
inevitably increasing their liability.” It offers hypotheticals in
which, say, a group of senior citizens rents space from the public
library to play bridge, during which an attendee trips over loose
computer cables on the floor; or a member of a private karate
club that rents space from an elementary school is injured at the
school. If the releases secured by these organizations cannot be
enforced by the public entities that provided the space where the
injury occurred, the City ominously predicts, “public entities will
have every incentive to restrict the use of their premises to avoid
potentially exorbitant liabilities.” Alternatively, the City warns,
public entities will “likely have to consider requiring permits for
large training rides like the one in which Whitehead was
injured,” as well as “demanding insurance and indemnification
from the sponsors of recreational activities,” thereby making
“recreational events harder to come by and more expensive.”
We note here, as we did in City of Santa Barbara, supra,
41 Cal.4th 747, that no empirical evidence has been offered to
18
WHITEHEAD v. CITY OF OAKLAND
Opinion of the Court by Evans, J.
support these assertions. (Id. at pp. 768, 773–774.) 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.” (Id. at p. 774.) In
addition, the City’s warning that the increased risk of liability
will cause public entities to prohibit, or make prohibitively
expensive, the recreational use of their facilities seems
exaggerated. The City already owes a duty to the public to
maintain its public roadways in a safe condition. Any cyclist
traveling this part of Skyline who suffered an injury but was not
part of the training ride would presumably have been entitled
to file an action against the City for violating its statutory duty
under Government Code section 835. The City does not explain
how its burdens would intolerably increase if Whitehead,
traveling the same road in the same manner, had the same
opportunity.
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.2 Statutes, regulations, and ordinances have
2
The City warns that if this release is allowed to stand,
every ordinary negligence claim could be recast as a violation of
a statute: namely, Civil Code section 1714, subdivision (a),
which in pertinent part provides, “Everyone is responsible, not
only for the result of his or her willful acts, but also for an injury
occasioned to another by his or her want of ordinary care or skill
in the management of his or her property or person . . . .” We
disagree. The release here purported to release the City from a
specific statutory duty, not the generalized duty of care under
19
WHITEHEAD v. CITY OF OAKLAND
Opinion of the Court by Evans, J.
proliferated since the enactment of section 1668 in 1872.
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. (See Capri v. L.A. Fitness
International, LLC, supra, 136 Cal.App.4th at p. 1087 [“this
portion of the agreement still seeks to exculpate respondent for
its violation of the swimming pool safety statutes, and hence is
invalid under section 1668”]; accord, Street v. Darwin Ranch,
Inc., supra, 75 F.Supp.2d at p. 1300 [release is invalid “if it
conflicts with a standard of care imposed by a safety statute”];
JM Family Enterprises, Inc. v. Winter Park Imports, Inc., supra,
10 So.3d at p. 1133 [release is invalid if it “attempts to
prospectively insulate a party from liability for violating a
statute or ordinance enacted to protect the public”]; La Frenz v.
Lake County Fair Board, supra, 360 N.E.2d at p. 609
[obligations and rights created by “a safety statute enacted for
the protection of the public . . . are public ones which are not
within the power of any private individual to waive”]; Boyd v.
Smith, supra, 94 A.2d at p. 46 [an individual may not waive “a
police measure obviously intended for the protection of human
life”].) To hold otherwise would substantially undermine the
Legislature’s ability to protect the public.
section 1714. We note further that section 1714, like section
1668, was enacted as part of the original Civil Code in 1872. Yet
notwithstanding section 1714, courts have recognized that
parties have the freedom to contract a release of ordinary
negligence in certain circumstances (see, e.g., Lewis Operating
Corp. v. Superior Court (2011) 200 Cal.App.4th 940, 946), and
indeed the entire Tunkl framework would have been
unnecessary if section 1714 had the sweeping effect the City
fears.
20
WHITEHEAD v. CITY OF OAKLAND
Opinion of the Court by Evans, J.
III. DISPOSITION
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. Because the Court of Appeal
affirmed the grant of summary judgment based on the release —
a decision we have now found to be error — it did not consider
“whether the doctrine of primary assumption of risk forecloses
plaintiff’s claim.” (Whitehead, supra, 99 Cal.App.5th at p. 790.)
That argument remains available to the City on remand. We
reverse the judgment of the Court of Appeal and remand the
cause to that court for further proceedings consistent with this
opinion.
EVANS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
21
WHITEHEAD v. CITY OF OAKLAND
S284303
Concurring Opinion by Justice Kruger
I agree with the majority that the City of Oakland may not
enforce an agreement purporting to release it from liability for
failing to make public roads safe for ordinary, foreseeable uses.
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.
I’ll start with the framework. As this case came to us, the
parties’ debate revolved exclusively around the proper
application of our seminal decision in Tunkl v. Regents of
University of California (1963) 60 Cal.2d 92 (Tunkl), concerning
the enforceability under Civil Code section 1668 (section 1668)
of contractual agreements to anticipatorily release a party from
legal liability. We asked the parties to brief the question
whether Tunkl governs in a case involving statutory violations.
The City responded that Tunkl must govern, because Tunkl
neither draws nor admits of any distinction between statutory
and common law violations.
Well, yes and no. The Tunkl opinion proceeds essentially
in two parts. At the outset, seeking to bring clarity and
uniformity to a century’s worth of disparate interpretations of
section 1668, Tunkl identified and endorsed the common
doctrinal thread between them: Voluntarily adopted
exculpatory clauses in private contracts, though not
categorically prohibited, are not enforceable if they “affect[] the
1
WHITEHEAD v. CITY OF OAKLAND
Kruger, J., concurring
public interest.” (Tunkl, supra, 60 Cal.2d at p. 98.) Then, to this
core general proposition, Tunkl added more specific guidance to
assist in “placing particular contracts within or without the
category of those affected with a public interest.” (Ibid.)
Without venturing any comprehensive definition of the public
interest, Tunkl identified six factors frequently cited as relevant
to determining whether a contractual release of liability will be
held invalid as affecting the public interest, including whether
the parties’ transaction “concerns a business of a type generally
thought suitable for public regulation”; whether “[t]he party
seeking exculpation is engaged in performing a service of great
importance to the public, which is often a matter of practical
necessity for some members of the public”; and whether, “[a]s a
result of the essential nature of the service . . . the party
invoking exculpation possesses a decisive advantage of
bargaining strength against any member of the public who seeks
his services.” (Id. at pp. 98–100, fn. omitted.)
As to the first, broad proposition about the general
enforceability of releases of liability, I think the City is correct
that Tunkl drew no express distinction between releases of
statutory claims and common law claims, appearing to regard
both types of claims as implicating section 1668’s dictates about
releases of liability for “ ‘[n]egligent . . . violation[s] of law.’ ”
(Tunkl, supra, 60 Cal.2d at p. 95.) We accepted the proposition
that a “strict[]” reading of the language of section 1668 would
encompass “any contract for exemption from liability for
negligence” — presumably because a failure to comply with the
legal duty of ordinary care is, strictly speaking, a “ ‘[n]egligent’ ”
“ ‘violation of law.’ ” (Tunkl, at p. 95.) We also cited, with
seeming approval, a leading treatise’s criticism of the view that
a “ ‘ “violation of law” ’ ” could be read as “ ‘limited strictly to
2
WHITEHEAD v. CITY OF OAKLAND
Kruger, J., concurring
violation of statutes.’ ” (Id. at pp. 95–96, fn. 3.) Indeed, we went
out of our way to quote that criticism at some length: “ ‘Apart
from the debatable interpretation of “violation of law” as limited
strictly to violation of statutes, the explanation appears to make
an unsatisfactory distinction between (1) valid exemptions from
liability for injury or death resulting from types of ordinary or
gross negligence not expressed in statutes, and (2) invalid
exemptions where the negligence consists of violation of one of
the many hundreds of statutory provisions setting forth
standards of care.’ ” (Ibid.)
But the 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. Relying on the
six Tunkl public interest factors, the City argues that the release
is enforceable because the subject of the contract —
participation in a recreational bicycle ride — does not concern
the provision of a necessary service. That is to say, there was
no practical necessity for Whitehead to participate in a
recreational long-distance bicycle ride; he could easily have
avoided the risk by staying home.
This is where the City goes wrong. When Tunkl set out
six factors to guide the inquiry into whether a particular
contract is one that affects the public interest, Tunkl was at
pains to note that it was not setting out a one-size-fits-all test
for determining when a release of liability affects the public
interest or goes “against the policy of the law.” (§ 1668; see
Tunkl, supra, 60 Cal.2d at pp. 97–98.) The six public interest
factors set out in the opinion are, unsurprisingly, geared to the
type of situation we confronted in that case: That is, they are
3
WHITEHEAD v. CITY OF OAKLAND
Kruger, J., concurring
designed to help identify the public policy interests in a private
contractual release of liability for ordinary common law
negligence where the transaction at issue is one in which the
purveyor of an essential good or service uses its relative
bargaining power to shift the risk of its negligence to the less
powerful bargainer. (See Tunkl, at p. 101.) Tunkl’s
nonexhaustive list of six factors concerning the public’s interest
in particular private transactions does not take into account —
nor was it meant to take into account — how the enactment of
legislation imposing specific obligations or 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. (Id. at p. 97.)
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.” (Maj.
opn., ante, at pp. 19–20.) The reservation is indisputably
appropriate; section 1668 clearly does not invalidate every
anticipatory release of liability where liability is based in some
part on statutory law. At the same time that it enacted section
1668 in 1872, the Legislature enacted other liability-related
statutes that overlapped to some degree with common law
causes of action, including, but not limited to, Civil Code section
1714. (The fraud statute, Civil Code section 1709, is another
example.) As the majority notes, the Tunkl opinion would have
been written very differently if the enactment of section 1714 —
the statute that codifies the duty of ordinary care on which every
4
WHITEHEAD v. CITY OF OAKLAND
Kruger, J., concurring
claim of common law negligence is founded — were alone
sufficient to invalidate a contractual release of liability. (See
maj. opn., ante, at p. 20, fn. 2; see also Tunkl, supra, 60 Cal.2d
at p. 96, fn. 3 [approvingly quoting commentator’s skepticism
that § 1668 was meant to invalidate all contractual releases for
liability for negligence “ ‘where the negligence consists of
violation of one of the many hundreds of statutory provisions
setting forth standards of care’ ”].) And at the same time that
the Legislature enacted section 1668, the Legislature also
enacted Civil Code section 3513, which provides: “Any one may
waive the advantage of a law intended solely for their benefit.
But a law established for a public reason cannot be contravened
by a private agreement.” (See, e.g., Bickel v. City of Piedmont
(1997) 16 Cal.4th 1040, 1050 [waiver of statutory rights
regarding permit applications did not violate Civ. Code, § 3513
when the provisions were for the benefit of individual applicants
and did not “seriously compromise any public purpose”].) If
some statutory rights not affecting the public interest can be
waived, it is not clear why section 1668 would categorically bar
parties from reallocating the risks of negligent violation of such
statutory rights by contract.
As to the specific statutory claim here, the majority
opinion grounds its holding in Government Code section 835, a
statute that sets forth the conditions for suing a public entity for
dangerous conditions of public property. But it does not hold
that every contractual release of claims that might be brought
under section 835, concerning conditions of public property, is
necessarily barred by section 1668; it deals only with the safety
of the public roads — i.e., publicly owned property that is
dedicated to use by the public. The public policy regarding the
obligation to maintain the safety of such property is clear and,
5
WHITEHEAD v. CITY OF OAKLAND
Kruger, J., concurring
for present purposes, controlling. Moreover, today’s opinion
does not hold that section 1668 bars release of liability on every
possible claim related to the condition of the roads. It is by now
well established that the statutory duty reflected in section 835
concerns public entities’ duty to address conditions related to
the safety of the roadway for typical, foreseeable uses, rather
than the unique risks that might be related to other types of
roadway use. (Legis. Com. coms., 32 pt. 2 West’s Ann. Gov. Code
(2012 ed.) foll. § 835, p. 99.) The conditions that make a road
safe for ordinary use may not be the same as the conditions that
make the road safe for landing a plane (ibid.) or, say, holding
the cycling leg of the Olympic triathlon.
But this case does not involve a plane landing or, for that
matter, a mass racing event. And as the majority says, the
question before us is not whether Whitehead has presented an
otherwise valid claim under Government Code section 835,
based on the condition of the roads for ordinary, foreseeable uses
by the public; it is only whether the law countenances an
agreement to release a public entity from liability for failing to
keep the roads safe for such uses. A city’s duty to keep the public
roads safe for ordinary public uses is a matter of undeniable
public concern, and the policy of the law does not permit
enforcement of a private contract purporting to sign that duty
away.
KRUGER, J.
6
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Whitehead v. City of Oakland
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 99 Cal.App.5th 775
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S284303
Date Filed: May 1, 2025
__________________________________________________________
Court: Superior
County: Alameda
Judge: Richard L. Seabolt
__________________________________________________________
Counsel:
Law Office of Gerald Clausen, Gerald Clausen; The Veen Firm,
Anthony L. Label and Steven A. Kronenberg for Plaintiff and
Appellant.
Stiller Law Firm and Ari J. Stiller for Consumer Attorneys of
California as Amicus Curiae on behalf of Plaintiff and Appellant.
Rahman Law and Shaana A. Rahman for California Bicycle Coalition,
San Francisco Bicycle Coalition and Bike East Bay as Amici Curiae on
behalf of Plaintiff and Appellant
Barbara J. Parker and Ryan Richardson, City Attorneys, Maria Bee,
Chief Assistant City Attorney, Kevin P. McLaughlin and Allison L.
Ehlert, Deputy City Attorneys, for Defendant and Respondent.
Jennifer B. Henning and Joseph Wells Ellinwood for the California
State Association of Counties, League of California Cities, County
Engineers Association of California, California Association of Joint
Powers Authorities and Public Risk Innovation Solutions and
Management as Amici Curiae on behalf of Defendant and Respondent.
Erin E. Holbrook, Alan M. Steinberg, Jeffrey B. Knox, S. Ann
Salisbury and Cole W. Smith-Crowley for the Department of
Transportation as Amicus Curiae on behalf of Defendant and
Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Gerald Clausen
Law Office of Gerald Clausen
2021 Fillmore Street, PMB 2168
San Francisco, CA 94115
(415) 391-4475
Allison L. Ehlert
Deputy City Attorney
1 Frank H. Ogawa Plaza, 6th Floor
Oakland, CA 94612
(510) 238-3596