Opinion

Whitehead v. City of Oakland

Court
California Supreme Court
Filed
May 1, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 35.0%

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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WHITEHEAD v. CITY OF OAKLAND

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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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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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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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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WHITEHEAD v. CITY OF OAKLAND

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.

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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

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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

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