Showing posts with label Waiver and Release cases. Show all posts
Showing posts with label Waiver and Release cases. Show all posts

November 11, 2014

High profile helmet case against Citi bike

This is an interesting recent case against the very large and prominent Citi Bike operation in New York. There has been a lot of media attention on them.  Unfortunately it is not clear from the article what stage the case is in. Our research shows that it was filed February 27, 2014. I suspect that some discovery will need to take place before dismissal motions can be made on legal grounds. There is no discussion in the article as to what legal issues are at play. We will try to keep you posted on this case as it progresses. Additional dates we now know about are as follows: No party may make a motion for summary judgment until May 11, 2015 (this weill be a key date). Discovery is due to be completed by 2/9/2015. Expert witness discovery due by 4/9/2015.

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January 1, 2009

Scott Kirton et. al. v Jordan Fields et. al. No. SC07-1741 Dec 11, 2008 Sup. Ct. of Florida

This is a Dec 2008 case from Florida which holds that a parent does not have the authority to execute a pre-injury release on behalf of a minor child when the release involves participation in a "commercial activity". This is similar to the Hawkins v Peart case in Utah. Amazingly California has not followed this line of decisions yet. A pdf version of this case is printable by clicking here


Supreme Court of Florida No. SC07-1739 SCOTT COREY KIRTON, etc., et al., Petitioners, vs. JORDAN FIELDS, etc., et al., Respondents. No. SC07-1741 DEAN DYESS, Petitioner, vs. JORDAN FIELDS, etc., et al., Respondents. No. SC07-1742 H. SPENCER KIRTON, et al., Petitioners, vs. JORDAN FIELDS, etc., et al., Respondents.

[December 11, 2008] QUINCE, C.J.

We have for review the decision of the Fourth District Court of Appeal in Fields v. Kirton, 961 So. 2d 1127 (Fla. 4th DCA 2007), which certified the following question to be of great public importance:

WHETHER A PARENT MAY BIND A MINOR’S ESTATE BY THE PRE-INJURY EXECUTION OF A RELEASE. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. 1 For the reasons discussed below, we answer the certified question in the negative and hold that a parent does not have the authority to execute a pre-injury release on behalf of a minor child when the release involves participation in a commercial activity. 2 1. The Fourth District also certified conflict with the decision of the Fifth District Court of Appeal in Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590 (Fla. 5th DCA 1998). However, subsequent to its decision in Lantz and subsequent to the certification of conflict, the Fifth District decided Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112 (Fla. 5th DCA 2008), where the Fifth District aligned itself with the Fourth District in Kirton. For those reasons and because the Fourth District certified a question providing us for any independent basis for jurisdiction, we do not address the certified conflict. 2. We answer the certified question as to pre-injury releases in commercial activities because that is what this case involves. Our decision in this case should not be read as limiting our reasoning only to pre-injury releases involving commercial activity; however, any discussion on pre-injury releases in - 2 -

Page 3 STATEMENT OF THE CASE AND FACTS The instant action arises from the decision by the Fourth District Court of Appeal in Fields v. Kirton, 961 So. 2d 1127 (Fla. 4th DCA 2007). The facts of the underlying action were detailed in the opinion of that court: Pursuant to a final judgment of dissolution of marriage, Bobby Jones was the primary residential parent for his fourteen year old son, Christopher. On May 10, 2003, the father took Christopher to Thunder Cross Motor Sports Park to ride his all terrain vehicle (ATV). To gain entry to the facility and be allowed to participate in riding the ATV, Bobby Jones, as Christopher's natural guardian, signed a release and waiver of liability, assumption of risk, and indemnity agreement. While attempting a particular jump, Christopher lost control of his ATV, causing himself to be ejected. Tragically, he hit the ground with the ATV landing on top of him. He got up, walked a short distance, then collapsed and died. Christopher's mother, Bette Jones, was unaware that the father was permitting their son to engage in this activity. She was also unaware that approximately one month prior to the accident causing Christopher's death, he had attempted the same jump, resulting in a fractured rib and mild concussion. Id. at 1128. Subsequently, Fields, as personal representative of the estate of Christopher Jones, filed suit for wrongful death against Spencer Kirton, Scott Corey Kirton, Dudley Kirton, and the Kirton Brother Lawn Service, Inc. (“the Kirtons”) as owners and operators of Thunder Cross Motor Sports. The amended complaint also named Dean Dyess as a defendant for his participation in the management of noncommercial activities would be dicta and it is for that reason we do not discuss the broader question posed by the Fifth District. - 3 -

Page 4 the park. The Kirtons then filed an answer and affirmative defenses to the amended complaint. In one of the affirmative defenses, the Kirtons argued that the claims raised by Fields were barred by the release and waiver executed by Mr. Jones on behalf of his son. The Kirtons thereafter filed a motion for summary judgment based on the release and waiver. 3 The trial court entered an order granting the Kirtons’ motion for summary judgment on the wrongful death claim, finding that there was no genuine issue of material fact because the release executed by Mr. Jones on behalf of his minor child, Christopher, barred the claim. On appeal, the Fourth District reversed the trial court’s order granting the motion for summary judgment. In doing so, the district court emphasized that the issue was not about a parent’s decision on what activities are appropriate for his or her minor child, which is properly left to the parent. Instead, the issue concerned the “decision to absolve the provider of an activity from liability for any form of negligence . . . [which] goes beyond the scope of determining which activity a 3. Mr. Jones filed an affidavit in support of the Kirtons’ motion for summary judgment. In that affidavit, he admitted that he willfully and with full understanding executed the release on behalf of his minor child at Thunder Cross Motor Sports Park. He also stated that he understood that it was his intention to waive the right to sue for the death of Christopher and to be banned by the other terms as set forth in the general release. He further stated that he understood that by signing the general release, he was forever discharging the Kirtons for any and all loss or damage and any claim or demands on account of injury to Christopher or his property or resulting in the death of Christopher arising out of or related to the events, whether caused by the negligence of the releasees or otherwise. - 4 -

Page 5 person feels is appropriate for their child.” Id. at 1129. This is because the “effect of the parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor.” As a result, the district court found that these rights could not be waived by the parents absent a basis in common law or statute. Id. at 1129-30. The district court found that there was no statutory scheme governing the issue of pre-injury releases signed by parents on behalf of minor children. Because there is no basis in common law or statute, the district court found that the courts do not have the authority to “judicially legislate that which necessarily must originate, if it is to be law, with the legislature.” Id. at 1130. Accordingly, the district court held that a parent could not bind a minor’s estate by the parent’s execution of a pre-injury release. In doing so, the Fourth District also certified the above question to be of great public importance and certified conflict with the Fifth District Court of Appeal’s decision in Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590 (Fla. 5th DCA 1998). ANALYSIS The issue in this case is the enforceability of a pre-injury release executed by a parent on behalf of a minor child that binds a minor child’s estate and releases an activity provider from liability. Because the enforceability of the pre-injury release is a question of law arising from undisputed facts, the standard of review is de novo. See D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003) (stating that - 5 -

Page 6 the standard of review for pure questions of law is de novo and no deference is given to the judgment of the lower courts). The Kirtons and the amicus curiae 4 supporting their position assert that a parent has a fundamental right to make decisions relating to the care of a minor child, and that right includes executing a pre-injury release on behalf of the minor child. The Kirtons also argue that enforcing the validity of a pre-injury release is consistent with Florida courts that have ruled that a parent has the prelitigation right to forego settlement awards in favor of pursuing a lawsuit without court approval or appointment of a guardian ad litem. On the other hand, Fields contends that pre-injury releases are invalid because neither the common law nor the Legislature has given parents the authority to waive these substantive rights of a minor child. Parental Authority and the State’s “Parens Patriae” Authority The enforceability of a pre-injury release concerns two compelling interests: that of the parents in raising their children and that of the state to protect children. Parental authority over decisions involving their minor children derives from the liberty interest contained in the Fourteenth Amendment to the United States Constitution and the guarantee of privacy in article I, section 23 of the Florida Constitution. See Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion) 4. The American Motorcyclist Association. - 6 -

Page 7 (“In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”); see also Beagle v. Beagle, 678 So. 2d 1271, 1275 (Fla. 1996) (“The fundamental liberty interest in parenting is protected by both the Florida and federal constitutions. In Florida, it is specifically protected by our privacy provision.”). In fact, beginning with Meyer v. Nebraska, 262 U.S. 390 (1923), the United States Supreme Court has recognized that parents have a constitutionally protected interest in child rearing. In Troxel, the United States Supreme Court further pointed to a presumption that fit parents act in the best interests of their children. . . . Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. 530 U.S. at 68-69; see also Von Eiff v. Azicri, 720 So. 2d 510, 514 (Fla. 1998) (“Neither the legislature nor the courts may properly intervene in parental decision- making absent significant harm to the child threatened by or resulting from those decisions.”). However, these parental rights are not absolute and the state as parens patriae may, in certain situations, usurp parental control. In Global Travel - 7 -

Page 8 Marketing, Inc. v. Shea, 908 So. 2d 392, 399 (Fla. 2005), we explained the concept of parens patriae as applied in this State: "Parens patriae," which is Latin for "parent of his or her country," describes "the state in its capacity as provider of protection to those unable to care for themselves." Black's Law Dictionary 1144 (8th ed. 2004). The doctrine derives from the common-law concept of royal prerogative, recognized by American courts in the form of legislative prerogative. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982). The United States Supreme Court, upholding a state child labor law in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), recognized the parens patriae power when it stated that although the "custody, care, and nurture of the child reside first in the parents, . . . the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor and in many other ways." Id. at 166, 64 S.Ct. 438 (footnotes omitted). In decisions over the past three decades, this Court has expressly relied on the state's parens patriae authority to protect children in two areas: (1) juvenile delinquency and dependency, see P.W.G. v. State, 702 So.2d 488, 491 (Fla.1997); State v. D.H., 340 So.2d 1163, 1166 (Fla.1976); In re Camm, 294 So.2d 318, 320 (Fla.1974); and (2) child custody and support. See Schutz v. Schutz, 581 So.2d 1290, 1293 (Fla.1991); Lamm v. Chapman, 413 So.2d 749, 753 (Fla.1982); Kern v. Kern, 333 So.2d 17, 19 (Fla.1976). Pervasive statutory schemes cover each of these areas. See generally ch. 39, Fla. Stat. (2004) ("Proceedings Relating to Children"); ch. 61, Fla. Stat. (2004) ("Dissolution of Marriage; Support; Custody"); ch. 984, Fla. Stat. (2004) ("Children and Families in Need of Services"); ch. 985, Fla. Stat. (2004) ("Delinquency; Interstate Compact on Juveniles"). Although there is no statutory scheme governing pre-injury releases, the Kirtons argue that a parent’s execution of a pre-injury release falls squarely within the parent’s authority to settle pursuant to section 744.301(2), Florida Statutes (2007). This statutory provision allows a parent, acting as the natural guardian of a - 8 -

Page 9 minor child, to settle the child’s claim for amounts up to $15,000. The Kirtons reason that because at the time a parent signs a pre-injury release, the claim is worth less than $15,000, the parent’s authority to execute a pre-injury release for a minor child falls within this section. Contrary to the Kirtons’ assertion, a parent’s authority to execute a pre-injury release on behalf of a minor child does not fall within the purview of section 744.301(2). Section 744.301, Florida Statutes (2007), applies to situations where a minor child already has a cause of action against another party. A pre-injury release is executed before any cause of action accrues and extinguishes any possible cause of action. The absence of a statute governing parental pre-injury releases demonstrates that the Legislature has not precluded the enforcement of such releases on behalf of a minor child. See Global Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 400 (Fla. 2005) (noting that the absence of a statutory scheme governing a parent’s agreement to binding arbitration on behalf of a minor child demonstrates that the Legislature has not precluded the enforcement of such agreements). However, we find that public policy concerns cannot allow parents to execute pre-injury releases on behalf of minor children. Florida Courts Although this is an issue of first impression for this Court, the district courts of Florida have addressed this matter, but their decisions have not been consistent. - 9 -

Page 10 In Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590 (Fla. 5th DCA 1998), the minor child’s natural guardian filed suit against Iron Horse Saloon after the child was injured while operating a “pocket bike” on the Iron Horse premises. Id. at 591. The trial court granted Iron Horse’s motion to dismiss the complaint based on the pre-injury release executed by the minor child’s guardian. On appeal, the Fifth District affirmed the trial court’s order granting the motion, finding that the release was sufficient to bar the child’s claim. Id. at 591-92. However, the Fifth District’s decision was based on the finding that the release clearly and unequivocally relieved Iron Horse from liability. The district court did not focus on whether the guardian had authority to execute the pre-injury release on behalf of the minor. Id. In Gonzalez v. City of Coral Gables, 871 So. 2d 1067 (Fla. 3d DCA 2004), the mother signed a pre-injury release so that the minor child could participate in the Coral Gables Fire Rescue Explorer Program. After the child was injured, the mother filed suit and the trial court entered summary judgment in favor of the city based on the release the mother had signed. The Third District affirmed and found that the release barred the mother’s claim on behalf of the minor child. Id. at 1067- 68. The district court relied on a distinction the Fourth District made in Shea v. Global Travel Marketing, Inc., 870 So. 2d 20, 24 (Fla. 4th DCA 2003), quashed, 908 So. 2d 392 (Fla. 2005), between community and school-supported activities and commercial activities. The Third District found that because the explorer - 10 -

Page 11 program was a community-supported activity, the release was enforceable. Gonzalez, 871 So. 2d at 1067. 5 The Third District similarly found a parent’s execution of a pre-injury release on behalf of a minor child, for participation on the high school cheerleading squad, enforceable. See Krathen v. School Bd. of Monroe Cty., 972 So. 2d 887 (Fla. 3d DCA 2007). In Krathen, the Third District again discussed the Fourth District’s distinction in Shea between school-supported activities and commercial activities. Id. at 889. However, the Third District’s decision ultimately relied on this Court’s finding in Shea that “parents have the authority to make the decision whether to waive a child’s litigation rights in exchange for participation in an activity the parent feels is beneficial for the child.” Id. at 889 (citing Global Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 404 (Fla. 2005)). On the other hand, in Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112 (Fla. 5th DCA 2008), a case decided after Lantz, the Fifth District aligned itself with the Fourth District in the instant case and held that pre-injury releases are unenforceable as against public policy. Applegate involved a minor child who was injured while wakeboarding at a camp. In finding the parent’s execution of the pre-injury release unenforceable, the district court emphasized that its decision was 5. This Court in Shea found such a distinction arbitrary as applied to parents’ agreements to arbitrate but, in doing so, noted that it would not address this distinction as applied to pre-injury releases. Shea, 908 So. 2d at 403-04 & n.9. - 11 -

Page 12 limited to commercial enterprises because “[t]hey can insure against the risk of loss and include these costs in the price of participation.” Id. at 1115. In Global Travel Marketing, Inc. v. Shea, the father brought a wrongful death action against a safari operator for the death of his son who was mauled by hyenas while on the safari. 908 So. 2d at 395. Before the safari, the child’s mother signed a travel contract on behalf of herself and her son, which included a release of liability and an arbitration agreement provision. Based on the travel contract, Global Travel moved to stay the proceedings and compel arbitration of the father’s claim, which the trial court granted. Id. On appeal, the Fourth District reversed and found the arbitration clause unenforceable as to the child based on public policy grounds. Id. at 396. However, this Court quashed the Fourth District’s decision and found the arbitration agreement enforceable against the minor or minor’s estate in a tort action arising from the contract. 6 In doing so, this Court reasoned that if the courts required parents to seek court approval before entering 6. This Court noted at the beginning of its decision that the issue, as phrased by the Fourth District, only touched “upon binding arbitration and not on any broader contractual waiver of a tort claim brought on behalf of a minor.” Id. at 394. It also distinguished pre-injury releases from arbitration agreements: Whether a parent may waive his or her child’s substantive rights is a different question from whether a parent may agree that any dispute arising from the contract may be arbitrated rather than decided in a court of law.” Id. at 401. We emphasized this distinction by noting that the nature of the waiver, whether it concerns a waiver of a legal claim or right or a waiver of the forum in which the claim is presented, “is a crucial consideration in determining whether the state’s interest in protecting children renders the waiver unenforceable.” Id. at 403. - 12 -

Page 13 into travel contracts that included arbitration agreements, courts would be second guessing a fit parent’s decision. Id. at 404. The Court emphasized that parents who decide which activities their children can participate in may also decide on behalf of their children “to arbitrate a resulting tort claim if the risks of these activities are realized.” Id. A federal district court in Florida in two separate cases also found that pre- injury releases signed by parents on behalf of their minor children were invalid. See In re Royal Caribbean Cruises Ltd., 459 F. Supp. 2d 1275 (S.D. Fla. 2006); In re Royal Caribbean Cruises, Ltd., 403 F. Supp. 2d 1168 (S.D. Fla. 2005) (where both the father and minor child were injured on a jet ski that was owned by Royal Caribbean on the island of Coco Cay, Bahamas). In both cases, the federal district court reviewed out-of-state precedent and found that in cases involving school- sponsored or community-run activities the courts upheld pre-injury releases, and in cases involving commercial activities the courts have found the releases unenforceable. In re Caribbean Cruises Ltd., 459 F. Supp. 2d at 1280; In re Royal Caribbean Cruises, Ltd., 403 F. Supp. 2d at 1172. Out-of-State Precedent Other states and federal courts have also addressed the propriety of a parent or guardian’s execution of a pre-injury release on behalf of a minor child. In holding that pre-injury releases executed by parents on behalf of minor children are - 13 -

Page 14 unenforceable for participation in commercial activities, we are in agreement with the majority of other jurisdictions. See, e.g., Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621 (S.D.W.Va. 2004) (finding a parent could not waive liability on behalf of a minor child and also could not indemnify a third party against the parent’s minor child for liability for conduct that violated a safety statute such as the Whitewater Responsibility Act); Meyer v. Naperville Manner, Inc., 634 N.E.2d 411 (Ill. App. Ct. 1994) (finding a parental pre-injury waiver unenforceable in a situation where the minor child was injured after falling off a horse at a horseback riding school); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n.3 (Me. 1979) (stating in dicta that a parent cannot release a child’s cause of action); Smith v. YMCA of Benton Harbor/St. Joseph, 550 N.W.2d 262, 263 (Mich. Ct. App. 1996) (“It is well settled in Michigan that, as a general rule, a parent has no authority, merely by virtue of being a parent, to waive, release, or compromise claims by or against the parent’s child.”); Hojnowski v. Vans Skate Park, 901 A.2d 381, 383 (N.J. 2006) (finding that where a child was injured while skateboarding at a skate park facility, “a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility”); Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989) (extending the law that a parent could not execute a pre-injury release on behalf of a minor child to a mentally handicapped twenty- - 14 -

Page 15 year-old student who was injured while training for the Special Olympics at a YMCA swimming pool); Munoz v. II Jaz, Inc., 863 S.W.2d 207 (Tex. App. 1993) (finding that giving parents the power to waive a child’s cause of action for personal injuries is against public policy to protect the interests of children); Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) (concluding that “a parent does not have the authority to release a child’s claims before an injury,” where the child was injured as a result of falling off a horse provided by a commercial business); Hiett v. Lake Barcroft Cmty. Ass’n., 418 S.E.2d 894 (Va. 1992) (concluding that public policy prohibits the use of pre-injury waivers of liability for personal injury due to future acts of negligence, whether for minor children or adults); Scott v. Pac. W. Mountain Resort, 834 P.2d 6 (Wash. 1992) (holding that the enforcement of an exculpatory agreement signed by a parent on behalf of a minor child participating in a ski school is contrary to public policy). Although there are jurisdictions where pre-injury releases executed by parents on behalf of minor children have been found enforceable, we note that the only published decisions where they have been upheld involved a minor’s participation in school-run or community-sponsored activities. See, e.g., Hohe v. San Diego Unified Sch. Dist., 274 Cal. Rptr. 647 (Cal. Ct. App. 1990) (finding the pre-injury release executed by the father on behalf of the minor child enforceable against any claims resulting from the child’s participation in a school-sponsored - 15 -

Page 16 event); Sharon v. City of Newton, 769 N.E.2d 738 (Mass. 2002) (holding that a parent has the authority to bind a minor child to a waiver of liability as a condition of a child’s participation in public school extracurricular sports activities); Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 205 (Ohio 1998) (concluding that a parent may bind a minor child to a release of volunteers and sponsors of a nonprofit sports activity from liability for negligence because the threat of liability would strongly deter “many individuals from volunteering for nonprofit organizations” because of the potential for substantial damage awards). While this particular case involves a commercial activity, we note that these jurisdictions that have upheld pre-injury releases have done so because community-run and school-sponsored type activities involve different policy considerations than those associated with commercial activities. As the Ohio Supreme Court explained in Zivich, in community and volunteer-run activities, the providers cannot afford to carry liability insurance because “volunteers offer their services without receiving any financial return.” 696 N.E.2d at 205. If pre-injury releases were invalidated, these volunteers would be faced with the threat of lawsuits and the potential for substantial damage awards, which could lead volunteers to decide that the risk is not worth the effort. This Case - 16 -

Page 17 The trial court in this case specifically relied on the case law that has upheld the enforceability of the pre-injury release executed by the father on behalf of the deceased minor child in granting a motion for summary judgment in favor of the Kirtons. In reversing the trial court’s order, the Fourth District first acknowledged that as part of the liberty interest contained in the Fourteenth Amendment to the United States Constitution and the guarantee of privacy in article I, section 23 of the Florida Constitution, parents have a right to determine what activities may be appropriate for the minor child’s participation. However, the district court determined that the “decision to absolve the provider of an activity from liability for any form of negligence (regardless of the inherent risk or danger in the activity) goes beyond the scope of determining which activity a person feels is appropriate for their child.” Fields, 961 So. 2d at 1129. We agree. Although parents undoubtedly have a fundamental right to make decisions concerning the care, custody, upbringing, and control of their children, Troxel, 530 U.S. at 67, the question of whether a parent should be allowed to waive a minor child’s future tort claims implicates wider public policy concerns. See Hojnowski, 901 A.2d at 390. While a parent’s decision to allow a minor child to participate in a particular activity is part of the parent’s fundamental right to raise a child, this does not equate with a conclusion that a parent has a fundamental right to execute a pre-injury release of a tortfeasor on behalf of a minor child. It cannot be presumed - 17 -

Page 18 that a parent who has decided to voluntarily risk a minor child’s physical well- being is acting in the child’s best interest. Furthermore, we find that there is injustice when a parent agrees to waive the tort claims of a minor child and deprive the child of the right to legal relief when the child is injured as a result of another party’s negligence. When a parent executes such a release and a child is injured, the provider of the activity escapes liability while the parent is left to deal with the financial burden of an injured child. If the parent cannot afford to bear that burden, the parties who suffer are the child, other family members, and the people of the State who will be called on to bear that financial burden. Therefore, when a parent decides to execute a pre-injury release on behalf of a minor child, the parent is not protecting the welfare of the child, but is instead protecting the interests of the activity provider. Moreover, a “parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor.” Fields, 961 So. 2d at 1129-30. For this reason, the state must assert its role under parens patriae to protect the interests of the minor children. Business owners owe their patrons a duty of reasonable care and to maintain a safe environment for the activity they provide. See Hojnowski, 901 A.2d at 388. If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed. Id. Moreover, as a provider of the activity, a commercial business can - 18 -

Page 19 take precautions to ensure the child’s safety and insure itself when a minor child is injured while participating in the activity. On the other hand, a minor child cannot insure himself or herself against the risks involved in participating in that activity. As the New Jersey Supreme Court stated in Hojnowski: The operator of a commercial recreational enterprise can inspect the premises for unsafe conditions, train his or her employees with regard to the facility's proper operation, and regulate the types of activities permitted to occur. Such an operator also can obtain insurance and spread the costs of insurance among its customers. Children, on the other hand, are not in a position to discover hazardous conditions or insure against risks. Moreover, the expectation that a commercial facility will be reasonably safe to do that which is within the scope of the invitation, is especially important where the facility's patrons are minor children. If we were to permit waivers of liability, we would remove a significant incentive for operators of commercial enterprises that attract children to take reasonable precautions to protect their safety. Id. (citations omitted). Based on these public policy concerns, it is clear that the pre-injury release executed by Bobby Jones on behalf of his now deceased son was unenforceable because it prevented the minor’s estate from bringing a cause of action against the commercial establishment that provided the activity which resulted in the minor’s death. CONCLUSION For the reasons set forth above, we hold that a pre-injury release executed by a parent on behalf of a minor child is unenforceable against the minor or the - 19 -

Page 20 minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity. Accordingly, we answer the certified question in the negative, approve the decision of the Fourth District, disapprove the Fifth District’s decision in Lantz, and remand for proceedings consistent with this opinion. It is so ordered. ANSTEAD, PARIENTE, and LEWIS, JJ., concur. ANSTEAD, J., specially concurs with an opinion. PARIENTE, J., concurs with an opinion. WELLS, J., dissents with an opinion. CANADY and POLSTON, JJ., did not participate. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. ANSTEAD, J., specially concurring. I concur in the majority opinion and write separately to emphasize that our holding is narrowly directed at those commercial operators who wrongfully and negligently cause injury to a child but seek to be relieved of liability for their misconduct by securing a pre-activity release from the child’s parent. Of course, under today’s holding commercial operators who properly conduct their operations and cannot be demonstrated to have acted negligently will continue to be free of liability. On the other hand, Florida’s children and parents need not worry, after today’s decision, that careless commercial operators may be immunized from their carelessness by the presence of an exculpatory clause in a ticket for admission. - 20 -

Page 21 Finally, I also find the articulation of the policy considerations supporting today’s decision set out in Judge Torpy’s opinion for the Fifth District in Applegate to be particularly instructive and persuasive: Exculpatory contracts are, by public policy, disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006). Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy. Id.; Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973); Restatement (Second) of Torts § 496B. Appellants concede that the contract at issue here is unambiguous but urge that the general rule should give way to an overriding public policy of protecting children from damages caused by negligently imposed injuries. This argument finds considerable support in the decisional law across the country. We are persuaded by some of the reasoning advanced by these authorities and also offer our own rationale for our holding. Indisputably, Florida’s public policy manifests a strong intent to protect children from harm. As parens patriae, the state’s authority is broader than that of a parent’s and may be invoked to limit parental authority when necessary to protect children. Global Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 399 (Fla. 2005). The expression of that policy most relevant here is the legislative limitation on parental authority to settle post-injury claims contained in section 744.301(2), Florida Statutes (2007). By requiring judicial approval of settlements over $15,000, the legislature has manifested a policy of protecting children from parental imprudence in the compromise of their claims for injury. Because parents’ legal duty to support their children ends at or near the age of majority, the potential societal burden of an imprudent settlement justifies judicial oversight of the settlement contract. The case of a pre-injury exculpatory clause may be distinguished from a post-injury settlement in one respect. In a pre- injury situation, there is no risk that financial pressure will induce - 21 -

Page 22 parental imprudence. Instead, the parents’ motivation is the potential benefit to the child derived from the child’s participation in the activity. Theoretically, the prudent parent can weigh this benefit against the potential consequence of a negligently caused injury and determine whether it is in the child’s best interest to execute an exculpatory clause and permit the activity. Motivations aside, however, the consequence of an imprudent decision is the same as in the post-injury context: a child will suffer injury for which society might ultimately bear the burden. Thus, the parents’ interest is not necessarily consonant with those of society and the child. Although this potential societal cost is arguably a justification to invalidate all pre-injury exculpatory clauses, we discern significant reasons for a distinction when a child is the subject. A consenting adult has the ability to avoid potential injury by exercising personal caution and mitigate the impact of future economic loss by purchasing disability and health insurance policies. Conversely, children tend to throw caution to the wind during risky activities, resulting in a decreased chance of avoiding injury caused by the negligence of others. More importantly, children have no ability to indemnify themselves for future economic losses like their adult counterparts, making them especially vulnerable after the parents’ support obligation ends. As parens patriae, the state also has an interest in protecting children from the non-economic consequences of negligently-caused injury. A policy that enforces exculpatory clauses fosters an increased risk of injury through carelessness. For these reasons, although the scales of public policy might tip in favor of the enforcement of exculpatory contracts involving consenting adults, we think they tip the other way when children are the subject. We emphasize that our holding is limited to commercial enterprises. They can insure against the risk of loss and include these costs in the price of participation. Applegate, 974 So. 2d at 1114-15 (footnote and citation omitted). - 22 -

Page 23 PARIENTE, J., concurring. I fully concur with the majority’s conclusion that the pre-injury release signed by the father on behalf of his fourteen-year-old son, executed in order to gain entry to the facility and be allowed to participate in riding the ATV in the Thunder Cross Motor Sports Park,” is invalid. The owners and operators of the sports park, the Kirtons, raised the execution of this release as a complete defense to the wrongful death action brought on behalf of the estate. I write to emphasize several points. First, as pointed out by the Fourth District, “[t]here is no basis in common law for a parent to enter into a compromise or settlement of a child’s claim, or to waive substantive rights of the child without court approval.” Fields, 961 So. 2d at 1130. Second, the release in this case was all-encompassing, as it covered not just injuries occurring as a result of the activity of ATV riding, which itself could be considered inherently dangerous, but all negligent acts. The allegations of the complaint in this case, which we must accept as true, asserted in pertinent part that the ATV fourteen-year-old Christopher Jones was “racing and jumping” on “the course set up and maintained by Defendants” was recommended “only for use by those over the age of 16” by the manufacturer. Significantly, the allegations also asserted that “the subject four wheel all terrain vehicle was not designed by the manufacturer or recommended for racing or jumping on a course such as the - 23 -

Page 24 course constructed and maintained by Defendants and/or Defendants’ agents and employees.” Moreover, the amended complaint alleged that the Kirtons had prior knowledge of Christopher Jones’s limited experience based on a serious injury he sustained on the same course with the same ATV approximately one month before: Defendants and/or their agents and employees knew or should have known that a fourteen year old with limited experience as a rider, such as CHRISTOPHER JONES, should not have been permitted to operate the subject 350 cc four wheel all terrain vehicle in the manner it was being operated by him on the course constructed and maintained by THUNDER CROSS MOTOR SPORTS PARK on May 10, 2003. This is particularly the case given the fact that the last time CHRISTOPHER JONES operated the subject 350 cc four wheel all terrain vehicle he operated it in the same manner and “missed the jump” while riding on the identical course constructed and maintained by THUNDER CROSS MOTOR SPORTS PARK on April 6, 2003. On that date he was seriously injured such that he was removed from the Defendant’s property by Fire Rescue personnel and was transported to the hospital for treatment. The amended complaint further alleged that the negligent design of the course and the failure to have a “flag man” to alert riders to the dangers of the course and to prevent the fatal injuries directly caused or substantially contributed to the death of Christopher Jones. As explained in the amended complaint: On May 10, 2003 while attempting to jump on Defendants’ course which was negligently constructed and/or maintained by Defendants through their agents and their employees, CHRISTOPHER JONES missed the jump” so that he came up short and did not clear the jump. The front tires of the four wheel all terrain vehicle he was operating hit the ground first and CHRISTOPHER JONES bounced - 24 -

Page 25 over the handlebars, flipped off the four-wheeler to the right and the four-wheeler went to the left and then came back directly at him. Although there was supposed to be a flag man stationed at the jump to alert riders of dangers on the course and to assist in rendering assistance to injured riders such as CHRISTOPHER JONES, there was no flag man stationed at the jump that CHRISTOPHER JONES was attempting to navigate when the accident occurred on May 10, 2003. Because the four-wheeler came back at CHRISTOPHER JONES after he was thrown off the vehicle, had a flag man been close enough to the jump, he would have been able to remove CHRISTOPHER JONES from harm’s way before the vehicle hit and killed him. In distinguishing between risks inherent in the activity and separate acts of negligence, the Fourth District explained: The decision to absolve the provider of an activity from liability for any form of negligence (regardless of the inherent risk or danger in the activity) goes beyond the scope of determining which activity a person feels is appropriate for their child. The decision to allow a minor to participate in an activity is properly left to the parents or natural guardian. For instance, the decision to allow one’s child to engage in scuba diving or sky diving involves the acceptance of certain risks inherent in the activity. This does not contemplate that a dive instructor will permit or encourage diving at depths beyond safe recreational limits, or that the pilot of the plane on a sky diving venture is intoxicated or otherwise impaired, both situations which could cause injury to the minor. Id. at 1129. I agree with this distinction. Although the father accepted the risks inherent in ATV riding by allowing his son to participate in the activity, his acceptance did not contemplate that the defendants would act negligently as described in the amended complaint. - 25 -

Page 26 Finally, I write to emphasize that this Court limits its decision to activities provided by commercial establishments because those were the facts presented by this case. However, I do not agree with the reasoning of those cases cited by the majority that have found that all releases from liability for noncommercial activities are automatically valid. To me there is an important distinction between a release to allow a child to participate in school activities, such as cheerleading or football, which could be considered inherently dangerous, and a blanket release that absolves the sponsor of liability from all negligent acts. As with commercial activities, when a parent allows his or her child to participate in an inherently dangerous noncommercial activity, his or her acceptance does not contemplate that the activity provider will act negligently. WELLS, J., dissenting. While I agree that it would be a good policy to limit parental pre-injury releases of minors’ claims for injuries or death arising out of dangerous activities operated by commercial entities, until today this Court has never held that such a pre-injury release knowingly executed by a parent is unenforceable. Nor until this case was decided by the Fourth District Court of Appeal, had a district court of appeal held such a pre-injury release unenforceable. Furthermore, when the parent in this case signed such a release, the Legislature had not prohibited or regulated - 26 -

Page 27 pre-injury parental releases of a minor’s claims, though the Legislature had legislated as to post-injury parental releases of a minor’s claims. See §§ 744.301, 744.387, Fla. Stat. (2003). The Legislature has not subsequently acted to regulate pre-injury releases. Thus, at the time of this parental agreement which permitted the minor to participate in this activity, there was no law in Florida, either statutory or court-declared, enunciating the public policy that the majority now determines makes this agreement unenforceable. Absent the majority’s decision that such an agreement is against public policy, the agreement would without question be enforceable. See Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973) (explaining that exculpatory clauses are generally valid and enforceable absent public policy requiring nonenforcement). I believe that it is fundamentally unfair to now declare a new public policy and then apply it to the defendants in this case. Moreover, I conclude that the majority opinion highlights why the decision as to the enforceability of a parent’s pre-injury release of a minor’s claim is and should be a legislative decision. The majority opinion creates many questions and provides few answers. The answers will have to be gleaned from further costly case-by-case litigation, and if the particular circumstances of other releases are found to be against the declared public policy, the result will be additional after- the-fact determinations of liability without sufficient notice to the parties involved. - 27 -

Page 28 The majority opinion draws a distinction between “commercial establishments” and “community based or school activities,” which is precisely the distinction that this Court’s majority criticized in quashing the Fourth District Court of Appeal’s decision in Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392 (Fla. 2005). The Court expressly stated: [T]he line dividing commonplace activities from commercial travel opportunities is far from clear, given that some commonplace school or community activities might also involve commercial travel. The Fourth District decision might prevent arbitration of claims of minors arising from their parents’ decisions in individually authorizing activities that involve commercial travel, but not from the decisions of school authorities in arranging for the same activity. We see no basis in fact or law for this distinction, nor a reliable standard by which to apply it without making value judgments as to the underlying activity that the parent has deemed appropriate for the child to engage in. Moreover, the alternative of requiring parents to seek court approval before entering into commercial travel contracts that include arbitration agreements would place courts in a position of second guessing the decision-making of a fit parent. Id. at 404 (footnote omitted). In reaching our decision, we relied upon and quoted from Troxel v. Granville, 530 U.S. 57, 68-69 (2000) (“Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”). I recognize that in Shea the majority said in a footnote that it was not addressing the distinction between commercial and community-based and school- - 28 -

Page 29 related activities as applied to pre-injury waivers of liability. See 908 So. 2d at 395 n.3. However, in this case, the majority does not have any more of a reasonable basis in law or fact for this distinction, nor a reliable standard by which to apply it without making value judgments as to the underlying activity that the parent has deemed appropriate for the child to engage in” than the majority had in Shea. As found in Shea, the line dividing commercial activities from community-based and school-related activities is far from clear. For example, is a Boy Scout or Girl Scout, YMCA, or church camp a commercial establishment or a community-based activity? Is a band trip to participate in the Macy’s Thanksgiving Day parade a school or commercial activity? What definition of commercial is to be applied? The importance of this issue cannot be overstated because it affects so many youth activities and involves so much monetary exposure. Bands, cheerleading squads, sports teams, church choirs, and other groups that often charge for their activities and performances will not know whether they are a commercial activity because of the fees and ticket sales. How can these groups carry on their activities that are so needed by youth if the groups face exposure to large damage claims either by paying defense costs or damages? Insuring against such claims is not a realistic answer for many activity providers because insurance costs deplete already very scarce resources. The majority’s decision seems just as likely to force - 29 -

Page 30 small-scale activity providers out of business as it is to encourage such providers to obtain insurance coverage. If pre-injury releases are to be banned or regulated, it should be done by the Legislature so that a statute can set universally applicable standards and definitions. When the Legislature acts, all are given advance notice before a minor’s participation in an activity as to what is regulated and as to whether a pre- injury release is enforceable. In contrast, the majority’s present opinion will predictably create extensive and expensive litigation attempting to sort out the bounds of commercial activities on a case-by-case basis. The majority opinion also does not explain the reason why after years of not finding pre-injury releases to be against public policy, it today finds a public policy reason to rule pre-injury releases unenforceable when the Legislature has not done so. Again, the present majority opinion conflicts with the reasoning expressed just three years ago in Shea: Further, the lack of a statutory requirement for court involvement in pre-injury arbitration agreements provides a basis for treating these agreements differently from settlements of lawsuits involving minors’ claims, for which appointment of a guardian ad litem and court approval are necessary under certain circumstances pursuant to sections 744.301 and 744.387, Florida Statutes (2004). The Legislature has chosen to authorize court protection of children’s interests as to extant causes of action, but has not exercised its prerogative as parens patriae to prohibit arbitration of those claims. - 30 -

Page 31 908 So. 2d at 403. Similarly, though the Legislature has acted in respect to the settlement of accrued claims, the Legislature has not acted in respect to pre-injury releases. There can be no question that the Legislature adopts legislation when it concludes that the interests of minors are best served by statutory protection. The Legislature has chosen to act in respect to many matters in which the Legislature concluded that minors should have the protection of a guardian ad litem. See Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Petersen, 920 So. 2d 75, 78 (Fla. 1st DCA 2006) (listing circumstances in which trial court may or must appoint a guardian ad litem: § 39.402(8)(c) (shelter hearings); § 39.807(2)(a) (termination of parental rights proceedings); § 73.021(4) (eminent domain proceedings); 390.01115(4)(a) (termination of pregnancy without parental notification); 731.303(4) (probate proceedings); § 743.09(3) (contract for artistic or creative services or professional sport contract); § 744.446 (parental conflict of interests with minor child), Florida Statutes (2004)). Thus, as we did in respect to arbitration agreements, it is reasonable to conclude that the Legislature has chosen not to act in respect to pre-injury releases. The Legislature may have chosen not to act on the issue of pre-injury releases out of respect for the authority of parents to make choices involving their children, which again we recognized in Shea: Parents’ authority under the Fourteenth Amendment and article I, section 23 [of the Florida Constitution] encompasses decisions on - 31 -

Page 32 the activities appropriate for their children­whether they be academically or socially focused pursuits, physically rigorous activities such as football, adventure sports such as skiing, horseback riding, or mountain climbing, or, as in this case, an adventure vacation in a game reserve. Parents who choose to allow their children to engage in these activities may also legitimately elect on their children’s behalf to arbitrate a resulting tort claim if the risks of these activities is realized. 908 So. 2d at 404. Without the ability to execute pre-injury releases, a parent may find that his or her minor child will not be able to participate in activities because the operators of the activities will not accept the financial exposure of the minor’s participation, regardless of whether the parent would decide that the benefit to the minor outweighed the risk of injury. The majority opinion raises other serious questions. If a parent does not have the authority to execute a pre-injury release, does a parent have the authority to execute an enforceable consent for medical treatment on behalf of a minor child? Florida courts have long recognized the authority of the parent to execute an enforceable consent for medical treatment on behalf of a minor child, see Ritz v. Fla. Patient’s Comp. Fund, 436 So. 2d 987, 989 (Fla. 5th DCA 1983) (holding that parent could consent to medical treatment on behalf of incompetent child), but medical consents and pre-injury releases have substantial similarities. Plainly, without the giving of consent, health care providers in most instances will not provide medical services. The majority’s decision also calls into question whether - 32 -

Page 33 a parent has authority to turn down an offer of settlement for an injury to a minor as was upheld in Petersen. In sum, I conclude that the questions presented by this case demonstrate a need for the Court to exercise judicial restraint, recognize that the Legislature is the policy-making branch of government, and defer to the Legislature by respecting the Legislature’s non-action to date.


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December 24, 2008

Booth v. Santa Barbara Biplane Tours, LLC (2008) 158 Cal.App.4th 1173

Another interesting release case in California. In Booth (below) the court distinguished City of Santa Barbara v. Superior Court and held that had plaintiffs sued for gross negligence or recklessness, the release would not be a bar to recovery.

[No. B193417. Second Dist., Div. Six. Jan. 14, 2008.]

BLUE BOOTH et al., Plaintiffs and Appellants, v. SANTA BARBARA BIPLANE Tours, LLC et al., Defendants and Respondents.

(Superior Court of Santa Barbara County, No. 1169333, Thomas P. Anderle, Judge.)

(Opinion by Yegan, J., with Gilbert, P.J., and Coffee, J., concurring.)

OPINION

YEGAN, J.-

Blue Booth and his daughter Cassey Booth appeal from a summary judgment granted in favor of respondents Santa Barbara Biplane Tours, et al, on their complaint for personal injuries. The trial court ruled that the action was barred by a release and waiver of liability agreement. We agree and affirm.

Facts and Procedural History

In May of 2005, appellants went on an aerial sightseeing tour of Santa Barbara. They sustained injuries when respondents' plane lost power and [158 Cal.App.4th 1176] made an emergency landing. Appellants signed a release and waiver of liability about 30 minutes before boarding the plane. Prior to the emergency landing, the pilot had made several flights earlier in the day, all without incident.

Appellants sued alleging simple negligence and breach of implied warranty. The complaint stated that respondents acted "as a common carrier on an advertised and promoted sight-seeing tour around Santa Barbara. The contract of carriage was entered into and, among other things, carried an implied warranty of airworthiness of the aircraft, as well as suitability for the use and purposes intended . . . ."

Respondents moved for summary judgment based on the following undisputed facts:

Respondents owned a Waco biplane and provided aerial sightseeing tours by a licensed pilot.

Customers were required to sign a "High Risk Activity Release, Waiver and Assumption of Risk Agreement" before riding in the plane. The release stated in pertinent part that "I UNDERSTAND THAT PARTICIPATION IN BIPLANE OR OTHER AIRCRAFT TOURS IS A HIGH RISK ACTIVITY AND THAT SERIOUS INJURY OR DEATH MAY OCCUR. [¶] 8. I VOLUNTARILY ASSUME ALL RISK, KNOWN AND UNKNOWN, OF INJURIES, HOWEVER CAUSED, EVEN IF CAUSED IN WHOLE OR IN PART BY THE ACTION, INACTION, OR NEGLIGENCE OF THE RELEASED PARTIES TO THE FULLEST EXTENT ALLOWED BY LAW."

Common Carrier Liability

[1] Civil Code section 2168 provides: "Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry." fn. 1 The statute has been broadly construed to include amusement rides, ski lifts, planes and trains, and guided tour mule rides. (Simon v. Walt Disney World Co. (2004) 114 Cal.App.4th 1162, 1168; Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1506-1508; McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal.App.2d 489, 492-493.) [158 Cal.App.4th 1177] [2] A common carrier, "by special contract," may limit its liability (§ 2174) but not for gross negligence. (§ 2175: "A common carrier cannot be exonerated, by any agreement made in anticipation thereof, from liability for the gross negligence, fraud, or willful wrong of himself or his servants.".) "The prohibition of the common law against a carrier limiting his liability for any kind of negligence is declared in this state by section 2175 only to apply to the limitation for gross negligence." (Donlon Bros. v. Southern Pacific Co. (1907) 151 Cal. 763, 770.)

[3] The trial court ruled that the release was a special contract within the meaning of section 2174. It did not err.

Appellants argue that respondents violated Federal Aviation Regulations by operating an unairworthy plane. But that is not what is alleged. The complaint only alleges simple negligence and breach of implied warranty. It does not allege the violation of any law or regulation. On a motion for summary judgment, the pleadings define the issues. (Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119.) Appellants may not interject new theories of liability on appeal. (Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223.)

In their opposition papers, appellants admitted that the pilot and respondents were not cited for doing anything wrong and that respondents had no reason to believe that the aircraft was not airworthy. Like the trial court, we must utilize common sense in drawing inferences from the undisputed facts. (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1615.)

Appellants also argue that the release was hurriedly signed, but it is undisputed that they signed the release 30 minutes before the flight. There was no surprise element. Appellants were told that it was "a standard release or standard insurance form" and that their money would refunded if they decided not to sign the release.

Appellants' opposition papers also include a National Transportation Safety Board (NTSB) accident report discussing engine maintenance problems. The trial court struck the report because it was hearsay and lacked foundation. Appellants do not challenge the evidentiary ruling on appeal and have waived [158 Cal.App.4th 1178] the issue. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.) We are precluded from considering the accident report and deny appellants' request to take judicial notice of it.

Tunkl - Public Interest Analysis

[4] Appellants cite section 1668 for the principle that contracts exculpating a person from liability for violation of law are void as a matter of public policy. The argument fails because the complaint does not allege that respondents violated a law or regulation. More importantly, section 2175 permits exculpatory agreements affecting the liability of a common carrier. (Code Civ. Proc., § 1859 [specific statute controls over general statute]; Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253,. 1260.)

Relying on City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, appellants argue that an exculpatory contract releasing a defendant from liability is void on public policy grounds. (Id., at p.763.) There, a 14 year old developmentally disabled girl drowned at a city swim program. Our Supreme Court held that a release exculpating city from liability for "any negligent act" did not extend to acts of gross negligence. (Id., at p. 750.) Citing Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 (Tunkl), the court acknowledged that a release of liability for future ordinary negligence may be "void on public policy grounds other than those set forth in section 1668." (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at p. 763.) The court stated that "Tunkl's public interest analysis focuses upon the overall transaction - with special emphasis upon the importance of the underlying service or program, and the relative bargaining relationship of the parties. . . ." (Ibid., at p. 763.)

[5] Pursuant to Tunkl, the question of whether a general release "affects the public interest, and is thus void as a matter of public policy, requires analysis of the transaction giving rise to the contract -- not the allegedly negligent conduct by the party invoking the release. [Citation.]" (Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 670.) In Tunkl, a hospital's use of a general release to exculpate itself from liability for the negligent treatment of patients violated public policy because the hospital performed "a service of great importance to the public, which is often a matter of practical necessity for some members of the public." (Tunkl, supra, "60 Cal.2d at p. 99.) [158 Cal.App.4th 1179]

[6] Recreational activities such as snow skiing or parachute jumping are not essential services or necessities affecting the public within the meaning of Tunkl. (Platzer v. Mammoth Mountain Ski Area, supra, 104 Cal.App.4th at pp. 1259-1260, Paralift, Inc. v. Superior Court (Levin) (1993) 23 Cal.App.4th 748, 756-758 [release for parachuting activities].) To that list, we add aerial sightseeing tours. "[N]othing in Civil Code sections 2174 and 2175 prevented [respondents] from negotiating a release from liability for ordinary negligence." (Platzer v. Mammoth Mountain Ski Area, supra, 104 Cal.App.4th at p. 1258.)

Pursuant to Tunkl, common carriers provide an important public service. (Platzer v. Mammoth Mountain Ski Area, supra, 104 Cal.App.4th at p. 1269; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1734; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462, 1467.) But not all common carriers are the same. Respondents provide aerial sightseeing tours of Santa Barbara. They are not an air carrier transporting passengers "for compensation between points within this state." (Pub. Utilities Code, § 2714.) Nor is sightseeing a public utility function. (See e.g., City of St. Helena v. Pubic Utilities Com. (2004) 119 Cal.App.4th 793, 803 [Wine Train sightseeing excursions not a common carrier service].)

The trial court ruled that the release "is very clearly worded, and is not ambiguous in conveying its purpose and intent. Plaintiffs have cited no authority which would compel the court to reach the conclusion that Congress has preempted the area of releases of liability for airline or airplane passengers . . . . The court further does not believe that the contract at issue was in the public interest, within the meaning of Tunkl v. Regents of California (1963) 60 Cal.2d 92 and declines to invalidate the release on that ground. Defendants do not provide an essential service, and there was no obligation or compulsion for plaintiffs to go on a sightseeing flight over Santa Barbara."

[7] We concur with the trial court's well reasoned ruling. There are many ways to go on a sightseeing tour, whether it be by plane, hot air balloon, boat, or bus. Appellant cites no authority that a recreational airplane ride is an essential service affecting the public interest that comes within the purview of Tunkl. Whether the activity affects the public interest is objectively determined. (Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal.App.3d 134, 151.) Appellants' "particular interest in the activity has no bearing on whether the 'public interest' is involved. The issue is tested objectively, by the activities important to the general public, [158 Cal.App.4th 1180] not by its subjective importance to the particular plaintiff. [Citation.]" (Haning & Flahavan, Cal. Practice Guide: Personal Injury (Rutter 2006) § 3:240.17, pp. 3-186 to 3-187.).

Federal Preemption -- Federal Standard of Care v. State Remedy

Citing Montalvo v. Spirit Airlines (9th Cir. 2007) ___ F.3d __ [2007 DJDAR 16802] (Montalvo), appellants claim that Congress has preempted the field of air safety which requires reversal of the summary judgment order. We disagree that reversal is required. In Montalvo, plaintiffs sued for negligence pursuant to California common law, based on the theory that airlines breached a duty of care in not warning about the risk of deep vein thrombosis (DVT) on long flights. The airlines were granted summary judgment because they were under no obligation to warn of DVT absent a federal mandate to do so.

The Montalvo court held that Congress, in enacting of the Federal Aviation Act of 1958 [FAA) [49 U.S.C. § 40103 et seq.), had preempted the entire field of air safety. fn. 2 (Id., at p. __ [2007 DJDAR at p. 16804].) "[I]t is clear that Congress intended to invest the Administrator of the Federal Aviation Administration with the authority to enact exclusive air safety standards. Moreover, the Administrator has chosen to exercise this authority by issuing such pervasive regulations that we can infer a preemptive intent to displace all state law on the subject of air safety. [Citation.] These regulations codified in Title 14 of the Code of Federal Regulations, cover, inter alia, airworthiness standards, crew certification and medical standards, and aircraft operating requirements. The regulations also include a general federal standard of care for aircraft operators, requiring that "no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.' 14 C.F.R. § 91.13(a). (2003.)" (Id., at p. __ [2007 DJDAR at pp. 16806-16807], emphasis added.)

[8] Based on Montalvo, appellants now argue that air safety is a strict liability tort because passenger injuries can always be attributed to someone's "carelessness." But that is not what Montalvo holds. Because the FAA preempts the field of air safety, a state may not expand the federal standards by imposing a common law duty of care. In Montalvo the failure to warn passengers of the risk of DVT injuries may have been careless, but no duty of care was breached. [158 Cal.App.4th 1181]

Like the plaintiffs in Montalvo, appellants may not reinterpret FAA regulations to create a "strict liability" standard of care. Federal courts have held that 14 C.F.R. section 91.13(a) is reserved for serious misconduct where the potential for harm is incontestably high. (Allen v. American Airlines (E.D. Penn. 2003) 301 F.Supp.2d 370, 376 [falling luggage not "careless" conduct].) Even Abdullah v. American Airlines, Inc. (3rd Cir. 1999) 181 F.3d 363, the Third Circuit case appellants cite to support their general concept that airline operation must either be careless nor reckless, seems to recognize that § 91.13(a) should be reserved only for serious, more flagrant pilot misconduct. (Allen v. American Airlines, supra, 301 F.Supp.2d at p. 377.)

The State Remedy

[9] Although federal law sets the standards for aviation safety, state law causes of action may be invoked where the violation of those federal standards result in personal injury or death. Under the FAA there is no federal remedy for personal injury or death caused by the operation of aircraft. (Abdullah v. American Airlines, Inc., supra, 181 F.3d at p. 375.) The FAA has a savings clause which provides that "[a] remedy under this part is in addition to any other remedies provided by law."] (49 U.SC. § 40120(c); see Abdullah v. American Airlines, Inc., supra, 181 F.3d at pp. 375-376.) "[I]n spite of the fact that federal law may have completely occupied the field of regulation of aircraft safety" remedies that a party may have under state law are not necessarily abridged by the FAA. (Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 549.) Because state law causes of action may be invoked for personal injury resulting from negligence in aviation, state law defenses thereto may also be invoked.

Had appellants sued for gross negligence or recklessness, the release would not be a bar to recovery. (§ 2175; City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at pp. 750-751.) But the complaint alleges simple negligence and breach of implied warranty. These causes of action were waived by the preflight release of liability. (See e.g., Olsen v. Breeze, Inc.(1996) 48 Cal.App.4th 608, 616 [general release barred personal injury claim allegedly caused by defendant's negligence and breach of warranty]; Delta Air Lines, Inc v. Douglas Aircraft Company, Inc. (1965) 238 Cal.App.2d 95, 101 [exculpatory clause in contract for sale of aircraft covered tort liability] Harrell v. Champlain Enterprises, Inc. (N.Y.App. 1994) 200 A.D.2d 290, 191 [release barred wrongful death action and not preempted by the Airline Deregulation Act [49 U.S.C. App. § 1305(a)(1) governing rates, routes or services of air carrier].) [158 Cal.App.4th 1182]

The judgment is affirmed. Respondents are awarded costs on appeal.

Gilbert, P.J., and Coffee, J., concurred.

­FN 1. Unless otherwise stated, all further statutory references are to the Civil Code.

­FN 2. "There are two types of implied preemption: conflict preemption and field preemption. Courts may find conflict preemption when a state law actually conflicts with federal law or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the federal law. [Citations.] . . . [F]ield preemption occurs when Congress indicates in some manner an intent to occupy a given field to the exclusion of state law. [Citation.]" (Montalvo, supra, ___ F.3d at p. __ [2007 DJDAR at p. 16805].)

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December 1, 2007

Hawkins v. Peart

Utah Supreme Court
37 P.3d 1062
October 30, 2001

Summary of Opinion

Plaintiff Hawkins, a child, was injured while riding on a horse provided by defendant Peart. Defendant claimed exemption from liability because of a release from liability form signed by plaintiff’s mother. The defendant also sought to enforce an agreement in which the plaintiff’s mother promised to indemnify (reimburse) defendant for any judgment entered against them in favor of the plaintiff. The trial court ruled that the release form was invalid because a parent cannot release liability for a child, but upheld the indemnification agreement.

In this opinion, the Utah Supreme Court says that the release is invalid because a parent cannot release liability to a child. However, it also invalidates the indemnity agreement on public policy grounds because it would tend to create a conflict of interest between the parent and child.


Text of Opinion

Defendant Navajo Trails required plaintiff Jessica Hawkins's mother to sign a release form prior to allowing Hawkins to ride one of its horses. The release form contained a waiver of liability and an indemnity provision. The district court invalidated the waiver provision on public policy grounds, but upheld the indemnity provision. Hawkins appeals the district court's decision upholding the indemnity clause, and Navajo Trails cross-appeals the court's invalidation of the waiver provision. We conclude that both the waiver provision and the indemnity provision are invalid. Thus, we affirm the district court's ruling as to the release provision, but reverse as to the indemnity provision.

BACKGROUND

In July 1997, eleven-year-old Hawkins went to Duck Creek, Utah, for a family reunion. As part of the reunion, members of the family arranged for Navajo Trails to provide horses and guides for a trail ride. As a condition of its service, Navajo Trails required Hawkins's mother to sign a "Release Form." In pertinent part, that form stated as follows:

Riding and handling horses can be DANGEROUS. This form must be completed and signed before you can ride.... By signing this form, you agree to ASSUME THE RISK of any injury, death, or loss, or damage which you or your child ... may suffer.... In consideration for the rendering of trail riding ... service by Navajo Trails ... [t]he undersigned on behalf of himself or for any person for whom he or she is a parent or legal guardian, does hereby indemnify (reimburse), release, and forever hold harmless, Navajo Trails ... [for] any claims, demands, and actions or causes of action on account of death or injury or loss or damage which may occur from any cause, without regard to negligence, other than the gross negligence or willful misconduct of Navajo Trails.... If the undersigned is a parent or guardian, he or she further agrees to indemnify (reimburse) Navajo Trails or such persons for any damages paid by or assessed against Navajo Trails ... as a result of injury to or death of a child....

Hawkins's mother signed this form. [FN1]

FN1. Additionally, the form apparently contained spaces for the parent or guardian to list children going on the trip. Hawkins's brief asserts that Hawkins's mother "intentionally omitted the names of her children because she did not want the language in the Release Form to cover any of them." The district court based its decision on policy grounds and did not consider this allegation. It has not been addressed further by either party on appeal.

During the trail ride, Hawkins's horse was spooked and threw her. Hawkins was injured. She filed suit against Navajo Trails, alleging that it had provided an insufficient number of guides, that its guides were not adequately trained, and that its guides had failed to carry out properly their duties during the ride. In response, Navajo Trails denied that it was negligent and additionally defended on the ground that the "Release Form" precluded Hawkins's suit. Both parties moved for summary judgment on the issues of the legal effect and enforceability of the Release Form. The district court ruled that the indemnity provision was enforceable between Hawkins's mother and Navajo Trails but that the release of Hawkins's future claims for negligence was unenforceable as a matter of public policy. Hawkins appealed the indemnity ruling, and Navajo Trails cross-appealed the ruling as to the release.

ANALYSIS

We review the lower court's contractual interpretation of the release form for correctness, affording the district court no deference. See Aquagen Int'l, Inc. v. Calrae Trust, 972 P.2d 411, 413 (Utah 1998).

In assessing the validity of the release, the district court referred to Russ v. Woodside, 905 P.2d 901, 905 (Utah Ct.App.1995). Russ described three general circumstances in which parties may obtain contractual releases from liability for negligent action: (1) where injuries have already occurred and one party releases the other from liability for those injuries, (2) where one party agrees to indemnify for liability for future injuries, and (3) where one party agrees to release the other from liability for future injuries. See Russ, 905 P.2d at 904-05. The second and third categories require a clear and unequivocal expression of the intent to indemnify or release according to Russ. See id.

The district court concluded that the contractual language of the indemnity and the release provisions was clear and unequivocal as a matter of law. Accordingly, it held that, because the indemnity provision constituted a contract between an adult and a business, it was enforceable according to the general rule permitting such agreements. However, with respect to the release, the court held that the general rule permitting release of liability did not apply where a parent signs the contract on behalf of a minor.

The court arrived at its decision by articulating a public policy for refusing to recognize contracts releasing individuals or entities from liability for future injuries to minors. In the absence of controlling statutes or case law, the court consulted general statements of policy found in statutes detailing the rights of minors and the responsibilities of guardians. The court referred to sections 15-2-2, 75-5-103, and 75-5-209 of the Utah Code, and rule 17 of the Utah Rules of Civil Procedure. Those provisions pertain, respectively, to a minor's ability to disaffirm contracts prior to attaining the age of majority, the power of a parent to delegate fundamental care and supervision responsibilities over a minor to another, the general powers of guardians of a minor, and the necessity of guardians or guardians ad litem when minors appear as parties to court proceedings. The court concluded that these provisions indicated a general protective intent that, on balance, militated in favor of precluding parents from contractually releasing others from liability for injuring minors.

On appeal, Hawkins defends the district court's distinction between contracts involving adults and contracts where a guardian releases another from liability for harm to a minor. Alternatively, Hawkins argues that the general rule permitting releases does not apply in this case. We will first address the general rule and then discuss the district court's application of a public policy exception to circumstances involving minors.

The rule regarding releases, to which the district court and Russ referred, is stated as a general principle of the common law in 6A Arthur Linton Corbin, Corbin on Contracts, § 1472, at 596-97 (1962):

It is generally held that those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty; but such an exemption is always invalid if it applies to harm wilfully inflicted or caused by gross or wanton negligence.

(Footnote omitted.) Thus, most courts allow release of liability for prospective negligence, except where there is a strong public interest in the services provided. But see Hiett v. Lake Barcroft Cmty. Ass'n, 244 Va. 191, 418 S.E.2d 894, 896-97 (Va.1992) (invalidating all pre-injury releases as violative of public policy). Some courts have attempted to establish a more detailed list of criteria for determining public policy limitations on releases. Many states rely on the standards propounded in Tunkl v. Regents of the University of California, 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 445-46 (Cal.1963), or Jones v. Dressel, 623 P.2d 370, 376 (Colo.1981). [FN3] See, e.g., Porubiansky v. Emory Univ., 156 Ga.App. 602, 275 S.E.2d 163, 167-68 (Ga.Ct.App.1980) (adopting Tunkl ); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn.1977) (same); Wagenblast v. Odessa Sch. Dist. ., 110 Wash.2d 845, 758 P.2d 968, 971 (Wash.1988) (same); Kyriazis v. Univ. of W. Va., 192 W.Va. 60, 450 S.E.2d 649, 654-55 (W.Va.1994) (same); Milligan v. Big Valley Corp., 754 P.2d 1063, 1066 (Wyo.1988) (noting earlier adoption of Jones ); cf. Dalury v. S K I, Ltd., 164 Vt. 329, 670 A.2d 795, 797-99 (Vt.1995) (noting existence of standards, but adopting ad hoc totality of the circumstances approach).

FN3. Those standards are as follows:

[T]he attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] 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 .[3] 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. [4] 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. [5] 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. [6] 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.

Tunkl v. Regents of Univ. of California, 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 445-46 (Cal.1963) (footnotes omitted).

In determining whether an exculpatory agreement is valid, there are four factors which a court must consider: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.

Jones v. Dressel, 623 P.2d 370, 376 (Colo.1981). Jones additionally referenced the Tunkl standard for determining "the existence of a duty to the public." Id.

Tunkl and Jones set forth standards for determining whether the public interest in the activity at issue warrants an exception to the general rule allowing releases. However, we need not reach the question of whether to adopt the Tunkl or Jones standard, or any other standard generally relating to the public interest exception, because, in deciding the case before us, we rely on a public policy exception specifically relating to releases of a minor's claims. A clear majority of courts treating the issue have held that a parent may not release a minor's prospective claim for negligence. See, e.g., Fedor v. Mauwehu Council, Boy Scouts of Am., 21 Conn.Supp. 38, 143 A.2d 466, 467-68 (Conn.Super.Ct.1958); Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 199 Ill.Dec. 572, 634 N.E.2d 411, 414-15 (Ill.App.Ct.1994); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n. 3 (Me.1979); Fitzgerald v. Newark Morning Ledger Co., 111 N.J.Super. 104, 267 A.2d 557, 558-59 (N.J.Super. Ct. Law Div.1970); Childress v. Madison County, 777 S.W.2d 1, 6-7 (Tenn.Ct.App.1989); Munoz v. II Jaz Inc., 863 S.W.2d 207, 209-10 (Tex.App.1993); Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 834 P.2d 6, 10-12 (Wash.1992). The rationale employed by these courts is aptly summarized in the Washington Supreme Court's holding in Scott. As stated by that case, "Courts often hold that in a postinjury setting a parent's signature on a release is ineffective to bar a minor's claims against a negligent party." Scott, 834 P.2d at 11; see also 59 Am.Jur.2d, Parent and Child § 40, at 183 (1987) (noting that, absent court appointment, parents have no authority to release or compromise claims or causes of action belonging to minors). Based on this premise, Scott reasoned that "[s]ince a parent generally may not release a child's cause of action after injury, it makes little, if any, sense to conclude a parent has authority to release a child's cause of action prior to an injury." 834 P.2d at 11-12.

We agree. First, Utah law is consistent with Scott's underlying premise. Navajo Trails has cited no source of law, and we are aware of none, granting parents in Utah a general unilateral right to compromise or release a child's existing causes of action without court approval or appointment to that effect. To the contrary, Utah law provides various checks on parental authority to ensure a child's interests are protected. Under the Uniform Probate Code, for example, when a minor has a cause of action, the minor or another person interested in the minor's welfare may petition for the appointment of a conservator. See Utah Code Ann. § 75-5-404 (1993). Once appointed, a conservator "may act without court authorization or confirmation" to "settle a claim by or against the ... protected [minor] by compromise, arbitration, or otherwise." Id. § 75-5-424(3), (3)(s) (1993); see also id. § 75-5- 409(1) (1993) (allowing court to authorize, direct, or ratify transactions to protect the minor's interests when the situation does not require a full conservatorship). Significantly, a parent may act as a minor's conservator, not as a matter of right, but only when appointed by the court. See Utah Code Ann. § 75-5-410(1) (Supp.2000) (listing parents seventh in prioritized list of those eligible for court appointment as a conservator).

Moreover, the statutes and rules cited by the district court in this case are also indicative of public policies favoring protection of minors with respect to contractual obligations. Specifically, section 15-2-2 of the Utah Code provides that minors may disaffirm contracts "before or within a reasonable time after ... majority," Utah Code Ann. § 15-2-2 (1999). Furthermore, rule 17(b) of the Utah Rules of Civil Procedure provides that a "minor ... who is a party [to any civil action] must appear either by a general guardian or by a guardian ad litem appointed in the particular case by the court in which the action is pending." Utah R. Civ. P. 17(b).

Having thus agreed with Scott's premise that a parent may not unilaterally release a child's claims after a child's injury, we also agree with Scott's conclusion that a parent does not have the authority to release a child's claims before an injury. As in Scott, we see little reason to base the validity of a parent's contractual release of a minor's claim on the timing of an injury. Indeed, the law generally treats preinjury releases or indemnity provisions with greater suspicion than postinjury releases. See Shell Oil Co. v. Brinkerhoff Signal Drilling Co., 658 P.2d 1187, 1189 (Utah 1983). An exculpatory clause that relieves a party from future liability may remove an important incentive to act with reasonable care. These clauses are also routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party. Compromise of an existing claim, however, relates to negligence that has already taken place and is subject to measurable damages. Such releases involve actual negotiations concerning ascertained rights and liabilities. Thus, if anything, the policies relating to restrictions on a parent's right to compromise an existing claim apply with even greater force in the preinjury, exculpatory clause scenario. We therefore adopt the majority posture on this question and affirm the district court.

Turning now to the indemnity question, we conclude that the trial court erred in holding valid the indemnity provision in the form contract provided by Navajo Trails. In general, the common law disfavors agreements that indemnify parties against their own negligence because "one might be careless of another's life and limb, if there is no penalty for carelessness." Hyde v. Chevron U.S.A., 697 F.2d 614, 632 (5th. Cir.1983). Because of this public safety concern, we strictly construe indemnity agreements against negligence. See Union Pac. R.R. v. Intermountain Farmers Ass'n, 568 P.2d 724, 726 (Utah 1977) (holding that although the intent of the parties governs indemnity agreements against negligence, "the presumption is against any such intention and it is not achieved by inference from general language").

In rejecting parental indemnifications, a few courts have relied on the strict standards of clarity required of indemnity provisions generally, thereby avoiding the issue of whether public policy completely forbids agreements that shift financial responsibility from the negligent party to the parents of an injured minor. See, e.g., O'Connell v. Walt Disney World Co., 413 So.2d 444, 447 (Fla.Dist.Ct.App.1982) (finding it unnecessary to decide whether public policy permits a parent to indemnify an amusement park against negligence in conducting a horseback ride, since the contractual language did not clearly show an intent to indemnify).

In the case at hand, however, it is undisputed that the indemnity agreement is clear and unequivocal. We therefore must decide whether enforcement of the agreement violates public policy in light of our newly announced rule voiding parental waivers. We conclude that it does. Having now adopted a rule intended to preserve a minor's right to recover damages caused by another's negligence, we cannot uphold an agreement that shifts the source of compensation from the negligent party to the minor's parent. Such an agreement creates an unacceptable conflict of interest between a parent and a minor, as perceptively noted by the New York Court of Appeals:

[W]e are extremely wary of a transaction that puts parent and child at cross- purposes and ... tends to quiet the legitimate complaint of the minor child. Generally, we may regard the parent's contract of indemnity ... as an instrument that motivates him to discourage the proper prosecution of the infant's claim.... The end result is either the outright thwarting of our protective policy, or, should the infant ultimately elect to ignore the settlement and to press his claim, disharmony within the family unit. Whatever the outcome, the policy of the State suffers.

Valdimer v. Mount Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 210 N.Y.S.2d 520, 172 N.E.2d 283, 285 (N.Y.1961); see also Ohio Cas. Ins. Co. v. Mallison, 223 Or. 406, 354 P.2d 800, 802-06 (Or.1960) (noting that a child would be unlikely to pursue claims if agreement required its parent to indemnify the defendant). In short, an indemnification from negligence that specifically makes a parent the ultimate source of compensation would likely result in inadequate compensation for the minor or family discord.

In addition, the indemnity agreement at issue is inconsistent with a parent's duty to a child. Specifically, where a parent has a duty to protect the best interests of a child, an agreement to insure a third party against any consequences for that third party's negligent behavior toward the child can only serve to undermine the parent's fundamental obligations to the child. See Ohio Cas. Ins. Co., 354 P.2d at 802 (voiding an indemnity provision in a settlement agreement in part because a parent's duty to act "for the benefit of his child" is "not fully discharged where the parent enters into a bargain which gives rise to conflicting interests.").

Based on similar policy judgments, several other jurisdictions have invalidated agreements that required parents to indemnify a party against negligent acts that injure the parent's child. See generally Valdimer, 210 N.Y.S.2d 520, 172 N.E.2d at 285; Ohio Cas. Ins. Co., 354 P.2d at 804; Childress v. Madison Cty., 777 S.W.2d 1, 7 (Tenn.Ct.App.1989). We, too, conclude that public policy renders void the indemnity agreement between Navajo Trails and Hawkins's mother. By shifting financial responsibility to a minor's parent, such indemnity provisions would allow negligent parties to circumvent our newly adopted rule voiding waivers signed on behalf of a minor. Although the indemnity contract theoretically binds only Hawkins's mother, as a practical matter, it could chill Hawkins's pursuit of her legal claims against Navajo Trails since her mother, not Navajo Trails, would be the ultimate source of compensation.

We affirm the court's ruling with respect to the waiver of liability, but reverse with respect to the indemnity provision. We remand for further proceedings consistent with this opinion.

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November 24, 2007

City of Santa Barbara v. Superior Court [Janeway]

2007 41 Cal.4th 747
[No. S141643. Jul. 16, 2007.]

CITY OF SANTA BARBARA et al., Petitioners, v. THE SUPERIOR COURT OF SANTA BARBARA COUNTY, Respondent; TERRAL JANEWAY et al., Real Parties in Interest.

(Superior Court of Santa Barbara County, No. 1111681, Thomas Pearce Anderle, Judge.)

(The Court of Appeal, Second Dist., Div. Six, No. B176810, 135 Cal.App.4th 1345 .)

(Opinion by George, C. J., with Werdegar, J., Chin, J., and Corrigan, J., concurring. Concurring and dissenting opinion by Kennard, J., with Moreno, J., concurring. Dissenting opinion by Baxter, J.)

GEORGE, C. J.-

The mother of Katie Janeway, a developmentally disabled 14-year-old, signed an application form releasing the City of Santa Barbara and its employees (hereafter the City or defendants) from liability for "any negligent act" related to Katie's participation in the City's summer camp for developmentally disabled children. Katie drowned while attending the camp, and her parents (plaintiffs, real parties in interest in the present proceedings) commenced this suit. The Court of Appeal below (1) held unanimously that the agreement embodied in the application form was effective and enforceable insofar as it concerned defendants' liability for future ordinary negligence, but (2) concluded, by a two-to-one vote, {Slip Opn. Page 2} that a release of liability for future gross negligence generally is unenforceable, and that the agreement in this case did not release such liability.

In granting review, we limited the issue to be briefed and argued to the second issue -- whether a release of liability relating to recreational activities generally is effective as to gross negligence. fn. 1 As explained below, we answer that question in the negative, and affirm the judgment rendered by the Court of Appeal. We conclude, consistent with dicta in California cases and with the vast majority of out-of-state cases and other authority, that an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy. Applying that general rule in the case now before us, we hold that the agreement, to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.

I

The relevant facts were properly set forth by the Court of Appeal below, and we adopt that recitation with minor supplementation and stylistic changes.

The City has provided extensive summer recreational facilities and activities for children, including a camp for children with developmental disabilities fn. 2 -- Adventure Camp. Katie Janeway, who suffered from cerebral {Slip Opn. Page 3} palsy, epilepsy, and other similar developmental disabilities, participated in Adventure Camp in 1999, 2000, 2001, and 2002.

Adventure Camp was conducted from noon until 5:00 p.m. on weekdays for approximately three weeks in July and August. Camp activities included swimming, arts and crafts, group games, sports, and field trips. In 2002, as in prior years, swimming activities were held on two of five camp days each week in a City swimming pool.

In 2002, the application form for Adventure Camp included a release of all claims against the City and its employees from liability, including liability based upon negligence, arising from camp activities. fn. 3 Katie's mother, Maureen {Slip Opn. Page 4} Janeway, signed the release. She had signed similar releases covering Katie's participation in the camp in prior years.

Maureen Janeway disclosed Katie's developmental disabilities and medical problems to the City, specifically informing the City that Katie was prone to epileptic seizures, often occurring in water, and that Katie needed supervision while swimming. In addition, the City was aware that Katie had suffered seizures while attending Adventure Camp events in 2001. She had a seizure when sitting on the pool deck and another seizure at the skating rink. Paramedics were called after her seizure on the pool deck. Nevertheless, Maureen Janeway indicated that Katie was a good swimmer, and she never sought to prevent or restrict Katie's participation in the swimming portion of Adventure Camp. {Slip Opn. Page 5}

Based upon the information provided by Maureen Janeway and Katie's history of seizures, the City took special precautions during the Adventure Camp swimming activities in 2002. The City assigned Veronica Malong to act as a "counselor." Malong's responsibility was to keep Katie under close observation during the camp's swimming sessions. Previously, Malong, a college student, had worked for one year as a special education aide at the middle school attended by Katie. Malong had observed Katie experience seizures at the school, and she received instruction from the school nurse regarding the handling of those seizures. Malong also attended training sessions conducted by the City concerning how to respond to seizures and other first aid matters.

Katie participated in the first swimming day at the 2002 Adventure Camp without incident. On the second swimming day she drowned.

Approximately one hour before drowning, while waiting to enter the locker room at the pool, Katie suffered a mild seizure that lasted a few seconds. Malong observed the seizure and sent another counselor to report the incident to a supervisor. According to the pleadings, the supervisor stated that the report never was received. Malong watched Katie for approximately 45 minutes following the mild seizure. Then, receiving no word from her supervisor, Malong concluded that the seizure had run its course and that it was safe for Katie to swim.

Malong sat on the side of the pool near the lifeguard, watching the deep end of the pool. In addition to the Adventure Camp participants, there were as many as 300 other children in the pool area. Malong watched Katie jump off a diving board and swim back to the edge of the pool. At Malong's insistence, Katie got out of the pool and rested for a few minutes. Malong then asked Katie whether she wished to dive again, and Katie said she did. Katie dove into the water, bobbed to the surface, and began to swim toward the edge of the pool. As Katie did so, Malong momentarily turned her attention away from Katie. When Malong looked {Slip Opn. Page 6} back no more than 15 seconds later, Katie had disappeared from her sight. After Malong and others looked for Katie somewhere between two and five minutes, an air horn blew and the pool was evacuated. Lifeguards pulled Katie from the bottom of the pool, and she died the next day.

Katie's parents, Terral and Maureen Janeway, filed a wrongful death action alleging the accident was caused by the negligence of the City and Malong. Relying upon the release, defendants moved unsuccessfully for summary judgment and summary adjudication. Defendants then sought relief in the Court of Appeal, filing a petition for writ of mandate. (Code Civ. Proc., § 473c, subd. (m)(1).) As noted earlier, the appellate court denied the petition, holding (1) the agreement was effective and enforceable insofar as it concerned defendants' liability for future ordinary negligence, but (2) concluding a release of liability for future gross negligence generally is unenforceable, and the agreement in this case did not validly release such liability. As observed above, we address only the second holding.

II A

We begin by defining the terms that underlie the issue presented. "Ordinary negligence" -- an unintentional tort -- consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. (See, e.g., Donnelly v. Southern Pacific Co . (1941) 18 Cal.2d 863 , 869 ( Donnelly ).)

"Gross negligence" long has been defined in California and other jurisdictions as either a "want of even scant care" or "an extreme departure from the ordinary standard of conduct." ( Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175 , 1185-1186 ( Eastburn ), and cases cited; accord, Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225 , 1240 ( Colich ); Kearl v. {Slip Opn. Page 7} Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040 , 1052-1053; see also, e.g., Prosser & Keeton, The Law of Torts (5th ed. 1984) § 34, pp. 211-212 (Prosser and Keeton); 57A Am.Jur.2d (2004) Negligence, § 227, p. 296.) fn. 4

B

As observed in Gardner v. Downtown Porsche Audi (1986) 180 Cal.App.3d 713 , 716 ( Gardner ), "[t]raditionally the law has looked carefully and with some skepticism at those who attempt to contract away their legal liability for the commission of torts." Courts and commentators have observed that such releases 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. fn. 5 {Slip Opn. Page 8}

The traditional skepticism concerning agreements designed to release liability for future torts, reflected in Gardner, supra, 180 Cal.App.3d 713 , and many other cases, long has been expressed in Civil Code section 1668 (hereafter cited as section 1668) which (unchanged since its adoption in 1872) provides: "All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his [or her] own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law."

C

In Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 ( Tunkl ), we applied section 1668 in the context of a release required by a nonprofit research hospital as a condition of providing medical treatment. In that case, the plaintiff had signed a contract releasing the operators of the hospital -- the Regents of the University of California -- " 'from any and all liability' " for " 'negligent . . . acts or omissions of its employees' " so long as the hospital used due care in selecting those employees. ( Id ., at p. 94.) Thereafter, the plaintiff sued for ordinary negligence based on the treatment received from two of the hospital's doctors.

Turning to section 1668, Justice Tobriner's unanimous opinion for the court noted that past decisions had differed concerning the reach of that statute ( Tunkl, supra, 60 Cal.2d 92 , 96-97), but that those decisions agreed in one significant respect: they consistently "held that [an agreement's] exculpatory provision may stand only if it does not "involve [and impair] 'the public interest.' " ( Id ., at p. 96.) Exploring the meaning and characteristics of the concept of "public interest" as illuminated by the prior cases ( id ., at pp. 96-98), we read those precedents as recognizing a general rule that an "exculpatory clause which affects the public interest cannot stand ." ( Id. , at p. 98, italics added.) {Slip Opn. Page 9}

Tunkl next addressed the "factors or characteristics" that underlie the concept of "public interest" in the context of an agreement releasing liability for future ordinary negligence. ( Tunkl, supra, 60 Cal.2d 92 , 98.) In passages widely quoted and followed or adopted as a guide by numerous out-of-state decisions addressing the enforceability of such agreements, fn. 6 we wrote: "The social forces that have led to such characterization are volatile and dynamic. No definition of the concept of public interest can be contained within the four corners of a formula. The concept, always the subject of great debate, has ranged over the whole course of the common law; rather than attempt to prescribe its nature, we can only designate the situations in which it has been applied. We can determine whether the instant contract does or does not manifest the characteristics which have been held to stamp a contract as one affected with a public interest." ( Tunkl , supra , "60 Cal.2d at p. 98.)

We found in the prior cases a "rough outline" of the "type of transaction in which exculpatory provisions will be held invalid," explaining: "[T]he attempted but invalid exemption involves a transaction which exhibits 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 {Slip Opn. Page 10} 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." ( Tunkl, supra, 60 Cal.2d 92 , 98-101, fns. omitted.)

We continued our analysis in Tunkl by stressing that considerations of public policy did not bar all contracts releasing future liability for negligence, fn. 7 and by drawing a distinction between such permissible releases and those that implicate at least some of the circumstances described above. ( Tunkl, supra, 60 Cal.2d 92 , 101.) We commented that when certain of these characteristics are present, the transaction is such that "the releasing party does not really acquiesce voluntarily in the contractual shifting of the risk," and further that when the "service is one which each member of the public, presently or potentially, may find essential to him," the releasor "faces, despite his economic inability to do so, the {Slip Opn. Page 11} prospect of a compulsory assumption of the risk of another's negligence." ( Id ., at p. 101.) fn. 8 Applying the public interest characteristics articulated above to the facts of the transaction then before us in Tunkl , we concluded that the release exhibited not only some of those characteristics, but all of them, and that the contract of exculpation for negligence committed by the hospital's employee doctors "affect[ing] the public interest" was invalid. ( Id ., at pp. 101-102.) fn. 9

D

In subsequent decisions, California courts have invalidated releases of liability for future ordinary negligence under the analysis set forth in Tunkl, supra, 60 Cal.2d 92 , when, guided by Tunkl 's public interest discussion, the court determines that a particular release concerns a service that transcends a purely private agreement and affects the public interest. (E.g., Henrioulle v. Marin {Slip Opn. Page 12} Ventures, Inc . (1978) 20 Cal.3d 512 , 517-520 [release of liability for negligence by residential landlord]; Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662 [release of liability for negligence by provider of child care services]; Pelletier v. Alameda Yacht Harbor (1986) 188 Cal.App.3d 1551 [release of liability for negligence by provider of harbor boat berth]; Gardner, supra, 180 Cal.App.3d 713 [release of liability for negligence by auto repair shop]; Vilner v. Crocker National Bank (1979) 89 Cal.App.3d 732 [release of liability for negligence relating to banking services]; Akin v. Business Title Corp. (1968) 264 Cal.App.2d 153 [release of liability for negligence by escrow company]; see also Health Net of California, Inc. v. Department of Health Services (2003) 113 Cal.App.4th 224 ( Health Net ) [exculpatory clause related to managed health care for Medi-Cal beneficiaries]; see generally 1 Witkin, Summary of Cal. Law (10th ed. 2005), Contracts, §§ 662-665, pp. 739-746 (Witkin).) Other jurisdictions have held similar releases in various analogous contexts to be unenforceable under a Tunkl -influenced analysis. (See, e.g., Vodopest v. MacGregor (Wn. 1996) 913 P.2d 799, 783 ( Vodopest ) [invalidating, under Washington law, a release related to medical research]; Wagenblast, supra, 758 P.2d 968, 971-973 [invalidating, under Washington law, releases related to interscholastic public high school activities, including athletic teams and cheerleading].)

E

As the parties observe, no published California case has upheld, or voided, an agreement purporting to release liability for future gross negligence. Some decisions have stated, in dictum, that such a release is unenforceable. ( Farnham v. Superior Court (1997) 60 Cal.App.4th 69 , 74 ["exemptions from all liability for . . . gross negligence . . . have been consistently invalidated"]; Health Net, supra, 113 Cal.App.4th 224 , 234 [liability for future gross negligence cannot be released].) Others carefully have specified that liability for "ordinary" or "simple" {Slip Opn. Page 13} negligence generally may be released (that is, so long as doing so is consistent with Tunkl, supra, 60 Cal.2d 92 ) -- thereby implicitly differentiating gross negligence from the class of conduct as to which liability generally may be released. fn. 10 Indeed, for more than three decades, Witkin has asserted that California law categorically bars the prior release of liability for future gross negligence: "The present view is that a contract exempting from liability for ordinary negligence is valid where no public interest is involved . . . . [¶] But there can be no exemption from liability for intentional wrong [or] gross negligence . . . ." (1 Witkin, supra , Contracts, § 660, pp. 737-738, italics added; see also 1 Witkin, Summary of Cal. Law (9th ed. 1987), Contracts, § 631, p. 569 [same]; 1 Witkin, Summary of Cal. Law (8th ed. 1973), Contracts, § 485, pp. 411-412 [essentially identical]; 1 Witkin, Summary of Cal. Law (7th ed. 1960), Contracts, § 200, p. 226 ["The Contracts Restatement declares that a person can contract to exempt himself from liability for ordinary negligence, but not for gross negligence"].) As defendants observe, however, Witkin does not cite any relevant California decision in support of that proposition.

On the other hand, as defendants and their amici curiae fn. 11 also observe, a number of cases have upheld agreements insofar as they release liability for future {Slip Opn. Page 14} ordinary negligence in the context of sports and recreation programs, on the basis that such agreements do not concern necessary services, and hence do not transcend the realm of purely private matters and implicate the "public interest" under Tunkl, supra , 60 Cal.2d 92 . Our lower courts have upheld releases of liability concerning ordinary negligence related to gymnasiums and fitness clubs, fn. 12 auto and motorcycle racing events, fn. 13 ski resorts and ski equipment, fn. 14 bicycle races, fn. 15 skydiving or flying in "ultra light" aircraft, fn. 16 and various other recreational activities and programs such as horseback riding, white-water rafting, {Slip Opn. Page 15} hypnotism, and scuba diving. fn. 17 Most, but not all, other jurisdictions have held similarly. fn. 18 In light of these decisions, some more recent appellate decisions have concluded categorically that private agreements made "in the recreational sports context" releasing liability for future ordinary negligence "do not implicate the public interest and therefore are not void as against public policy." (E.g., Benedek, supra, 104 Cal.App.4th at pp. 1356-1357.)

III

In the absence of an authoritative discussion in any California opinion concerning the enforceability of an agreement releasing liability for future gross negligence, we consider the law of other jurisdictions. We find that the vast majority of decisions state or hold that such agreements generally are void on the ground that public policy precludes enforcement of a release that would shelter aggravated misconduct . (See, e.g., Xu v. Gay (Mich.Ct.App. 2003) 668 N.W.2d 166, 170 ( Xu ); Zavras v. Capeway Rovers Motorcycle Club (Mass.App.Ct. 1997) 687 N.E.2d 1263, 1265 ( Zavras ); Wolf v. Ford (Md. 1994) 644 A.2d 522, 525; New Light Co. v. Wells Fargo Alarm (Neb. 1994) 525 N.W.2d 25, 29-31 ( New Light ); Wheelock v. Sport Kites, Inc. (D. Hawaii 1993) 839 F.Supp. 730, 736 ( Wheelock ) [applying Hawaii law]; Boyce v. West (Wn.Ct.App. 1993) 862 P.2d 592, 597 ( {Slip Opn. Page 16} Boyce ); Sommer v. Federal Signal Corp . (N.Y. 1992) 593 N.E.2d 1365, 1370-1371; Buckner v. Varner (Tenn.Ct.App. 1990) 793 S.W.2d 939, 941; Wade v. Watson (N.D.Ga. 1981) 527 F.Supp. 1049, 1051-1052 [applying Ga. law]; Shelby Mutual Insurance Co. v. City of Grand Rapids (Mich.Ct.App. 1967) 148 N.W.2d 260, 262.)

A

The text writers reflect this majority rule. For example, in Champion, Fundamentals of Sports Law (1990), the author observes: "[I]t is universally held that a release will not bar a claim for gross negligence . That is true even though the same exculpatory clause would bar an [action] for simple negligence. " ( Id ., § 11.2, p. 209, italics added; see also id ., § 11.6, p. 215.) Leading treatises are in accord; indeed, some of them state categorically that any attempt to release liability for future gross negligence is "void" as against public policy. fn. 19 Yet other treatise {Slip Opn. Page 17} writers and law review authors have offered similar, albeit slightly moderated characterizations of the law, fn. 20 reflecting the circumstance that there are at least a handful of cases from a few jurisdictions that, without discussing the general rule or authorities set forth above, enforce contracts releasing liability for future gross {Slip Opn. Page 18} negligence in the context of agreements signed by motor vehicle racing participants. fn. 21

B

The reasoning of the foregoing out-of-state decisions holding that liability for future gross negligence never can, or generally cannot, be released, is based upon a public policy analysis that is different from the "public interest" factors considered under Tunkl, supra , 60 Cal.2d 92 . Tunkl 's public interest analysis focuses upon the overall transaction -- with special emphasis upon the importance of the underlying service or program, and the relative bargaining relationship of the parties -- in order to determine whether an agreement releasing future liability for ordinary negligence is unenforceable. By contrast, the out-of-state cases cited and alluded to above, declining to enforce an agreement to release liability for {Slip Opn. Page 19} future gross negligence, focus instead upon the degree or extent of the misconduct at issue, as well as the "public policy to discourage" (or at least not facilitate) "aggravated wrongs." (Prosser & Keeton, supra , § 68, p. 484.) Those cases hold, in essence, that an agreement that would remove a party's obligation to adhere to even a minimal standard of care, thereby sheltering aggravated misconduct, is unenforceable as against public policy. (E.g., New Light, supra, 525 N.W.2d 25, 29-31; Zavras, supra, 687 N.E.2d 1263, 1265; Wheelock, supra, 839 F.Supp. 730, 736.)

IV

Defendants and their supporting amici curiae argue that we should not be guided by these out-of-state cases and authorities, for three reasons. They assert that (1) enforcement of agreements releasing liability for future gross negligence is mandated by section 1668, and a contrary rule would violate both that statute and the holding in Tunkl, supra, 60 Cal.2d 92 ; (2) many out-of-state decisions supporting the proposition that future gross negligence cannot be released are distinguishable and hence inapt; and (3) considerations of public policy, properly understood, mandate not the majority rule -- generally voiding releases of liability for future gross negligence -- but the opposite, that is, a rule enforcing releases of liability for future gross negligence.

A 1

Defendants and some of their supporting amici curiae observe that section 1668, which as noted ante , at part II.B, bars enforcement of agreements releasing one from responsibility for his or her "own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent," does not list gross negligence as one of the types of liability that may not be released. They contrast section 1668's language with section 2175 of the Civil Code (also enacted {Slip Opn. Page 20} in 1872), which specifies that common carriers may not enforce releases of liability for future gross negligence. Defendants and their amici curiae argue that section 1668 thus represents an implied legislative determination to allow releases of liability for gross negligence, as long as the release does not affect the public interest under the principles of Tunkl, supra, 60 Cal.2d 92 ; and they assert section 1668 precludes courts from voiding releases on any public policy basis not set forth in that statute.

In this respect we agree with the Court of Appeal below, which observed that section 1668 "has not been . . . interpreted to authorize any and all releases that are not expressly invalidated." As the lower court also noted, " Tunkl itself went beyond the language of Civil Code section 1668 to invalidate releases of liability for negligence under certain circumstances . . . ." To be more explicit: our unanimous decision in Tunkl, supra, 60 Cal.2d 92 , did precisely what defendants and their supporting amici curiae assert is precluded by section 1668 -- our decision found a release of liability for future ordinary negligence void on public policy grounds other than those set forth in section 1668 . Indeed, Tunkl sets forth a categorical rule: Any exculpatory clause (even one releasing liability for future ordinary negligence) is unenforceable if it relates to a transaction that adequately exhibits at least some of the six characteristics set forth in that case, and thereby "affects the public interest." We could not accept the statutory argument advanced by defendants and their supporting amici curiae, without at the same time fundamentally undermining and effectively overruling Tunkl -- and we decline any implied invitation to do so. fn. 22 Accordingly, we reject defendants' {Slip Opn. Page 21} argument that, by enacting section 1668 more than 130 years ago, our Legislature established a policy generally allowing releases of liability for future gross negligence, and hence a policy precluding this court from adopting, on public policy grounds, the opposite -- and clearly majority -- rule.

2

We also reject the similar argument, advanced by defendants and their amici curiae, that we may not recognize or employ, as a basis for invalidating a release, any public policy rationale different from that set out in our decision in Tunkl, supra , 60 Cal.2d 92 .

As we have observed ante , at part III.B, the out-of-state decisions and other authority holding agreements releasing liability for future gross negligence to be unenforceable are based, not on Tunkl 's public interest, "transaction-focused" analysis, but instead upon a separate and different public policy rationale focusing upon the degree or extent of the misconduct at issue, in order to discourage (or at least not facilitate) aggravated wrongs. Defendants and their amici curiae, {Slip Opn. Page 22} however, assert that if a particular agreement releasing liability for "negligence" is, as the Court of Appeal found in the present case, enforceable under the Tunkl public interest analysis (an issue that, as observed ante , at fn. 1, we do not address), then, also pursuant to Tunkl , such an agreement "can and should be enforced for all negligence" -- that is, ordinary and gross negligence. Justice Baxter, in his dissenting opinion in this matter, post , embraces the same view.

We did not address in Tunkl whether an agreement purporting to release liability for future gross negligence could be enforced; we considered only the circumstances in which a release of liability for the type of negligence at issue in that case -- future ordinary negligence -- might be unenforceable. Our recognition in Tunkl that the concept of "public interest" is dynamic, not static; our refusal to rigidly "prescribe its nature"; and our explication of only a "rough outline" of the type of transaction as to which a release of liability for ordinary negligence would be unenforceable ( Tunkl, supra , "60 Cal.2d at p. 98), all belie the suggestion that we now should read Tunkl as implicitly foreclosing a different public policy analysis in the context of an agreement purporting to release liability for future gross negligence. Certainly, nothing in Tunkl is inconsistent with the public-policy-based majority rule described above. Nor can Tunkl reasonably be read to stand for the proposition that, assuming Tunkl's public interest factors do not preclude enforcement of an agreement releasing liability for future ordinary negligence, this same agreement also should, or even may, be construed and enforced to release liability for future gross negligence.

B

Defendants contend that many out-of-state decisions supporting the proposition that liability for future gross negligence cannot be released arise in jurisdictions that define this form of negligence not as California does (as either (1) a failure to exercise even slight care, or (2) an extreme departure from the {Slip Opn. Page 23} ordinary standard of conduct -- see ante , at pt. II.A), but instead define that term as conduct tantamount to wanton, reckless, or willful misconduct. fn. 23 Even if some decisions arguably are distinguishable on that basis, however, significant other out-of-state authority is not so readily distinguishable.

For example, the State of Washington, which views gross negligence consistently with the California definition, has long held void and unenforceable any attempted release of liability for a negligent act that "falls greatly below the standard established by law for the protection of others." ( Vodopest , supra , 913 P.2d 779, 783, italics added.) fn. 24 The same approach appears to apply in Massachusetts, which also long has viewed gross negligence consistent with the California definition. (See Zavras, supra, 687 N.E.2d 1263, 1265-1266 & fn. 4 [noting general rule that liability for "ordinary" negligence may be released, but that liability for "gross" negligence --defined as the " 'absence of slight diligence, or want of even scant care' " -- may not]; see also Sharon v. City of Newton (Mass. 2002) 769 N.E.2d 738, 748, fn. 12 ( Sharon ) [citing Zavras with approval].) {Slip Opn. Page 24} Similarly, Nebraska, which also long has viewed gross negligence consistently with the California definition, has refused to permit the release of liability for such future conduct. ( New Light, supra, 525 N.W.2d 25, 30-31 [defendant barred from insulating itself for damages caused by its own gross negligence, defined as failure to employ even "slight care" in the performance of its duty].) In other words, it appears that these states -- and Washington in particular, for many decades -- have enforced what is effectively the same rule that defendants and their amici curiae assert should be rejected as unwarranted and unworkable in California.

C

Ultimately, defendants and their amici curiae argue that rejection of the majority rule described above, and adoption of the opposite rule proposed by them, is mandated by public policy, as they perceive it. They stress the asserted uncertainty of the gross negligence standard and argue that unless providers of recreational services and related programs can be assured that agreements purporting to release liability for future gross negligence will be enforced, (1) subsequent suits against recreational service providers -- private, public, for-profit, or nonprofit -- will not be readily resolvable in favor of defendants on summary judgment, with the result that unwarranted liability will be threatened or imposed, and (2) service providers will react by greatly restricting, or simply declining to afford, such services or programs in California.

1

We do not agree that adoption of the foregoing majority rule in the setting of the definition of gross negligence employed in this state (failure to exercise even slight care, or an extreme departure from the ordinary standard of conduct) would prove unworkable, or that application of such a standard would frustrate the proper termination of suits on summary judgment or foster untoward liability. As the parties acknowledge, the same definition long has been employed in cases {Slip Opn. Page 25} applying numerous California statutes that confer limited immunity for negligence while expressly exempting immunity for "gross negligence." fn. 25 Despite the concerns of defendants and their amici curiae, in light of the experience under these statutes it does not appear that the application of a gross negligence standard, as defined in California, has a tendency to impair the summary judgment process or confuse juries and lead to judgments erroneously imposing liability. To the contrary: "These statutes reflect the sound legislative judgment that, under a gross negligence standard, meritless suits will typically be disposed of by summary judgment; that when a case goes to trial the jury, instructed on this standard, will be less likely to confuse injury with fault; and that verdicts reflecting such confusion will be more readily reversed, whether by the trial or appellate court, than under an ordinary negligence standard." ( Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990 , 1020 (conc. opn. of Werdegar, J.).) fn. 26 In this {Slip Opn. Page 26} respect, we emphasize the importance of maintaining a distinction between ordinary and gross negligence, and of granting summary judgment on the basis of that distinction in appropriate circumstances. (See Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349 , 358 ["Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence" -- "but not always"]; see also, e.g., Eastburn, supra, 31 Cal.4th 1175 , 1185-1186 [trial court properly precluded amendment of a complaint to allege gross negligence]; DeVito v. State of California (1988) 202 Cal.App.3d 264 , 272 [summarily concluding that a complaint "alleges no facts showing 'an extreme departure from the ordinary standard of care' "].)

2

As defendants observe, some cases and other authorities assert, albeit without citing any empirical evidence, that upholding agreements releasing liability for future negligence is necessary in order to ensure the continued availability of sports recreation and related programs. (E.g., Hohe, supra, 224 Cal.App.3d 1559 , 1564; YMCA , supra , 55 Cal.App.4th 22 , 27-28.) fn. 27 Defendants {Slip Opn. Page 27} and their amici curiae embrace this broad premise and argue by analogy that the same principle applies with respect to agreements releasing liability for future gross negligence.

Defendants assert that unless recreation service providers dependably can enforce agreements to release liability for both future ordinary negligence and future gross negligence, "the inevitable result will be fewer -- and more {Slip Opn. Page 28} expensive -- programs," and that (quoting Allabach, supra, 46 Cal.App.4th 1007 , 1016) ultimately, " ' "many popular and lawful recreational activities are destined for extinction." ' "

The various amici curiae in support of defendants echo and amplify these predictions. For example, amici curiae NASCAR and the California Speedway Association assert that limiting agreements releasing liability to future ordinary negligence, while not permitting the release of liability for future gross negligence, ultimately will "deprive [the public] of the . . . opportunity to participate and recreate in many . . . cherished [pastimes]," including being spectators at NASCAR and similar motor vehicle racing events. Likewise, amici curiae Bally Total Fitness Corporation and 24 Hour Fitness USA, Inc., claim the appellate decision below, enforcing the release as to negligence but not as to gross negligence, "[wreaks] havoc on recreational providers," leading them to a "precipice from which there will be no return." Similarly, the brief of the International Health, Racquet, and Sportsclub Association and California Clubs of Distinction twice declares that "the effect of [enforcing a release as to negligence but not as to gross negligence] cannot be overstated" -- and suggests that unless releases of liability for future gross negligence are enforced, there will be "far reaching and devastating consequences," rendering commercial health and racquet clubs "a thing of the past." Amici curiae Sierra Club, League of California Cities, and California State Association of Counties make similar, albeit slightly less strident, assertions.

We are sensitive to the policy arguments advanced by defendants and their amici curiae that caution against rules triggering wholesale elimination of beneficial recreational programs and services -- and we are especially sensitive to the concerns relating to the continued availability of programs such as the one here at issue, serving the recreational needs of developmentally disabled children. But {Slip Opn. Page 29} we find no support for such broad predictions in the present setting.

a

Although, as noted, some cases and authorities assert that upholding releases of liability for ordinary negligence may help ensure the continuation of sports recreation and related programs (see ante , at fn. 27), we do not discern in those cases any discussion of an asserted corresponding need to recognize and enforce agreements releasing liability for future gross negligence, fn. 28 and indeed we find little supporting that position even in the law review literature upon which defendants rely. fn. 29 We also find it significant that, as observed ante , part IV.B, the States of Washington, Massachusetts, and Nebraska all effectively bar release of liability for gross {Slip Opn. Page 30} negligence, as that term is defined in California. We would expect that if, based upon the experience of these sister states, there existed substantial evidence supporting the ominous forecasts of defendants and their amici curiae concerning the future of recreational services in California under the same system, defendants and their amici curiae would highlight that information. And yet, no such information has been provided to us.

b

Indeed, if the premise of defendants and their amici curiae were correct -- that is, if failing to enforce agreements releasing liability for future gross negligence would imperil the very existence of sports and recreational industries -- we at least would expect to see some analogous evidence in the experience of those states that prohibit even agreements releasing liability for future ordinary negligence. Ordinary negligence, after all, occurs much more commonly than gross negligence, and hence judicial decisions holding unenforceable any release of liability for ordinary negligence would, under the theory of defendants and their amici curiae, pose a much greater threat to the continued availability of recreational sports programs than would a rule holding unenforceable releases of liability for gross negligence generally. And yet, as explained below, in numerous contexts concerning recreational sports and related programs, courts categorically have voided agreements releasing liability for future ordinary negligence without (so far as we can discern) triggering in any substantial degree the dramatically negative effects predicted by defendants and their amici curiae.

Many thousands of contracts that have been entered into, releasing liability for future ordinary negligence in the context of recreational sports and related {Slip Opn. Page 31} programs, are unenforceable in most states. This is so because, although courts in California fn. 30 and a few other states fn. 31 have enforced agreements, signed by parents, releasing liability for future ordinary negligence committed against minor children in recreational and related settings, that position apparently represents a minority view. "A clear majority of courts . . . have held that a parent may not release a minor's prospective claim for negligence." ( Hawkins ex rel. Hawkins v. Peart (Utah 2001) 37 P.3d 1062, 1065-1066 [voiding agreement signed on behalf of minor releasing liability for future negligence concerning horseback riding], and cases and other authorities cited.) fn. 32 {Slip Opn. Page 32}

In addition, we observe that Vermont has voided agreements releasing liability for future ordinary negligence in the context of recreational skiing and racing; fn. 33 Connecticut has acted similarly concerning "snow tubing" and horseback riding lessons; fn. 34 West Virginia has voided a release of liability for ordinary negligence executed by a university student who was injured while playing "club" rugby; fn. 35 and Washington has voided agreements releasing public school districts from liability for future ordinary negligence related to interscholastic athletics. fn. 36 {Slip Opn. Page 33} Virginia long has categorically and broadly voided all preinjury releases, even in the recreational sports context. fn. 37 Perhaps most significantly, the New York Legislature, for three decades, has barred enforcement of agreements between operators of "gymnasium[s]" and places of "amusement or recreation, or similar establishment[s]," and their paying members or customers, purporting to release liability for future negligence by the operator. (See N.Y. Gen. Oblig. Law, § 5-326.) fn. 38 Pursuant to this statute, New York courts have found releases to be void {Slip Opn. Page 34} and unenforceable in the context of suits for personal injuries caused by ordinary negligence related to automobile racing at commercial racetracks; fn. 39 skiing and ski lessons at resorts; fn. 40 horseback riding organized and operated by a business firm or riding stable business; fn. 41 recreational parachuting or skydiving lessons; fn. 42 flag football played in a league run by a corporation; fn. 43 tennis played at a country club at which the plaintiff was a member; fn. 44 and riding a "mechanical bull" in a bar. fn. 45

We brought the cases from these six states (Connecticut, Utah, Vermont, Virginia, Washington, and West Virginia) and the New York statute to the parties' attention and solicited supplemental briefing concerning defendants' policy argument that enforcing releases of liability for future ordinary negligence, but not for future gross negligence, would lead to the demise or substantially diminished {Slip Opn. Page 35} availability of recreational services and programs. Thereafter, pursuant to a request by defendants, we allowed additional supplemental briefing. The ensuing briefing, however, disclosed no empirical study suggesting that holdings such as those described above, precluding the release of liability for future ordinary negligence (or for that matter, similar holdings under Tunkl , supra, 60 Cal.2d 92 ), fn. 46 have triggered the predicted elimination or even widespread substantial reduction of the affected services or programs. Indeed, defendants forthrightly concede in their supplemental briefs that they found no empirical support for such assertions.

Defendants, caution, however, against any attempt to assess " 'the societal effects of judicial holdings' " (quoting Choper, Consequences of Supreme Court Decisions Upholding Individual Constitutional Rights (1984) 83 Mich. L.Rev. 1, 7), and they suggest that because of legal, economic, social and other differences between the seven jurisdictions discussed above and California, the experiences of those states "probably" are not predictive of what might occur in California if we were to decline to enforce releases of liability for future gross negligence. Nevertheless, and seemingly in conflict with their own admonition about attempting to assess the societal effects of judicial holdings, defendants speculate that the rules employed in the seven jurisdictions described above, declining to enforce releases of liability for future ordinary negligence, " may have led or may lead to the diminished availability or even the demise of recreational services and {Slip Opn. Page 36} programs" in those states. Furthermore, defendants suggest that, even without empirical evidence of any negative effects in those states, but in light of some law review articles generally predicting such effects if releases of liability for future ordinary negligence are not enforced (see ante , at fn. 27), we should assume such effects have occurred and will occur in those jurisdictions, and that such effects also would occur in California, were we to adopt a rule posing even a comparatively lesser threat to the continued availability of recreational sports and sports programs -- that is, a rule generally enforcing releases of liability for future ordinary negligence, but generally declining to enforce releases of liability for future gross negligence.

We find defendants' arguments unpersuasive. Of course legal, economic, social, and other differences can make interjurisdictional comparisons inexact. But that does not mean we should ignore what might be gleaned from the legal laboratory that is the product of our federal system, under which states may, and do, undertake different solutions to common problems. fn. 47 The circumstance that neither defendants nor their supporting amici curiae have found from the experience of our sister states any substantial empirical evidence supporting their dire predictions is, we believe, both relevant and telling.

Indeed, it appears that the experience of our sister states has not borne out the predictions of defendants and their supporting amici curiae. In Virginia and New York, for example -- where, as noted above, agreements to release future liability for ordinary negligence causing personal injury long have been {Slip Opn. Page 37} categorically barred by case law or generally precluded by statute, as construed by case law -- service providers have been subjected to the potential of liability substantially greater than that facing their counterparts in California and most other jurisdictions, which (as observed ante , at part II.E) generally uphold such releases. And yet, our research suggests that the predicted demise of recreational opportunities apparently has not come to pass in Virginia or New York.

For example, amicus curiae NASCAR's brief predicts the downfall of spectator auto racing unless agreements releasing liability for future gross negligence regularly are enforced. According to NASCAR's official Web site, however, of the 31 NASCAR-affiliated major speedways located in the United States and Mexico, two are, and long have been, located in Virginia, and one is, and long has been, located in New York. fn. 48 In other words, despite Virginia's and New York's strict "no release of liability for ordinary negligence" rules, which subject NASCAR to greater potential liability than the mere "no release of liability for gross negligence" rule at issue in the present case, NASCAR-sponsored racing appears not to have disappeared in those states.

Likewise, amicus curiae Bally Total Fitness Corporation's prediction of calamity in the health club industry if releases of liability for future gross negligence are not enforced appears difficult to reconcile with the prevalence of that corporation's business in those two states. Bally's official Web site discloses {Slip Opn. Page 38} that it operates seven clubs in Virginia, and 36 in New York. fn. 49 Amici curiae International Health, Racquet, and Sportsclub Association and California Clubs of Distinction similarly assert that commercial recreational services are in danger of extinction if releases of liability for future gross negligence are not enforced. According to the 2002 United States Economic Census (Aug. 2005), which reports on, among other things, each state's "fitness and recreational sports centers" (including health, fitness, swimming, racquet, and handball clubs, as well as roller-skating and ice-skating rinks), in 2002 there were more than 750 such business locations in Virginia, and more than 1,800 in New York. fn. 50 Again, despite the strict Virginia and New York rules, which subject recreational service providers to far greater potential liability than the mere "no release of liability for gross negligence" rule at issue in the present case, it does not appear that commercial and organized recreational clubs have become "a thing of the past" in those states. fn. 51

Nor are we aware of any empirical evidence to suggest, as defendants postulate, that a holding declining to enforce an agreement purporting to release {Slip Opn. Page 39} liability for future gross negligence would jeopardize programs, such as the one here at issue, that provide recreational opportunities for developmentally disabled children -- and indeed, initial research casts doubt upon such predictions. fn. 52

We reject the arguments of defendants and their amici curiae that considerations of public policy mandate the adoption of a rule under which {Slip Opn. Page 40} agreements releasing liability for future gross negligence always, or even generally, would be enforced.

V

As then-Justice Traynor observed in Donnelly, supra, 18 Cal.2d 863 , the distinction between "ordinary and gross negligence" reflects "a rule of policy" that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary. ( Id ., at p. 871; accord, e.g., Colich, supra, 198 Cal.App.3d 1225 , 1240.)

For the reasons discussed above -- that is, adherence to the "public policy to discourage," or at least not facilitate, "aggravated wrongs" (Prosser & Keeton, supra , § 68, p. 484) -- and consistent with Donnelly, supra, 18 Cal.2d 863 , and the Court of Appeal below, as well as the vast majority of other jurisdictions, we conclude that public policy generally precludes enforcement of an agreement that would remove an obligation to adhere to even a minimal standard of care. fn. 53 {Slip Opn. Page 41} Applying that general rule here, we hold that an agreement purporting to release liability for future gross negligence committed against a developmentally disabled child who participates in a recreational camp designed for the needs of such children violates public policy and is unenforceable. fn. 54

The Legislature, which already has enacted numerous statutes designed to protect from unfair liability various participants in and sponsors of socially useful enterprises (see ante , at fn. 25), is of course free to enact additional legislation limiting, as necessary, the liability of specific recreational service providers. fn. 55 If {Slip Opn. Page 42} those who provide such programs or other recreational sports services believe the viability of their particular industry rests upon the ability to secure valid releases of liability for future gross negligence -- that is, exoneration for the providers' failure to employ even "slight care," or for an "extreme departure" from the ordinary standard of conduct -- the proper forum in which to present that policy argument, and to seek that broad protection, is the Legislature.

VI

Defendants and some of their supporting amici curiae assert that by declining to enforce the release at issue in this case against a possible claim for gross negligence, we would be (1) recognizing a legal distinction between ordinary negligence and more aggravated misconduct, and thus (2) in essence recognizing, in these circumstances, the possibility of a "cause of action" for gross negligence. fn. 56 They assert we may not properly do either. As explained, we reject defendants' objections.

A

Defendants claim our courts "may not distinguish ordinary from gross negligence absent express legislative authorization." In support of this proposition, they cite the Legislature's 1874 repeal of statutes recognizing and defining "slight," "ordinary," and "gross" negligence. (See Walther v. Southern Pacific Co . (1911) 159 Cal. 769, 775.) Amicus curiae NASCAR echoes this view, {Slip Opn. Page 43} asserting that, with respect to gross negligence and "other grades" of misconduct such as recklessness and willful misconduct, California "courts have uniformly agreed that none of [those classifications], in the absence of specific statutory creation, are to be treated differently [from] 'ordinary' negligence" and that "there is no legal distinction" between the concepts of ordinary negligence, gross negligence, and recklessness "in the absence of a statute."

This assertion inaccurately characterizes the law. For example -- and despite the absence of any statutory authorization for the distinction -- we long have adhered to the common law rule that a contract may be reformed due to mutual mistake based upon "ordinary negligence," but not when the mistake is based upon "gross negligence." ( Hess v. Ford Motor Co. (2002) 27 Cal.4th 516 , 529; see also Van Meter v. Bent Construction Co. (1956) 46 Cal.2d 588 , 594-595 [allowing reformation upon a showing of gross negligence].)

Similarly, prior to abandonment of the common law doctrine of contributory negligence in favor of comparative fault in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 ( Li ) -- and despite the absence of any statutory authorization for making the distinction -- recklessness by a tortfeasor long was recognized by California courts in order to ameliorate the harsh effects to a plaintiff of the contributory negligence bar. (See, e.g., 4 Witkin, Summary of Cal. Law (8th ed. 1974), Torts, § 668, pp. 2974-2976, and cases cited.) Now, in the post- Li context, the common law doctrine of assumption of risk continues to disprove the thesis that absent statutory authority, the courts are precluded from drawing legal distinctions between ordinary negligence and more aggravated categories of misconduct. The primary-assumption-of-risk doctrine involves injury-causing conduct by a defendant who, because of the setting and the relationship of the {Slip Opn. Page 44} parties, owes no legal duty to protect a plaintiff against ordinary negligence. ( Knight v. Jewett (1992) 3 Cal.4th 296 ( Knight ).) fn. 57 In the context of active sports coparticipants, for example, this means that a defendant generally has no duty to eliminate, or protect a plaintiff against, risks inherent in a sport -- that is, against ordinary careless conduct considered to be part of the sport. ( Id ., at pp. 315-316.) And yet, Knight holds, such a defendant nevertheless may be liable for conduct "so reckless as to be totally outside the range of the ordinary activity." ( Id., at pp. 320-321, italics added.)

As shown, pursuant to our common law contract reformation case law and the assumption-of-risk doctrine, and despite the absence of statutory authorization, California case law clearly distinguishes between the concepts of ordinary negligence and other, aggravated forms of misconduct such as gross negligence and recklessness.

B

Defendants and various supporting amici curiae also assert that California does not recognize any cause of action for "gross negligence" unless such an action is directly, or at least implicitly, authorized by one of the numerous statutes that employ gross negligence as the applicable standard. (See, e.g., statutes cited ante , at fn. 25.) Defendants and their amici curiae rely upon Continental Ins. Co. v. American Protection Industries (1987) 197 Cal.App.3d 322 ( Continental ).

We do not view our holding -- that an agreement purporting to release liability for future gross negligence committed against a developmentally disabled {Slip Opn. Page 45} child who participates in a recreational camp designed for the needs of such children violates public policy and is unenforceable -- as recognizing a cause of action for gross negligence. fn. 58 In any event, as explained below, the decision in Continental does not assist defendants.

Continental, supra , 197 Cal.App.3d 322 , did not concern a release of future tort liability, but instead a liquidated damages provision of a contract for burglar alarm services. The provision limited damages for " 'negligence' " to $250 ( id ., at p. 328, fn. 4), and the plaintiff, an insurer, sought unsuccessfully to avoid that clause by amending its complaint to allege not ordinary negligence, but gross negligence. In affirming the trial court's order refusing to recognize the plaintiff's cause of action, the appellate court noted that numerous California decisions had discussed and applied the doctrine of gross negligence in the context of various statutory provisions establishing that specific level of negligence as the operative standard in particular situations ( id ., at p. 329, fn. 5). The appellate court in Continental also quoted Prosser and Keeton's comments concerning the " 'difficulty of drawing satisfactory lines of demarcation' " relating to degrees of negligence, and the ensuing elimination of the distinction between ordinary and gross negligence " ' in most situations. ' " ( Id ., at p. 330, fn. 7, quoting Prosser & {Slip Opn. Page 46} Keeton, supra , § 34, p. 211, italics added.) The court then observed that after the decision in Li, supra, 13 Cal.3d 804 , which as noted abandoned the all-or-nothing common law doctrine of contributory negligence in favor of comparative fault, "the need for categorization of misconduct into degrees has been radically diminished ." ( Continental , supra , 197 Cal.App.3d at p. 330, italics added.) From this, the court in Continental jumped to the broad conclusion that " any attempt to categorize gross negligence separately from ordinary negligence is unnecessary " ( ibid ., italics added) -- and it determined that the trial court properly had declined to allow the plaintiff to amend its complaint to allege gross negligence. ( Ibid .) Subsequently, two decisions have, in offhand dictum, cited Continental as standing for the general proposition that "California does not recognize a distinct cause of action for 'gross negligence' independent of a statutory basis." ( Saenz , supra , 226 Cal.App.3d 758 , 766, fn. 9.) fn. 59

We need not address here the question whether the court in Continental reached the correct decision in the context of the liquidated damages provision before it. fn. 60 We conclude, however, that the decision in Continental is distinguishable in the context of the release at issue in the present case. It is true that, after Li , in the context of comparative fault analysis, there typically is no need to distinguish gross negligence from ordinary negligence, because we now permit fact finders to compare the respective fault of the parties, regardless of the degree of negligence of each. ( Sorensen v. Allred (1980) 112 Cal.App.3d 717 , 725-726 [ {Slip Opn. Page 47} allowing comparison of negligent and "willful and wanton" (reckless) conduct].) It also is generally true that, with the advent of comparative fault, the need to categorize misconduct into degrees has been "diminished." ( Continental, supra , 197 Cal.App.3d 322 , 330.) But as acknowledged by the court in Continental, Li 's adoption of comparative fault obviated the need for the distinction only in "most" situations -- not in all . ( Ibid. ; accord, Bielski v. Schulze (Wis. 1962) 114 N.W.2d 105, 114 [observing that the adoption of comparative fault, and the abrogation of gross negligence as a general matter, nevertheless may require that the law continue to recognize gross negligence in the context of "anticipatory releases and exculpatory clauses"].)

Again, reference to Knight, supra, 3 Cal.4th 296 , is illustrative. As noted above, in the context of primary assumption of risk (that is, liability of active sports coparticipants for injuries arising from the normal conduct of the sport), the absence of a duty to protect against ordinary negligence does not absolve a defendant from liability based upon reckless conduct. Similarly, in the present situation, it cannot be said that a legal distinction between ordinary negligence and gross negligence is "unnecessary" -- indeed, a theory of gross negligence, if supported by evidence showing the existence of a triable issue, is the only negligence-based theory that is potentially open to plaintiffs and real parties in interest. fn. 61 {Slip Opn. Page 48}

VII

The judgment of the Court of Appeal is affirmed.

Werdegar, J., Chin, J., and Corrigan, J., concurred. {Slip Opn. Page 1}

KENNARD, J., Concurring and Dissenting:

I agree with the majority that the contractual release of liability at issue in this case is unenforceable as to gross negligence, but I reach that conclusion for reasons that differ from the majority's. The majority relies largely on decisions from other jurisdictions to support a conclusion that releases for gross negligence are inherently and generally against public policy and unenforceable, but that conclusion cannot be reconciled with Civil Code sections 1668 and 2175, as I will explain. In my view, a contractual release of liability for gross negligence, like a contractual release of liability for ordinary negligence, must be examined in its specific context to determine whether it is against public policy. In performing that contextual public policy analysis, I rely on the factors that this court identified in Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 ( Tunkl ).

I

The City of Santa Barbara (the City) runs a summer camp, called Adventure Camp, for children with developmental disabilities. Katie Janeway, who suffered from epilepsy, mild cerebral palsy, and other disabilities, started going to the camp in 1999, and she returned every summer until her death in 2002 at the age of 14. The City's application form for the camp required the child's parents to release the city and its employees from all liability for any loss or damage on account of injury "whether caused by any negligent act or omission of the releasees or otherwise." {Slip Opn. Page 2} Katie's mother signed the year 2002 application form containing the release provision.

Katie's mother told the City's employees that Katie had seizures and needed supervision while swimming. The City assigned camp counselor Veronica Malong, a college student, to supervise Katie during swimming activities. About an hour before she drowned, Katie had a mild seizure. Malong waited until Katie appeared to be fully recovered before allowing her to swim. There were about 300 children in and around the large, Olympic-size swimming pool, which was staffed with five lifeguards. Katie wanted to use the diving board. That area of the pool was roped off so only one child would be in the water at a time. Katie dove once without problem. After a 10-minute rest, Katie dove a second time. Malong saw her come to the surface and begin swimming toward the side of the pool. Malong then looked away for no more than 15 seconds, and when she looked back she could not see Katie. Malong immediately walked to the deep end of the pool to look for Katie and asked another counselor who was swimming toward the diving board if he had seen Katie. Malong then got into the pool and swam to the shallow end and then back to the middle of the pool, searching for Katie. The lifeguard assigned to watch the diving area finally saw Katie on the bottom of the pool, where she had been for about five minutes. She was taken to a hospital and died the next day.

Katie's parents sued the City and Malong for wrongful death, alleging negligence. Defendants moved for summary judgment, relying on the contractual release in the application form. The trial court denied the motion, and defendants petitioned the Court of Appeal for a writ of mandate to reverse that ruling. Denying the petition, the Court of Appeal concluded that under Tunkl, supra, 60 Cal.2d 92 , the release was valid and enforceable as to any claim for ordinary {Slip Opn. Page 3} negligence, but it also concluded, over the dissent of one justice, that the release was unenforceable as to a claim for gross negligence.

This court granted review on a single issue, the enforceability of the release as to a claim for gross negligence.

II

Civil Code section 1668, which has remained unchanged since its enactment in 1872 as part of the original Civil Code, prohibits contractual releases of liability for "fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent." Also unchanged since its enactment in 1872 is Civil Code section 2175, which provides: "A common carrier cannot be exonerated, by any agreement made in anticipation thereof, from liability for the gross negligence, fraud, or willful wrong of himself or his servants." (Italics added.) The wording of Civil Code section 2175 shows that in 1872 the Legislature was well aware of gross negligence as a distinct category of wrong and that it chose to bar any agreement releasing a common carrier from liability for gross negligence. At the very same time, however, the Legislature omitted gross negligence from Civil Code section 1668's list of wrongful conduct that could never be the subject of a contractual release of liability.

Only one inference may be drawn: The Legislature made a conscious decision that releases for gross negligence--unlike releases for fraud, for willful injury to person or property, and for intentional or negligent violation of statutory law--are not inherently against the public interest and therefore are not generally and categorically unenforceable. In holding that contractual releases of liability for future gross negligence are generally unenforceable (maj. opn., ante , at p. 2), the majority rejects the Legislature's contrary decision, effectively rewrites Civil Code section 1668 to insert what the Legislature deliberately omitted (a general {Slip Opn. Page 4} prohibition on contractual releases of liability for future gross negligence), and in so doing usurps the Legislature's authority. I do not join in that holding.

III

Of course, the Legislature's decision, as embodied in the text of Civil Code sections 1668 and 2175, that contractual releases for future gross negligence are not inherently against the public interest and therefore are not generally unenforceable, does not mean that such releases are always consistent with the public interest and therefore enforceable. Instead, the validity of a contractual release for future gross negligence must be determined by examining the context in which it incurs. Civil Code section 2175 identifies one context in which releases for future gross negligence are against the public interest and thus invalid--when the party seeking exoneration is a common carrier. Civil Code section 1668 does not preclude courts from determining that releases for gross negligence are against the public interest and invalid in other situations as well.

To determine whether the release at issue here is against the public interest and invalid as applied to gross negligence, I find guidance in this court's decision in Tunkl, supra, 60 Cal.2d 92 . There, this court adopted an analysis to be used in determining whether a contractual release of future negligence claims is against the public interest and therefore unenforceable. We identified six factors or characteristics that "constitute the public interest" and thus provide "a rough outline of that type of transaction in which exculpatory provisions will be held invalid." ( Id. at p. 98.) For an exculpatory provision to be held invalid, the transaction to which it relates need only exhibit some of those characteristics. ( Id. at p. 101.) Although this court has never addressed the issue, it seems logical that, because gross negligence is a more aggravated form of misconduct than ordinary negligence, the public interest in deterring gross negligence is greater than the public interest in deterring ordinary negligence. Accordingly, to invalidate a {Slip Opn. Page 5} release as to future gross negligence, the public interest showing under the Tunkl analysis need not be as strong or as complete as it would need to be to invalidate a release as to future ordinary negligence.

Under Tunkl , the first characteristic is that the release "concerns a business of a type generally thought suitable for public regulation." ( Tunkl, supra, "60 Cal.2d at p. 98, fn. omitted.) Child day care facilities are subject to public regulation under the California Child Day Care Facilities Act (Health & Saf. Code, § 1596.70 et seq.). Although Adventure Camp is exempt from regulation as a child day care facility because it is operated for less than 12 weeks in a 12-month period during a time when local public schools are not in session ( id. , § 1596.792, subd. (g)(1)), the City cannot deny that through the camp program it does indeed provide child care services in the course of providing social and recreational activities for young children who are unaccompanied by their parents. fn. 1 Accordingly, I conclude that at least insofar as it provides child care services, the City's Adventure Camp is engaged in a type of business that is suitable for public regulation.

The second characteristic under Tunkl is that "the party seeking exculpation" (here, the City) "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." ( Tunkl, supra, "60 Cal.2d at pp. 98-99, fns. omitted.) Affording opportunities for developmentally disabled children to participate in ordinary recreational activities with other children is a service of great public importance. The Legislature has declared that "developmental disabilities present {Slip Opn. Page 6} social, medical, economic, and legal problems of extreme importance " that have "an important impact on . . . whole communities" (Welf. & Inst. Code, § 4501, italics added), that "[t]he State of California accepts a responsibility for persons with developmental disabilities" ( ibid. ), and that those persons have rights both "to social interaction and participation in community activities" and "to physical exercise and recreational opportunities" ( id., § 4502, subds. (f), (g)). Moreover, as I have explained, the City's program includes child care services, and child care itself has vital public importance. ( Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662 , 672.) Thus, I conclude that, through its recreational program for developmentally disabled children, the City provides services that are of great public importance.

In modern urban society, where both parents often hold full-time employment, many parents lack the time and resources to personally supply a full range of recreational and social opportunities for their children and instead rely on recreational camps and similar organized programs. This is particularly true for parents of children with developmental disabilities, because of the particular skills and adaptations required in dealing with those disabilities. Thus, recreational programs like Adventure Camp that are designed for developmentally disabled children are a "practical necessity" for parents seeking to provide a full range of ordinary recreational and social opportunities for those children. I conclude that through Adventure Camp the City provides services that are a practical necessity for many parents of developmentally disabled children.

The third Tunkl factor is whether "[t]he 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." ( Tunkl, supra, "60 Cal.2d at p. 99, fn. omitted, italics added.) Here, although the City's Adventure Camp was limited to 20 participants at a time, the City made it available to any child between {Slip Opn. Page 7} the ages of seven and 14 with a qualifying developmental disability. This circumstance is present.

The fourth Tunkl factor is whether "the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks [those] services." ( Tunkl, supra, "60 Cal.2d at p. 100, fn. omitted.) This factor is satisfied. Adventure Camp was limited to 20 children at a time, and those spots were always taken. Although the City allowed parents to choose which activities their children would participate in during camp sessions, the City alone determined the conditions for admission to Adventure Camp. Nothing in the record suggests that any parent ever bargained, or could have bargained, with the City concerning the terms of admission to the program.

The fifth Tunkl factor is whether the party seeking exculpation used "a standardized adhesion contract of exculpation" and did not offer the other party an option to "pay additional reasonable fees and obtain protection against negligence." ( Tunkl, supra, "60 Cal.2d at pp. 100-101, fns. omitted.) Here, it is undisputed that the City's terms of participation, including the release, were offered to parents on a take-it-or-leave-it basis, with no opportunity to obtain protection against gross negligence for an additional fee.

The sixth Tunkl factor is whether "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." ( Tunkl, supra, "60 Cal.2d at p. 101, fn. omitted.) Here, as a result of the transaction in which Katie's parents enrolled her in the City's Adventure Camp, Katie was placed under the care and supervision of the City's employees, subject to a significant risk of serious injury if they acted with gross negligence.

I conclude that each of the Tunkl factors is satisfied, at least to some extent, and that the characteristics of the particular transaction make the City's contractual {Slip Opn. Page 8} release against public policy and unenforceable as to liability for injury caused by gross negligence. fn. 2

IV

The City's Adventure Camp provides recreational and social activities to children with developmental disabilities. Because of the strong public interest in providing children with disabilities with opportunities for ordinary recreational activities and social interactions, it is essential that providers of those opportunities be held to at least a minimal standard of care. Applying a slight variation of the analysis that this court adopted in Tunkl, supra, 60 Cal.2d 92 , I conclude that releases for gross negligence are not enforceable in this particular context. On this basis, I join the majority in affirming the Court of Appeal's judgment.

Moreno, J., concurred. {Slip Opn. Page 1}

BAXTER, J., Dissenting:

In this matter we must determine whether a commonly-worded release of future liability for negligence utilized by a public entity in connection with a publicly funded and publicly operated summer recreational program for developmentally disabled youth is enforceable under Civil Code section 1668 (section 1668), the statute defining the lawful parameters of releases in California. I conclude the Legislature has spoken; a full release of negligence liability, as was expressly agreed to by the parties below, is generally valid and enforceable under section 1668.

The majority, in contrast, concludes that all releases of future liability for gross negligence, whether express or implied, are generally unenforceable in California as contrary to the public policy of this state, and that the specific release of future negligence liability utilized by the City in this case, to the extent it implicitly encompasses gross negligence, "violates public policy and is unenforceable." (Maj. opn., ante , at p. 41.) The majority does not find section 1668 of much consequence in this matter, a position it must take because its conclusions and holding are based on policy determinations not discernable from the controlling statutory language.

I cannot join in the majority's sweeping holding. As this court long ago observed, "[t]he determination of public policy of states resides, first, with the people as expressed in their Constitution and, second, with the representatives of {Slip Opn. Page 2} the people -- the state Legislature" ( Jensen v. Traders & General Ins. Co. (1959) 52 Cal.2d 786 , 794.) " '[U]nless it is entirely plain that a contract is violative of sound public policy, a court will never so declare. "The power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and . . . should be exercised only in cases free from doubt." ' " ( Ibid. )

The Legislature, not this court, is in the best position to consider the public interests and determine whether good cause exists to amend section 1668 to uncategorically restrict releases of future tort liability to the extent they impliedly encompass a release of gross negligence liability. As regards the release utilized in connection with the public recreational services program for developmentally disabled youth directly in issue, although I acknowledge the general concern that grossly negligent misconduct not go unpunished, the public interests at stake here are far more complex than that one consideration alone. Whether it is in the public interest to restrict the means by which municipalities providing socially beneficial services to the public seek to manage their exposure to the specter of expanding tort liability in connection with the delivery of those services is a matter properly determined by the Legislature. I therefore respectfully dissent.

I

Civil Code section 1668 (section 1668) provides that contracts having for their object, either directly or indirectly, the exemption of a party from "responsibility for his own fraud, . . . willful injury to the person or property of another, or violation of law," are "against the policy of the law." Put otherwise, one cannot lawfully contract away responsibility and future liability for his or her own acts of fraud, willful torts, or transgressions of statutory law. Section 1668, unchanged for 135 years and long understood to govern contractual releases of {Slip Opn. Page 3} liability, neither declares nor prohibits releases of future liability for any type of negligence as being against the policy of the law in California.

The Legislature knows how to specifically proscribe the release of future liability for gross negligence when it wants to. It did so when it enacted Civil Code section 2175, which specifically prohibits common carriers from releasing future liability for gross negligence. In contrast, as Justice Kennard explains, "The Legislature made a conscious decision that releases for gross negligence--unlike releases for fraud, for willful injury to person or property, and for intentional or negligent violation of statutory law--are not inherently against the public interest and therefore are not generally and categorically unenforceable. In holding that contractual releases of liability for future gross negligence are generally unenforceable (maj. opn., ante , at p. 41), the majority rejects the Legislature's contrary decision, effectively rewrites Civil Code section 1668 to insert what the Legislature deliberately omitted (a general prohibition on contractual releases of liability for future gross negligence), and in so doing usurps the Legislature's authority." (Conc. & dis. opn. of Kennard, J., ante , at pp. 3-4.)

There is one longstanding caveat to the express limitations placed on releases in section 1668. In Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 ( Tunkl ), this court construed section 1668 as further precluding enforcement of exculpatory contractual provisions purporting to release a party from future liability for negligence if the transaction or subject matter of the contract in question "affects the public interest." ( Id . at p. 94.) We emphasized at the outset in Tunkl that " no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party ." ( Id. at p. 101, italics added.) But we went on to explain that where the subject matter of a contract affects the public interest, the relative bargaining positions of the parties are not the same as {Slip Opn. Page 4} in a private, voluntary transaction. With regard to that category of transactions, "the releasing party does not really acquiesce voluntarily in the contractual shifting of the risk, nor can we be reasonably certain that he receives an adequate consideration for the transfer. Since the service is one which each member of the public, presently or potentially, may find essential to him, he faces, despite his economic inability to do so, the prospect of a compulsory assumption of the risk of another's negligence." ( Ibid. )

Observing that the "social forces" that characterize the "public interest" are "volatile and dynamic," and that "[n]o definition of the concept of public interest can be contained within the four corners of a formula" ( Tunkl , supra , "60 Cal.2d at p. 98), we set forth a nonexclusive six-factor test in Tunkl for determining when a contractual transaction "affects the public interest." ( Id. at pp. 98-101.) If "some or all" of the factors are present, enforcement of an exculpatory clause purporting to release liability for future negligence is prohibited as against the public interest. ( Ibid. ) The six Tunkl factors are: (1) the transaction "concerns a business of a type generally thought suitable for public regulation" ( ibid. , fn. omitted); (2) the party seeking exculpation performs a service "of great importance to the public, which is often a matter of practical necessity for some members of the public" ( id. at p. 99, fns. omitted); (3) the service is offered to the public at large ( ibid. ); (4) in the economic setting of the transaction, the party seeking exculpation has a "decisive" bargaining advantage because the service is "essential" ( id. at pp. 99-100); (5) the person obtaining the service is required to sign a "standardized adhesion contract of exculpation" ( id. at p. 100, fn. omitted); and (6) the person obtaining the service bears the risk of the other party's carelessness ( id. at p. 101).

The facts of Tunkl serve to illustrate the purpose and proper application of the rule announced therein. Hugo Tunkl sought admission to the University of California Los Angeles Medical Center, a hospital operated and maintained by the {Slip Opn. Page 5} Regents of the University of California that held itself out to the public as an institution that performs medical services for qualified members of the public. ( Tunkl, supra, "60 Cal.2d at pp. 94, 102.) The hospital-patient contract he was required to sign in order to gain admission to the facility included a form releasing "The Regents of the University of California, and the hospital from any and all liability for the negligent or wrongful acts or omissions of its employees, if the hospital has used due care in selecting its employees." ( Id . at p. 94.) We observed "[t]hat the services of the hospital to those members of the public who are in special need of the particular skill of its staff and facilities constitute a practical and crucial necessity [was] hardly open to question." ( Id. at p. 101.) We also cited Health and Safety Code sections directly subjecting the facility to public regulation. ( Ibid. ) We then explained, "In insisting that the patient accept the provision of waiver in the contract, the hospital certainly exercises a decisive advantage in bargaining. The would-be patient is in no position to reject the proffered agreement, to bargain with the hospital, or in lieu of agreement to find another hospital. The admission room of a hospital contains no bargaining table where, as in a private business transaction, the parties can debate the terms of their contract. As a result, we cannot but conclude that the instant agreement manifested the characteristics of the so-called adhesion contract. Finally, when the patient signed the contract, he completely placed himself in the control of the hospital; he subjected himself to the risk of its carelessness." ( Id. at p. 102.)

In consideration of the facts in Tunkl , we had little difficulty concluding that the contractual terms under which Tunkl was admitted to the hospital affected the public interest and rendered the release of negligence liability unenforceable. "[T]he patient . . . sought the services which the hospital offered to a selective portion of the public; the patient, as the price of admission and as a result of his inferior bargaining position, accepted a clause in a contract of adhesion waiving {Slip Opn. Page 6} the hospital's negligence; the patient thereby subjected himself to control of the hospital and the possible infliction of the negligence which he had thus been compelled to waive. The hospital, under such circumstances, occupied a status different than a mere private party; its contract with the patient affected the public interest." ( Tunkl, supra, "60 Cal.2d at p. 102.)

In the case now before us, Katie Janeway, a 14-year old developmentally disabled child, tragically drowned in a City owned and operated swimming pool while participating in a part-time summer recreational activities program for developmentally disabled children while under the supervision of a trained counselor functioning as a City employee. The tragedy is punctuated by the fact that the loss of this child occurred under circumstances where everyone concerned was plainly striving to ensure that Katie might simply enjoy a normal summer day camp experience notwithstanding her developmental disabilities.

A completed application for enrollment in the Adventure Camp program required the execution of a form releasing the City and its employees from all liability "for any loss, damage, or claim therefore on account of injury . . . whether caused by any negligent act or omission of the releasees or otherwise." Maureen Janeway, Katie's mother, signed the release on the minor's behalf. In doing so, she agreed to "assume full responsibility for and risk of bodily injury [and] death" arising from Katie's participation in the program, and further "expressly agree[d] that the . . . release and waiver, indemnity agreement and assumption of risk are intended to be as broad and inclusive as permitted by California law." She had signed similar releases covering Katie's participation in the Adventure Camp program in three prior years.

The express proscriptions of section 1668 are not implicated here--plaintiffs are not alleging any fraud, willful injury, or violation of a statute by the City or its employees. The complaint simply alleges wrongful death on a theory of {Slip Opn. Page 7} negligence--gross negligence is not specifically alleged. Defendants moved for summary judgment on the basis of the release, the City arguing that Adventure Camp, unlike the hospital in Tunkl , was an elective summer recreational program for disabled children, enrollment in which did not affect the public interest, and that accordingly the release of future negligence liability resulting from injury or death of a camp participant was fully enforceable under Civil Code section 1668 as interpreted by Tunkl . The trial court denied summary judgment and the City petitioned for a writ of mandate. The Court of Appeal correctly understood the principal issue to be whether the contractual agreement through which Katie was accepted into the Adventure Camp program is of a nature that affects the public interest within the meaning of Tunkl . If not, then the release signed by the minor's mother on her behalf is fully enforceable under section 1668, as construed in Tunkl , and serves to release the City from future liability for negligence.

Based on analysis of the Tunkl factors, the Court of Appeal concluded that "the release is valid and enforceable as a matter of law to the extent it releases the City and [its employees] from liability for acts of ordinary negligence in the operation of the City's recreational program for disabled children. Undisputed evidence establishes that the circumstances under which the release was executed by the Janeways did not have the characteristics of a contract of adhesion or pertain to an essential activity that was a matter of practical necessity to them. Therefore, although offering opportunities to disabled children is clearly beneficial to the public, the 'public interest,' as that term is used in Tunkl , would not be served by invalidating the release as to ordinary negligence."

Although the Court of Appeal referred to the enforceable release of "ordinary negligence" in the passage quoted above, it can be observed that no distinction is drawn between ordinary and gross negligence in either (1) the allegations of plaintiffs' complaint; (2) the express wording of the City's release of {Slip Opn. Page 8} negligence liability here in issue; or (3) this court's analysis in Tunkl by which we concluded section 1668 must be interpreted as invalidating only contractual releases of future negligence liability that affect the public interest. The Court of Appeal nonetheless found the distinction pivotal to the second part of its analysis. Over the dissent of one justice, the Court of Appeal went on to carve out an exception for gross negligence, concluding that "the release does not exculpate the City or [its employees] from liability for conduct constituting gross negligence . . . . Public policy and the legitimate objective of the release dictate that we limit the scope of the release to ordinary negligence by the City, and exclude the more extreme and aggravated conduct that constitutes gross negligence."

We granted review solely to consider the correctness of this specific aspect of the Court of Appeal's holding, for it was without precedent in California. As the majority acknowledge, until this case, "no published California case has upheld, or voided, an agreement purporting to release liability for future gross negligence." (Maj. opn., ante , at p. 12.)

The majority embraces this holding of first impression by the divided Court of Appeal. It goes much further. The majority does not limit its holding to the question posed on the facts of the case directly before us--whether a full release of future liability for negligence utilized by a public entity in connection with a publicly funded and publicly operated summer recreational program for developmentally disabled youth is enforceable under section 1668 as construed in Tunkl . It concludes instead that all releases of future liability for gross negligence, whether express or implied, are generally unenforceable in California as contrary to the public policy of this state, and specifically holds that the broad release of future negligence liability utilized by the City in this case, to the extent it implicitly encompasses gross negligence, "violates public policy and is unenforceable." (Maj. opn., at p. 41.) The majority's conclusions and holding are not limited to {Slip Opn. Page 9} releases of future negligence liability made in the specific context of sports or recreational activities. They rest on a broader policy concern--the general concern that aggravated wrongs or grossly negligent misconduct not go unpunished--and presumably apply to implied as well as express releases of liability for gross negligence (here the release is silent as to gross negligence), and to public and private transactions alike, regardless of whether they affect the public interest within the meaning of Tunkl 's interpretation of section 1668.

Unlike the majority, I conclude the City's release of liability for "any negligent act or omission" leading to injury or death in connection with the operation of its recreational Adventure Camp program for developmentally disabled youth is valid and fully enforceable under section 1668 as interpreted in Tunkl .

California courts have uniformly held that Tunkl does not invalidate releases of future liability for negligent infliction of injuries in the context of sports and recreational activities on the reasoning that, although beneficial, such activities are generally not services essential to the public and thus do not affect the public interest. (See, e.g., Lund v. Bally's Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733 , 739 [release of liability in connection with health club/gym membership]; Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158 , 162 ( Randas ) [release of liability in connection with YMCA swimming program]; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462 , 1467 [release of liability in connection with nonprofit-sponsored bicycle race].) Accordingly, to require a party to sign an exculpatory release as a condition of participation lacks the compulsion typically found in a contract of adhesion and would not impair the public interest or violate public policy. (See YMCA of Metropolitan Los Angeles v. Superior Court (1997) 55 Cal.App.4th 22 , 26; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358 , 1372.) {Slip Opn. Page 10}

As the Court of Appeal below observed, releases have been enforced not only for high risk sports activities, but for less risky recreation, and in particular, where the recreational activity was directed at or included participation by children. (See, e.g., Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253 [parents' release of liability on behalf of eight-year old child participating in skiing school]; Hohe v. San Diego Unified Sch. Dist. ( Hohe ) (1990) 224 Cal.App.3d 1559 ( Hohe ) [parents' and teenager's release of liability in connection with her participation in school hypnosis demonstration].) Swimming and diving are two of the recreational activities offered to developmentally disabled children through Adventure Camp, when authorized by the child's parents or legal guardian. Katie was swimming and diving in the City pool with the express knowledge and written consent of her mother when her fatal accident occurred.

Our decision in Tunkl directs courts in this state to determine the validity of releases of future negligence liability on a case-by-case basis, with emphasis on whether the type of service being offered is essential to the public, and whether a disparity of bargaining power compels the party obtaining the service to sign the release as a contract of adhesion. ( Tunkl , supra , "60 Cal.2d at pp. 99-100; see also YMCA of Metropolitan Los Angeles v. Superior Court, supra, 55 Cal.App.4th at p. 26.)

The first Tunkl factor is whether the release in question concerns "a business of a type generally thought suitable for public regulation." ( Tunkl , supra , "60 Cal.2d at p. 98, fn. omitted.) Child day care facilities are subject to public regulation under the California Child Day Care Facilities Act. (See Health & Saf. Code, § 1596.70 et seq.) Adventure Camp, however, is exempt from regulation as a child day care facility because it is operated for less than 12 weeks in a 12-month period during a time when local public schools are not in session. ( Id. , § 1596.792, subd. (g)(1).) {Slip Opn. Page 11} Nor is the program subject to regulation under the Lanterman Developmental Disabilities Services Act. (Welf. & Inst. Code, § 4500 et seq.) fn. 1 Unlike the facts of Tunkl , which involved a public hospital subject to direct public regulation under the Health & Safety Code, plaintiffs here identify no other statute or regulation to support a finding that the first Tunkl factor applies.

The second Tunkl factor is that the party seeking exculpation (here, the City) "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." ( Tunkl, supra, "60 Cal.2d at pp. 98-99, fns. omitted.) In its briefing before this court, the City "does not question that its various recreational services programs confer an important benefit on the public and that it is important that people with all kinds of disabilities have an equal opportunity to participate in these recreational services and programs." But the City points out that the program here in question was designed to offer the same kinds of recreational services to developmentally disabled children as the City offered to nondevelopmentally disabled children. As the City explains, "[it] was not designed to offer--and did not offer--therapy or any other special service for children with special needs." As already observed, courts in this state have uniformly held that Tunkl does not invalidate releases of negligence liability for injuries arising from sports and recreational activities on the reasoning that, although beneficial, such activities are generally not services essential to the public and thus do not affect the public interest. ( Ante , at p. 7.) {Slip Opn. Page 12} Indeed, no reported California case until this one has made an exception for an implied release of gross negligence in any context, whether involving sports or recreational activities or otherwise.

Nor do plaintiffs point to any California decision or statute declaring that recreational activities for the developmentally disabled are essential or a matter of practical necessity within the meaning of the second Tunkl factor. The Adventure Camp program was offered for only three weeks in the summer of 2002, and then only for a period of 15 hours per week. There has been no showing that Adventure Camp was the only program of its kind available to accommodate the recreational needs of developmentally disabled children in the Santa Barbara vicinity, and indeed, as the City points out, Katie, either with the assistance of her parents or other adults trained to attend to her special needs, could have gone swimming in this City-owned and operated public swimming pool even without enrolling in the camp program.

The third Tunkl factor is whether "[t]he 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." ( Tunkl, supra, "60 Cal.2d at p. 99, fn. omitted.) Here, although the City's Adventure Camp program was technically available to any child between the ages of seven and 14 with a qualifying developmental disability, as a practical matter enrollment was limited to 20 participants at a time.

The fourth Tunkl factor is whether "the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks [those] services." ( Tunkl, supra, "60 Cal.2d at p. 100, fn. omitted.) Although the City determined the basic conditions for enrollment in the camp program, it allowed parents to exclude activities in which they did not want their children participating during the camp sessions. The record further reflects {Slip Opn. Page 13} that Katie's parents were offered the opportunity to require her to wear a flotation device at all times while swimming in the pool during camp. They felt she was a strong swimmer and declined. The City also indicates evidence was presented below "showing Katie participated in numerous recreational activities outside of Adventure Camp, including physical education at school, Special Olympics volleyball and basketball, horseback riding, and water sports such as swimming, diving, tubing and water skiing."

The fifth Tunkl factor is whether the party seeking exculpation used "a standardized adhesion contract of exculpation" and did not offer the other party an option to "pay additional reasonable fees and obtain protection against negligence." ( Tunkl, supra, "60 Cal.2d at pp. 100-101, fns omitted.) Here, the City has conceded that the Adventure Camp release was a standard form release utilized for various City-run recreational programs, and was indeed offered on a take-it-or-leave-it basis. But according to the City, the activities to which the release applied were negotiable, and Katie's parents could have also modified her activities while in the pool to minimize any risks. The Janeways had the option of customizing Katie's camp experience by substituting other activities for pool time. They could have restricted or prohibited her swimming altogether, or given special instructions for that activity, or checked the box on the form requiring that she use a flotation device at all times, and they also had the option of sending Katie to camp along with a personal aide of their own choosing, or to attend camp along with Katie and supervise her themselves.

The sixth and final Tunkl factor is whether "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." ( Tunkl, supra, "60 Cal.2d at p. 101, fn. omitted.) As the City explains, "[A]lthough Katie was admittedly placed under the control of the City when she participated in Adventure {Slip Opn. Page 14} Camp, as has been shown, plaintiffs had many options for avoiding any risk of carelessness by the City--and could have retained full control over Katie by attending Adventure Camp with her."

In sum, Adventure Camp provides elective and nonessential recreational opportunities for developmentally disabled youth on a part-time basis in a summer day camp setting. Moreover, unlike the release in Tunkl , which the patient had to sign on a take-it-or-leave-it basis in order to be admitted into the hospital for critical medical treatment, here the application and release required to be completed for enrollment of a child in the elective recreational program have none of the usual attributes of a contract of adhesion. The Janeways ultimately retained control over whether Katie would swim in the pool as one of her camp activities, and whether she would be required to wear a flotation device at all times if she did so. They authorized her to swim and to dive, and opted not to require her to wear a flotation device when in the pool participating in those activities. The City, on its part, chose to assign a trained counselor specifically to keep close watch over Katie while she was swimming or diving in the pool.

Although the importance of integrating developmentally disabled children into mainstream society through programs like Adventure Camp cannot be overstated, elective participation in this particular recreational camp program did not affect the public interest within the meaning of our analysis and holding in Tunkl . Nothing else in section 1668, the controlling statutory provision, proscribes the full release of negligence liability utilized by the City in this case. As a general matter, in the absence of fraud, overreaching or excusable neglect, a duly executed release of liability is a lawful "express assumption of the risk." ( Madison v. Superior Court (1988) 203 Cal.App.3d 589 , 597, fn. 6; Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333 , 339.) " ' "In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express {Slip Opn. Page 15} consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. [Fn. omitted.] . . . The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence." (Prosser & Keaton, Torts (5th ed. 1984) § 68, pp. 480-481, italics in original.)' [Citation.]" ( Madison v. Superior Court, supra, 203 Cal.App.3d at p. 597, fn. omitted.) The Janeways, like countless parents of children participating in recreational activities posing some level of inherent risk, were asked to give up their right to sue for negligence. There is no evidence establishing that the release in this case, which expressly covered "any negligent act or omission," fell outside their reasonable expectations, or was unduly oppressive or unconscionable.

I would therefore hold the release valid and fully enforceable under section 1668 and Tunkl , and stop there. Like Justice Kennard, I conclude the majority inappropriately relies on decisions from other jurisdictions in support of its broad holding that public policy generally precludes enforcement of releases of future liability for gross negligence. (Maj. opn., ante , at p. 41.) That broader question should not be reached on the facts of this case, which does not involve a contractual release of negligence liability affecting the public interest within the meaning of Tunkl , and which does not involve a release of liability otherwise falling under the express proscriptions of section 1668. Given that controlling statute, which, even as construed in Tunkl , does not expressly prohibit the release of future liability for negligence in the context in which it was utilized here, the broader question considered by the majority is one more appropriately addressed to the Legislature rather than decided by this court.

There are competing public policies at play here. One such policy, relied on by the majority to the exclsuion of all others, is the general concern that grossly negligent misconduct not go unpunished. But enforcement of broad releases of {Slip Opn. Page 16} negligence liability utilized by cities or other public agencies in the youth recreational services setting may further the public interest by enabling municipalities to deliver affordable recreational services to children with developmental disabilities under the same terms as they provide such services to other children. As several courts have observed, " '[T]he public as a whole receives the benefit of such waivers so that groups such as Boy and Girl Scouts, Little League, and parent-teacher associations are able to continue without the risks and sometimes overwhelming costs of litigation. Thousands of children benefit from the availability of recreational and sports activities. Those options are steadily decreasing--victims of decreasing financial and tax support for other than the bare essentials of an education. Every learning experience involves risk. . . . No public policy forbids the shifting of that burden.' " ( Randas , supra , 17 Cal.App.4th at p. 162, quoting Hohe , supra , 224 Cal.App.3d at p. 1564.)

The Legislature, unlike this court, has the resources and is in the best position to balance the interests of the public at large and all persons specifically interested in the availability of publicly funded recreational services programs for disabled youth. The paramount concern here is to ensure that the law of releases of liability, as applied to this case, preserves and advances the public's best interests. It goes without saying that a fundamental concern in the public's interest is the continued viability of such socially beneficial programs in these fiscally strapped times. The City Attorney of Santa Barbara, as a party to the case, and the League of California Cities and the California State Association of Counties, as amici curiae, suggest that the unavailability to public entities of broadly-worded releases of negligence liability such as was utilized in this case could stand to compromise the availability of publicly funded and publicly administered recreational services programs such as this one. Whether it will ultimately serve the public interest to restrict the means by which municipalities providing socially {Slip Opn. Page 17} beneficial services to the public seek to limit their exposure to expanding tort liability in connection with such programs is a matter properly determined by the Legislature. The answer, for example, may turn on whether insurance or the ability to self-insure will remain available and cost effective in the face of a change in the law restricting the scope of releases available to public entities offering programs such as this one. Unlike the majority, I believe the public interests at stake here are far more complex than the general concern that grossly negligent misconduct not go unpunished. The Legislature, not this court, is in the best position to sort them out and determine whether good cause exists to enact the formidable revision of the law of releases which the majority adopts by judicial fiat today.

II

I conclude section 1668 and Tunkl together control this case and dictate that the release in question be found valid and enforceable. Any further change in the law of releases of tort liability generally, or the law pertaining to releases of negligence liability by public entities in connection with publicly-administered recreational services programs specifically, should come from the Legislature.

­ FN 1. Subsequent to hearing oral argument, we directed the parties to brief the first issue decided by the Court of Appeal - whether the release in this case is enforceable as to any form of negligence. After consideration of the briefing, however, we decline to address that issue.

­ FN 2. The Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4501 et seq.) defines "developmental disability" as "a disability that originates before an individual attains age 18 years, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual. As defined by the Director of Developmental Services, in consultation with the Superintendent of Public Instruction, this term shall include mental retardation, cerebral palsy, epilepsy, and autism. This term shall also include disabling conditions found to be closely related to mental retardation or to require treatment similar to that required for individuals with mental retardation, but shall not include other handicapping conditions that are solely physical in nature." ( Id ., § 4512, subd. (a).)

­ FN 3. The last section of the one-page form containing the release, signed in late June, 2002, provided in relevant part (and in very small type): "CITY OF SANTA BARBARA RELEASE AGREEMENT[.] IN CONSIDERATION OF BEING PERMITTED TO PARTICIPATE IN THIS CITY ACTIVITY OR USE OF ANY CITY FACILITIES IN CONNECTION WITH THIS ACTIVITY, THE UNDERSIGNED AGREES TO THE FOLLOWING: [¶] 1. THE UNDERSIGNED HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE THE CITY OF SANTA BARBARA, ITS EMPLOYEES, OFFICERS AND AGENTS (hereinafter referred to as 'releasees') from all liability to the undersigned, his or her personal representatives, assigns, heirs and next of kin for any loss, damage, or claim therefore on account of injury to the person or property of the undersigned, whether caused by any negligent act or omission of the releasees or otherwise while the undersigned is participating in the City activity or using any City facilities in connection with the activity. [¶] 2. THE UNDERSIGNED HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS the releasees from all liability, claims, demands, causes of action, charges, expenses, and attorney fees . . . resulting from involvement in this activity whether caused by any negligent act or omission of the releasees or otherwise. [¶] 3. THE UNDERSIGNED HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE while upon City property or participating in the activity or using any City facilities and equipment whether caused by any negligent act or omission of releasees or otherwise. The undersigned expressly agrees that the foregoing release and waiver, indemnity agreement and assumption of risk are intended to be as broad and inclusive as permitted by California law . . . . [¶] I acknowledge that I have read the foregoing and that I am aware of the legal consequences of this agreement, including that it prevents me from suing the City or its employees, agents or officers if I am injured or damaged for any reason as a result of participation in this activity. . . . [¶] IF THE PARTICIPANT IS A MINOR, his or her custodial parent or legal guardian must read and execute this agreement. I hereby warrant that I am the legal guardian or custodial parent of who is a minor, and agree, on my own and said minor's behalf to the terms and conditions of the foregoing agreement. [¶] Adult name (please print) . . . ." Katie's mother printed and signed her name; the space for the minor's name was left blank, but Katie's name was written earlier, at the top of the form containing the release. (Capitalization in original.)

­ FN 4. By contrast, "wanton" or "reckless" misconduct (or "willful and wanton negligence") describes conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable and dangerous that he or she knows or should know it is highly probable that harm will result. ( Donnelly, supra, 18 Cal.2d 863 , 869; see, e.g., Prosser & Keeton, supra , § 34, pp. 213-214.)

The definition of gross negligence set forth above is not universally followed; some jurisdictions define that term as tantamount to "wanton" or "reckless" misconduct. (Prosser & Keeton, supra , § 34, pp. 211-212; 57A Am. Jur.2d, supra , Negligence, § 232, p. 301; see also post , at fn. 23.)

­ FN 5. See, e.g., Heil Valley Ranch, Inc. v. Simkin (Colo. 1989) 784 P.2d 781, 784 (releases of future tort liability "stand at the crossroads of two competing principles: freedom of contract and the responsibility for damages caused by one's own negligent acts"); Hanks v. Powder Ridge Restaurant Corp. (Conn. 2005) 885 A.2d 734, 742 ( Hanks ) ("exculpatory provisions undermine the policy considerations governing our tort system").

­ FN 6. For example, see Hanks, supra, 885 A.2d 734, 742-744; Berlangieri v. Running Elk Corp. (N.M. 2003) 76 P.3d 1098, 1109-1113; Moore v. Hartley Motors, Inc. (Alaska 2001) 36 P.3d 628, 631; Dalury v. S-K-I, Ltd. (Vt. 1995) 670 A.2d 795, 797-799 ( Dalury ); Kyriazis v. University of West Virginia (W.Va. 1994) 450 S.E.2d 649, 653-655 ( Kyriazis ); Wagenblast v. Odessa Sch. No. 105-157-166J (Wn. 1988) 758 P.2d 968, 971-973 ( Wagenblast ); Milligan v. Big Valley Corp. (Wyo. 1988) 754 P.2d 1063, 1066-1067; Krohnert v. Yacht Systems Hawaii, Inc. (Haw.Ct.App. 1983) 664 P.2d 738, 744; Jones v. Dressel (Colo. 1981) 623 P.2d 370, 376-378; Porubiansky v. Emory University (Ga.Ct.App. 1980) 275 S.E.2d 163, 167-169; Olson v. Molzen (Tenn. 1977) 558 S.W.2d 429, 431.

­ FN 7. We observed: "[O]bviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party . . . ." ( Tunkl , supra , 60 Cal.2d 92 , 101.)

­ FN 8. In this regard we also observed: "The public policy of this state has been, in substance, to posit the risk of negligence upon the actor; in instances in which this policy has been abandoned, it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not to shift the risk to the weak bargainer." ( Tunkl , supra , "60 Cal.2d at p. 101.)

­ FN 9. Commenting further on the concept of "public interest," we emphasized the public's concern with respect to some types of otherwise private agreements: "We must note, finally, that the integrated and specialized society of today, structured upon mutual dependency, cannot rigidly narrow the concept of the public interest. From the observance of simple standards of due care in the driving of a car to the performance of the high standards of hospital practice, the individual citizen must be completely dependent upon the responsibility of others. The fabric of this pattern is so closely woven that the snarling of a single thread affects the whole. We cannot lightly accept a sought immunity from careless failure to provide the hospital service upon which many must depend. Even if the hospital's doors are open only to those in a specialized category, the hospital cannot claim isolated immunity in the interdependent community of our time. It, too, is part of the social fabric, and prearranged exculpation from its negligence must partly rend the pattern and necessarily affect the public interest." ( Tunkl , supra , 60 Cal.2d 92, 104.)

­ FN 10. See Buchan v. United States Cycling Federation, Inc. (1991) 227 Cal.App.3d 134 , 150 ( Buchan ) (generally, contracts that " 'seek to exempt one from liability for simple negligence' " are valid); Madison v. Superior Court (1988) 203 Cal.App.3d 589 , 599 ( Madison ) (same); Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333 , 342 ( Hulsey ) (§ 1668 "does not invalidate contracts which seek to except one from liability for simple negligence").

­ FN 11. Amici curiae supporting defendants are: (1) the National Association of Stock Car Racing, Inc. (NASCAR) and the California Speedway Corporation; (2) Bally Total Fitness Corporation and 24 Hour Fitness USA, Inc.; (3) the Sierra Club; (4) the League of California Cities and the California State Association of Counties; and (5) the International Health, Racquet, and Sportsclub Association and the California Clubs of Distinction.

­ FN 12. See Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351 ( Benedek ); Lund v. Bally's Aerobic Plus, Inc . (2000) 78 Cal.App.4th 733 ; Sanchez v. Bally's Total Fitness Corp. (1998) 68 Cal.App.4th 62 ; Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227 ; YMCA of Metropolitan Los Angeles v. Superior Court (1997) 55 Cal.App.4th 22 ( YMCA ); Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158 .

­ FN 13. See Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007 ( Allabach ); National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934 ; Kurashige v. Indian Dunes, Inc . (1988) 200 Cal.App.3d 606 ; Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1 ; Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d 119 ; McAtee v. Newhall Land & Farming Co. (1985) 169 Cal.App.3d 1031 .

­ FN 14. See Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253 ( Platzer ); Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354 ; Allan v. Snow Summit, Inc . (1996) 51 Cal.App.4th 1358 ; Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608 ; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715 .

­ FN 15. See Buchan , supra , 227 Cal.App.3d 134 ; Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485 ; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462 .

­ FN 16. See Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748 ; Powers v. Superior Court (1987) 196 Cal.App.3d 318 ; Hulsey , supra , 168 Cal.App.3d 333 .

­ FN 17. See Guido v. Koopman (1991) 1 Cal.App.4th 837 (horseback riding); Saenz v. Whitewater Voyages, Inc . (1991) 226 Cal.App.3d 758 ( Saenz ) (white-water rafting); Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559 ( Hohe ) (hypnotism demonstration); Madison , supra , 203 Cal.App.3d 589 (scuba diving).

­ FN 18. See, e.g., cases cited in Vodopest, supra , 913 P.2d 779, 848-849; Hanks, supra, 885 A.2d 734, 752-753 and footnote 5 (dis. opn. of Norcott, J.); Arango and Trueba, Jr., The Sports Chamber: Exculpatory Agreements Under Pressure (1997) 14 U. Miami Ent. & Sports L.Rev. 1, 10-16 (Arango and Trueba); 57A American Jurisprudence Second, supra , Negligence, section 65, pages 135-136; but see cases cited post , at part IV.C.2.b.

­ FN 19. See 6A Corbin on Contracts (1962) section 1472, pages 596-597 ("It is generally held that those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of a contractual duty; but such an exemption is always invalid if it applies to harm wilfully inflicted or caused by gross or wanton negligence " [italics added, fn. omitted]); 15 Corbin on Contracts (rev. ed. 2003) section 85.18, page 455 ("The general rule of exculpatory agreements is that a party may agree to exempt another party from tort liability if that tort liability results from ordinary negligence. Courts do not enforce agreements to exempt parties from tort liability if the liability results from that party's own gross negligence , recklessness, or intentional conduct" [italics added]); 8 Williston on Contracts (4th ed. 1998) section 19:23, pages 291-292 (" An attempted exemption from liability for a future intentional tort or crime, or for a future willful or grossly negligent act is generally held void . . . ." [italics added, fns. omitted]); see also Lindahl, 2 Modern Tort Law (2002) section 22:2, page 22-2 ("It is well settled that one may not by contract exculpate himself or herself from liability for willful and wanton conduct or gross negligence " [italics added, fns. omitted]); 57A American Jurisprudence Second, supra , Negligence, section 58, pages 127-128 ("It has been held that a person may not exonerate himself or herself from liability for intentional torts, for willful or wanton misconduct, or for gross negligence by the use of exculpatory language; such a provision is void as against public policy. Thus, to the extent that agreements purport to grant exemption from liability for willful or grossly negligent acts, they are wholly void, and an injured party may recover for acts of gross negligence despite a valid release for negligence " [italics added, fns. omitted]).

­ FN 20. For example, see 1A Speiser et al., The American Law of Torts (2003) section 5:39, pages 540-541 ("The courts are pretty well agreed that by use of exculpatory language, one may not exonerate himself of liability for intentional tort, for wilful or wanton misconduct, or for gross negligence"); Connell and Savage, Releases: Is There Still a Place for Their Use by Colleges and Universities? (2003) 29 J. Coll. & U. L. 579, 603 ("Courts generally agree that one may not exonerate himself or herself from liability for willful or wanton misconduct, for gross negligence, or for intentional torts, even if there is broad exculpatory language"); Nelson, The Theory of the Waiver Scale: An Argument Why Parents Should Be Able to Waive Their Children's Tort Liability Claims (2002) 36 U.S.F. L.Rev. 535, 552 (Nelson) (regarding purported releases of liability for gross negligence or recklessness, "courts generally agree that the heightened public policy interests in dissuading such conduct outweigh the individual right to contract," and "[m]ost states . . . prohibit waivers from releasing claims for gross negligence or anything else rising above 'garden variety' negligence"); King, Exculpatory Agreements for Volunteers in Youth Activities - The Alternative to "Nerf(r)" Tiddlywinks (1992) 53 Ohio St. L.J. 683, 728 (King) ("a majority of courts . . . hold that exculpatory agreements are unenforceable if defendant's conduct constituted gross negligence"); see also Arango and Trueba, supra , 14 U. Miami Ent. & Sports L.Rev. 1, 13 (noting that recreational releases attempting to exculpate for gross negligence have been voided on public policy grounds); Holcomb, The Validity and Effectiveness of Pre-Injury Releases of Gross Negligence in Texas (1998) 50 Baylor L.Rev. 233, 241; Springer, Releases: An Added Measure of Protection from Liability (1987) 39 Baylor L.Rev. 487, 502-503.

­ FN 21. See Maness v. Santa Fe Park Enterprises (Ill.App.Ct.1998) 700 N.E.2d 194, 196-199 (enforcing agreement releasing liability for "negligence or gross negligence," and declining to recognize a tort claim for "outrageous misconduct"); Theis v. J & J Racing Promotions (Fla.Dist.Ct.App. 1990) 571 So.2d 92, 94 (release of liability for "negligence" "must be construed as intended to encompass all forms of negligence, simple or gross negligence"); Barnes v. New Hampshire Karting Ass'n, Inc. (N.H. 1986) 509 A.2d 151, 155 (enforcing release of liability for "negligence," and declining to "create" a cause of action for gross negligence); Valeo v. Pocono Intern. Raceway, Inc . (Pa.Super.Ct. 1985) 500 A.2d 492, 493 (release for "negligence" also releases for gross negligence).

Two other decisions, both concerning burglar alarm services, uphold a release as to gross negligence, but allow suit to proceed on other grounds. (See Tessler and Son, Inc. v. Sonitrol Security Systems of Northern New Jersey (N.J. Super.Ct.App.Div. 1985) 497 A.2d 530 (release of liability for "negligence" also released gross negligence "in the circumstances of this case"; the court allowed the action to proceed on a theory of "wanton misconduct" - that is, recklessness); L. Luria & Son, Inc. v. Honeywell, Inc. (Fla.Dist.Ct.App. 1984) 460 So.2d 521 (release of liability for "negligence" and limitation of damages also releases liability for gross negligence; court allowed the matter to proceed on a fraud theory).)

­ FN 22. In this regard, the analysis proposed in Justice Kennard's concurring and dissenting opinion, post , appears problematic and internally inconsistent. That opinion argues, post , in part II, that because section 1668 does not list gross negligence as a matter that may not be released, a court-made rule embracing the clear majority approach and generally invalidating releases of liability for gross negligence usurps the Legislature's authority. Justice Baxter's dissenting opinion, post , embraces this view as well. But as noted above, Tunkl itself sets forth a similarly categorical rule: Pursuant to Tunkl , no exculpatory clause (even one releasing liability for future ordinary negligence) that relates to a transaction adequately exhibiting at least some of the six characteristics set forth in that case, and that thereby "affects the public interest," ( Tunkl , supra , 60 Cal.2d 92 , 98) is enforceable. Accordingly, if the statutory construction analysis employed by Justice Kennard's concurring and dissenting opinion were consistently applied, Tunkl itself would be viewed as a usurpation of legislative authority. And yet neither of the separate opinions in this case adopts that view. Indeed, Justice Kennard's concurring and dissenting opinion, post , in part III, far from questioning Tunkl , embraces and extends it in a novel manner.

­ FN 23. See, e.g., Xu, supra, 668 N.W.2d 166, 169-170; see generally 57A American Jurisprudence Second, supra , Negligence, section 59, page 128 (asserting that in the context of reviewing contractual releases of liability, gross negligence is viewed as tantamount to recklessness - but citing for that proposition only one New York decision, Lubell v. Samson Moving & Storage, Inc . (N.Y.App.Div. 2003) 763 N.Y.S.2d 30, 31-32).

­ FN 24. See also Scott v. Pacific West Mountain Resort (Wn. 1992) 834 P.2d 6, 10 ( Scott ); McCutcheon v. United Homes Corporation (Wn. 1971) 486 P.2d 1093, 1095 (tracing this rule to the Restatement First of Contracts, § 574, com. a., p. 1080, which in turn defines "gross negligence" as "conduct falling greatly below" "the standard established by law for the protection of others against unreasonable risk of harm"); see generally Boyce, supra, 862 P.2d 592, 597, and cases cited (exculpation agreement releases liability for "ordinary," but not "gross," negligence - and leaves the plaintiff free to allege and establish an action for gross negligence).

­ FN 25. For example, see Civil Code, section 2175 (granting qualified immunity for common carriers); Government Code, section 831.7, subdivision (b) (qualified immunity of public entity or employee for hazardous recreational activity on public property); Civil Code, section 1714.2, subdivision (b) (qualified immunity of person rendering cardiopulmonary resuscitation at emergency scene); Business and Professions Code, section 2727.5 (qualified immunity of registered nurse rendering care at scene of emergency but outside scope of employment).

­ FN 26. The Court of Appeal below similarly rejected "the view that gross negligence lacks clear limits," observing: "The law is filled with difficult distinctions, yet our juries have managed to fulfill their role in making factual determinations based on them. There is no reason to believe that a jury will be unable to distinguish between ordinary and gross negligence, or that instructing the jury would be more difficult than instructing the jury in a variety of other circumstances where lines between liability and nonliability must be drawn with some acumen. (See Pratt v. Western Pac. R. R. Co. (1963) 213 Cal.App.2d 573 , 579-580 [consider[ing] jury instruction under statute preventing common carrier from releasing liability for gross negligence].)"

­ FN 27. See also, e.g., Allabach, supra, 46 Cal.App.4th 1007 , 1016 (asserting that, with regard to properly released negligence claims, " '[d]efense costs are devastating' " and that " '[u]nless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction' "); see generally Sharon, supra , 769 N.E.2d 738, 747-748; Zivich v. Mentor Soccer Club, Inc. (Ohio 1998) 696 N.E.2d 201, 371-372 ( Zivich ); King, supra , 53 Ohio St. L.J. 683, 689 (reporting survey results from 1986 and asserting that "fear of liability exposure and of litigation in general is damaging . . . efforts at volunteer recruitment"); Judges, Of Rocks and Hard Places: The Value of Risk Choices (1993) 42 Emory L.J. 1, 29-34 (reporting anecdotal information from the late 1980's and early 1990's, and limited empirical evidence revealing that the rock climbing industry and related service providers are "deeply concerned about the issue of tort law and its impact on risk choice"); Heidt, The Avid Sportsman and the Scope for Self-Protection: When Exculpatory Clauses Should Be Enforced (2004) 38 U. Rich. L.Rev. 381, 381-382 (Heidt) (recounting anecdotal reports of decreased availability of opportunities in various jurisdictions to use three-meter diving boards, ride mechanized bulls or horses unaccompanied, or rent power boats for water-skiing); see also Arango and Trueba, supra , 14 U. Miami Ent. & Sports L.Rev. 1, 30-33 (questioning whether certain recreation industries can "survive" unless agreements releasing liability for future negligence are upheld); Roseman-Orr, Recreational Activity Liability in Hawaii: Are Waivers Worth the Paper on Which They Are Written? (1999) 21 U. Haw. L.Rev. 715, 729 and footnote 114 (noting legislative testimony of charter service provider that lawsuits will " 'end up running our business out of business' "); Benard, Little League Fun, Big League Liability (1997) 8 Marq. Sports L.J. 93, 122 (noting the "perception" of the threat of liability exposure and statements made at congressional hearings supporting the Volunteer Protection Act, 42 U.S.C. § 14501 et seq. [which grants immunity for negligence that causes injury to volunteers, but not for gross negligence; see id ., § 14503(a)(3)]); but see Popper, A One-term Tort Reform Tale: Victimizing the Vulnerable (1998) 35 Harv. J. on Legis. 123, 146 (asserting that only anecdotes, and no empirical evidence, were offered to support the Volunteer Protection Act: "Beyond the rhetoric and the natural inclination to assist charities, virtually no facts were placed before Congress to justify the deprivation of the entitlement to due care"); Heidt, supra , 38 U. Rich. L.Rev. 381, 434 ("Given the multitude of explanations for why an activity disappears - from changing consumer tastes, to the appearance of substitute activities - no explanation can be put forth with confidence. As others have emphasized, even industry experts may not be able to distinguish when an activity is abandoned due to consumer preference from when it is abandoned due to increased liability"); Nelson, supra , 36 U.S.F. L.Rev. 535, 555 (as of 2002, "doomsday predictions of runaway liability for recreational sports leagues" have not been borne out in practice).

­ FN 28. In fact, some cases have been careful to distinguish between ordinary and gross negligence in this context. For example, when, in order to help ensure the continued availability of recreational services, the Supreme Judicial Court of Massachusetts, in Sharon, supra , 769 N.E.2d 738, enforced agreements by parents releasing " 'any and all actions, causes of action, [and] claims' " ( id ., at p. 741) of minor children, the court stressed that its holding "is . . . limited to the claims before us - and those claims concern ordinary negligence." ( Id ., at p. 748, fn. 12.) The court in Sharon further noted, with apparent approval, that cases and authorities have held releases "effective against liability for ordinary negligence" but not for "gross negligence," and the court observed that the defendant in the case before it "specifically disavows any contention that the release here would relieve it from liability for gross negligence . . . ." ( Ibid. )

­ FN 29. Defendants cite two law review articles arguing, contrary to the clear majority rule, that gross negligence and even recklessness should be subject to exculpation. (See Heidt, supra , 38 U. Rich. L.Rev. 381, 383 [asserting that courts should enforce such contracts and "routinely dismiss" related suits on summary judgment "without the need for further discovery of the circumstances surrounding the injury"]; King, supra , 53 Ohio St. L.J. 683, 728-731 [questioning the "wisdom" of declining to enforce releases for "recklessness or gross negligence" because, assertedly, "[t]hese concepts lack clear parameters," and arguing that, "especially . . . in situations involving volunteers, when the danger of risky behavior motivated by greed is absent," exculpation of liability for gross negligence should be allowed].)

­ FN 30. See Hohe , supra , 224 Cal.App.3d 1559 , 1565 (summarily finding enforceable a release signed by parent on behalf of high school student later injured in a hypnosis demonstration); Aaris v. Las Virgenes Unified School Dist . (1998) 64 Cal.App.4th 1112 , 1120 (enforcing release signed by mother on behalf of high school cheerleader injured during practice, and asserting: "It is well established that a parent may execute a release on behalf of his or her child"); see also Platzer, supra, 104 Cal.App.4th 1253 (enforcing skiing-related release signed by parent on behalf of eight year old; decision assumes without discussion that a parent may execute a release on behalf of his or her child).

­ FN 31. Decisions by the high courts of Massachusetts and Ohio, citing policy considerations, have enforced releases signed by parents on behalf of their minor children. (See Sharon, supra, 769 N.E.2d 738, 744-748; Zivich , supra , 696 N.E.2d 201, 204-207.) Moreover, a Colorado Supreme Court decision declining to enforce such releases, Cooper v. Aspen Skiing Co. (Colo. 2002) 48 P.3d 1229, 1232-1237, has been abrogated by state legislation. (Colo. Rev. Stat. (2005) § 13-22-107 (3) & (4) [allowing parents to release minor child's future claim of ordinary negligence, but not any claim for a "willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission"].)

­ FN 32. Accord, Hojnowski v. Vans Skate Park (N.J.Super. Ct. App. Div. 2005) 868 A.2d 1087, 1096-1101 ( Hojnowski ), and cases and other authorities cited [skateboarding]; Scott, supra, 834 P.2d 6, 10-12, and cases cited [ski race lesson]; 67A Corpus Juris Secundum (2002) Parent and Child, sections 275 and 276, at pages 381-383; see also Nelson, supra , 36 U.S.F. L.Rev. 535; King, supra , 53 Ohio St. L.J. 683, 714-715, 759 (noting, and recommending legislative abrogation of, the majority rule). Plaintiffs and real parties in interest have not raised this issue in the present wrongful death action, apparently because the agreement in this case (see ante , fn. 3) clearly was addressed not only to claims by a minor, but as well to claims by parents . (See Scott, supra, 834 P.2d 6, 12 [even though a parent's release may not bar a minor's claim, a "conspicuous and clear exculpatory clause can serve to bar the parents' cause of action based upon injury to their child"].) The validity of a release signed by a parent, on behalf of (and binding) his or her child, is not presently before us.

­ FN 33. Dalury, supra, 670 A.2d 795, 797-799 (barring agreements insofar as they broadly purport to release liability for future negligence related to course design in the context of recreational skiing; court declined to "undermine the public policy underlying business invitee law and allow skiers to bear risks they have no ability or right to control"); Spencer v. Killington, Ltd. (Vt. 1997) 702 A.2d 35, 37-38 (confirming and extending Dalury in context of amateur ski race); see also Umali v. Mount Snow Ltd . (D.Vt. 2003) 247 F.Supp.2d 567, 572-575 (applying Dalury to a professional mountain bike race).

­ FN 34. Hanks, supra , 885 A.2d 734, 741-748 (following the lead of Dalury , broadly voiding agreements releasing liability for future negligence related to commercial "snow tubing"); Reardon v. Windswept Farm, LLC (Conn. 2006) 905 A.2d 1156, 1160-1162 (voiding release related to injuries sustained by an experienced horseback rider when thrown by an excited and bucking horse during a riding lesson).

­ FN 35. Kyriazis, supra, 450 S.E.2d 649, 653-655.

­ FN 36. Wagenblast, supra, 758 P.2d 968, 971-973.

­ FN 37. Hiett v. Lake Barcroft Community Ass'n (Va. 1992) 418 S.E.2d 894, 895-897 ( Hiett ) (adhering to the rule followed in that state since 1890, "universally" declining to enforce any preinjury release, and voiding a release signed by a triathlete later seriously injured in the swimming portion of a race).

­ FN 38. That statute, enacted in 1976, provides: "Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable." (See generally Seaquist & Barken, Use of Exculpatory Clauses Is Subject to Wide Variety of Definitions and Circumstances (Mar./Apr. 2002) 74 N.Y.St. B.J. 27, 28 [discussing the evolving case law, some of which is described in the text and footnotes, post , as "expand[ing] the consumer protection afforded by the statute"].)

As explained in Beardslee v. Blomberg (N.Y.App.Div. 1979) 416 N.Y.S.2d 855, 857-858 (conc. opns. of Kane & Mikoll, JJ.), the New York statute was enacted in part to abrogate the New York high court's decision in Ciofalo v. Vic Tanney Gyms, Inc. (N.Y. 1961) 177 N.E.2d 925. In that case, a gymnasium member signed a release of liability for negligence by the gym operator, and later was injured when she slipped and fell while using the gym's facilities. Affirming summary judgment for the defendant gym, the New York court upheld the release, finding no "interest of the public therein" and no reason to void the agreement. ( Id ., at p. 926.)

­ FN 39. See Owen v. R.J.S. Safety Equipment, Inc. (N.Y. 1992) 591 N.E.2d 1184; Petrie v. Bridgehampton Road Races Corp . (N.Y.App.Div. 1998) 670 N.Y.S.2d 504; Gilkeson v. Five Mile Point Speedway (N.Y.App.Div. 1996) 648 N.Y.S.2d 844; Miranda v. Hampton Auto Raceway, Inc. (N.Y.App.Div. 1987) 515 N.Y.S.2d 291; Gaskey v. Vollersten (N.Y.App.Div. 1985) 488 N.Y.S.2d 922.

­ FN 40. See Rogowicki v. Troser Management Inc. (N.Y.App.Div. 1995) 623 N.Y.S.2d 47; Blanc v. Windham Mountain Club, Inc . (N.Y.Sup.Ct. 1982) 454 N.Y.S.2d 383, affirmed (N.Y.App.Div. 1983) 459 N.Y.S.2d 447.

­ FN 41. See Applbaum ex rel. Applbaum v. Golden Acres Farm and Ranch (N.D.N.Y. 2004) 333 F.Supp.2d 31; Filson v. Cold River Trail Rides Inc. (N.Y.App.Div. 1997) 661 N.Y.S.2d 841; Brancati v. Bar-U-Farm, Inc. (N.Y.App.Div. 1992) 583 N.Y.S.2d 660.

­ FN 42. See Wurzer v. Seneca Sport Parachute Club (N.Y.App.Div. 1978) 411 N.Y.S.2d 763; Bacciocchi v. Ranch Parachute Club, Ltd. (N.Y.App.Div. 2000) 710 N.Y.S.2d 54.

­ FN 43. See Williams v. City of Albany (N.Y.App.Div. 2000) 706 N.Y.S.2d 240.

­ FN 44. See Leftow v. Kutsher's Country Club Corp. (N.Y.App.Div. 2000) 705 N.Y.S.2d 380.

­ FN 45. See Meier v. Ma-Do Bars, Inc. (N.Y.App.Div. 1985) 484 N.Y.S.2d 719.

­ FN 46. As observed ante , at part II.D, pursuant to Tunkl , supra , 60 Cal.2d 92 , California courts long have voided agreements releasing liability for future ordinary negligence in the context of such socially important matters as medical services, auto repair, banking, and day care - and courts of our sister states have rendered similar applications of our decision in Tunkl in analogous contexts.

­ FN 47. (Cf. New State Ice Co. v. Liebmann (1932) 285 U.S. 262, 311 (dis. opn. of Brandeis, J.) ["It is one of the happy incidents of the federal system" that single states may "serve as a laboratory" and undertake "novel social and economic experiments"].)

­ FN 48. See (listing all 31 tracks); (Richmond International Raceway, Richmond, Va.); (Martinsville Speedway, Martinsville, Va.); (Watkins Glen International, Watkins Glen, N.Y.) (as of July 16, 2007).

­ FN 49. See , entries for Virginia and New York (as of July 16, 2007).

­ FN 50. See U.S. Census Bureau (2002) Business and Government, Economic Fact Sheet, entries for Virginia and New York (as of July 16, 2007).

­ FN 51. The same appears to be true concerning nonprofit sporting events. For example, as plaintiffs/real parties in interest observe, 14 years after the Virginia Supreme Court in Hiett, supra , 418 S.E.2d 894, voided an agreement releasing liability for future ordinary negligence relating to participation in a triathlon, at least 60 triathlons, biathlons, and duathlons were held in Virginia in 2006, and at least that many have been scheduled for 2007. (See , [as of July 16, 2007].)

­ FN 52. At our request, our court's reference librarians conducted a search for presently operating camps or programs similar to the one at issue in this case (that is, programs offering recreational activities for developmentally disabled children) in four states: California, Utah, Virginia, and Washington. As observed above, pursuant to case law in the latter three states, no release - even one purporting to release liability only for future ordinary , and not gross, negligence - would be enforceable in the context of a recreational camp or program for developmentally disabled children. If, as postulated, the unenforceability of releases for gross negligence would be expected to trigger limitation or curtailment of such camps or programs, we would expect to see such a result all the more in those jurisdictions that refuse to enforce even releases of liability for ordinary negligence. And yet initial information collected suggests no such result, even in jurisdictions that refuse to enforce releases of liability for ordinary negligence: Our reference staff identified 92 such camps or programs presently operating in California, six in Utah, 21 in Virginia, and 16 in Washington. Based upon 2000 and 2006 United States census figures, it is possible to estimate, for each state, the number of persons ages five to 15 years who have a mental disability. (U.S. Census Bureau (2003) Disability Status: 2000 [as of July 16, 2007].) From that, it appears that in each state, such camps or programs are provided at a very similar camp-to-population ratio: The ratio for California is one camp or program per approximately 18,000 persons who have a mental disability; approximate figures for the other states are: Utah, one per 19,500; Washington, one per 18,000; and Virginia, one per 16,500. Although of course we do not view this empirical information as dispositive, we note that it fails to provide any support for the assertions articulated by defendants or their supporting amici curiae, or the concerns expressed by Justice Baxter, in his dissenting opinion, post , that finding the release in this case unenforceable as to gross negligence would be likely to cause programs such as the one here to be severely limited or cancelled.

­ FN 53. Accord, Tunkl, supra , 60 Cal.2d at pages 101 and 104 (quoted ante , at fns. 8 & 9). It is well established that our courts, like those of other states, may, in appropriate circumstances, void contracts on the basis of public policy. Of course "[t]he determination of public policy of states resides, first, with the people as expressed in their Constitution and, second, with the representatives of the people - the state Legislature." ( Jensen v. Traders & General Ins. Co. (1959) 52 Cal.2d 786 , 794.) As we explained in Jensen , " 'unless it is entirely plain that a contract is violative of sound public policy, a court will never so declare. "The power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and . . . should be exercised only in cases free from doubt." ' " ( Id. at p. 794; see also, e.g., Maryland C. Co. v. Fidelity etc. Co. (1925) 71 Cal.App. 492, 497 [in appropriate circumstances "courts, following the spirit and genius of the law . . . of a state, may declare void as against public policy contracts which, though not in terms specifically forbidden by legislation, are clearly injurious to the interests of society"]; Tunstall v. Wells (2006) 144 Cal.App.4th 554 , 564 [reiterating and applying Maryland Casualty Co. , in concluding that a will's no contest clause did not violate public policy] and cases cited; 14 Cal.Jur.3d (1999) Contracts, § 136, pp. 425-427.)

­ FN 54. Justice Kennard's concurring and dissenting opinion, post , reaches the same result under what appears to be a novel modified version of the six-part Tunkl analysis. No other court of which we are aware has followed that suggested course. As observed above, the majority rule that we embrace today does not rely upon the Tunkl factors, but instead simply holds that an agreement purporting to relieve an actor of liability for aggravated misconduct, generally is unenforceable as being against public policy. We adopt the rule followed by the overwhelming majority of jurisdictions, together with its public-policy-based rationale.

­ FN 55. See, for example, Hojnowski, supra , 868 A.2d 1087, in which the New Jersey appellate court, adhering to the majority rule, declined to enforce a skateboard park's release of liability for negligence, signed by a parent on behalf of a minor. The court, citing statutes designed to protect various specific types of sports programs (such as skiing, tobogganing, sledding, roller-skating, and equestrian activities), observed that if skateboard parks "will be faced with economic extinction as a result of this decision, then the Legislature can be apprised of that fact and act, as it has to protect other industries that it deemed to be both important and threatened." ( Id ., at pp. 1099-1100.) (See generally McCaskey & Biedzynski, A Guide to the Legal Liability of Coaches for a Sport Participant's Injuries (1996) 6 Seton Hall J. Sport L. 7, 62-63 [citing various state statutes granting immunity to coaches for negligence, but not for gross negligence or recklessness]; Arango & Trueba, supra , 14 U. Miami Ent. & Sports L.Rev. 1, 31-32 [noting qualified immunity provisions enacted in some states concerning various recreational sports and programs].)

­ FN 56. Whether sufficient facts exist in this case to allow the matter to proceed to trial on a theory of gross negligence is a separate question. As observed post , at footnote 61, the Court of Appeal concluded that there is sufficient evidence, but we do not address that determination.

­ FN 57. Our decision in Knight explains that an express agreement releasing future liability for negligence, such as we consider in the present case, similarly can "be viewed as analogous to primary assumption of risk." ( Knight, supra, 3 Cal.4th at pp. 308-309, fn. 4.)

­ FN 58. Our holding simply imposes a limitation on the defense that is provided by a release. A plaintiff is not required to anticipate such a defense (see 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 381, p. 481); instead, the defendant bears the burden of raising the defense and establishing the validity of a release as applied to the case at hand. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶ 6.436, p. 6-115.) In the present case, defendants' inability to establish the validity of the release as it relates to gross negligence means that, in any subsequent jury trial, defendants would not be entitled to instructions absolving them of liability for damages resulting from gross negligence. But this, we believe, is different from recognizing a separate cause of action for gross negligence.

­ FN 59. See also Ordway v. Superior Court (1988) 198 Cal.App.3d 98 , 108, footnote 5, disapproved on other grounds in Knight, supra, 3 Cal.4th 296 , 306-309.

­ FN 60. But see the decision filed two years after Continental in Liberty Furniture, Inc. v. Sonitrol of Spokane, Inc. (Wn.Ct.App. 1989) 770 P.2d 1086, 1087-1088 (essentially identical clause in burglar alarm contract limiting liquidated damages to $250 did not preclude an action based upon gross negligence).

­ FN 61. The Court of Appeal determined that the record supports the conclusion that there exists a material triable issue regarding gross negligence. We did not grant review of that issue and thus do not address it here.

­ FN 1. The City allows parents to accompany their children to camp, but it does not require that they do so. The analysis here is limited to children not accompanied by parents.

­ FN 2. I neither express nor imply any view concerning any other issue. In particular, I do not address whether the release is enforceable as to ordinary negligence or whether the evidence presented on the motion for summary judgment would be sufficient to establish gross negligence by either defendant.

­ FN 1. The Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, §§ 4500 et seq.) expresses legislative goals of integrating individuals with developmental disabilities into mainstream life, and ensuring that such individuals are accorded the same rights as others to participate in recreational and other programs that receive state funds. (Welf. & Inst. Code, §§ 4501, 4502.) Adventure Camp is exempt from direct regulation under the Act.


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