Visiting Professor of Law, University of California at Berkeley, School of Law (Boalt Hall); Professor emeritus, Golden Gate University, School of Law

In City of Santa Barbara v. Superior Court, 41 Cal. 4th 747, 62 Cal. Rptr. 3d 527 (Cal. 2007), the California Supreme Court held that an exculpatory clause did not shield a defendant from liability for gross negligence. The exculpatory clause did not contain explicit language waiving liability for gross negligence, but the Court’s logic leads to the conclusion that any such explicit clause also would be void. This opinion may lead the Court to narrow the doctrine of primary assumption of risk, which commonly is asserted by defendants in personal injury actions arising from sports or recreational situations. Analyzing the case, Law Professor Neil M. Levy writes:

Plaintiff’s decedent was a 14-year-old, developmentally disabled girl, who had a tendency to epileptic seizures which often occurred when she was near water. She was attending a summer camp run for disabled children by the City of Santa Barbara . About an hour after she had suffered a minor seizure, she was allowed to go swimming while being watched by one of the camp’s counselor. The counselor took her eye off the girl for a period of fifteen seconds while the girl was in the pool. During that period, the girl disappeared under the surface of the water and was found minutes later at the bottom of the pool. She died the next day.

The city sought summary judgment on the basis of an exculpatory agreement signed by the girl’s mother that purported to exculpate the city “from all liability...whether caused by any negligence.” The trial court refused to grant summary  judgment to the defendants based upon that agreement and the City filed a petition for writ of mandate from the Court of Appeal. The Court of Appeal refused defendant’s writ on the same grounds that trial court had denied the summary judgment motion. The California Supreme Court upheld the ruling, stating 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 law.” ( California Official Reports Summary). The Court reasoned that while allowing a party to shield itself from liability for negligence may be justified in order to create an incentive for that party to provide a valuable service for the public, exculpation from liability for gross negligence exceeds the protection necessary to create such an incentive and instead removes any obligation to adhere to even a minimal standard of care. It termed this the majority rule in the . See 41 Cal. 4th at 758.

The Court hedged on its holding. It stated that waiving liability for gross negligence will “generally” be unacceptable. It is possible that the Court wished to give itself some wiggle room in the future to allow such waivers in commercial settings, though the logic of the opinion would not point in that direction. Although the Court never discussed any specific exceptions to its rule, at several places it stated that it was dealing here with a sports/recreation case. It identified the issue before it as “whether a release of liability relating to recreational activities generally is effective as to gross negligence.”

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