City of Santa Barbara v. Superior Court
| Decision Date | 26 January 2006 |
| Docket Number | No. B176810.,B176810. |
| Citation | 38 Cal.Rptr.3d 434,135 Cal.App.4th 1345 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CITY OF SANTA BARBARA et al., Petitioners, v. The SUPERIOR COURT of Santa Barbara County, Respondent; Terral Janeway et al., Real Parties in Interest. |
Stephen P. Wiley, City Attorney, Janet K. McGinnis, Assistant City Attorney, Haight, Brown & Bonesteel, Peter Q. Ezzell and Nancy E. Lucas, Los Angeles, for Petitioners.
Dennis J. Herrera, City Attorney, Joanne Hoeper, Chief Trial Deputy and Donald P. Margolis, Deputy City Attorney, for League of California Cities and California State Association of Counties as Amicus Curiae on behalf of Petitioners.
California Park & Recreation Society, Jane H. Adams, Executive Director, as Amicus Curiae on behalf of Petitioners.
No appearance for Respondent.
Grassini & Wrinkle and Roland Wrinkle, Woodland Hills, for Real Parties in Interest.
Katie Janeway, a disabled 14-year old child, drowned while participating in a recreational activities program for developmentally disabled children operated by petitioner City of Santa Barbara (City). Her parents, Maureen and Terral Janeway (Janeways), filed a wrongful death action alleging that the accident was caused by the negligence of the City and Veronica Malong, a program counselor. The City and Malong filed a motion for summary judgment, contending that a release agreement signed by Katie's mother barred liability. The trial court denied the motion, and we summarily denied the City's petition for an extraordinary writ of mandate directing the trial court to set aside its order and grant summary judgment. The Supreme Court granted review and directed us to order respondent court to show cause why the relief sought in the petition should not be granted. We have done so.
The principal issue in the case is whether the release signed by Katie Janeway's mother is valid under Civil Code section 1668 as interpreted by Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441 (Tunkl). We conclude that, based on an analysis of the factors set forth in Tunkl, the release is valid and enforceable as a matter of law to the extent it releases the City and Malong 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.
We also conclude, however, that the release does not exculpate the City or Malong from liability for conduct constituting gross negligence, and that the record includes evidence creating a material triable issue as to whether the City or Malong acted with 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.
Accordingly, we deny the writ and return the case to the trial court for further proceedings to determine whether the Janeways may recover damages against the City and Malong on the theory of gross negligence.
The City provides extensive summer recreational facilities and activities for children, including a summer camp for children with developmental disabilities called "Adventure Camp." Katie Janeway, who suffered from cerebral palsy, epilepsy, and other disabilities, participated in Adventure Camp in 1999, 2000, 2001, and 2002.
Adventure Camp is conducted from noon until 5:00 p.m. on weekdays for an approximately three-week period in July and August. Camp activities include swimming, horseback riding, bowling, skating, 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 on negligence, arising from camp activities.1 Katie's mother Maureen Janeway signed the release on behalf of Katie. She 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 never sought to prevent or restrict her participation in the swimming portion of Adventure Camp.
Based on 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" whose responsibility was to keep Katie under close observation during the Camp's swimming sessions. Previously, Malong, a college student, had worked for a year as a special education aide at the middle school Katie attended. Malong had observed Katie have seizures at the school, and received instruction from the school nurse regarding the handling of her seizures. Malong also received instruction during training sessions conducted by the City on handling seizures and other first aid matters.
Katie participated in the first swimming day at the 2002 Adventure Camp without incident. On the second day she drowned.
About an hour before her drowning, Katie suffered a mild seizure that lasted a few seconds while waiting to enter the pool's locker room. Malong observed the seizure and sent another counselor to report the incident to a supervisor. The supervisor stated that the report was never received. Malong watched Katie for about 45 minutes after the mild seizure. Then, receiving no word from her supervisor, Malong concluded that the seizure had run its course and it was safe for Katie to swim.
Malong sat on the side of the pool near the lifeguard watching the pool's deep end. 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 if she wished to dive again, and Katie said that she did. Katie dove into the water, bobbed up to the surface, and began to swim towards the edge of the pool. As she did so, Malong momentarily turned her attention away from Katie. When she looked back, Katie had disappeared from her sight. Approximately five minutes later, lifeguards pulled Katie from the bottom of the pool. She died the next day.
Katie's parents, Terrall and Maureen Janeway, filed a wrongful death action alleging that the accident was caused by the negligence of the City and Malong. The City and Malong moved for summary judgment and summary adjudication. The City argued that Adventure Camp was a recreational activity that did not involve the public interest and, accordingly, the release was enforceable under Civil Code section 1668 as interpreted by Tunkl and subsequent cases applying the Tunkl standards.
Respondent trial court denied petitioners' motion, concluding that there were material triable issues of fact regarding whether the release was valid under Tunkl, and whether the City and Malong acted with gross negligence. The trial court described Tunkl as invalidating any release that involved the public interest, and ruled that the City had not established that the Janeway release did not involve the public interest as a matter of law. The court analyzed the factors set forth in Tunkl, and concluded that while certain factors were present, the facts underlying other factors were disputed. The court also concluded that there was a triable issue of fact as to whether the City and Malong acted with gross negligence. The court denied the City's request for summary adjudication of other issues.
A defendant moving for summary judgment must present evidence that no triable issue of material fact exists and that it is entitled to judgment on the complaint as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.) A triable issue exists if the evidence allows a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion. (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The trial court (Aguilar, supra, at p. 856, 107 Cal.Rptr.2d 841, 24 P.3d 493.)
This court may review an order denying summary judgment by way of a petition for writ of mandate. (Code Civ. Proc., § 437c, subd. (m)(1).) A writ will issue when the erroneous denial of summary judgment will result in trial of a nonactionable claim. (Travelers Cas. & Sur. Co. v. Superior Court (1998) 63 Cal.App.4th 1440, 1450, 75 Cal.Rptr.2d 54.)
In reviewing an order denying summary judgment challenged by a petition for writ...
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