City of Santa Barbara v. Superior Court

Decision Date16 July 2007
Docket NumberNo. S141643.,S141643.
Citation41 Cal.4th 747,62 Cal.Rptr.3d 527,161 P.3d 1095
CourtCalifornia Supreme Court
PartiesCITY 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, Nancy E. Lucas, Los Angeles; Jarvis, Fay & Doporto and Andrea J. Saltzman for Petitioners.

Dennis J. Herrera, City Attorney (San Francisco), Joanne Hoeper, Chief Trial Deputy, and Donald P. Margolis, Deputy City Attorney, for League of California Cities and California State Association of Counties as Amici Curiae, on behalf of Petitioners.

Jane H. Adams, San Diego, for California Park & Recreation Society as Amicus Curiae on behalf of Petitioners.

Chapman, Glucksman & Dean, Arthur J. Chapman and Cynthia R. Lane, Los Angeles, for Sierra Club as Amicus Curiae on behalf of Petitioners.

Manning & Marder, Kass, Ellrod, Ramirez and Anthony J. Ellrod, Los Angeles, for International Health, Racquet and Sportsclub Association and California Clubs of Distinction as Amici Curiae on behalf of Petitioners.

Prindle, Decker & Amaro, Michael L. Amaro and Jack C. Nick, Long Beach, for Bally Total Fitness Corporation and 24 Hour Fitness USA, Inc., as Amici Curiae on behalf of Petitioners.

Agajanian, McFall, Weiss, Tetreault & Crist, Paul L. Tetreault and William D. Anthony, Los Angeles, for National Association of Stock Car Racing, Inc., and The California Speedway Corporation as Amici Curiae on behalf of Petitioners.

Grassini & Wrinkle and Roland Wrinkle, Woodland Hills, for Real Parties in Interest.

No appearance for Respondent.


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, 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.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.


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 disabilities2—Adventure Camp. Katie Janeway, who suffered from cerebral 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.3 Katie's mother, Maureen 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.

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 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.


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, 118 P.2d 465 (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, 7 Cal.Rptr.3d 552, 80 P.3d 656 (Eastburn), and cases cited; accord, Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1240, 244 Cal.Rptr. 714 (Colich); Kearl v. Board of Medical Quality Assurance (1986) 189 Cal. App.3d 1040, 1052-1053, 236 Cal.Rptr. 526; 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.)4


As observed in Gardner v. Downtown Porsche Audi (1986) 180 Cal.App.3d 713, 716, 225 Cal.Rptr. 757 (Gardner), "[traditionally 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...

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