UPDATE: Agreement To Release Liability For Future Gross Negligence Against Developmentally Disabled Child Is Not Enforceable

Issue

In City of Santa Barbara v. Superior Court of Santa Barbara County, (— Cal.Rptr.3d —, 2007 WL 2027806, Cal., July 16, 2007), the California Supreme Court considered an appeal to enforce an agreement releasing a city and its employees from liability for the death of a developmentally disabled child participating in a recreation program under their supervision, because the child’s mother had previously signed a waiver releasing them from liability.

The Court ruled that agreements releasing parties from future gross negligence violate public policy and are unenforceable.

Facts

Katie Janeway, a 14-year-old developmentally disabled child attending a summer camp for disabled children run by the City of Santa Barbara (“City”), drowned while swimming under a camp counselor’s supervision after the counselor at least momentarily quit paying attention to her. The girl’s mother, Maureen Janeway (“Janeway”) had previously signed an application form that included a waiver purporting to release the City and its employees from liability for “any negligent act.”

Janeway filed a wrongful death action, alleging that the accident was the result of the negligence of the City and its camp counselor. Citing the waiver, the City moved for summary judgment. The trial court denied the motion, as did a Court of Appeal, citing a distinction between ordinary negligence, for which the agreement may have been enforceable, and gross negligence, for which agreements waiving liability are not enforceable.

The City appealed to the Supreme Court, which agreed to consider only that part of the appellate court decision holding that waivers of liability for gross negligence are unenforceable.

Decision

The case presents a conflict between contract and tort law, the court said; whether the freedom of individuals to agree to limit future liability outweigh policies that require wrongdoers to take responsibility for the injuries their wrongdoing causes.

California law promotes skepticism of the validity of agreements that diminish that responsibility, the Court said, citing Civil Code Section 1668, which reads: “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.” The Court’s subsequent rulings have found that such agreements are unenforceable because they transcend purely private concerns and affect the public interest.

The City’s case relied on an argument that unless the administrators of recreational activities can require and enforce agreements releasing them from liability for any negligence, such programs are doomed to extinction. The Court, however, said the evidence suggested otherwise, noting that in jurisdictions which allow no waivers of liability for negligence to be enforced, such programs remain plentiful. Therefore, there was no public policy reason for allowing enforcement of an agreement freeing the city from responsibility for its negligence.

Citing Donnelly v. Southern Pacific Co., (1941) 18 Cal.2d 863, the Court found a further distinction between ordinary and gross negligence that reflects the rule of policy that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary. Allowing a developmentally disabled child, prone to seizures, to jump into a crowded pool without continuously monitoring her every move presents the opportunity to argue a case of gross negligence, the Court said. An agreement purporting to release liability for such negligence “violates public policy and is therefore unenforceable,” and the Court ruled the child’s parents should have the opportunity to make their case.

The appellate court’s ruling that agreements to waive liability for gross negligence are unenforceable was affirmed.