California’s Supreme Court ruled unanimously a bicyclist can sue the city of Oakland over a head injury suffered while training for a race regardless of his signature on a participation waiver.
Ty Whitehead attributes his March 2017 traumatic brain injury to a pothole on Skyline Boulevard, which he struck during a group training ride for AIDS/LifeCycle, a weeklong fundraiser ride from San Francisco to Los Angeles. When he sued the city for failing to maintain a safe road for public use, the city asked Alameda County Superior Court Judge Richard Seabolt to grant summary judgment because Whitehead, like other riders, signed a waiver providing, among other clauses, that “To the maximum extent permitted by law, I hereby release, waive, forever discharge and covenant not to sue” the city and race organizers.
Seabolt likewise rejected Whitehead’s own motion for summary judgment, in which he argued the waiver he signed should be considered invalid because it stands against public interest.
Later, the California First District Appellate Court affirmed Seabolt’s rulings, prompting Whitehead’s appeal to the state Supreme Court. Justice Kelli Evans wrote the unanimous opinion, filed May 1; Justice Leondra Kruger filed a concurring opinion.
Evans said analysis of waiver validity routinely becomes an issue of balancing contract and tort law and noted the relevant state code section dates to 1872. She further noted both Seabolt and the appellate panel relied on a 1963 California Supreme Court opinion, Tunkl v. Regents of University of California, which involved a hospital patient’s lawsuit alleging common law negligence.
Importantly, Evans wrote, Whitehead alleged the city had an obligation under state law to protect public safety by maintaining reasonably safe streets. If the race participants’ waiver essentially allowed the city to be blameless for future violations of that statutory duty, such a contract would be invalid.
“We have not been asked to decide whether Whitehead has adequately supported his claim that the city had a statutory duty to him, breached it and thereby caused damages,” Ellis wrote. “Those questions are not before us, and we express no view on them. The narrow issue before us is whether Whitehead’s claim against the city, assuming it is otherwise valid, is barred by the release. We hold that it is not.”
Ellis said the appeals panel, as did the parties, erroneously assumed Tunkl would apply to allegations of violating statutory duty despite its rooting in a common law claim. Instead, the court found the intentional exclusion of “common law from the ‘law’ referenced” in the relevant state code to be a key factor.
The city argued a ruling for Whitehead would force public entities to restrict facility use as a liability shield. Specific to events like charity bike races, governments would need permits and to demand substantial insurance and indemnification.
“The city’s warning that the increased risk of liability will cause public entities to prohibit, or make prohibitively expensive, the recreational use of their facilities seems exaggerated,” Ellis wrote. “The city already owes a duty to the public to maintain its public roadways in a safe condition. Any cyclist traveling this part of Skyline who suffered an injury but was not part of the training ride would presumably have been entitled to file an action against the city for violating its statutory duty … The city does not explain how its burdens would intolerably increase if Whitehead, traveling the same road in the same manner, had the same opportunity.”
In her concurrence, Justice Kruger said Oakland correctly argued Tunkl didn’t expressly distinguish common law claims from allegations of statutory violations. But she said the city was wrong to insist Whitehead couldn’t sue because a charity ride isn’t a necessary municipal service.
Tunkl enumerated six public interest factors, but Kruger said that list wasn’t exhaustive, nor did it consider “how the enactment of legislation imposing specific obligations or duties might properly guide a court’s evaluation of whether it is “contrary to public policy” to allow contracts that prospectively limit liability for future violations of those duties.”
Kruger also wrote about the scope of the decision affecting Whitehead, reinforcing the unanimous holding that a ruling in Whitehead’s favor doesn’t automatically void “anticipatory releases of a claim arising from every statutory violation.”
Because the majority found “a city’s duty to keep the public roads safe for ordinary public uses is a matter of undeniable public concern,” Kruger concluded, “the policy of the law does not permit enforcement of a private contract purporting to sign that duty away.”
Representing Whitehead are attorneys Anthony L. Label and Steven A. Kronenberg, of The Veen Firm, of San Francisco; and attorney Gerald Clausen, of San Francisco.
Oakland is represented by the city attorney’s office.