May 8, 2025

Whitehead v. City of Oakland

Government Code section 835 provides that under specified circumstances “a public entity is liable for injury caused by a dangerous condition” on its property. Civil Code section 1668 declares that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his 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.”

A cyclist suffered a traumatic brain injury after hitting a pothole on a public road. The cyclist sued the City of Oakland for maintaining a public roadway in violation of Government Code section 835. Before the ride, the cyclist had signed a release waiving claims against the City for negligence. Relying exclusively on Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, both the trial court and Court of Appeal ruled for the City, holding the release enforceable.

The California Supreme Court reversed, holding that under Civil Code section 1668, a liability waiver cannot shield a public entity from claims alleging breach of a statutory duty enacted to protect public safety. The Court clarified that the Tunkl public interest test applies to claims for future ordinary or gross negligence under the common law, but does not apply to statutory violations governed by section 1668.

This decision reaffirms that public entities remain liable for statutory violations enacted to protect public safety, despite private waivers purporting to release such claims.