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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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February 15, 2024

Whitehead v. City of Oakland

Plaintiff, a cyclist, was injured when he hit a pothole while participating in a training ride for the AIDS LifeCycle fundraiser.  Before participating in the ride, plaintiff signed a release and waiver of liability. 

Plaintiff sued the City of Oakland (the City), alleging that the City failed to maintain and repair the road and that the location of the accident was in a dangerous condition because of the pothole.  Plaintiff filed a motion for summary adjudication, contending the release was void under Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92 because it affected a matter of public interest.  The City moved for summary judgment, arguing that plaintiff’s claim was barred by the release.  The trial court denied plaintiff’s motion and granted defendant’s motion, concluding that the release was enforceable and that it barred plaintiff’s claims.  Both parties appealed.

The Court of Appeal affirmed.  First, in a thorough discussion surveying decades of case law, the court held that the release was enforceable because the cycling ride was a “nonessential sports activity” that did not affect the public interest.  The court also clarified that whether a release affects the public interest—and is thus unenforceable—depends on the nature of the activity or transaction for which the release was given (here, cycling), not on the alleged cause of the injury (the City’s maintenance of the road).  Second, the court noted that a release of liability bars a claim for ordinary negligence but not gross negligence.  The court found no triable issue of fact regarding gross negligence because (1) plaintiff’s theory about underreporting collision data was speculative, (2) a failure to warn is not gross negligence where there was no indication of a serious safety issue needing repair, (3) mistakes regarding a small number of service requests that occurred many years prior were not so far below the ordinary standard of care as to raise a triable issue, and (4) defendant could rely on police reports of collisions in the area and public complaints about potholes, and did not need to actively inspect the area.  Because defendant did not receive notice of the pothole, it was not required to take active measures to fix the defect.