Under Civil Code section 1668, “[a]ll contracts which have for their object, directly or indirectly, to exempt any onefrom responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent” are void as against public policy. Relying on the plain language of the statute, the California Supreme Court has held that a public entity cannot contractually immunize itself from liability for violations of duties related to public safety.
In Whitehead v. City of Oakland (2025) S284303, the California Supreme Court considered the enforceability of a contractual provision purporting to release a public entity from its statutory duty to maintain public roadways in a safe condition. The Court held that a release purporting to exempt a municipality from its duty under Government Code section 835 to maintain public roadways in a safe condition for bicyclists is void as against public policy.
Mr. Whitehead sustained a traumatic brain injury while participating in a charity bicycle ride through Oakland. He brought suit alleging that the City had violated Government Code section 835 by failing to maintain the roadway in a safe condition. The trial court and the Court of Appeal both upheld the enforceability of a release he signed on the day of the ride, which sought to immunize the City from liability for its own negligence. Both courts relied exclusively on the opinion in Tunkl v. Regents of the University of California (1963) 60 Cal.2d 92, concluding that the waiver did not affect the public interest. Rejecting such reasoning, the Supreme Court made clear that public entities cannot contractually exculpate themselves from liability for breaching statutory duties enacted to ensure public safety. Releases purporting to nullify such duties are unenforceable under Civil Code section 1668.
The City argued that per Tunkl, courts have historically construed section 1668 as prohibiting contractual exculpation for violations of statutory duties, even when the statutory duty is to act with reasonable care. The Supreme Court criticized the Court of Appeal for misapplying the Tunkl test in a case involving a statutory violation. The Court held that by relying exclusively on Tunkl, the lower courts failed to recognize that Civil Code section 1668 separately prohibits contractual exemptions for violations of statutory duties enacted to protect public safety.
The Supreme Court held that the release relied upon by the public entity violated section 1668 to the extent it attempted to exculpate the City from liability for violating a statutory duty to maintain public roadways in a safe condition. The Court emphasized that a public entity owes this duty to all foreseeable users of public roads, including bicyclists, and cited precedent holding that municipalities cannot insulate themselves from liability for breaching statutory safety duties, whether the claim arises in tort or contract. This holding is consistent with decisions including Union Construction Co. v. Western Union Tel. Co. (1912) 163 Cal. 298, Hanna v. Lederman (1963) 223 Cal.App.2d 786, and Halliday v. Greene (1966) 244 Cal.App.2d 482, each of which declined to enforce exculpatory clauses where the defendant's conduct violated a statute or ordinance enacted for public protection.
Section 1668 reflects a legislative judgment to prohibit parties from insulating themselves against liability for failing to meet legal duties imposed for the protection of others. While freedom of contract may be a central tenet of civil law, that freedom must yield where a contract attempts to nullify duties enacted by statute. Permitting the application of such clauses in favor of a public entity undermines tort law's broader function to incentivize reasonable care in public life and to ensure that those harmed by a legal breach of duty can obtain redress.
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