A California Legal Decision May Lead to Fewer Event Permits

Events of all sizes share a single common element that can make or break their existence: the ability to be permitted by their host locations. Without a permit, it doesn’t matter how many people may have signed up, or how much history you have — you have nothing without a permit. See, for example, the fiasco over Malibu’s single triathlon event permit and how the rights holder to the name and history of the Malibu Triathlon lost out on the ability to produce the event.

It stands to reason that the success of an event is entirely banked upon whether a location is willing to host it. Thanks to a recent California Supreme Court decision, it’s plausible that more municipalities may wind up losing their appetite for such a thing — or making them significantly more expensive to come by. In fact, it may kill the event waiver as we know it.

The Case: Whitehead v. City of Oakland

Decided last month, the court in Whitehead v. City of Oakland determined that an event waiver cannot absolve a municipality from certain responsibilities and duties of care: namely, providing safe streets.

The case involved a man who suffered a traumatic brain injury in a crash during a March 2017 group training ride for the AIDS/LifeCycle ride, a weeklong bike event that takes riders from San Francisco to Los Angeles. The rider, Ty Whitehead, was traveling on a downhill section, hit a deep pothole, flipped over his handlebars and crashed. No other riders were involved. According to evidence presented at trial, the road conditions had deteriorated to the point that riders were forced to ride in the center of the lane, and that potholes were not necessarily visible from above by downhill riders.

As is the case with nearly every event on the planet, Whitehead had signed a waiver prior to the ride. That waiver contained the following provisions, which should look familiar to anyone who has raced in the last 20 years:

Risks associated with the Event may include, but are not limited to: [¶] using public streets and facilities where hazards such as broken pavement and road debris may exist; [¶] being struck by, or colliding with, other cyclists, spectators, automobiles, and road debris; [¶] . . . ; [¶] negligence or carelessness of . . .owners/lessors of the course or facility owners (which may include state and local governmental entities); [¶] negligence or carelessness in the implementation or enforcement of any rules, regulations or guidelines related to the Events and/or in the selection, use, or maintenance of any equipment, course, competition, facility or service related to the Events. [¶] I understand that the Event may expose me to risks other than those listed above and that the risks may not be reasonably foreseeable to me, [or the organizers]. [¶] In consideration for being allowed to participate in the Event, I hereby assume all risks associated with the Event, even those risks which are not reasonably foreseeable at this time. To the maximum extent permitted by law, I hereby release, waive, forever discharge and covenant not to sue the Releasees (as defined in the next sentence) from all liabilities, claims, costs, expenses, damages, losses and obligations, of any kind or nature (whether in law or equity) (collectively the ‘Released Liabilities’), which may arise or result (either directly or indirectly) from any participation in the Event. ‘Releasees’ means . . . (B) the owners/lessors of the course or facilities used in the Event . . . and (D) the directors, officers, officials, employees and agents of the entities listed in (A)–(C). [¶] For the avoidance of doubt, the Released Liabilities include all bodily injury, death and/or property damage I may suffer which arises or results (either directly or indirectly) from my participation in the Event, including through any negligence of the Releasees.”

A year after the crash, Whitehead sued the City of Oakland, alleging dangerous road conditions on a public way caused the incident. The city countered with a motion for summary judgment on the grounds that the release was valid and enforceable, and barred Whitehead’s claims against the city. That motion was approved in March of 2021. The California Supreme Court agreed to hear the case to determine whether a release, such as this one, could absolve a municipality of its responsibilities to perform statutorily mandated service; namely, to provide safe road conditions.

The decision, announced last month, determined that an event waiver cannot release a government entity from statutory obligations, citing in part that “public entities owe members of the public a ‘duty not to maintain public premises in a dangerous condition.’…Our case law thus demonstrates that section 835 does require municipalities to do something about public roadways in appropriate circumstances.” The Court’s decision did not conclude whether Whitehead had, in fact, proven his case; instead, it was remanded to the lower court to proceed and make that determination.

The Potential Chilling Effect

When working with various governmental entities in order to produce an event, there are generally three things that they are looking for before issuing a permit and allowing it to go forward:

• Money: the cost of the permit, policing (if needed), and other public services that you might be asking for;
• Proof of insurance coverage in the event something goes catastrophically wrong; and
• A liability release.

The Whitehead decision plainly pokes a hole in that balloon. Although the decision is only referring to the release of certain obligations a public entity has, it still will increase the risk municipalities will face in hosting events. There are two ways that typically gets mitigated: either increase the ask for money or insurance coverage, or to simply not host events (or host fewer of them).

The most likely outcome from this type of decision is that event permits will become more expensive and harder to come by. It typically also means that those best positioned to absorb the additional cost and liability associated with it are larger event producers. Smaller race producers will most likely need to host their events in smaller municipalities who might be more willing to be flexible on needs. And, of course: the cost for both the race director, and in turn, the athlete, continues to go nowhere but up.