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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.

Notable Replies

  1. Pretty much any city will have potholes, at what point does a pothole become something that the city is obligated to fix for an event like this? I’ve seen patching that’s done poorly, which definitely could cause a crash if someone got up to speed. If even a small issue can cause a crash that would put quite a burden on cities. My non lawyer legal understanding is that this kind of case can’t be appealed since it relates to state law.

    At some races they put up warning cones around bad pavement, but there’s no way they can do that on an event that stretches from SF to LA.

  2. I know I’m being way too idealistic, but I’d argue that yes, the city should be obligated to fix major potholes, not just for events like these, but simply as a matter of principal

  3. Yeah, I’ve never been under the impression that an event is completely off the hook even if you sign a waiver. There’s got to be some point where they have liability for negligence, it’s more a question of when.

    This decision could end up being a good thing for cyclists if it does incentivize cities to fix their roads.

  4. You’re awfully optimistic if you think this will increase public works projects. The most likely outcome would be to simply not have the events as we continue to underspend on infrastructure.

  5. California is increasingly becoming hostile to everything - not just endurance events. This just seems like a continuing pattern. Like businesses and individuals, major events could start shifting out of state (where possible). For example, a waiver would not absolve Coachella’s municipalities. And whatever might happen during the festival that could be blamed on the municipality could then become a legal target. It pretty much eliminates the idea of Ordinary Care.

  6. Hmm maybe, but doesn’t the decision apply to more than just cycling events though?

  7. Depends on the road(s) involved

    There are some roads near me which are completely beat to shit; when I pestered the township about them, the reply is “that’s a county road; not our problem to fix”

  8. It’s a tricky thing, but I think what’s really happened in the US is we’ve traded a lot of opportunity for the ability to hold government/businesses accountable in extreme cases, which also has opened the door to a lawsuit industry and abuses of this ability.

    The European model of amputating the wrong leg and getting 5000eur in damages is not setting people aghast nearly as much as the clumsy driver with hot coffee burns but is now a millionaire. Mistakes get made and it’s pretty crazy that the two extremes are either a token acknowledgement of liability/wrong doing or a legal industry gone awry with shyster lawyers profiting off the loopholes in compensating serious injury. At some point, we need some serious liability related legal reform in the US as insurance claims are increasingly closing all kinds of doors.

    I have seen all too many times good projects shut down in government and business out of fear of liability if things go wrong in a series of extremely unlikely, but theoretically possible unfortunate events. And likewise, the massive regulatory costs that increases prices across the board for so many things.

    Pardon me while I get back to reviewing an inspection and engineering report needed for storing 20lb boxes on a shelf…

  9. Indemnification provisions have to be reasonable. A pot hole that sends you flying because the city let a road deteriorate? That’s a 50/50 one right there.

    Honestly I’ve trained on the Beeline for years…I don’t think that road has been paved in 20 years. It’s at its lifecycle right now. For any type of race, I’m incredibly surprised roads on the route aren’t re-paved every five years or so. Don’t F1 Courses get new pavement every year?

  10. Just taking an educated guess that road would be $10 million or more to do the fresh layer of pavement.

    I was on a town council once and the budget we got for road fund from state fuel taxes would pay for about 100ft of road repair a year plus filling a handful of deep potholes.

  11. Principal, and a fiduciary duty to the taxpayers.

  12. You’re right of course. Far easier for state and local governments to not issue permits than it is to, I don’t know, actually maintain public works. Freaking crazy talk, I know.

  13. Not that I disagree with you, but we had a public hearing in my town and I asked those who showed up if they would be willing to pay higher taxes to improve the roads and was met with crickets. The town I represented had the lowest taxes in the state, and extremely low budget (2 full time employees, 2 part time, none making more than 25/hr, volunteer fire fighters), but the will to actually pay for roads was non existent.

    The reality is probably almost no one is playing enough taxes to pay for the road work needed everywhere.

    Most of us pay plenty of taxes, but that money gets siphoned away on all kinds of things before there’s enough left to cover the road funds.

  14. What a depressing article.

    I came home from Nam in 1970, fortunately started riding a bike, and by 1971 was fully immersed in racing. Joined the ABLA Category 3 (strictly road and track racing) and the GBSC (German Bicycle Sport Club - one of the MANY cycling clubs in the NY area). Multiple races every weekend all over the northeastern states, including my favorite - Central Park in NYC. Training? Bikes, bike rides, and bike riders all over the place out on Long Island.

    I currently live in Florida, but for the last two weeks I’ve been visiting the grand children on Long Island, and use my son’s mountain bike for daily rides. I have seen ZERO other serious bikers. So, either no one is riding, they’ve all moved indoors, or they’re all working two jobs so they can afford to live here. What a shame.

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