1

Filed 1/22/24 Whitehead v. City of Oakland CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

TY WHITEHEAD,

Plaintiff and Appellant,

v.

CITY OF OAKLAND,

Defendant and Respondent.

 A164483

 (Alameda County

 Super. Ct. No. RG18896233)

Plaintiff Ty Whitehead sued defendant City of Oakland for injuries he 

suffered after his bicycle hit a pothole during a training ride for the AIDS

LifeCycle fundraiser. Prior to the training ride, plaintiff signed an agreement 

releasing the “owners/lessors of the course or facilities used in the Event”

from future liability. The trial court granted defendant’s motion for summary 

judgment, concluding the release was enforceable. Plaintiff appeals, arguing

the release was invalid because it concerned a matter of public interest. 

Plaintiff also contends the court erred by failing to address whether there 

was a triable issue of fact as to defendant’s gross negligence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2017, plaintiff participated in a group training ride for AIDS 

LifeCycle, a multi-day group bicycle ride fundraiser from San Francisco to 
2

Los Angeles. As plaintiff was injured during that ride, we describe the 

nature of the AIDS LifeCycle training rides for context.

The AIDS LifeCycle fundraiser advertises a training system to help its 

participants build up and prepare for the long-distance ride to Los Angeles. 

The training system features training ride leaders who select cycling routes

with specific start times and rest stops; these routes are posted on the AIDS 

LifeCycle website, and participants reserve spots for their selected rides. The 

training system is designed to ensure there are enough certified training ride 

leaders to support the number of riders, and the leaders are responsible for 

informing riders of the organization’s code of conduct and safety rules before 

every ride. On longer training rides, a “support and gear” person follows the 

riders by car to offer support. Training ride leaders are tasked with ensuring 

participants sign waivers in order to participate in training rides. 

Training ride leaders must be “certified,” which involves a combination 

of in-person classroom instruction by AIDS LifeCycle staff and outdoor 

bicycling instruction. The instruction emphasizes safety and how to coach 

riders on safety rules and practices. Training ride leaders must re-certify 

every two years; re-certification requires additional classroom instruction and 

participation in a minimum of about ten training rides to remain in “good 

standing.”

The route for the training ride at issue in this case was 50 miles long, 

which would take roughly seven to eight hours to complete. About 41 people 

were on the training ride with plaintiff. During the ride, plaintiff—an 

experienced cyclist and a certified training ride leader himself (though not 

the leader for this particular ride)—hit a pothole that was approximately one 

to two inches deep, 18 inches across, and 14 inches long. Plaintiff flipped

over his bicycle handle bars, hit his head on pavement, and suffered injury.
3

The accident occurred on Skyline Boulevard near the intersection at Grass 

Valley Road. 

Prior to but on the same day as the training ride, plaintiff signed a 

document entitled “AIDS/LifeCycle Training Ride GENERAL 

INFORMATION AND RELEASE AND WAIVER OF LIABILITY, 

ASSUMPTION OF RISK, AND INDEMNITY AGREEMENT” (hereafter “the 

release”). The release contained the following assumption of risk provision:

“RISKS: ASSUMPTION OF RISK. I understand that the Event is 

potentially a hazardous activity, and that accidents during the Event could 

lead to serious injury, death and/or property damage, both to me and to 

others. 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 . . . 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.” (Bullet points and underlining omitted.) The release expressly 

defined the “Event” as including training rides leading up to the seven-day 

ride from San Francisco to Los Angeles. 
4

The release also included a waiver and release provision: “WAIVER 

AND RELEASE. To the maximum extent permitted by law, I hereby 

release, waive, forever discharge and covenant not to sue the Releasees . . . . 

from all liabilities, claims, costs, expenses, damages, losses and obligations, of 

any kind or nature . . . which may arise or result (either directly or indirectly) 

from my participation in the Event.” The release went on: “For the 

avoidance of doubt, the Released Liabilities include all bodily injury . . . I may 

suffer which arises or results (either directly or indirectly) from my 

participation in the Event, including through any negligence of the 

Releasees.” As relevant here, the release defined “Releasees” as including 

“the owners/lessors of the course or facilities used in the Event.” (Italics 

added.)

Additionally, the release expressly relinquished any rights under Civil 

Code section 1542, which at the time provided: “A general release does not 

extend to claims which the creditor does not know or suspect to exist in his or 

her favor at the time of executing the release, which if known by him or her

must have materially affected his or her settlement with the debtor.” 

(Former Civ. Code, § 1542, amended by Stats. 2018, ch. 157, § 2, eff. Jan. 1, 

2019.)

Plaintiff filed this suit alleging that defendant failed to maintain and

repair Skyline Boulevard and that the location of the accident was in a 

dangerous condition due to the pothole that plaintiff hit. Plaintiff’s complaint 

alleged one cause of action for dangerous condition of public property (Gov. 

Code, § 835 et seq.) and one cause of action for public employee or contractor 

liability for a dangerous condition.

Defendant’s first motion for summary judgment contended in part that 

the primary assumption of risk doctrine barred plaintiff’s recovery. The trial 
5

court granted summary adjudication of the cause of action for public 

employee liability because plaintiff had not sued any of defendant’s 

employees. But the court denied summary judgment, concluding defendant 

had not, as a matter of law, “negated the element of duty under the primary 

assumption of risk doctrine.” The court, however, noted its ruling as to the 

primary assumption of risk doctrine was “without prejudice” to defendant 

renewing that argument in a future motion for summary judgment based on 

the release.1

Plaintiff subsequently filed a motion for summary adjudication of 

defendant’s affirmative defenses of waiver and assumption of risk. Relying 

on Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92 (Tunkl), plaintiff 

contended the release was void because it affected a matter of public interest, 

i.e., the maintenance of safe public roads. Plaintiff also argued defendant 

could not rely on the primary assumption of risk doctrine, because the alleged 

dangerous condition affected all road users, not just recreational cyclists. 

Defendant filed a cross-motion for summary judgment contending plaintiff’s 

claim was barred by the release, by plaintiff’s express assumption of risk, and 

by the primary assumption of risk doctrine. 

The trial court denied plaintiff’s summary adjudication motion, 

concluding plaintiff failed to demonstrate the release was contrary to public 

policy and void as a matter of law. The court noted plaintiff erroneously 

applied Tunkl to defendant’s “alleged failure to maintain a safe road and 

repair the pothole, rather than the subject of the waiver and release, which is 

the organized recreational group training ride.” The court also found 

1 Defendant indicated it learned of plaintiff’s execution of the release 

after filing its first summary judgment motion. 
6

summary adjudication improper because plaintiff failed to address the 

portion of defendant’s defense based on express assumption of risk. 

By separate order, the trial court granted defendant’s motion for 

summary judgment on the ground that plaintiff’s execution of the release 

bars his claim for liability arising from a dangerous condition of public

property. Having so ruled, the court expressly declined to address the 

parties’ contentions regarding the primary assumption of risk doctrine. 

After the trial court entered judgment dismissing the complaint with 

prejudice, plaintiff filed a notice of appeal, and defendant filed a notice of

cross-appeal. 

DISCUSSION

A. The release of liability is enforceable

Plaintiff contends the trial court erred in granting summary judgment 

because the release he signed affected a public interest and was therefore 

invalid. 

To resolve whether a release is invalid, “ ‘we conduct not only a de novo 

examination of the moving and opposing papers to determine whether 

[defendant] is entitled to judgment as a matter of law [citation], but also 

conduct a de novo examination of the release document. Where, as here, no 

conflicting parol evidence is introduced concerning the interpretation of the 

document, “construction of the instrument is a question of law, and the 

appellate court will independently construe the writing.” ’ ” (YMCA of Metro. 

L.A. v. Superior Court (1997) 55 Cal.App.4th 22, 26.)

Civil Code section 1668 provides: “All 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.”
7

In Tunkl, the California Supreme Court considered whether “a release 

from liability for future negligence imposed as a condition for admission to a 

charitable hospital” was enforceable under section 1668. (Tunkl, supra, 60 

Cal.2d at p. 94.) Finding that the subject agreement between a hospital and 

an entering patient affected the public interest, Tunkl concluded the release 

included within the agreement was invalid. (Ibid.)

In examining whether section 1668 invalidated the release, the Tunkl

court observed that judicial interpretations of Civil Code section 1668 were

consistent in holding that “the exculpatory provision [i.e., the release] may 

stand only if it does not involve ‘the public interest.’ ” (Tunkl, supra, 60 

Cal.2d at p. 96.) Noting that “[n]o definition of the concept of public interest 

can be contained within the four corners of a formula,” the Supreme Court set 

forth a “rough outline of that type of transaction in which exculpatory 

provisions will be held invalid.” (Id. at p. 98, italics added.) In the high 

court’s words, “the attempted but invalid exemption involves a transaction

which exhibits some or all of the following characteristics. [1] It concerns a 

business of a type generally thought suitable for public regulation. [2] The 

party seeking exculpation is engaged in performing a service of great 

importance to the public, which is often a matter of practical necessity for 

some members of the public. [3] The party holds himself out as willing to 

perform this service for any member of the public who seeks it, or at least for 

any member coming within certain established standards. [4] As a result of 

the essential nature of the service, in the economic setting of the transaction, 

the party invoking exculpation possesses a decisive advantage of bargaining 

strength against any member of the public who seeks his services. [5] In 

exercising a superior bargaining power the party confronts the public with a 

standardized adhesion contract of exculpation, and makes no provision 
8

whereby a purchaser may pay additional reasonable fees and obtain 

protection against negligence. [6] Finally, as a result of the transaction, the 

person or property of the purchaser is placed under the control of the seller, 

subject to the risk of carelessness by the seller or his agents.” (Id. at pp. 98–

101, fns. omitted, italics added.)

The Tunkl court explained the rationale for this rule as follows: “While 

obviously no public policy opposes private, voluntary transactions in which 

one party, for a consideration, agrees to shoulder a risk which the law would 

otherwise have placed upon the other party, the [circumstances in which a 

public interest is involved] pose a different situation. In this situation the 

releasing party does not really acquiesce voluntarily in the contractual 

shifting of the risk, nor can we be reasonably certain that he receives an 

adequate consideration for the transfer. Since the service is one which each 

member of the public, presently or potentially, may find essential to him, he 

faces, despite his economic inability to do so, the prospect of a compulsory 

assumption of the risk of another’s negligence.” (Tunkl, supra, 60 Cal.2d at 

p. 101, italics added.) 

Notably, in 2007 the Supreme Court observed that then-recent 

appellate decisions had “concluded categorically that private agreements

made ‘in the recreational sports context’ releasing liability for future ordinary 

negligence ‘do not implicate the public interest and therefore are not void as 

against public policy.’ ” (City of Santa Barbara v. Superior Court (2007) 41 

Cal.4th 747, 759–760 & fns. 12–17 (City of Santa Barbara), and cases cited;

Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 29–30 (Hass), and

cases cited.) Particularly relevant here, Okura v. United States Cycling Fed’n

(1986) 186 Cal.App.3d 1462 (Okura) “establishes that bicycle racing . . . is not 

a matter sufficiently affected with the public interest so as to void clear and 
9

unambiguous exculpatory clauses.” (Buchan v. United States Cycling Fed’n

(1991) 227 Cal.App.3d 134, 152.)

In Okura, the appellant was injured after hitting loose debris while 

participating in a bicycle race on closed portions of the public streets in the 

City of Hermosa Beach. (Okura, supra, 186 Cal.App.3d at pp. 1464–1465.) 

The appellant sued the city and others, alleging negligence in the preparation 

and maintenance of the course. (Id. at p. 1464.) The trial court granted 

summary judgment against the appellant based on a release he signed that

“discharge[d] in advance the promoters, sponsors, . . . the officials, and any 

involved municipalities or other public entities (and their respective agents 

and employees), from and against any and all liability arising out of or 

connected in any way with my participation in said event, even though that 

liability may arise out of negligence or carelessness on the part of the persons 

or entities mentioned above.” (Id. at p. 1465, italics added and omitted.)

Okura affirmed the grant of summary judgment, finding the release 

was not void as against public policy. (Okura, supra, 186 Cal.App.3d at 

pp. 1465–1466, 1469.) After assessing each of the Tunkl factors, the court 

concluded “[t]his situation does not present a transaction affecting the public 

interest.” (Okura, at p. 1468.) As to the first Tunkl factor—whether the 

exemption involves a transaction that concerns a business generally 

considered suitable for public regulation—the court found the transaction 

was “entry into a public bicycle race organized by private nonprofit 

organizations” and “the organized racing of bicycles is not the subject of 

public regulation.” (Okura, at p. 1466.) With regard to the second Tunkl

factor—whether the party seeking exculpation is engaged in performing a 

service of great public importance—the court stated: “The service provided 

here was the organization and running of competitive bicycle races for 
10

members of the organizers and the public,” which “cannot be termed one that 

‘is often a matter of practical necessity for some members of the public.’ ”

(Okura, at pp. 1466–1467.) 

As to the third Tunkl factor—whether the service was open to the 

public—Okura indicated anyone with a bicycle and entrance fee could enter. 

(Okura, supra, 186 Cal.App.3d at p. 1467.) With regard to the fourth and 

fifth Tunkl factors—the essential nature of the service and the economic 

setting of the transaction, and whether the exculpated party has a superior 

bargaining power and confronts the public with a standardized adhesion 

contract of exculpation—the court reiterated the service provided was a 

leisure time activity that was not essential. (Okura, at p. 1468.) The court 

stated, “The relative bargaining strengths of the parties does not come into 

play absent a compelling public interest in the transaction.” (Ibid.) As for 

the last Tunkl factor—whether the person or their property is placed under

another’s control—Okura noted there was no such release of control. (Okura,

at p. 1468.)

This case is materially indistinguishable from Okura. At bottom, 

plaintiff executed a release in exchange for entry into a recreational cycling

activity that was organized for fundraising purposes. In line with Okura and 

the other decisions cited by the Supreme Court in City of Santa Barbara, 

supra, 41 Cal.4th 747, we conclude the trial court properly found the release

valid and enforceable because the cycling event was a nonessential sports 

activity that did not affect the public interest within the meaning of Civil 

Code section 1668.

Plaintiff argues that, for purposes of the Tunkl release analysis, the 

focus should be on defendant’s provision and maintenance of public streets 

and highways—and not on the activity or transaction for which the release 
11

was given, i.e., participation in the cycling fundraiser. Viewed in this 

manner, the instant release affected the public interest in the provision and 

maintenance of public roads. This reading of Tunkl, however, is off the mark 

and unconvincing.

Tunkl itself couched its analysis in terms of determining whether the 

transaction for which the release was given is one that affects the public 

interest. (See, e.g., Tunkl, supra, 60 Cal.2d at p. 98, italics added [“the courts 

have revealed a rough outline of that type of transaction in which exculpatory 

provisions will be held invalid”]; id. at p. 101, italics added [“obviously no 

public policy opposes private, voluntary transactions in which one party, for a 

consideration, agrees to shoulder a risk which the law would otherwise have 

placed upon the other party”]; id. at p. 102 [“The admission room of a hospital 

contains no bargaining table where, as in a private business transaction, the 

parties can debate the terms of their contract.”].) 

Likewise, in Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 

Cal.App.4th 662, the court held: “Under Tunkl . . . determining whether a 

release of liability affects the public interest, and is thus void as a matter of 

public policy, requires analysis of the transaction giving rise to the contract—

not the allegedly negligent conduct by the party invoking the release.” (Gavin 

W., at p. 670, some italics added.) And more recently, the Supreme Court 

said this: “Tunkl’s public interest analysis focuses upon the overall 

transaction—with special emphasis upon the importance of the underlying 

service or program, and the relative bargaining relationship of the parties—in 

order to determine whether an agreement releasing future liability for 

ordinary negligence is unenforceable.” (City of Santa Barbara, supra, 41 

Cal.4th at p. 762, italics added.)
12

In this case, the overall transaction was plaintiff’s signing of a release 

of liability so that he could participate in the AIDS LifeCycle fundraiser and 

its organized training rides on defendant’s streets. We cannot, as plaintiff

urges, ignore this aspect of this case. Likewise, it cannot reasonably be

concluded that a cycling fundraiser is an essential service such that plaintiff 

was robbed of his free will in deciding whether to sign the release. As Okura

explained, “People are not compelled to enter the event but are merely 

invited to take part. If they desire to take part, they are required to sign the 

entry and release form. The relative bargaining strengths of the parties does 

not come into play absent a compelling public interest in the transaction.” 

(Okura, supra, 186 Cal.App.3d at p. 1468; see Hass, supra, 26 Cal.App.5th at 

p. 31 [“half marathons are not an activity of great importance to the general 

public and are certainly not a matter of necessity. No racer is required to 

enter a particular event or to run it in any particular way.”].) 

Plaintiff contends “anomalous results” would result if “one who 

provides a service that does not involve a public interest could require a 

consumer to exempt from liability another who provides a service that does 

involve such an interest.” “By parity of reasoning,” plaintiff asserts, “the 

converse would also be true: a provider of a service that did not involve a 

public interest would be entitled to enforce an exemption from liability in its 

own contract but would be precluded from enforcing it if it was contained in 

the contract of a provider of a service that did involve a public interest.”

(Italics omitted.) To the extent plaintiff offers anomalous hypothetical 

situations to support his point, we are unpersuaded. We look only to the 

facts before us, bearing in mind that “Tunkl’s public interest analysis focuses 

upon the overall transaction.” (City of Santa Barbara, supra, 41 Cal.4th at 

p. 762.)
13

Plaintiff contends Okura is factually distinguishable because it 

involved a competitive race on a closed course, and both the organizers and 

the City of Hermosa Beach were sued for alleged negligence in the 

preparation and maintenance of the course. But plaintiff cannot escape the 

Tunkl analysis by simply focusing on defendant’s allegedly negligent 

maintenance of a public road and altogether ignoring that he signed the 

release to participate in a recreational event. Indeed, he is suing defendant 

for its allegedly negligent maintenance of a public road that was specifically

selected as part of the AIDS LifeCycle training system for group training 

purposes. The release here expressly covered any negligence in the 

maintenance of both the official course and the routes used for training 

purposes. As defendant points out, there is no distinction between the bicycle 

race in Okura and the organized cycling events here at issue on the critical 

point that all the activities were recreational in nature and did not implicate 

the public interest.

Contrary to plaintiff’s contention, Lewis Operating Corp. v. Superior 

Court (2011) 200 Cal.App.4th 940 aligns with our application of the Tunkl

analysis. In Lewis Operating Corp., a residential apartment tenant sued his 

landlord after suffering injury in the onsite exercise facility. (Lewis

Operating Corp., at pp. 943 & fn. 1, 946.) The tenant’s rental agreement 

included a release governing the use of the on-site exercise facility. By 

executing the rental agreement, the tenant agreed to the release. (Id. at 

p. 943.) The Court of Appeal concluded summary judgment should have been 

granted in favor of the landlord based on the plaintiff’s execution of the

release. (Id. at pp. 943–944.) While acknowledging that residential leases 

affect the public interest, the court reasoned that providing the amenity of an 

onsite exercise facility was outside the “basic, heavily regulated offering of a 
14

residential dwelling” and that “providing health club or exercise facility 

services has repeatedly been held not to invoke the ‘public policy’ rule of 

Tunkl.” (Id. at p. 946.) Lewis Operating Corp. plainly focused on the subject 

of the contractual release, noting as we do here that Tunkl itself focused on 

the “subject transaction” for which the release was given. (Ibid.)

In sum, the trial court correctly concluded the release was enforceable.2

B. There was no triable issue of fact regarding gross negligence

Plaintiff argues that even if the release is enforceable, the release could 

not absolve defendant of liability for gross negligence, and the trial court 

failed to address whether the evidence raised a triable issue of fact on this

topic. 

Defendant acknowledges that a release cannot absolve a party from 

liability for gross negligence (City of Santa Barbara, supra, 41 Cal.4th at 

pp. 750–751), but it counters that plaintiff forfeited this claim by failing to 

adequately raise it below. On this score, defendant contends plaintiff 

presented no factual argument “explaining why or how [defendant’s] conduct 

rises to the level of gross negligence.”

“ ‘Generally, the rules relating to the scope of appellate review apply to 

appellate review of summary judgments. [Citation.] An argument or theory 

will . . . not be considered if it is raised for the first time on appeal. 

[Citation.] . . . [P]ossible theories that were not fully developed or factually 

presented to the trial court cannot create a ‘triable issue’ on appeal.’ ” 

2 Our opinion is limited to the facts before us and should not be read as 

opining on the validity of a release in other contexts, e.g., where an AIDS 

LifeCycle participant is injured during a practice ride that is not part of the 

AIDS LifeCycle training program or where an injured participant suffers 

additional harm as a result of medical malpractice at a treating hospital.
15

(DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 

666, 676.)

“[O]rdinary negligence ‘consists of a failure to exercise the degree of 

care in a given situation that a reasonable person under similar 

circumstances would employ to protect others from harm.’ [Citation.] 

‘ “[M]ere nonfeasance, such as the failure to discover a dangerous condition or 

to perform a duty,” ’ amounts to ordinary negligence. [Citation.] However, to 

support a theory of ‘ “[g]ross negligence,” ’ a plaintiff must allege facts 

showing ‘either a “ ‘ “want of even scant care” ’ ” or “ ‘ “an extreme departure 

from the ordinary standard of conduct.” ’ ” ’ ” (Anderson v. Fitness Internat., 

LLC (2016) 4 Cal.App.5th 867, 881 (Anderson).) “[I]n cases involving a 

waiver of liability for future negligence, courts have held that conduct that 

substantially or unreasonably increased the inherent risk of an activity or 

actively concealed a known risk could amount to gross negligence, which 

would not be barred by a release agreement. [Citation.] Evidence of conduct 

that evinces an extreme departure from manufacturer’s safety directions or 

an industry standard also could demonstrate gross negligence. [Citation.] 

Conversely, conduct demonstrating the failure to guard against, or warn of, a 

dangerous condition typically does not rise to the level of gross negligence.” 

(Ibid.)

Here, plaintiff’s opposition to defendant’s motion for summary 

judgment made multiple, if somewhat brief, references to gross negligence. 

For example, the introduction to his opposition asserted defendant’s motion 

should be denied because “the City increased the risk of harm to the public 

(which cannot be assumed under primary assumption of the risk or with a 

written waiver if the risk increases to the level of gross negligence, a question 

of fact[)].” The opposition also included assertions that defendant cannot 
16

evade accountability through the release “for increasing the risk of harm that 

rises to gross negligence (a question of fact),” and that defendant “increased 

the risk of harm on Skyline in multiple ways: Installing the distracting and 

dangerous ‘rumble strips’ trap just uphill from the pothole; Misprioritizing 

and delaying repairs, exposing more people to more severe harm; and Poorly 

maintaining the road based on ‘missing’ data that it never even tried to 

obtain or provide warning to the public.” Plaintiff’s opposition also 

referenced his motion for summary adjudication, where he cited to a portion 

of Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 

Cal.App.5th 344 stating that “conduct that substantially or unreasonably 

increased the inherent risk of an activity or actively concealed a known risk 

could amount to gross negligence, which would not be barred by a release 

agreement.” 

Notably, however, plaintiff’s opposition contained no clear argument as 

to how defendant’s alleged deficiencies amounted to gross negligence. As the 

trial court indicated when plaintiff mentioned gross negligence at the 

summary judgment hearing, plaintiff had “merely float[ed]” the idea that 

there was gross negligence, thus leaving the court to guess what exactly his

gross negligence theory was. The record bears this out. Although plaintiff 

claimed defendant increased the risk of harm in several ways, he never

explained how defendant’s alleged conduct substantially or unreasonably

increased the risk in a way that amounts to gross negligence, much less 

pointed to evidence of a substantial or unreasonable increase in risk.

But even assuming plaintiff adequately raised the issue such that the 

trial court erred in declining to address it, he fails to show grounds for 

reversal. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.)
17

Plaintiff points to evidence in the record that he claims shows “[t]he 

City suspected it was missing data that would help prioritize repairing or 

repaving bikeways yet failed to take steps to verify its data were complete or 

obtain additional data.” Specifically, Jason Patton, a “Bicycle and Pedestrian 

Program Manager” with defendant’s Department of Transportation, testified 

during a deposition about a 2007 email he wrote wherein he said he 

suspected “ ‘collisions involving pavement issues are significantly 

underreported.’ ” When asked why he had suspected this, Patton explained 

he has personally seen people fall off their bicycles and ride on, apparently 

without reporting their fall. But Patton also stated that incidents involving 

serious injury are most likely to have a police response and result in records 

that come to defendant’s attention. Patton asserted it was much more 

important to have the data defendant did have (i.e., serious injury data) 

rather than data of all unreported falls like the ones he observed. When 

asked if he had done anything to increase the accuracy of “collision data” on 

Oakland bikeways, Patton stated, “We are not well positioned to improve the 

accuracy of the data in that the police department creates it and the 

California Highway Patrol processes it. We’re not able to change that data, 

nor should we be changing it.” When asked if he had done anything to 

capture more data, such as by asking local bicycle groups to report all 

collisions, he responded he had not made any formal requests though he had 

encouraged people involved in bicycle crashes to report them. 

Plaintiff also refers to a declaration by his expert, Shakir Shatnawi, 

Ph.D., a civil engineer with training and education in transportation 

engineering. According to Shatnawi, “a municipality that suspects it is 

‘missing data’ that would help to prioritize repairing or repaving a bikeway 

like Skyline [citation] should take steps [to] verify that its data are complete 
18

or obtain additional data. At a minimum, a City employee who suspects that 

data are missing should report that concern to his or her supervisor so that 

appropriate steps can be taken to address it, like conducting inspections. 

Ignoring the fact that data are missing increases the risk of harm to road

users (motorists, bicyclists, etc.), because it delays repairing or repaving the 

road. The longer that a pavement defect exists, the more dangerous it 

becomes.” 

The evidence that a city employee suspected underreporting of data

concerning falls or collisions based on his personal observations does not 

constitute evidence that data material to the issue of gross negligence 

actually existed. Plaintiff’s theory is at best speculative and does not create a 

triable issue as to whether defendant’s conduct marked an extreme departure 

from the ordinary standard of conduct or whether it substantially or 

unreasonably increased the inherent risk of an activity or actively concealed 

a known risk. (See Anderson, supra, 4 Cal.App.5th at p. 881.)

Plaintiff also points to portions of Shatnawi’s declarations opining that

the pavement in the area of plaintiff’s incident was in “major structural 

distress and had failed”; the City knew or should have known there was a 

risk of potholes on such a road and a high risk such potholes would present a 

dangerous condition to bicyclists on Skyline; City personnel patched a pothole 

in the area in September 2015; and at a minimum the City should have 

returned to the area to inspect it regularly. Shatnawi also asserted that

“ ‘alligator cracking’ ”—which is “a series of interconnecting cracks caused by 

fatigue failure of the asphalt concrete surface under repeated traffic 

loading”—is considered “ ‘a major structural distress’ ” and that potholes 

generally “ ‘are recorded as high severity alligator cracking.’ ” 
19

Plaintiff fails to explain how this evidence supports a triable claim of 

gross negligence. Shatnawi appears to say that whenever a street shows 

signs of alligator cracking or there is a risk of potholes forming, a city should 

inspect it regularly. But “conduct demonstrating the failure to guard against, 

or warn of, a dangerous condition typically does not rise to the level of gross 

negligence.” (Anderson, supra, 4 Cal.App.5th at p. 881.) Here, Shatnawi

offered no basis for a conclusion that defendant’s conduct exceeded such 

ordinary negligence. Indeed, defendant’s evidence established without 

contradiction that predicting the development of potholes from existing 

cracking cannot be done reliably, and that defendant had never received any 

complaint or notification of the pothole at issue. 

Finally, plaintiff argues there was evidence that defendant “increased 

the risk of harm by misclassifying defects on Skyline.” For this he cites to the 

portion of Kenneth Patton’s declaration explaining that service requests for 

reports of potholes or defects in bicycle lanes are always assigned “priority 1” 

(the most urgent priority for repair), while potholes or other defects in bicycle 

routes are assigned a “priority 2”; and that priority 1 potholes are repaired 

within 1 to 5 days, while priority 2 repairs are made within weeks. During 

his deposition, Patton reviewed various service requests for potholes or 

defects on Skyline Boulevard dating back to 2009. He could not explain why 

“priority 3” (the least urgent priority for repair) was assigned to some of these 

service requests, which indicated potential errors in the priority assignment 

or perhaps initial misdescriptions of the issue.

That mistakes may have been made in prioritizing service requests

does not assist plaintiff’s case. The evidence of misprioritization concerned a 

mere handful of service requests, some of which were made many years 

before the incident in question. Such evidence falls far short of establishing a 
20

triable issue that defendant’s conduct reflected an extreme departure from 

the ordinary standard of conduct. Moreover, there is no evidence that these 

select mistakes substantially or unreasonably increased the inherent risk of 

the cycling activity at issue.

In sum, the trial court correctly granted summary judgment based on 

the release. In light of this conclusion, we need not and do not address the 

dispute between the parties as to whether the doctrine of primary 

assumption of risk forecloses plaintiff’s claim.

DISPOSITION

The judgment is affirmed. Defendant is entitled to costs on appeal. 

(Cal. Rules of Court, rule 8.278.)

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Petrou, J.

Whitehead v. City of Oakland (A164483)