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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. California does not recognize any cause of action for “gross negligence” unless such an action is directly, or at least implicitly, authorized by one of the numerous statutes that employ gross negligence as the applicable standard. App.3d 322, 328-30 (1987) (“we conclude that no defensible reason exists for categorizing wilful [sic] and wanton misconduct as a different kind of negligence not suitable for comparison with any other kind of negligence . The procedural element focuses on two factors: "oppression" and "surprise." Oppression" arises from an inequality of bargaining power which results in no real negotiation and "an absence of meaningful choice." "Surprise" involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms.Characteristically, the form contract is drafted by the party with the superior bargaining position.Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics.
App.4th at 234 (“It is now settled—and in full accord with the language of the [Cal. Code § 1668] — that notwithstanding its different treatment of ordinary negligence, under section 1668, ‘a party [cannot] contract away liability for his fraudulent or intentional acts or for his negligent violations of statutory law,’ regardless of whether the public interest is affected”). App.4th 224, 243 (2003) (“The present view is that a contract exempting from liability for ordinary negligence is valid where no public interest is involved ... 569; , 60 Cal.2d 92, 96 (1963) (finding that a contract between a hospital and an entering patient affects the public interest, the supreme court thereupon invalidated a clause in a hospital admission form that released the hospital from liability for any negligence of its employees) (“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”).
and no statute expressly prohibits it”), citing 1 Witkin, Summary of Cal. In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid.
An exculpatory clause is a provision that relieves one party of liability altogether for the specified damages.
Below is a summary of the law in California with respect to some common subjects of exculpatory clauses and limitations of liability.§ 1668 (“All contracts which have for their object, directly or indirectly, to exempt any one 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”); , 113 Cal.
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.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. we have not found any case addressing a limitation on liability for intentional wrongs, gross negligence or violations of the law”) (emphasis in original).