Wow. Wow. Wow.
I'm not easily impressed. But: Wow.
I don't think that I've ever -- and I really mean ever -- read a more scholarly and impressive opinion by Chief Justice George than this one. It's an absolute tour de force. I wouldn't have written an opinion that was half as good. Or, most likely, even a quarter.
The question is whether prospective releases of gross (as opposed to ordinary) negligence are void against public policy. The majority (of four) says "Yes". Justice Kennard and Moreno say "Sometimes," and Justice Baxter (in dissent) says "No." It's an important issue, and one that affects -- at least potentially -- almost every single resident of California. When, for example, you sign those ubiquitous forms (often, adhesion contracts) that say "I hereby waive any claims of ordinary or gross negligence in order to" (A) participate in sports, (B) attend a ballpark, (C) swim in a lake, or -- seemingly -- (D) breathe, are those waivers enforceable if the defendant subsequently injures you as a result of gross negligence? (We know, at least in California, that they are effective as against ordinary negligence, and not effective as against intentional torts, but what about the situations in the middle? Well, now we know.)
This opinion harkens back to the days of Chief Justice Traynor -- viewed by many as one of the greatest legal talents never to sit on the United States Supreme Court -- and is similarly scholarly, progressive, empirical, and informed. Chief Justice George clearly put a massive amount of work into this 38-page opinion. It is, in my view, an attempt to establish a torts legacy similar to -- albeit overshadowed by -- Traynor. Perhaps not entirely in result, as Traynor and George would assuredly disagree on a number of points -- but rather in rigor, intellect, method and style.
One more time: Wow. This is not what I expected to see when I read the first couple of paragraphs. I'm impressed. And humbled. And wowed.
