I agree with the majority that the contractual release of liability at issue in this case is unenforceable as to gross negligence, but I reach that conclusion for reasons that differ from the majority’s. The majority relies largely on decisions from other jurisdictions to support a conclusion that releases for gross negligence are inherently and generally against public policy and unenforceable, but that conclusion cannot be reconciled with Civil Code sections 1668 and 2175, as I will explain. In my view, a contractual release of liability for gross negligence, like a contractual release of liability for ordinary negligence, must be examined in its specific context to determine whether it is against public policy. In performing that contextual public policy analysis, I rely on the factors that this court identified in Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.Rptr. 33, 383 P.2d 441] (Tunkl).
I
The City of Santa Barbara (the City) runs a summer camp, called Adventure Camp, for children with developmental disabilities. Katie Janeway, who suffered from epilepsy, mild cerebral palsy, and other disabilities, started going to the camp in 1999, and she returned every summer until her death in 2002 at the age of 14. The City’s application form for the camp required the child’s parents to release the City and its employees from all liability for any loss or damage on account of injury “whether caused by any negligent act or omission of the releasees or otherwise.” Katie’s mother signed the year 2002 application form containing the release provision.
Katie’s mother told the City’s employees that Katie had seizures and needed supervision while swimming. The City assigned camp counselor Veronica Malong, a college student, to supervise Katie during swimming activities. About an hour before she drowned, Katie had a mild seizure. Malong waited until Katie appeared to be fully recovered before allowing her to swim. There were about 300 children in and around the large, Olympic-size swimming pool, which was staffed with five lifeguards. Katie wanted to use the diving board. That area of the pool was roped off so only one child would be in the water at a time. Katie dove once without problem. After a 10-minute rest, Katie dove a second time. Malong saw her come to the surface and begin swimming toward the side of the pool. Malong then looked away for no more than 15 seconds, and when she looked back she could not see Katie. Malong immediately walked to the deep end of the pool to look for Katie and asked another counselor who was swimming toward the diving board if he had seen Katie. Malong then got into the pool and swam to the shallow end and then back to the middle of the pool, searching for Katie. The lifeguard assigned to watch the diving area finally saw Katie on the bottom of the pool, where she had been for about five minutes. She was taken to a hospital and died the next day.
*783Katie’s parents sued the City and Malong for wrongful death, alleging negligence. Defendants moved for summary judgment, relying on the contractual release in the application form. The trial court denied the motion, and defendants petitioned the Court of Appeal for a writ of mandate to reverse that ruling. Denying the petition, the Court of Appeal concluded that under Tunkl, supra, 60 Cal.2d 92, the release was valid and enforceable as to any claim for ordinary negligence, but it also concluded, over the dissent of one justice, that the release was unenforceable as to a claim for gross negligence.
This court granted review on a single issue, the enforceability of the release as to a claim for gross negligence.
II
Civil Code section 1668, which has remained unchanged since its enactment in 1872 as part of the original Civil Code, prohibits contractual releases of liability for “fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent.” Also unchanged since its enactment in 1872 is Civil Code section 2175, which provides: “A common carrier cannot be exonerated, by any agreement made in anticipation thereof, from liability for the gross negligence, fraud, or willful wrong of himself or his servants.” (Italics added.) The wording of Civil Code section 2175 shows that in 1872 the Legislature was well aware of gross negligence as a distinct category of wrong and that it chose to bar any agreement releasing a common carrier from liability for gross negligence. At the very same time, however, the Legislature omitted gross negligence from Civil Code section 1668’s list of wrongful conduct that could never be the subject of a contractual release of liability.
Only one inference may be drawn: The Legislature made a conscious decision that releases for gross negligence—unlike releases for fraud, for willful injury to person or property, and for intentional or negligent violation of statutory law—are not inherently against the public interest and therefore are not generally and categorically unenforceable. In holding that contractual releases of liability for future gross negligence are generally unenforceable (maj. opn., ante, at p. 751), the majority rejects the Legislature’s contrary decision, effectively rewrites Civil Code section 1668 to insert what the Legislature deliberately omitted (a general prohibition on contractual releases of liability for future gross negligence), and in so doing usurps the Legislature’s authority. I do not join in that holding.
in
Of course, the Legislature’s decision, as embodied in the text of Civil Code sections 1668 and 2175, that contractual releases for future gross negligence *784are not inherently against the public interest and therefore are not generally unenforceable, does not mean that such releases are always consistent with the public interest and therefore enforceable. Instead, the validity of a contractual release for future gross negligence must be determined by examining the context in which it occurs. Civil Code section 2175 identifies one context in which releases for future gross negligence are against the public interest and thus invalid—when the party seeking exoneration is a common carrier. Civil Code section 1668 does not preclude courts from determining that releases for gross negligence are against the public interest and invalid in other situations as well.
To determine whether the release at issue here is against the public interest and invalid as applied to gross negligence, I find guidance in this court’s decision in Tunkl, supra, 60 Cal.2d 92. There, this court adopted an analysis to be used in determining whether a contractual release of future negligence claims is against the public interest and therefore unenforceable. We identified six factors or characteristics that “constitute the public interest” and thus provide “a rough outline of that type of transaction in which exculpatory provisions will be held invalid.” (Id. at p. 98.) For an exculpatory provision to be held invalid, the transaction to which it relates need only exhibit some of those characteristics. (Id. at p. 101.) Although this court has never addressed the issue, it seems logical that, because gross negligence is a more aggravated form of misconduct than ordinary negligence, the public interest in deterring gross negligence is greater than the public interest in deterring ordinary negligence. Accordingly, to invalidate a release as to future gross negligence, the public interest showing under the Tunkl analysis need not be as strong or as complete as it would need to be to invalidate a release as to future ordinary negligence.
Under Tunkl, the first characteristic is that the release “concerns a business of a type generally thought suitable for public regulation.” (Tunkl, supra, 60 Cal.2d at p. 98, fn. omitted.) Child daycare facilities are subject to public regulation under the California Child Day Care Facilities Act (Health & Saf. Code, § 1596.70 et seq.). Although Adventure Camp is exempt from regulation as a child daycare facility because it is operated for less than 12 weeks in a 12-month period during a time when local public schools are not in session (id., § 1596.792, subd. (g)(1)), the City cannot deny that through the camp program it does indeed provide childcare services in the course of providing social and recreational activities for young children who are unaccompanied by their parents.1 Accordingly, I conclude that at least insofar as it provides childcare services, the City’s Adventure Camp is engaged in a type of business that is suitable for public regulation.
*785The second characteristic under Tunkl is that “[t]he party seeking exculpation” (here, the City) “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.” (Tunkl, supra, 60 Cal.2d at pp. 98-99, fns. omitted.) Affording opportunities for developmentally disabled children to participate in ordinary recreational activities with other children is a service of great public importance. The Legislature has declared that “developmental disabilities present social, medical, economic, and legal problems of extreme importance” that have “an important impact on . . . whole communities” (Welf. & Inst. Code, § 4501, italics added), that “[t]he State of California accepts a responsibility for persons with developmental disabilities” (ibid.), and that those persons have rights both “to social interaction and participation in community activities” and “to physical exercise and recreational opportunities” (id., § 4502, subds. (f), (g)). Moreover, as I have explained, the City’s program includes childcare services, and childcare itself has vital public importance. (Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 672 [131 Cal.Rptr.2d 168].) Thus, I conclude that, through its recreational program for developmentally disabled children, the City provides services that are of great public importance.
In modem urban society, where both parents often hold full-time employment, many parents lack the time and resources to personally supply a full range of recreational and social opportunities for their children and instead rely on recreational camps and similar organized programs. This is particularly tme for parents of children with developmental disabilities, because of the particular skills and adaptations required in dealing with those disabilities. Thus, recreational programs like Adventure Camp that are designed for developmentally disabled children are a “practical necessity” for parents seeking to provide a full range of ordinary recreational and social opportunities for those children. I conclude that through Adventure Camp the City provides services that are a practical necessity for many parents of developmentally disabled children.
The third Tunkl factor is whether “[t]he 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.” (Tunkl, supra, 60 Cal.2d at p. 99, fn. omitted, italics added.) Here, although the City’s Adventure Camp was limited to 20 participants at a time, the City made it available to any child between the ages of seven and 14 with a qualifying developmental disability. This circumstance is present.
The fourth Tunkl factor is whether “the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks [those] services.” (Tunkl, supra, 60 Cal.2d at p. 100, *786fn. omitted.) This factor is satisfied. Adventure Camp was limited to 20 children at a time, and those spots were always taken. Although the City allowed parents to choose which activities their children would participate in during camp sessions, the City alone determined the conditions for admission to Adventure Camp. Nothing in the record suggests that any parent ever bargained, or could have bargained, with the City concerning the terms of admission to the program.
The fifth Tunkl factor is whether the party seeking exculpation used “a standardized adhesion contract of exculpation” and did not offer the other party an option to “pay additional reasonable fees and obtain protection against negligence.” (Tunkl, supra, 60 Cal.2d at pp. 100-101, fns. omitted.) Here, it is undisputed that the City’s terms of participation, including the release, were offered to parents on a take-it-or-leave-it basis, with no opportunity to obtain protection against gross negligence for an additional fee.
The sixth Tunkl factor is whether “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.” (Tunkl, supra, 60 Cal.2d at p. 101, fn. omitted.) Here, as a result of the transaction in which Katie’s parents enrolled her in the City’s Adventure Camp, Katie was placed under the care and supervision of the City’s employees, subject to a significant risk of serious injury if they acted with gross negligence.
I conclude that each of the Tunkl factors is satisfied, at least to some extent, and that the characteristics of the particular transaction make the City’s contractual release against public policy and unenforceable as to liability for injury caused by gross negligence.2
IV
The City’s Adventure Camp provides recreational and social activities to children with developmental disabilities. Because of the strong public interest in providing children with disabilities with opportunities for ordinary recreational activities and social interactions, it is essential that providers of those opportunities be held to at least a minimal standard of care. Applying a slight variation of the analysis that this court adopted in Tunkl, supra, 60 Cal.2d 92, I conclude that releases for gross negligence are not enforceable in this particular context. On this basis, I join the majority in affirming the Court of Appeal’s judgment.
Moreno, J., concurred.
*787BAXTER, J., Dissenting.In this matter we must determine whether a commonly worded release of future liability for negligence utilized by a public entity in connection with a publicly funded and publicly operated summer recreational program for developmentally disabled youth is enforceable under Civil Code section 1668 (section 1668), the statute defining the lawful parameters of releases in California. I conclude the Legislature has spoken; a full release of negligence liability, as was expressly agreed to by the parties below, is generally valid and enforceable under section 1668.
The majority, in contrast, concludes that all releases of future liability for gross negligence, whether express or implied, are generally unenforceable in California as contrary to the public policy of this state, and that the specific release of future negligence liability utilized by the city in this case, to the extent it implicitly encompasses gross negligence, “violates public policy and is unenforceable.” (Maj. opn., ante, at p. 777.) The majority does not find section 1668 of much consequence in this matter, a position it must take because its conclusions and holding are based on policy determinations not discemable from the controlling statutory language.
I cannot join in the majority’s sweeping holding. As this court long ago observed, “[t]he determination of public policy of states resides, first, with the people as expressed in their Constitution and, second, with the representatives of the people—the state Legislature.” (Jensen v. Traders & General Ins. Co. (1959) 52 Cal.2d 786, 794 [345 P.2d 1].) “ ‘[U]nless it is entirely plain that a contract is violative of sound public policy, a court will never so declare. “The power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and . . . should be exercised only in cases free from doubt.” ’ ” (Ibid.)
The Legislature, not this court, is in the best position to consider the public interests and determine whether good cause exists to amend section 1668 to uncategorically restrict releases of future tort liability to the extent they impliedly encompass a release of gross negligence liability. As regards the release utilized in connection with the public recreational services program for developmentally disabled youth directly in issue, although I acknowledge the general concern that grossly negligent misconduct not go unpunished, the public interests at stake here are far more complex than that one consideration alone. Whether it is in the public interest to restrict the means by which municipalities providing socially beneficial services to the public seek to manage their exposure to the specter of expanding tort liability in connection with the delivery of those services is a matter properly determined by the Legislature. I therefore respectfully dissent.
*788I
Section 1668 provides that contracts having for their object, either directly or indirectly, the exemption of a party from “responsibility for his own fraud, . . . willful injury to the person or property of another, or violation of law,” are “against the policy of the law.” Put otherwise, one cannot lawfully contract away responsibility and future liability for his or her own acts of fraud, willful torts, or transgressions of statutory law. Section 1668, unchanged for 135 years and long understood to govern contractual releases of liability, neither declares nor prohibits releases of future liability for any type of negligence as being against the policy of the law in California.
The Legislature knows how to specifically proscribe the release of future liability for gross negligence when it wants to. It did so when it enacted Civil Code section 2175, which specifically prohibits common carriers from releasing future liability for gross negligence. In contrast, as Justice Kennard explains, “The Legislature made a conscious decision that releases for gross negligence—unlike releases for fraud, for willful injury to person or property, and for intentional or negligent violation of statutory law—are not inherently against the public interest and therefore are not generally and categorically unenforceable. In holding that contractual releases of liability for future gross negligence are generally unenforceable (maj. opn., ante, at p. 751), the majority rejects the Legislature’s contrary decision, effectively rewrites Civil Code section 1668 to insert what the Legislature deliberately omitted (a general prohibition on contractual releases of liability for future gross negligence), and in so doing usurps the Legislature’s authority.” (Cone. & dis. opn. of Kennard, J., ante, at p. 783.)
There is one long-standing caveat to the express limitations placed on releases in section 1668. In Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.Rptr. 33, 383 P.2d 441] (Tunkl), this court construed section 1668 as further precluding enforcement of exculpatory contractual provisions purporting to release a party from future liability for negligence if the transaction or subject matter of the contract in question “affects the public interest.” (60 Cal.2d at p. 94.) We emphasized at the outset in Tunkl that “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. 101, italics added.) But we went on to explain that where the subject matter of a contract affects the public interest, the relative bargaining positions of the parties are not the same as in a private, voluntary transaction. With regard to that category of transactions, “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 *789which 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.” (Ibid.)
Observing that the “social forces” that characterize the “public interest” are “volatile and dynamic,” and that “[n]o definition of the concept of public interest can be contained within the four comers of a formula” (Tunkl, supra, 60 Cal.2d at p. 98), we set forth a nonexclusive six-factor test in Tunkl for determining when a contractual transaction “affects the public interest.” (Id. at pp. 98-101.) If “some or all” of the factors are present, enforcement of an exculpatory clause purporting to release liability for future negligence is prohibited as against the public interest. (Ibid.) The six Tunkl factors are: (1) the transaction “concerns a business of a type generally thought suitable for public regulation” (id. at p. 98, fn. omitted); (2) the party seeking exculpation performs a service “of great importance to the public, which is often a matter of practical necessity for some members of the public” (id. at p. 99, fns. omitted); (3) the service is offered to the public at large (ibid.)-, (4) in the economic setting of the transaction, the party seeking exculpation has a “decisive” bargaining advantage because the service is “essential” (id. at pp. 99-100); (5) the person obtaining the service is required to sign a “standardized adhesion contract of exculpation” (id. at p. 100, fn. omitted); and (6) the person obtaining the service bears the risk of the other party’s carelessness (id. at p. 101).
The facts of Tunkl serve to illustrate the purpose and proper application of the mle announced therein. Hugo Tunkl sought admission to the University of California Los Angeles Medical Center, a hospital operated and maintained by the Regents of the University of California that held itself out to the public as an institution that performs medical services for qualified members of the public. (Tunkl, supra, 60 Cal.2d at pp. 94, 102.) The hospital-patient contract he was required to sign in order to gain admission to the facility included a form releasing “The Regents of the University of California, and the hospital from any and all liability for the negligent or wrongful acts or omissions of its employees, if the hospital has used due care in selecting its employees.” (Id. at p. 94.) We observed: “That the services of the hospital to those members of the public who are in special need of the particular skill of its staff and facilities constitute a practical and crucial necessity [was] hardly open to question.” (Id. at p. 101.) We also cited Health and Safety Code sections directly subjecting the facility to public regulation. (Ibid.) We then explained, “In insisting that the patient accept the provision of waiver in the contract, the hospital certainly exercises a decisive advantage in bargaining. The would-be patient is in no position to reject the proffered agreement, to bargain with the hospital, or in lieu of agreement to find another hospital. 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. *790As a result, we cannot but conclude that the instant agreement manifested the characteristics of the so-called adhesion contract. Finally, when the patient signed the contract, he completely placed himself in the control of the hospital; he subjected himself to the risk of its carelessness.” (Id. at p. 102.)
In consideration of the facts in Tunkl, we had little difficulty concluding that the contractual terms under which Tunkl was admitted to the hospital affected the public interest and rendered the release of negligence liability unenforceable. “[T]he patient . . . sought the services which the hospital offered to a selective portion of the public; the patient, as the price of admission and as a result of his inferior bargaining position, accepted a clause in a contract of adhesion waiving the hospital’s negligence; the patient thereby subjected himself to control of the hospital and the possible infliction of the negligence which he had thus been compelled to waive. The hospital, under such circumstances, occupied a status different than a mere private party; its contract with the patient affected the public interest.” (Tunkl, supra, 60 Cal.2d at p. 102.)
In the case now before us, Katie Janeway, a 14-year-old developmentally disabled child, tragically drowned in a city-owned and -operated swimming pool while participating in a part-time summer recreational activities program for developmentally disabled children while under the supervision of a trained counselor functioning as a city employee. The tragedy is punctuated by the fact that the loss of this child occurred under circumstances where everyone concerned was plainly striving to ensure that Katie might simply enjoy a normal summer day camp experience notwithstanding her developmental disabilities.
A completed application for enrollment in the Adventure Camp program required the execution of a form releasing the city and its employees from all liability “for any loss, damage, or claim therefore on account of injury . . . whether caused by any negligent act or omission of the releasees or otherwise.” Maureen Janeway, Katie’s mother, signed the release on the minor’s behalf. In doing so, she agreed to “assume full responsibility for and risk of bodily injury [and] death” arising from Katie’s participation in the program, and further “expressly agree[d] that the . . . release and waiver, indemnity agreement and assumption of risk are intended to be as broad and inclusive as permitted by California law.” She had signed similar releases covering Katie’s participation in the Adventure Camp program in three prior years.
The express proscriptions of section 1668 are not implicated here— plaintiffs are not alleging any fraud, willful injury, or violation of a statute by the city or its employees. The complaint simply alleges wrongful death on a theory of negligence—gross negligence is not specifically alleged. Defendants moved for summary judgment on the basis of the release, the city *791arguing that Adventure Camp, unlike the hospital in Tunkl, was an elective summer recreational program for disabled children, enrollment in which did not affect the public interest, and that accordingly the release of future negligence liability resulting from injury or death of a camp participant was fully enforceable under section 1668 as interpreted by Tunkl. The trial court denied summary judgment and the city petitioned for a writ of mandate. The Court of Appeal correctly understood the principal issue to be whether the contractual agreement through which Katie was accepted into the Adventure Camp program is of a nature that affects the public interest within the meaning of Tunkl. If not, then the release signed by the minor’s mother on her behalf is fully enforceable under section 1668, as construed in Tunkl, and serves to release the city from future liability for negligence.
Based on analysis of the Tunkl factors, the Court of Appeal concluded that “the release is valid and enforceable as a matter of law to the extent it releases the City and [its employees] from liability for acts of ordinary negligence in the operation of the City’s recreational program for disabled children. Undisputed evidence establishes that the circumstances under which the release was executed by the Janeways did not have the characteristics of a contract of adhesion or pertain to an essential activity that was a matter of practical necessity to them. Therefore, although offering opportunities to disabled children is clearly beneficial to the public, the ‘public interest,’ as that term is used in Tunkl, would not be served by invalidating the release as to ordinary negligence.”
Although the Court of Appeal referred to the enforceable release of “ordinary negligence” in the passage quoted above, it can be observed that no distinction is drawn between ordinary and gross negligence in either (1) the allegations of plaintiffs’ complaint; (2) the express wording of the city’s release of negligence liability here in issue; or (3) this court’s analysis in Tunkl by which we concluded section 1668 must be interpreted as invalidating only contractual releases of future negligence liability that affect the public interest. The Court of Appeal nonetheless found the distinction pivotal to the second part of its analysis. Over the dissent of one justice, the Court of Appeal went on to carve out an exception for gross negligence, concluding that “the release does not exculpate the City or [its employees] from liability for conduct constituting gross negligence .... Public policy and the legitimate objective of the release dictate that we limit the scope of the release to ordinary negligence by the City, and exclude the more extreme and aggravated conduct that constitutes gross negligence.”
We granted review solely to consider the correctness of this specific aspect of the Court of Appeal’s holding, for it was without precedent in California. As the majority acknowledges, until this case, “no published California case *792has upheld, or voided, an agreement purporting to release liability for future gross negligence.” (Maj. opn., ante, at p. 758.)
The majority embraces this holding of first impression by the divided Court of Appeal. It goes much further. The majority does not limit its holding to the question posed on the facts of the case directly before us—whether a full release of future liability for negligence utilized by a public entity in connection with a publicly funded and publicly operated summer recreational program for developmentally disabled youth is enforceable under section 1668 as construed in Tunkl. It concludes instead that all releases of future liability for gross negligence, whether express or implied, are generally unenforceable in California as contrary to the public policy of this state, and specifically holds that the broad release of future negligence liability utilized by the city in this case, to the extent it implicitly encompasses gross negligence, “violates public policy and is unenforceable.” (Maj. opn., ante, at p. 777.) The majority’s conclusions and holding are not limited to releases of future negligence liability made in the specific context of sports or recreational activities. They rest on a broader policy concern—the general concern that aggravated wrongs or grossly negligent misconduct not go unpunished—and presumably apply to implied as well as express releases of liability for gross negligence (here the release is silent as to gross negligence), and to public and private transactions alike, regardless of whether they affect the public interest within the meaning of TunkFs interpretation of section 1668.
Unlike the majority, I conclude the city’s release of liability for “any negligent act or omission” leading to injury or death in connection with the operation of its recreational Adventure Camp program for developmentally disabled youth is valid and fully enforceable under section 1668 as interpreted in Tunkl.
California courts have uniformly held that Tunkl does not invalidate releases of future liability for negligent infliction of injuries in the context of sports and recreational activities on the reasoning that, although beneficial, such activities are generally not services essential to the public and thus do not affect the public interest. (See, e.g., Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 739 [93 Cal.Rptr.2d 169] [release of liability in connection with health club/gym membership]; Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 162 [21 Cal.Rptr.2d 245] (Randas) [release of liability in connection with YMCA swimming program]; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462, 1467 [231 Cal.Rptr. 429] [release of liability in connection with nonprofit-sponsored bicycle race].) Accordingly, to require a party to sign an exculpatory release as a condition of participation lacks the compulsion typically found in a contract of adhesion and would not impair the public *793interest or violate public policy. (See YMCA of Metropolitan Los Angeles v. Superior Court (1997) 55 Cal.App.4th 22, 26 [63 Cal.Rptr.2d 612]; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372 [59 Cal.Rptr.2d 813].)
As the Court of Appeal below observed, releases have been enforced not only for high-risk sports activities, but for less risky recreation, and in particular, where the recreational activity was directed at or included participation by children. (See, e.g., Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253 [128 Cal.Rptr.2d 885] [parents’ release of liability on behalf of eight-year-old child participating in skiing school]; Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559 [274 Cal.Rptr. 647] (Hohe) [parents’ and teenager’s release of liability in connection with her participation in school hypnosis demonstration].) Swimming and diving are two of the recreational activities offered to developmentally disabled children through Adventure Camp, when authorized by the child’s parents or legal guardian. Katie was swimming and diving in the city pool with the express knowledge and written consent of her mother when her fatal accident occurred.
Our decision in Tunkl directs courts in this state to determine the validity of releases of future negligence liability on a case-by-case basis, with emphasis on whether the type of service being offered is essential to the public, and whether a disparity of bargaining power compels the party obtaining the service to sign the release as a contract of adhesion. (Tunkl, supra, 60 Cal.2d at pp. 99-100; see also YMCA of Metropolitan Los Angeles v. Superior Court, supra, 55 Cal.App.4th at p. 26.)
The first Tunkl factor is whether the release in question concerns “a business of a type generally thought suitable for public regulation.” (Tunkl, supra, 60 Cal.2d at p. 98, fn. omitted.) Child daycare facilities are subject to public regulation under the California Child Day Care Facilities Act. (See Health & Saf. Code, § 1596.70 et seq.) Adventure Camp, however, is exempt from regulation as a child daycare facility because it is operated for less than 12 weeks in a 12-month period during a time when local public schools are not in session. {Id., § 1596.792, subd. (g)(1).) Nor is the program subject to regulation under the Lanterman Developmental Disabilities Services Act. (Welf. & Inst. Code, § 4500 et seq.)1 Unlike the facts of Tunkl, which involved a public hospital subject to direct public regulation under the Health and Safety Code, plaintiffs here identify no other statute or regulation to support a finding that the first Tunkl factor applies.
*794The second Tunkl factor is that the party seeking exculpation (here, the city) “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.” (Tunkl, supra, 60 Cal.2d at pp. 98-99, fns. omitted.) In its briefing before this court, the city “does not question that its various recreational services programs confer an important benefit on the public and that it is important that people with all kinds of disabilities have an equal opportunity to participate in these recreational services and programs.” But the city points out that the program here in question was designed to offer the same kinds of recreational services to developmentally disabled children as the city offered to nondevelopmentally disabled children. As the city explains, “[it] was not designed to offer—and did not offer—therapy or any other special service for children with special needs.” As already observed, courts in this state have uniformly held that Tunkl does not invalidate releases of negligence liability for injuries arising from sports and recreational activities on the reasoning that, although beneficial, such activities are generally not services essential to the public and thus do not affect the public interest. (Ante, at p. 791.) Indeed, no reported California case until this one has made an exception for an implied release of gross negligence in any context, whether involving sports or recreational activities or otherwise.
Nor do plaintiffs point to any California decision or statute declaring that recreational activities for the developmentally disabled are essential or a matter of practical necessity within the meaning of the second Tunkl factor. The Adventure Camp program was offered for only three weeks in the summer of 2002, and then only for a period of 15 hours per week. There has been no showing that Adventure Camp was the only program of its kind available to accommodate the recreational needs of developmentally disabled children in the Santa Barbara vicinity, and indeed, as the city points out, Katie, either with the assistance of her parents or other adults trained to attend to her special needs, could have gone swimming in this city-owned and -operated public swimming pool even without enrolling in the camp program.
The third Tunkl factor is whether “[t]he 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.” (Tunkl, supra, 60 Cal.2d at p. 99, fn. omitted.) Here, although the city’s Adventure Camp program was technically available to any child between the ages of seven and 14 with a qualifying developmental disability, as a practical matter enrollment was limited to 20 participants at a time.
The fourth Tunkl factor is whether “the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the *795public who seeks [those] services.” (Tunkl, supra, 60 Cal.2d at p. 100, fn. omitted.) Although the city determined the basic conditions for enrollment in the camp program, it allowed parents to exclude activities in which they did not want their children participating during the camp sessions. The record further reflects that Katie’s parents were offered the opportunity to require her to wear a flotation device at all times while swimming in the pool during camp. They felt she was a strong swimmer and declined. The city also indicates evidence was presented below “showing Katie participated in numerous recreational activities outside of Adventure Camp, including physical education at school, Special Olympics volleyball and basketball, horseback riding, and water sports such as swimming, diving, tubing and water skiing.”
The fifth Tunkl factor is whether the party seeking exculpation used “a standardized adhesion contract of exculpation” and did not offer the other party an option to “pay additional reasonable fees and obtain protection against negligence.” (Tunkl, supra, 60 Cal.2d at pp. 100-101, fns. omitted.) Here, the city has conceded that the Adventure Camp release was a standard form release utilized for various city-run recreational programs, and was indeed offered on a take-it-or-leave-it basis. But according to the city, the activities to which the release applied were negotiable, and Katie’s parents could have also modified her activities while in the pool to minimize any risks. The Janeways had the option of customizing Katie’s camp experience by substituting other activities for pool time. They could have restricted or prohibited her swimming altogether, or given special instructions for that activity, or checked the box on the form requiring that she use a flotation device at all times, and they also had the option of sending Katie to camp along with a personal aide of their own choosing, or to attend camp along with Katie and supervise her themselves.
The sixth and final Tunkl factor is whether “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.” (Tunkl, supra, 60 Cal.2d at p. 101, fn. omitted.) As the city explains, “[Although Katie was admittedly placed under the control of the City when she participated in Adventure Camp, as has been shown, plaintiffs had many options for avoiding any risk of carelessness by the City—and could have retained full control over Katie by attending Adventure Camp with her.”
In sum, Adventure Camp provides elective and nonessential recreational opportunities for developmentally disabled youth on a part-time basis in a summer day camp setting. Moreover, unlike the release in Tunkl, which the patient had to sign on a take-it-or-leave-it basis in order to be admitted into the hospital for critical medical treatment, here the application and release *796required to be completed for enrollment of a child in the elective recreational program have none of the usual attributes of a contract of adhesion. The Janeways ultimately retained control over whether Katie would swim in the pool as one of her camp activities, and whether she would be required to wear a flotation device at all times if she did so. They authorized her to swim and to dive, and opted not to require her to wear a flotation device when in the pool participating in those activities. The city, on its part, chose to assign a trained counselor specifically to keep close watch over Katie while she was swimming or diving in the pool.
Although the importance of integrating developmental^ disabled children into mainstream society through programs like Adventure Camp cannot be overstated, elective participation in this particular recreational camp program did not affect the public interest within the meaning of our analysis and holding in Tunkl. Nothing else in section 1668, the controlling statutory provision, proscribes the full release of negligence liability utilized by the City in this case. As a general matter, in the absence of fraud, overreaching or excusable neglect, a duly executed release of liability is a lawful “express assumption of the risk.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597, fn. 6 [250 Cal.Rptr. 299]; see Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 339 [214 Cal.Rptr. 194].) “ 1 “In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. [Fn. omitted.] . . . The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” (Prosser & Keeton, Torts (5th ed. 1984) § 68, pp. 480-481, italics in original.)’ [Citation.]” (Madison v. Superior Court, supra, 203 Cal.App.3d at p. 597.) The Janeways, like countless parents of children participating in recreational activities posing some level of inherent risk, were asked to give up their right to sue for negligence. There is no evidence establishing that the release in this case, which expressly covered “any negligent act or omission,” fell outside then-reasonable expectations, or was unduly oppressive or unconscionable.
I would therefore hold the release valid and fully enforceable under section 1668 and Tunkl, and stop there. Like Justice Kennard, I conclude the majority inappropriately relies on decisions from other jurisdictions in support of its broad holding that public policy generally precludes enforcement of releases of future liability for gross negligence. (Maj. opn., ante, at p. 777.) That broader question should not be reached on the facts of this case, which does not involve a contractual release of negligence liability affecting the public interest within the meaning of Tunkl, and which does not involve a release of liability otherwise falling under the express proscriptions of section 1668. Given that controlling statute, which, even as construed in Tunkl, does not *797expressly prohibit the release of future liability for negligence in the context in which it was utilized here, the broader question considered by the majority is one more appropriately addressed to the Legislature rather than decided by this court.
There are competing public policies at play here. One such policy, relied on by the majority to the exclusion of all others, is the general concern that grossly negligent misconduct not go unpunished. But enforcement of broad releases of negligence liability utilized by cities or other public agencies in the youth recreational services setting may further the public interest by enabling municipalities to deliver affordable recreational services to children with developmental disabilities under the same terms as they provide such services to other children. As several courts have observed, “ ‘[T]he public as a whole receives the benefit of such waivers so that groups such as Boy and Girl Scouts, Little League, and parent-teacher associations are able to continue without the risks and sometimes overwhelming costs of litigation. Thousands of children benefit from the availability of recreational and sports activities. Those options are steadily decreasing—victims of decreasing financial and tax support for other than the bare essentials of an education. Every learning experience involves risk. ... No public policy forbids the shifting of that burden.’ ” (Randas, supra, 17 Cal.App.4th at p. 162, quoting Hohe, supra, 224 Cal.App.3d at p. 1564.)
The Legislature, unlike this court, has the resources and is in the best position to balance the interests of the public at large and all persons specifically interested in the availability of publicly funded recreational services programs for disabled youth. The paramount concern here is to ensure that the law of releases of liability, as applied to this case, preserves and advances the public’s best interests. It goes without saying that a fundamental concern in the public’s interest is the continued viability of such socially beneficial programs in these fiscally strapped times. The City Attorney of Santa Barbara, as a party to the case, and the League of California Cities and the California State Association of Counties, as amici curiae, suggest that the unavailability to public entities of broadly worded releases of negligence liability such as was utilized in this case could stand to compromise the availability of publicly funded and publicly administered recreational services programs such as this one. Whether it will ultimately serve the public interest to restrict the means by which municipalities providing socially beneficial services to the public seek to limit their exposure to expanding tort liability in connection with such programs is a matter properly determined by the Legislature. The answer, for example, may turn on whether insurance or the ability to self-insure will remain available and cost effective in the face of a change in the law restricting the scope of releases available to public entities offering programs such as this one. Unlike the majority, I believe the public interests at stake here are far more complex *798than the general concern that grossly negligent misconduct not go unpunished. The Legislature, not this court, is in the best position to sort them out and determine whether good cause exists to enact the formidable revision of the law of releases which the majority adopts by judicial fiat today.
II
I conclude section 1668 and Tunkl together control this case and dictate that the release in question be found valid and enforceable. Any further change in the law of releases of tort liability generally, or the law pertaining to releases of negligence liability by public entities in connection with publicly administered recreational services programs specifically, should come from the Legislature.
The City allows parents to accompany their children to camp, but it does not require that they do so. The analysis here is limited to children not accompanied by parents.
I neither express nor imply any view concerning any other issue. In particular, I do not address whether the release is enforceable as to ordinary negligence or whether the evidence presented on the motion for summary judgment would be sufficient to establish gross negligence by either defendant.
The Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4500 et seq.) expresses legislative goals of integrating individuals with developmental disabilities into mainstream life, and ensuring that such individuals are accorded the same rights as others to participate in recreational and other programs that receive state funds. (Welf. & Inst. Code, §§ 4501, 4502.) Adventure Camp is exempt from direct regulation under the act.