Daily Blast December 31, 2012

Here is a new California Supreme Court case that was filed on New Years Eve while no one was looking. On December 31, 2012, the California Supreme Court issued an opinion in Nalwa v. Cedar Fair, L.P. (December 31, 2012, S195031) ____ Cal.4th ____, analyzing whether the primary assumption of the risk doctrine, which is most frequently applied to sports, also applies to other recreational activities including bumper car rides. (Slip opn., p. 1.) The Supreme Court held that “the primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.” (Id. at p. 7.)

Plaintiff fractured her wrist on a bumper car ride and sued the amusement park owner for negligence in not configuring or operating the ride so as to prevent her injury. (Slip opn., p. 1.) The trial court granted summary judgment for defendant based on the primary assumption of the risk doctrine, which provides that participants and operators of certain activities have no duty of ordinary care to protect other participants from risks inherent in the activity. (Ibid.) The Court of Appeal reversed holding that the public policy of promoting safety at amusement parks precluded application of the doctrine and reasoning that a bumper car ride is not a sport. (Id. at pp. 1-3.) 

The Supreme Court disagreed, explaining that the policy behind the primary assumption of the risk doctrine is “to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities.” (Slip opn., p. 8.) The concern is that imposition of a legal duty “would work a basic alteration—or cause abandonment” of the activity. (Ibid.) According to the court, this policy applies to injuries from physical recreation, whether in sports or nonsport activities. (Ibid.) The court then held that the “defendant’s limited duty of care under the primary assumption of the risk doctrine—the duty not to unreasonably increase the risk of injury over and above that inherent in the low-speed collisions essential to bumper car rides—did not extend to preventing head-on collisions between the cars.” (Id. at p. 2.) Indeed, low-speed collisions between the cars are inherent in and in fact the whole point of a bumper car ride.  (Id. at p. 9.)  Further, the court rejected plaintiff’s argument that the existence of government safety regulations for amusement park rides exempted such rides from the primary assumption of the risk doctrine.  (Id. at p. 13.)  The court reasoned that perfect immunity from all risks of even minor injury is not the goal of the amusement park rider and the state regulations do not guarantee a complete absence of risk.  (Ibid.)  Finally, the court explained that the rationale for holding an operator of a roller coaster to the duties of a common carrier for reward does not apply to bumper car riders since bumper car riders do not surrender their freedom of movement and actions. (Id. at p. 15.) Accordingly, plaintiff’s negligence, willful misconduct, and common carrier liability causes of action failed as a matter of law. (Id. at p. 18.)

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