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California Supreme Court Bumps Lawsuit – Holds Primary Assumption of Risk Doctrine Applicable to Amusement Park Ride

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On December 31, 2012, the Supreme Court of California reversed an appellate court’s holding that the doctrine of assumption of risk did not apply to plaintiffs injured on amusement park rides. Nalwa v. Cedar Fair, L.P., __ P.3d __, No. S195031, 2012 WL 6734705 (Cal. Sup. Ct., Dec. 31, 2012).

Plaintiff was riding in a bumper car driven by her nine-year-old son at Great America amusement park when the car was (as is common on such rides) involved in a head-on collision with another participant. Plaintiff, who sustained a broken wrist when she braced herself against the “car’s” dashboard, commenced an action for negligence, strict products liability, willful misconduct, and common carrier liability.

The trial court granted summary judgment on the basis of the primary assumption of the risk doctrine, in which operators of certain activities have no duty of ordinary care to protect participants from the inherent risks of those activities. Under the doctrine of primary assumption of risk, instructors and participants in a recreational activity owe only a duty to other participants to increase the risk already inherent in the activity. The California Court of Appeal reversed, holding that the doctrine did not apply to bumper car rides, as riding bumper cars was not a “sport” which would enjoy the limited duty afforded by the doctrine.

The Supreme Court of California noted that most cases employing the primary assumption of risk doctrine involved sports, but held that the doctrine would not necessarily be limited to activities considered sports, but to recreational activities “involving an inherent risk of injury to participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.” The Court noted that the primary assumption of risk doctrine served the public policy function of protecting operators and sponsorship of recreational activities, and preventing the “chilling” of participation in recreational activities, as imposing a higher duty on participants would fundamentally alter – or cause operators to abandon – such activities. In the Court’s analysis, imposing a higher duty on the amusement park would cause other amusement parks to either stop allowing bumper cars or by fundamentally altering them to such a degree (such as lowering their speed), that “the fun of bumping would be eliminated . . .”

The Court further held that the existence of safety regulations governing amusement park rides did not exempt the amusement park from the primary assumption of risk doctrine. Finally, the Court held that the bumper car ride was not a “common carrier for reward,” as other amusement park rides, such as roller coasters, have been held. Finding the bumper car ride to be a common carrier for the reward would have vitiated the limited duty provided by the limited assumption of the risk doctrine. The Court found bumper car rides, however, different from roller coasters, as drivers of bumper cars control the movement of the ride, as opposed to roller coaster riders, who “surrender themselves to the care and custody of the operator.”

A dissenting opinion argued that, by applying the limited duty afforded under the primary assumption of risk doctrine to a non-sport recreational activity, the majority had radically expanded existing California law, and that trial judge would now be forced to engage in the difficult task of weighing the relative risks inherent in innumerable activities now subjected only to the limited duty.

A copy of the decision may be obtained here.