By Leticia R. Halas
The first time you try yoga, you will not be able to walk afterwards. After a paintball battle, you will get colorful bruises over your entire body. If you don’t know how to swim, you will probably drown. It is not rocket science. If you go to an amusement park and ride the bumper cards, there will be bumping.
On December 31, 2012, the California Supreme Court held that the primary assumption of risk doctrine as a defense is applicable to all recreational activities, not just sports. The doctrine completely bars a plaintiffs’ recovery when the plaintiff knew or should have known of an activity’s potential danger.
The plaintiff in this case, Dr. Smriti Nalwa, went to California’s Great America Amusement park in mid 2005 with her two children. All three went on the Rue le Dodge bumper car ride. The doctor sat in the passenger’s seat and let her nine year old son be the driver. Her six year old daughter drove solo. Each car was equipped with padding and safety seatbelts. The speed and direction was controlled by the driver. The ride was serviced and inspected regularly, and on the day of the occurrence, the ride was operating normally. Towards the end of the ride, the doctor’s car got bumped from behind and then from the front. She put her arm on the dashboard to brace herself and suffered a wrist fracture as a result. Dr. Nalwa then sued the theme park claiming that it was responsible for her injuries. The lower court granted summary judgment in favor of the park on the primary assumption of risk doctrine. Dr. Nalwa appealed and the Appeals Court sided with her, holding that the primary of assumption risk doctrine only applied to sports and bumper car riding is not a sport. Great America then petitioned the case for review and the California Supreme Court agreed to hear the case. So, seems like a rather expensive and time consuming way to rectify a wrist fracture. Don’t doctors have pretty good health insurance?
In reaching its decision the Supreme Court considered earlier cases where the primary assumption of risk defense applied. The first was in Knight v. Jewett (1992) 3 Cal.4th 296. which included a game of touch football where injuries occurred in “sports like” setting. The court also refused to impose tort liability in Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148. for a pitch that hits the batter because it would discourage the pitcher to throw inside. Again in Dilger v. Moyles (1997) 54 Cal.App.4th 1452, the court explained that holding golfers liable for wayward hits would deter people from playing the game. All this sounds like perfect common sense. If you choose to play the game and understand that the game comes with inherent risks, then you know that stuff happens. If golfers feared being sued every time they teed up to hit the ball, then nobody would ever leave the putting green.
Lets back up a bit. Why does any of this matter?
The Supreme Court’s decision in Nalwa is significant because it recognizes that imposing liability on those who operate or supervise inherently risky activities would substantially alter the nature of those activities. That is, without the shield of primary assumption of risk, nobody would be able to enjoy the thrill and excitement of physical recreational activities. Now we can’t go so far as to bar liability for ANY injuries sustained during the course of participation. It is limited to the kinds of injuries that are inherent to that specific sport or recreation. For example, a professional NASCAR driver can expect that the track would be slick while it is raining and skidding out would be an inherent risk of that weather condition. Alternatively, a professional NASCAR driver should not assume the risk that his or her car may be hit by a meteor mid race. Explosions caused by meteor showers are not inherent risks of NASCAR – Although NASCAR would be far more extreme and enjoyable to watch if they were. In this case, we have a mother of a nine year old son who let him drive a bumper car. She admitted that she knew she would get bumped and that the very nature of bumper car rides was to get bumped. Dr, Nalwa even admitted that without the bumping, there would be no bumper cars. So if one was to get hurt while on a bumper car – it would probably be from getting bumped. How does one avoid such injuries? One does not without eliminating the bumping element — an integral part and essential element of the ride.
So what now?
Well this has closed many doors for persons wishing to sue for injuries suffered while participating in recreational activities. In turn, it gives commercial providers of such activities to conduct business as normal without the fear of litigation. And what recreational activities are included? The court explained that primary assumption of risk should apply to recreational activities that are physical in nature. This means that boxing gyms can stay open and we can still spar for fun, ice rinks will still be available for public use and skate parks will remain the hip hang out for adolescents.
The Nalwa decision also has its economic advantages. By reducing the amount of personal injury lawsuits, commercial providers of such activities can reinvest those funds previously spent in litigation into enhancing safety measures and upgrading the facilities. What the primary assumption of risk doctrine does not cover is defendant liability for increased harm. So, if providers of such recreation have more money to spend on safety measures and upgrades, it would be difficult impose liability for increased harm when the action taken was to reduce potential harm.
From here on out, because the case was broad on point, we can expect to see two primary questions that will be litigated in this area. First, what is a physical recreational activity and what is a non-physical recreational activity? Second, was the injury suffered an inherent risk of that recreational activity? Can we expect a personal injury lawyer to claim that carpal tunnel is an inherent risk of professional online video gaming? Sure can! Will that claim be successful? Let’s hope not.
