By Jill Haley Penwarden
On October 3, 2012, the California Supreme Court heard argument on the question of whether a passenger on a bumper car ride assumes the risk of all injuries resulting from being bumped while on a bumper car ride. (Nalwa v. Cedar Fair, LP, review granted August 31, 2011, California Supreme Court Case No. S195031).
Under California’s assumption of risk doctrine, a defendant owes no duty to protect a plaintiff from risks inherent in a sport or activity in which the plaintiff voluntarily engages. Instead, the defendant’s duty is not to increase the risks to a participant over and above those inherent in the activity. (Knight v. Jewett (1992) 3 Cal.4th 296, 316.)
In the Nalwa case, the California Supreme Court will decide whether this doctrine should apply to “recreational activities” beyond the traditional active sports to which it has been applied (such as touch football, baseball, and competitive swimming), and what duty a recreational provider has (if any) to mitigate the inherent risks of an activity.
The Nalwa case is significant because it is the first California Supreme Court case that will directly address the availability of the assumption of risk defense to a sports or recreation facility operator. (Prior California Supreme Court cases have involved coaches or co-participants in an activity.) The Nalwa opinion may impact the ability of facility operators such as golf courses and ski resorts to defend liability claims of injured patrons.
Dr. Nalwa’s Bumper Car Injury
Dr. Smriti Nalwa, a surgeon, was injured at Great America Amusement Park in Santa Clara, California while riding as a passenger in a bumper car operated by her ten-year-old son. Dr. Nalwa’s bumper car was hit head-on, then immediately hit again from behind. When she reached out to brace herself, she fractured her wrist.
Defendant Cedar Fair owned and operated Great America and four other amusement parks, and allegedly knew that single-direction bumper car travel reduced the number of head-on collisions. At its other four parks, Cedar Fair required the bumper cars to travel in one direction only, and Great America’s rules similarly prohibited head-on collisions. Great America, however, did not post any notice of this rule, although it did post warnings about the possibility of bumping other cars and sudden movement and direction changes.
The Trial Court Held that Plaintiff Could Not Sue for Her Injuries
Dr. Nalwa sued ride operator Cedar Fair for her injuries. The trial court granted summary judgment in favor of Cedar Fair, finding that Cedar Fair had a complete defense to plaintiff’s claims under California’s doctrine of assumption of risk. The trial court reasoned that because bumping was an inherent risk of a bumper car ride, Cedar Fair had no duty to protect Dr. Nalwa from those risks.
The Court of Appeal Held that Assumption of Risk is Not Applicable to Amusement Park Rides
California’s Sixth District Court of Appeal, however, reversed the trial court’s judgment for Cedar Fair, holding that as a matter of public policy the assumption of risk doctrine should not apply to an amusement park ride. (Nalwa v. Cedar Fair, LP (2011) 196 Cal.App.4th 566, 576-578).
The Court of Appeal noted that patrons do not go to amusement parks expecting to be injured; they seek the “illusion of danger while being assured of a ride’s actual safety.” This “thrilling-while-safe” illusion, the court held, is maintained by a regulatory scheme governing amusement parks administered by California’s Department of Occupational Safety and Health. The court found that the very existence of the regulations evidenced a public policy which bars the application of primary assumption of risk to amusement park rides. (There was no evidence that Cedar Fair actually violated any applicable regulations).
The Court of Appeal also held that amusement park rides are not the type of sport or activity that are subject to the application of primary assumption of risk; because riding in a bumper car does not require any physical exertion, skill, or physical prowess, the court found that the activity was “too benign” to be considered a sport, and as a result primary assumption of risk did not apply.
The California Supreme Court Is Considering the Scope of the Assumption of Risk Defense
Following the appellate court decision in favor of Dr. Nalwa, the California Supreme Court granted Cedar Fair’s petition for review. (Nalwa v. Cedar Fair, LP (2011) 258 P.3d 793). After briefing by the parties, the Court heard oral argument on October 3, 2012.
Much of the attorneys’ argument, and the Justices’ questions, were focused on the issue of whether assumption of risk applies only to “active sports,” or to any recreational activity with a potential risk of injury. Chief Justice Cantil-Sakauye pointed out that in Knight v. Jewett (1992) 3 Cal.4th 296, the leading case on assumption of risk, the California Supreme Court left open the possibility that assumption of risk could apply to both types of activity. The Chief Justice also pointed out that a number of things, such as the presence of interior padding, a seatbelt, and a large rubber bumper gave the participant clues as to the potential risks of bumper cars. Justice Corrigan asked about whether a risk must be obvious to be considered “inherent,” and Cedar Fair’s attorney argued that the risk should be either apparent or discoverable to the participant. In response to a question by Justice Baxter, Cedar Fair’s attorneys explained that in their view, the risk of an equipment malfunction or an electric shock would not be a risk assumed by the participant, because those risks were not inherent to the activity and also were within the complete control of the operator.
Justice Liu asked what kind of injury resulting from bumping would give rise to a lawsuit; Cedar Fair’s attorneys argued that no bumping-related injury would prevent the application of primary assumption of risk, because bumping is an inherent risk of the ride.
Nalwa’s attorney, on the other hand, argued that head-on collisions between bumper cars were not an inherent risk because they could be prohibited and in fact had been prohibited at Cedar Fair’s other bumper car ride locations. Justice Corrigan pointed out that in Avila v. Citrus Community College District (2006) 38 Cal.4th 148, the Court applied the doctrine of primary assumption of risk to bar a claim by a batter hit by a pitch and observed that “brushing back” a batter with an inside pitch, while against the rules of baseball, is still common in the sport. Justice Corrigan questioned whether this was not the same situation. Nalwa’s attorney responded that Cedar Fair had a “special knowledge” that head-on collisions increased the risk of injury, because it required one-directional travel of the cars at other rides. (He conceded, however, that there was no evidence in the record supporting the argument that there is a higher risk of injury from head-on collisions). Justice Baxter asked whether assumption of risk would apply to same-direction collisions; Nalwa’s attorney argued that the Court should rule that primary assumption of risk is never applicable to amusement park rides, because the operator controls aspects of the ride. Justice Werdegar pointed out that a participant has much more control over a bumper car than, for example, a roller coaster.
A second area of argument concerned whether a recreation provider has a duty to minimize the risks of an activity, or simply a duty not to affirmatively increase the risks. Cedar Fair’s attorneys argued that a recreation provider has no duty to minimize inherent risks under current California Supreme Court precedent, and Justice Corrigan agreed that this is the current standard. Nalwa’s attorney argued that public policy requires that amusement rides be made as safe as possible, and therefore the operator should have a duty to minimize both inherent and non-inherent risks of the ride.
Based on the tough questioning of plaintiff’s counsel by the Justices, it would not be surprising if the Court finds that Cedar Fair had no duty to protect Nalwa from her injury, and therefore overturns the Sixth District Court of Appeal’s opinion. The impact of the decision on other recreational providers will depend on whether the Court limits its scope to amusement park rides or makes a broader pronouncement as to the duties of recreational providers.
The California Supreme Court is expected to render a decision by January 3, 2013.
Jill Haley Penwarden is a Partner in the Lake Tahoe, California office of Duane Morris, LLP. She specializes in Sports and Recreation Liability and Sports Products Liability. Duane Morris, LLP filed an amicus curiae brief in the Nalwa case on behalf of the California Ski Industry Association and the National Ski Areas Association.
