The California Supreme Court has determined that, as a matter of law, the primary assumption of risk doctrine (PAR) relieved the operators of the Great America amusement park from their duty of ordinary care to protect a rider of its Rue le Dodge bumper car ride from injury resulting from cars colliding. The high court concluded PAR applies not only to "sports," but to other recreational activities as well.
In Nalwa v. Cedar Fair, L.P., S195031 (filed December 31, 2012), plaintiff, a ride passenger in a car driven by her son, put her hand on the front dashboard to brace herself as the car was bumped by other cars to its front and back. In doing so, she fractured her wrist. She sued for her injuries, claiming common carrier liability and willful misconduct of the park owners. The trial court granted defendant summary judgment because the injury resulted from bumping, a risk inherent in the activity, one it found covered by neither a duty of ordinary care nor the heightened duty of a common carrier. The Court of Appeal reversed, finding the matter not covered by PAR due to public policy and because the activity was too benign to be considered a "sport." (See blog of July 5, 2011.) Now the Supreme Court has reversed the Court of Appeal decision, and applied PAR ordering the reinstatement of the summary judgment dismissing the matter.
The Supreme Court finds the notion that only "active sports" involve the kind of inherent dangerousness mandating the application of PAR to be misguided. While in Knight v. Jewett (1992) 3Cal.4th 296, the activity in question, touch football, was a sport, PAR as introduced there was aimed at avoiding a chilling effect upon people vigorously participating in the broader grouping of recreational activities that have inherent dangers in their nature, that make them desirable. Under PAR, an operator, instructor or participant in the activity owes other participants only the duty not to act to increase the risk of injury over that inherent in the activity. In other words, the low-speed bumping of bumper cars is the both the inherent risk and thrill of riding the bumper cars; without the "bump," the activity would be fundamentally different.
Amusement rides within the same amusement park can be subject to widely divergent standards of care: the lesser standard of PAR for bumper cars, versus the heightened standard of common carrier for roller coasters and the like (See Gomez v. Superior Court (2005) 35 Cal.4th 1125.). The Supreme Court distinguishes bumper cars from common carrier rides such as a roller coaster is that the bumper car is driven by the ride participants, not "constrained to a track and subject to the exclusive control of the amusement park operator."
Advice to those going to amusement parks: pick your rides wisely if you are concerned about the duty owed you and loved ones by the park operators.
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