On December 31, 2012, the California Supreme Court issued its decision in Nalwa v. Cedar Fair, L.P., __Cal.4th __ (No. S195031 December 31, 2012), previously covered in this blog and this blog. In a 6-1 decision, the Court held that the primary assumption of risk doctrine applies not just to sports, but more broadly to recreational activities. “Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” The Court held that this limited duty of care not to unreasonably increase the risk of injury over and above that inherent in the low-speed collisions essential to bumper car rides, and does not extend to preventing head-on collisions between the cars.
The plaintiff, Dr. Smriti Nalwa, broke her wrist while riding as a passenger in a bumper car operated by her nine year old son. The trial court granted summary judgment against her, finding her claim barred by assumption of risk. On appeal, the Court of Appeal for the Sixth District reversed and held 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 depublished by grant of review). The California Supreme Court granted review and reversed the Court of Appeal.
In a decision authored by Justice Werdegar, the Court held that “[t]he policy behind primary assumption of risk applies squarely to injuries from physical recreation, whether in sports or nonsport activities. Allowing voluntary participants in an active recreational pursuit to sue other participants or sponsors for failing to eliminate or mitigate the activity’s inherent risks would threaten the activity’s very existence and nature…. [A]ctive recreation, because it involves physical activity and is not essential to daily life, is particularly vulnerable to the chilling effects of potential tort liability for ordinary negligence….The doctrine thus applies to bumper car collisions, regardless of whether or not one deems bumper cars a ‘sport.’”
In reaching its conclusion, the Court rejected the argument that simply because amusement parks are regulated, assumption of risk does not apply. “We do not agree that the existence of safety regulations governing amusement park rides exempts them from the primary assumption of risk doctrine.” The Court noted that the plaintiff did not contend that any specific regulation had been violated. The Court also distinguished Gomez v. Superior Court (2005) 35 Cal.4th 1125, which extended common carrier liability to roller coasters, because riders in bumper cars “are not passively carried or transported from one place to another. They actively engage in a game, trying to bump others or avoid being bumped themselves.” Therefore, bumper cars did not qualify as a common carrier.
Finally, the Court rejected the argument that because the defendant controlled and reaped economic benefit from the activity, public policy supported imposing an ordinary duty of care on the operator. Instead, the Court explained, “under the primary assumption of risk doctrine, operators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity…. The primary assumption of risk doctrine helps ensure that the threat of litigation and liability does not cause such recreational activities to be abandoned or fundamentally altered in an effort to eliminate or minimize inherent risks of injury.”
In her dissent, Justice Kennard argued for a “traditional defense of assumption of risk, which pertains to a plaintiff’s knowing and voluntary acceptance of the risk of injury in a particular activity,” a position she has advocated in other dissents and concurring opinions in the Court’s other assumption of risk cases. The principle thrust of her argument is that determining whether a risk is inherent in the sport is difficult for the trial court’s to accomplish. The majority disagreed, confirming that while “deciding inherent risk may sometimes be difficult[, it] does not persuade us it is beyond the competence of California courts.” As the majority explained, “Judges deciding inherent risk questions under Knight may consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment.”
Duane Morris filed an amicus curiae brief in the case on behalf of the California Ski Industry Association and the National Ski Areas Association.