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 California Supreme Court has scheduled oral argument for October 3, 2012 in Nalwa v. Cedar Fair, an important assumption of risk case which we have previously discussed in this blog. The case presents the following issues: (1) Does the existence of a state regulatory scheme for amusement parks preclude application of the doctrine of “primary assumption of risk” with respect to the park’s operation of a bumper car ride? (2) Does the doctrine apply to bar recovery by a rider of a bumper car ride against the owner of an amusement park or is the doctrine limited to “active sports”? (3) Are owners of amusement parks subject to a special version of the doctrine that imposes upon them a duty to take steps to eliminate or decrease any risks inherent in their rides?
Interestingly, the matter is scheduled for argument at the UC Davis law school.
Can you sue for injuries caused by bumping on a bumper car ride? That’s the question presently pending before the California Supreme Court in a case involving application of California’s assumption of risk doctrine. The plaintiff, Dr. Smriti Nalwa, was injured at an amusement park while riding as a passenger in a bumper car “driven” by her nine year old son. Nalwa’s wrist was broken when she tried to brace herself as they collided head-on with another bumper car. Dr. Nalwa, a surgeon, sued the ride operator for her injuries. The trial court granted summary judgment against her, finding her claim barred by assumption of risk. On appeal, the Court of Appeal 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). The California Supreme Court granted review last year and briefing closed last month.