You expect to get bumped in a bumper car. So you shouldn’t be able to sue the bumper car operator when it happens – or should you?
In a New Year’s Eve decision, the California Supreme Court answered with a resounding “no.” In Nalwa v. Cedar Fair L.P., the court held that the primary assumption of risk doctrine, under which participants in and operators of certain activities have no duty to protect other participants from risks inherent in the activity, protects recreational activities in addition to traditional “sports.” Gordon & Rees San Francisco appellate partner Don Willenburg co-authored an amicus brief on behalf of two defense organizations urging the court to this result.
In Nalwa, the plaintiff “fractured her wrist on a bumper car ride at an amusement park” and “sued the park owner for negligence in not configuring or operating the bumper car ride so as to prevent her injury. The superior court granted summary judgment for defendant on the basis of the primary assumption of risk doctrine.” In a 2-1 decision, the Court of Appeal reversed, holding that “the doctrine did not apply to bumper car rides” and was instead limited to traditional sports, such as baseball or skiing.
The Supreme Court reversed the Court of Appeal and re-instituted the summary judgment. “We conclude the primary assumption of risk doctrine, though most frequently applied to sports, applies as well to certain other recreational activities including bumper car rides. . . . The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty ‘would work a basic alteration — or cause abandonment” of the activity.”
The Nalwa court held that this policy was not limited to traditional sports. “The 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.”
The Nalwa court rejected the plaintiff’s related arguments that the bumper car operator owed a heightened duty because of safety regulations governing amusement park rides (the court found the regulations did not “exempt [rides] from the primary assumption of risk doctrine”) or as a common carrier (the court found “common carrier” doctrine inapplicable, though it might apply to other rides, e.g. roller coasters).
The Supreme Court quoted a felicitous phrase from the dissenting Court of Appeal justice, who has since retired: “Imposing liability would have the likely effect of the amusement park either eliminating the ride altogether or altering its character to such a degree — by, for example, significantly decreasing the speed at which the minicars could operate — that the fun of bumping would be eliminated, thereby discouraging patrons from riding. Indeed, who would want to ride a tapper car at an amusement park?”
While Nalwa rejected imposing a duty of “ordinary” care based on assumption of the risk, providers do owe participants a “duty not to unreasonably increase the risks of injury beyond those inherent in the activity.” The Cedar Fair defendant, for example, could have violated this duty by failing to provide safety measures such as seatbelts, functioning bumpers, or appropriate speed control. But merely failing to eliminate head-on bumping did not violate this limited duty: Minor injuries could occur from bumping at any angle.
Nalwa should be a welcome relief to operators of amusement parks, charity athletic events, and other activities outside traditional “sports.” It is unclear how far, if at all, the principles might extend beyond physical recreation in future lawsuits.
A copy of the amicus brief can be found here.