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Calif. SC says bumper car operator not to blame for injuries

By Nathan Bass | Jan 10, 2013

SAN FRANCISCO (Legal Newsline) - The California Supreme Court found that a bumper car operator was not liable for injuries sustained by a rider because the rider had assumed the risk of injury when she chose to engage in the activity.

Justice Kathryn M. Werdegar wrote the Dec. 31 opinion for the 6-1 majority with Justice Joyce L. Kennard filing a dissent.

"On July 5, 2005, plaintiff Dr. Smriti Nalwa took her nine-year-old son and six-year old daughter to Great America amusement park, owned and operated by defendant Cedar Fair, L.P. In the afternoon, plaintiff and her children went on the park's Rue le Dodge bumper car ride," the opinion states.

Nalwa rode as a passenger in a bumper car driven by her son and toward the end of the ride, the car was bumped "from the front and then from behind." When she braced herself on the cars makeshift dashboard, her wrist was fractured from the impact of the collision.

"Head-on bumping was prohibited on the Rue le Dodge ride, a safety rule the ride operators were to enforce by lecturing those they saw engaging in the practice and, if a guest persisted in head-on bumping, by stopping the ride and asking the person to leave. At the time of plaintiff's injury, defendant operated the bumper car rides at its four other amusement parks so that the cars could be driven only in one direction," according to the opinion.

In the complaint to the lawsuit filed by Nalwa, she pled causes of action for common carrier liability, willful misconduct, strict products liability and negligence. Nalwa dismissed the two products liability counts and the trial court granted defendant's motion for summary judgment on the others.

On the negligence count the court concluded "the primary assumption of risk doctrine barred recovery for negligence because plaintiff's injury arose from being bumped, a risk inherent in the activity of riding bumper cars."

The Court of Appeals, in a divided decision, reversed the trial court, "holding that the public policy of promoting safety at amusement parks precludes application of the primary assumption of risk doctrine, and the doctrine is inapplicable to bumper car rides in particular because that activity is too benign to be considered a sport.

"The dissenting justice argued the primary assumption of risk doctrine is not limited to those activities deemed 'sports"; that its application to an amusement park ride does not violate any discernable public policy; and that the risk of injury from any collision, including head-on bumping is inherent in the activity of riding bumper cars."

The California Supreme Court granted defendant Cedar Fair's petition for review.

"We must decide whether," Werdegar wrote, "as a matter of law and on the undisputed facts presented to the trial court, the primary assumption of risk doctrine relieved defendant, as operator of the Rue le Dodge ride, of its duty of ordinary care to protect plaintiff, a participant on the ride, from the risk of injuries resulting from the collision or collisions that fractured her wrist.

"The parties disagree, first, as to whether a bumper car ride is among the activities to which the doctrine of primary assumption of risk applied.

"Plaintiff argues the doctrine, as an exception to the general duty of ordinary care, is properly limited to certain narrow categories, one of which is active sports. Plaintiff embraces the Court of Appeal majority's assessment that 'on a commonsense level, we simply cannot conclude that riding in a bumper car as a passenger implicates a 'sport' within any understanding of the word' and urges that we not extend the doctrine to apply to a bumper car ride.

"Defendant maintains the doctrine of primary assumption of risk is not limited to sports and should apply to amusement park rides that involve inherent risks of injury, including bumper cars, because imposing a duty to minimize inherent risks would tend to change the nature of such rides or cause then abandonment.

"We agree with the dissenting justice below, and the court in Beninati, that the primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities 'involving an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity.'

"The risk of injuries from bumping was inherent in the Rue le Dodge ride, and under our precedents defendant had no duty of ordinary care to prevent injuries from such an inherent risk of the activity."

Kennard wrote in her dissert, "In Knight v. Jewett (1992) a plurality of this court introduced a radical transformation of California's tort law: Participants in active sports are exempt from the usual tort law standard of care - as measured by the conduct of a reasonable person in like or similar circumstances - to prevent injury to co-participants.

"The only duty owed, the plurality said, is not to increase the risk of harm "inherent" in a particular sport; whether a risk is inherent is a legal question to be decided by the judge before trial."

"I dissented in Knight, noting the difficulty trial judges would face in pretrial proceedings, on demurrer or on a motion for summary judgment, in discerning 'which risks are inherent in a given sport.'"

Werdegar addressed the dissent in the majority opinion.

"The dissent argues that the question of which risks are inherent in a recreational activity is fact-intensive and hence unsuitable for resolution as a matter of law, especially on a demurrer or a defense motion for summary judgment.

"We disagree. 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.

"That deciding inherent risk may sometimes be difficult does not persuade us it is beyond the competence of California courts."

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