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Nalwa V. Cedar Fair LP: The California Supreme Court Clarifies Scope of Primary Assumption of the Risk Doctrine

In August, we had reported that the Court accepted Nalwa for review. This matter involved potentially far reaching ramifications as to the scope of applicability of the doctrine of Primary Assumption of the Risk ("PAR") in recreational activity settings. On December 31, 2012, the court issued its New Years Eve decision which gave the defense bar a reason to celebrate.

To recap the facts, during the course of riding in a bumper car ride at an amusement park, Plaintiff fractured her wrist during a head on collision with another participant's bumper car. Plaintiff sued the amusement park operator for negligence in not configuring or operating the bumper car ride so as to prevent her injury. The amusement park moved for summary judgment based on the doctrine of PAR. The trial court granted Summary Judgment finding that participants in and operators of the activity have no duty of ordinary care to protect other participants from risks inherent in the activity, under Knight v. Jewett (1992) 3 Cal. 4th 296. The appellate court reversed, finding that PAR typically applies to "sports" and since bumper car rides are not "sports," the doctrine did not apply.

The California Supreme Court reversed, rejecting the appellate court's more narrow reading of the doctrine's applicability. The Court held that although PAR has been most frequently applied to sports, PAR also applies to recreational activities, including bumper car rides. A defendant's limited duty of care under PAR, the duty not to unreasonably increase the risk of injury over and above that inherent in the low speed collisions essential to bumper car rides, did not extend to preventing head on collisions. Agreeing with another appellate court decision, Court held that PAR 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 Court noted the policy underlying PAR, which is 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. PAR applies squarely to injuries from physical recreation, whether in sports or non sports activities.

The court also refused to impose on the defendant bumper car ride operator, the heightened duty of care for common carriers for reward under Civil Code 2100. In addition, even though amusement parks are subject to state safety regulations, the court differentiated amusement park rides such as roller coasters, from bumper car rides.

A rider of a roller coaster surrenders himself to the care and custody of the operator, and he gives up control of freedom of movement and actions. In contrast, a rider of a bumper car, such as "Rue le Dodge" at Cedar Fair, exercise independent control of steering and movement of the cars. Indeed, part of the thrill of the ride, inherent in its nature, is to try to bump others while dodging bumps. Since the bumper car rider does not entrust the operator with his or her safety from the risks of low speed collisions, the court did not find a valid basis to impose the heighted duty for common carriers on the ride operator in Nalwa.

We anticipate that Nalwa's clarification of the doctrine of Primary Assumption of the Risk will prove to be useful to the defense of our clients in the coming years.