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Smriti Nalwa v. Cedar Fair

December 31, 2012


Court: Superior County: Santa Clara Judge: James P. Kleinberg Ct.App. 6 H034535 Super. Ct. No. CV089189

The opinion of the court was delivered by: Werdegar, J.

Santa Clara County

Plaintiff, who fractured her wrist on a bumper car ride at an amusement park, 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, under which participants in and operators of certain activities have no duty of ordinary care to protect other participants from risks inherent in the activity. (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316.) The Court of Appeal, concluding the doctrine did not apply to bumper car rides, reversed.

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. We further conclude the doctrine applies to the ride here, even though amusement parks are subject to state safety regulations and even though, as to some rides, park owners owe participants the heightened duty of care of a common carrier for reward. (See Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1141 [roller coasters and similar rides]). Finally, we hold defendant's limited duty of care under the primary assumption of risk doctrine--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 between the cars. We therefore reverse the Court of Appeal's judgment.


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 ride consisted of small, two-seat, electrically powered vehicles that moved around a flat surface. Each car was ringed with a rubber bumper and had a padded interior and seatbelts for both driver and passenger. The driver of each car controlled its steering and acceleration.

Plaintiff rode as a passenger in a bumper car her son drove, while her daughter drove a car by herself. Plaintiff's son steered while plaintiff sat next to him in the bumper car; they bumped into several other cars during the course of the ride. Toward the end of the ride, plaintiff's bumper car was bumped from the front and then from behind. Feeling a need to brace herself, plaintiff put her hand on the car's "dashboard." According to plaintiff's son, "something like cracked" and plaintiff cried out, "Oh." Plaintiff's wrist was fractured.

The Rue le Dodge ride was inspected annually for safety by the California Department of Industrial Relations, Division of Occupational Health and Safety, and was inspected every morning by defendant's maintenance and ride operations departments. On the morning of plaintiff's injury, it was found to be working normally. Fifty-five injuries were reported occurring on or around the Rue le Dodge ride in 2004 and 2005, including contusions, lacerations, abrasions and strains. Plaintiff's was the only fracture reported.

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 in only one direction.

In her operative complaint, plaintiff pleaded causes of action for common carrier liability, willful misconduct, strict products liability (in two counts) and negligence, but later dismissed the two products liability counts. The trial court granted defendant's motion for summary judgment on the remaining causes of action, concluding 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 heightened duty of care for common carriers did not apply, the trial court found, because defendant had no control over the steering and orientation of the individual bumper cars, nor was there any willful misconduct as defendant did not act with knowledge or reckless disregard of a likely injury.

The Court of Appeal reversed in a divided decision, 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." Even if the doctrine applied to the Rue le Dodge ride, the court further reasoned, defendant could have reduced the ride's risks by configuring it to minimize head-on collisions. 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.

We granted defendant's petition for review.


A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant "has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established . . . ." (Id., subd. (p)(2).) Upon such a showing, "the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action . . . ." (Ibid.)

"On review of an order granting or denying summary judgment, we examine the facts presented to the trial court and determine their effect as a matter of law. . . . [D]efendant asserted, and the trial court found, that plaintiff's evidence failed to establish the 'duty' element of plaintiff's cause of action for negligence. Duty, being a question of law, is particularly amenable to resolution by summary judgment." (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464-465.)

We must decide whether, 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.

I. Application of Primary Assumption of Risk to "Nonsport" Recreational Activities

"Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities--and, specifically, many sports--are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. (Ibid.; Knight v. Jewett, supra, 3 Cal.4th at p. 308.) 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. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162; Kahn, at p. 1004.)

The parties disagree, first, as to whether a bumper car ride is among the activities to which the doctrine of primary assumption of risk applies. 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 "[o]n 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 their abandonment. In defendant's view, a duty to minimize the inherent risk of injury from bumper car rides would "requir[e] amusement park operators to eliminate their existing rides and to replace them with rides that are fundamentally different," contrary to the policy motivating this court's primary assumption of risk decisions, that of preventing common law tort rules from undermining Californians' recreational opportunities. For reasons explained below, we agree with defendant.

This court's seminal decision explicating and applying primary assumption of risk in the recreational context, Knight v. Jewett, involved a sporting activity, an informal game of touch football. (Knight v. Jewett, supra, 3 Cal.4th at p. 300 (Knight).) In applying the doctrine in that case, therefore, we naturally addressed its use in "the sports setting," explaining that certain dangers are often integral to "the sport itself" and that defendants generally have no duty to protect a plaintiff from "risks inherent in the sport itself." (Id. at p. 315.) But in outlining the doctrine generally, we used broader language, referring to "the nature ...

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