• California Supreme Court Holds Primary Assumption of the Risk Doctrine Applies to Non-sporting Amusement Activities
  • January 16, 2013 | Authors: Laura P. Kelly; Patrick M. Kelly
  • Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP - Los Angeles Office
  • In Nalwa v. Cedar Fair, LP (Dec. 31, 2012, No. S195031), the California Supreme Court reversed the Court of Appeal’s judgment and found that 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 Court further emphasized that owners/operators of recreational facilities do not have a heightened duty of care based on their control of the facilities.

    Dr. Smriti Nalwa fractured her wrist on a bumper-car ride at the Great America amusement park, owned and operated by the defendant, Cedar Fair, L.P. Plaintiff Nalwa’s bumper-car, operated by her nine-year-old son, was hit from behind and then head on as she braced herself on the dashboard, thereby fracturing her wrist. Great American prohibited head-on bumping and operated the bumper-car rides at its four other amusement parks so that the cars could be driven in only one direction - thus making head-on bumping impossible.

    Plaintiff 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 recreational activities have no duty of ordinary care to protect other participants from risks inherent in the activity, but they do have a duty not to increase the risks above those inherent in the activity. (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316.) The Court of Appeal reversed. It held that the primary assumption of risk doctrine did not apply to bumper-cars, as their use could not be considered a sport. In addition, the Court of Appeal discussed “owners” of a facility having a “duty to minimize risks based on the defendant’s control over the instrumentalities of the injury.”

    The California Supreme Court, in a 6-1 decision, reversed the Court of Appeal. (Justice Kennard dissented, as she did in the original Knight opinion.) The Court reiterated that 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.” The Court stated that “primary assumption of risk applies squarely to injuries from physical recreation, whether in sports or nonsport activities” and held that it specifically applied to bumper-car rides. In applying the doctrine, the Court held that defendant’s limited duty of care to not increase the inherent risks did not extend to preventing head-on collisions between the cars. Thus, the risk of plaintiff’s injuries resulting from such collisions was inherent in the activity and Cedar Fair had no duty to eliminate such risks.

    The Court dismissed the plaintiff’s argument (as well as the Court of Appeal’s) that an owner or operator of an activity should have a greater duty of care to “minimize” the risk of head-on bumping. The Court stated that its decisions since Knight have established that primary assumption of the risk applies to owners, operators, sponsors and instructors in recreational activities. The Court also stated that the case law cited by plaintiff dealt with a duty regarding extrinsic risks, not inherent risks. Finally, the Court stated that the park’s voluntary efforts to minimize head-on collisions at other parks did not impose a duty to do so at the park at issue.

    This decision is a victory for the recreation industry. Recently, California courts have been referencing a single sentence in the Knight opinion, as did the Court of Appeal in Nalwa, as imposing a heightened duty to “minimize” certain risks on owners and operators of recreational facilities. In Knight, the court discussed “the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport” but no decision has commented further on what such obligations should be. California courts have begun applying this sentence to hold that primary assumption of the risk does not bar recovery when certain risks, even those inherent in the activity, are not “minimized.” (See, e.g., Morgan v. Fugi Country USA, Inc. (1995) 34 Cal.App.4th 127, 129, 134-135 [golf course owner owed a duty to minimize danger of being hit by a golf ball in the design of the course]; Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1084 [owner/operator of motocross track owed riders a duty to minimize collisions due to fallen riders by having individuals with flags warn of such falls].)

    Indeed, the Court of Appeal in Nalwa went further and stated: “Holding owners responsible for minimizing risk is just good policy.” Upholding the Court of Appeal decision in Nalwa would have all but obliterated the primary assumption of the risk doctrine for owners/operators of recreational facilities. The California Supreme Court in Nalwa explains that the primary assumption of the risk applies to owners/operators of facilities and organizers of recreational activities and the only duty imposed is one to not increase the risks beyond those inherent in the sport. The Court also distinguishes the case law referencing a duty to “minimize” certain risks as a duty to minimize “external” risks - leaving those inherent in the activity as covered by the primary assumption of the risk doctrine.