Can you sue for injuries caused by bumping on a bumper car ride? That’s the question presently pending before the California Supreme Court in a case involving application of California’s assumption of risk doctrine. The plaintiff, Dr. Smriti Nalwa, was injured at an amusement park while riding as a passenger in a bumper car “driven” by her nine year old son. Nalwa’s wrist was broken when she tried to brace herself as they collided head-on with another bumper car. Dr. Nalwa, a surgeon, sued the ride operator for her injuries. The trial court granted summary judgment against her, finding her claim barred by assumption of risk. On appeal, the Court of Appeal reversed and held that as a matter of public policy the assumption of risk doctrine should not apply to an amusement park ride. (Nalwa v. Cedar Fair, LP (2011) 196 Cal.App.4th 566, 576-578). The California Supreme Court granted review last year and briefing closed last month.
Central to the issues before the Supreme Court is California’s assumption of risk doctrine, which survived the adoption of comparative fault in California based on the Supreme Court’s 1992 decision in Knight v. Jewett (1992) 3 Cal.4th 296. In Knight, the doctrine was applied to bar recovery to a plaintiff injured in a touch football game. Under the primary assumption of risk doctrine, a defendant owes no duty to protect a plaintiff from risks inherent in the activity in which the plaintiff voluntarily engages. Instead, the defendant’s duty is to use due care not to increase the risks to a participant over and above those inherent in the activity. (Knight, supra, 3 Cal.4th at p. 316.) Over the twenty years since Knight was issued, the Supreme Court has repeatedly reaffirmed the assumption of risk doctrine. (See, e.g., Ford v. Gouin (1992) 3 Cal.4th 339 [waterskiing], Cheong v. Antablin (1997) 16 Cal.4th 1063 [snow skiing], Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990 [competitive swimming], Avila v. Citrus Community College District (2006) 38 Cal.4th 148 [baseball], and Shin v. Ahn (2007) 42 Cal.4th 482 [golf].)
But is assumption of risk limited to traditional “sports”? The Court of Appeal in Nalwa held that it was, finding that “riding as a passenger in a bumper car is too benign to be subject to Knight. On a common sense level, we simply cannot conclude that riding in a bumper car as a passenger implicates a sport within any understanding of the word.” (Nalwa, supra, 196 Cal.App.4th at p. 579.) Yet while assumption of risk has been applied most frequently in the sport injury context, California courts have never confined it only to sports injuries, and have extended the doctrine to bar recovery in a variety of situations that defy the “sport” label. (See, e.g., Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650 [fall into the fire at “Burning Man” festival]; Domenghini v. Evans (1998) 61 Cal.App.4th 118 [participating in a cattle roundup]; Rosenbloom v. Hanour Corp. (1998) 66 Cal.App.4th 1477 [handling a shark while cleaning an aquarium]; McGarry v. Sax (2008) 158 Cal.App.4th 983 [scrambling for a skateboard give-away tossed into a crowd]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761 [injury to a nurse’s aide by a patient].)
The Court of Appeal also held that the ride operator had a duty to minimize the risks of the bumper car ride. (Nalwa, supra, 196 Cal.App.4th at p. 581.) “Holding owners responsible for minimizing risk is just good policy.” (Ibid.) The court found that the ride operator “was aware of the perils of allowing head-on collisions, and, as the owner of the park, had a duty to take reasonable steps to minimize those risks without altering the nature of the ride.” (Ibid.)
Under Knight, however, a recreational provider owes no duty to “minimize the risks” in an inherently risky activity. Instead, its duty is “to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Knight, supra, 3 Cal.4th at p. 316.) This is the heart of California’s primary assumption of risk doctrine.
Bumping clearly is an inherent risk of a bumper car ride. As the dissenting Court of Appeal justice observed in Nalwa, bumping and jostling is the “entire point” of the ride. (Nalwa, supra, 196 Cal.App.4th at p. 598, fn. 16 [dis. opn. of Duffy, J.].) Requiring a bumper car operator to minimize the risk of bumping would alter the essential nature of the ride. (Knight, supra, 3 Cal.4th at p. 315; Kahn, supra, 31 Cal.4th at p. 1004.) The ride operator had no more of a duty to minimize or eliminate risks associated with bumping from its bumper car ride, than a ski resort has a duty to groom away moguls on a ski run. (See Knight, supra, 3 Cal.4th at 315.) As New York Chief Judge Cardozo famously put it in 1929, in a case involving injury from an amusement park ride called The Flopper, “[t]he timorous may stay at home." (Murphy v Steeplechase Amusement Co., 250 N.Y. 479, 482-483.) Or at least make sure you have your own accidental injury insurance.
The California Supreme Court will have the opportunity to resolve all these issues when it decides the Nalwa case, probably early next year.