On October 3, 2012, the California Supreme Court heard oral argument in Nalwa v. Cedar Fair, L.P., a case we have previously reported on in this blog. It concerns application of California’s assumption of risk doctrine to injuries caused by bumping on a bumper car ride.
The plaintiff, Dr. Smriti Nalwa, broke her wrist while riding as a passenger in a bumper car “driven” by her nine year old son. Dr. Nalwa, a surgeon, sued the ride operator (Cedar Fair) 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 then granted review.
Under California’s 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 v. Jewett (1992) 3 Cal.4th 296, 316.)
A key issue in Nalwa is whether assumption of risk applies only to active sports (such as skiing, baseball, and football), or to any recreational activity with a potential risk of injury. At argument, Chief Justice Cantil-Sakauye pointed out that in Knight v. Jewett, the Court left open the possibility that assumption of risk could apply to both types of activity. Justice Corrigan asked about whether a risk must be obvious to be considered “inherent,” and Cedar Fair’s attorney argued that the risk should be either apparent or discoverable to the participant. The Chief Justice pointed out that a number of things, such as the presence of interior padding, a seatbelt, and a large rubber bumper gave the participant clues as to the potential risks of bumper cars. In response to a question by Justice Baxter, Cedar Fair’s attorneys explained that in their view, the risk of an equipment malfunction would not be a risk assumed by the participant. Justice Liu asked what kind of injury resulting from bumping would give rise to a lawsuit; Cedar Fair’s attorneys argued that no bumping-related injury would prevent the application of primary assumption of risk, because bumping is an inherent risk of the ride.
Nalwa’s attorney, on the other hand, argued that head-on collisions between bumper cars were not an inherent risk because they could be prohibited and in fact had been prohibited at Cedar Fair’s other bumper car ride locations. Justice Corrigan pointed out that in Avila v. Citrus Community College District (2006) 38 Cal.4th 148, the Court applied the doctrine of primary assumption of risk to bar a claim by a batter hit by a pitch and observed that “brushing back” a batter with an inside pitch, while against the rules of baseball, is still common in the sport. Justice Corrigan questioned whether this was not the same situation. Nalwa’s attorney responded that Cedar Fair had a “special knowledge” that head-on collisions increased the risk of injury, because it required one-directional travel of the cars at other rides. (He conceded, however, that there was no evidence in the record supporting the argument that there is a higher risk of injury from head-on collisions). Justice Baxter asked whether assumption of risk would apply to same-direction collisions; Nalwa’s attorney argued that the Court should rule that primary assumption of risk is never applicable to amusement park rides, because the operator controls aspects of the ride. Justice Werdegar pointed out that a participant has much more control over a bumper car than, for example, a roller coaster.
A second area of argument was whether a recreation provider has a duty to minimize the risks of an activity, or simply a duty not to affirmatively increase the risks. Cedar Fair’s attorneys argued that a recreation provider has no duty to minimize inherent risks under current California Supreme Court precedent, and Justice Corrigan agreed that this is the current standard. Nalwa’s attorney argued that public policy requires that amusement rides be made as safe as possible, and therefore the operator should have a duty to minimize both inherent and non-inherent risks of the ride.
Based on the tough questioning of plaintiff’s counsel by the Justices, we expect that the Court may find that Cedar Fair had no duty to protect Nalwa from her injury, and therefore overturn the Sixth District Court of Appeal’s opinion.
The California Supreme Court is expected to render a decision by January 3, 2013.