As many are aware, the California Supreme Court, in a plurality decision
in 1992, adopted the Primary Assumption of Risk Doctrine in the case of Knight
v. Jewett (1992) 3 Cal.4th 296 (a case involving a touch football game). By way of
the California Supreme Court's holding in Knight v. Jewett, the California
Supreme Court ruled that recreational activity operators, instructors and other
participants in a recreational activity owe other participants only the duty to act
so as not to increase the risk of injury over that inherent in the activity.
However, following the California Supreme Court's decision in Knight v. Jewett,
there has been a split in Court of Appeal decisions as to the application of the
Primary Assumption of Risk Doctrine.
In that regard, two Courts of Appeal applied the Primary Assumption of
Risk Doctrine to recreational activities not considered sports. [Amezcua v. Los
Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217 (organized,
noncompetitive group motorcycle ride) and Beninati v. Black Rock City, LLC
(2009) 175 Cal.App.4th 650, 661 (participation in fire ritual at the 2005 "Burning
Man" festival)]. However, in contrast, a few courts have ruled that, if the activity
in question is unrelated to sports activity, the Primary Assumption of Risk
Doctrine will not apply. [Kindrich v. Long Beach Yacht Club (2008) 167
Cal.App.4th 1252, 1258 (passenger who broke leg jumping from boat to dock was
not engaged in sports activity), Shannon v. Rhodes (2001) 92 Cal.App.4th 792,
800 (boat ride on lake not a "sport"), and Bush v. Parents Without Partners (1993)
17 Cal.App.4th 322, 328 (recreational dancing not a sport within the ambit of the
Knight v. Jewett holding).
However, the question of the applicability of the Primary Assumption of
Risk Doctrine has now been decided, at least in part. That is a result of the
California Supreme Court's decision in Nalwa v. Cedar Fair, LP (2012) 55 Cal.4th
1148 ("Nalwa Case"). The facts of the Nalwa Case are common enough. In that
case, Plaintiff Dr. Smriti Nalwa ("Nalwa") took her two children, a nine year old
son and six year old daughter, to the Great American amusement park, owned
and operated by Defendant Cedar Fair, LP ("Cedar Fair"), in Santa Clara,
California, on or about July 5, 2005. The Plaintiff and her children decided to go
on the park's Rue le Dodge bumper car ride. The bumper car ride consisted of
small, two-seat, electrically powered vehicles that moved around a flat surface.
The Plaintiff rode as a passenger in a bumper car which was driven by her son,
while her daughter drove a car by herself. Toward the end of the ride, the
Plaintiff's bumper car was bumped from the front and then from behind. Feeling
a need to brace herself, the Plaintiff put her hand on the car's "dashboard," and
she broke her wrist.
The Plaintiff filed suit against Cedar Fair.
Cedar Fair filed a Motion for Summary Judgment on causes of action
involving common carrier liability, willful misconduct and negligence.
Summary judgment was granted by the trial court based upon Knight v. Jewett.
The Court of Appeal reversed in a split decision, holding that the public policy of
promoting safety at amusement parks precludes application of the Primary
Assumption of Risk Doctrine, and that the doctrine is inapplicable to bumper car
rides in particular because that activity is "too benign" to be considered a "sport."
Cedar Fair then filed a Petition for Review before the California Supreme Court,
which was granted.
After reviewing the history of the Primary Assumption of Risk Doctrine,
the California Supreme Court, in a majority opinion (which was subject of a
dissent by Justice Kennard), ruled that there was no reason why the Primary
Assumption of Risk Doctrine should not apply to recreational activities including
activities such as bumper car rides. The Court also ruled that the existence of
safety regulations, which clearly apply to bumper car rides, would not change
the ruling. The Court also ruled that the public policy of protecting passengers
of a common carrier as expressed in Civil Code § 2100, which precludes limiting
a defendant's duty to riders, did not apply here because the bumper cars could
not be considered to reasonably come within the common carrier statute (the
Court noted, however, that an earlier decision finding rollercoaster rides to come
within the common carrier statute remained good law).
The Nalwa decision is very important for California tort law in that it
represents an expansion of the application of the Primary Assumption of Risk
Doctrine. Clearly, not only recreational sports, but amusement park activities (at
least ones that do not involve the common carrier statute), will now likely come
within the Primary Assumption of Risk Doctrine.
About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A.
Schwartz is Of Counsel to The Morrison Law Group, a professional corporation.
Their biographies can be viewed at www.morrisonlawgroup.com.