PRIMARY ASSUMPTION OF THE RISK: AMUSEMENT PARK RIDES

By on July 15, 2011 - Comments off

Nalwa v. Cedar Fair, L.P., (Sixth District, June 10, 2011) — Cal.Rptr.3d —-, 2011 WL 2279049, 11 Cal. Daily Op. Serv. 7167, 2011 Daily Journal D.A.R. 8575
A physician who suffered a fractured wrist while riding in a bumper car at an amusement park filed an action against the owner of the park, asserting claims for negligence and common carrier liability. The plaintiff alleged that her car was hit head-on by another bumper car, and then immediately hit from behind, causing her to be injured when she attempted to brace herself. The plaintiff further alleged that while the defendant’s four other parks were configured so that cars could only be driven in one direction, the only steps to prevent head-on collisions at the subject park were post-collision admonitions to riders from park employees.
The trial court granted summary judgment, finding that the doctrine of primary assumption of the risk barred recovery both as to regular negligence and common carrier claims, and that the defendant did not have a duty to reduce risks that are inherent to bumper car riding. The court of appeal reversed, holding that amusement park rides are not the type of sport or activity susceptible to the primary assumption of risk analysis:

“Respondent can point to no case, and we have found none, where a post-Knight California court has applied the primary assumption of risk doctrine to an amusement park owner.
. . .
The dissent proposes to abandon the sport-based analysis set out by Knight entirely and to expand the doctrine to any activity with an inherent risk. Such an expansion is unwarranted and unsupported by the case law. While any general analysis of risk surely begins with an idea that we all assume the risks of living, the primary assumption of risk doctrine in its modern, post-Knight construction is considerably narrower in its application. The dissent’s expansive reading of Knight is unwarranted and an inappropriate exercise of judicial authority. Knight, by its own terms, limited the primary assumption of risk doctrine to sporting-type activities. In fact, the Knight majority specified that primary assumption of risk, post-Li, survives only in the limited context of sporting activities and the firefighter rule.
. . .
We do not go to amusement parks expecting to be injured. Common sense dictates that, while amusement park rides present a possibility of harm, breaking a bone is not a natural or expected consequence of going on a ride; whether that ride is a fast roller coaster, a stage coach, a train or a bumper car ride of moderate speed which children are allowed to control. … If park goers did fear injury, Walt Disney Parks would surely not be grossing annual revenues nearing 11 billion dollars.
. . .
The very reason we go on amusement park rides is because we “seek the illusion of danger while being assured of [a ride's] actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt.” (citation) While some rides may have inherent dangers owning to speed or mechanical complexities, parks which operate for profit hold out their rides as being safe with the expectation that thousands of people, many of them children, will be riding. (citation) In California, this “thrilling-while-safe” illusion is maintained not only through complex design, but also by a protective regulatory scheme governing amusement parks, administered by the DOSH. . . . The elaborate regulatory scheme governing California amusement parks, was, by its own terms, established “for the protection of persons using such rides.” (Cal.Code Regs., tit. 8, § 3900.) This is exactly the type of regulation which imposes a duty on the operators of such rides irrespective of Knight’s no-duty rule.”

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