Primary Assumption of the Risk: Amusement Park Rides

Nalwa v. Cedar Fair, L.P., (Supreme Court of California, December 31, 2012) — P.3d—, 2012 WL 6734705

A woman who was injured on a bumper car ride at an amusement park filed suit against the park owner for negligence. The plaintiff alleged that toward the end of the ride her bumper car was bumped from the front and then from behind, and that while bracing herself by putting her hand on the car’s dashboard, her wrist was fractured. The plaintiff also alleged that the defendant owed her a duty to take reasonable measures to eliminate or minimize head-on bumping, which she characterized as beyond the inherent risks of a bumper car ride.

The trial court granted the defendant’s motion for summary judgment, concluding that the doctrine of primary assumption of the risk barred recovery because the injury arose from being bumped, a risk inherent in the activity of riding bumper cars. The Court of Appeal reversed in a divided decision, holding that the public policy of promoting safety at amusement parks precludes application of the primary assumption of risk doctrine, and that the defendant could have reduced the ride’s risks by configuring it to minimize head-on collisions. However, the California Supreme Court reversed the court of appeal, holding that bumper cars are subject to the doctrine of primary assumption of the risk, and that the defendant was not a common carrier with respect to the bumper car ride:

“[A]ctive recreation, because it involves physical activity and is not essential to daily life, is particularly vulnerable to the chilling effects of potential tort liability for ordinary negligence. And participation in recreational activity, however valuable to one’s health and spirit, is voluntary in a manner employment and daily transportation are not.

The doctrine thus applies to bumper car collisions, regardless of whether or not one deems bumper cars a “sport.” Low-speed collisions between the padded, independently operated cars are inherent in—are the whole point of—a bumper car ride. As plaintiff agreed in her deposition: “The point of the bumper car is to bump—[¶] … [¶] You pretty much can’t have a bumper car unless you have bumps.” While not highly dangerous, such collisions, resulting in sudden changes in speed and direction, do carry an inherent risk of minor injuries, and this risk cannot be eliminated without changing the basic character of the activity….

Riders on Rue le Dodge, in other words, are not passively carried or transported from one place to another. They actively engage in a game, trying to bump others or avoid being bumped themselves. The rationale for holding the operator of a roller coaster to the duties of a common carrier for reward—that riders, having delivered themselves into the control of the operator, are owed the highest degree of care for their safety—simply does not apply to bumper car riders’ safety from the risks inherent in bumping.
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While the risks of injury from bumping bumper cars are generally low, a minor injury could occur from bumping at any angle. No qualitative distinction exists among the possible angles of collision, and hence no principled basis exists to impose a duty of care uniquely for 180–degree collisions. And while plaintiff points to defendant’s efforts to discourage head-on bumping, such voluntary efforts at minimizing risk do not demonstrate defendant bore a legal duty to do so; not every rule imposed by an organizer or agreed to by participants in a recreational activity reflects a legal duty enforceable in tort.”