California Supreme Court Applies Primary Assumption of Risk to Bumper Car Activity

The California Supreme Court has held that the doctrine of primary assumption of risk applies to a participant on an amusement park bumper car ride who suffered an injury.

Smriti Nalwa took her son on an amusement park bumper car ride. During the ride, the multidirectional bumper car was struck, in rapid succession, from both the front and the back. When she put her hand on the dashboard to brace herself from the impacts, Nalwa broke her wrist.

Nalwa sued the operator, Cedar Fair, L.P., for her injury. She argued that Cedar Fair knew the risks inherent in multidirectional bumper cars and should have restricted its cars to unidirectional travel only, as many other bumper car operators did. Unidirectional travel would not have prevented rear-end collisions, but would have prevented head-on collisions such as the one suffered by Nalwa immediately prior to her injury.

The California Supreme Court agreed, holding that the doctrine of primary assumption of risk applied.

Some activities, the court explained, are inherently dangerous. As stated in Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, “[i]mposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.” The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity. At issue here was whether a bumper car ride is among the activities to which the doctrine of primary assumption of risk applies.

Amusement park operator Cedar Fair argued that the doctrine of primary assumption of risk is not limited to sports and should apply to amusement park rides that involve inherent risks of injury, including bumper cars. The alternative of requiring operators to minimize inherent risks would tend to change the nature of such rides or cause their abandonment. In Cedar Fair’s view, a duty to minimize the inherent risk of injury from bumper car rides would “requir[e] amusement park operators to eliminate their existing rides and to replace them with rides that are fundamentally different.” Such a result, Cedar Fair contended, would be contrary to the policy motivating the court’s primary assumption of risk decisions: to prevent common law tort rules from undermining Californians’ recreational opportunities. The court agreed.

Although the primary assumption of risk doctrine is most frequently applied to sports, it has been found to apply to certain other recreational activities, as well. Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217 involved an organized, noncompetitive group motorcycle ride and Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650 concerned participation in a fire ritual at a Burning Man festival. Other courts have reached the same result by applying a broad definition of “sport” to include physical but noncompetitive recreational activities. The court agreed with the court in Beninati that the primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities “involving an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity.”

The court explained that the primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty would result in the unwanted alteration or abandonment of the activity. Allowing voluntary participants in an active recreational pursuit to sue other participants or sponsors for failing to eliminate or mitigate the activity’s inherent risks would threaten the activity’s very existence and nature. Active 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 such activities, however valuable to one’s health and spirit, is voluntary in a manner that employment and daily transportation are not.

Accordingly, the court found, it was reasonable to apply the primary assumption of risk doctrine 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 and, indeed, are the whole point of a bumper car ride. As Nalwa agreed in her deposition: “The point of the bumper car is to bump . . .” 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.

The court found further that the doctrine applied to the ride here, even though amusement parks are subject to state safety regulations and even though, as to some rides, park owners owe participants the heightened duty of care of a common carrier for reward.

Finally, the court concluded that Cedar Fair’s limited duty of care under the primary assumption of risk doctrine—the duty not to unreasonably increase the risk of injury over and above that inherent in the low-speed collisions essential to bumper car rides—did not extend to preventing head-on collisions between the cars.