Weekly Law Resume - January 24, 2013: Risky Business: California Extends The Primary Assumption Of Risk Doctrine


Smriti Nalwa v. Cedar Fair, L.P.

The primary assumption of risk doctrine prevents liability from attaching to operators, instructors, and participants in specific activities that are considered to be inherently dangerous. The doctrine is generally found to apply to sports and was developed to prevent liability from having a chilling effect upon participation in those activities. This case considers its applicability to amusement park rides.

On July 5, 2005, plaintiff Smriti Nalwa was a passenger in a bumper car being driven by her nine-year-old son at Great America, an amusement park owned and operated by defendant Cedar Fair, L.P. The bumper cars were small, two-seat, electrically powered vehicles that were ringed with a rubber bumper and had padded interiors with seatbelts for both the passenger and driver. Towards the end of her ride, plaintiff’s bumper car was bumped from the front and plaintiff braced herself by putting her hand on the “dashboard” of the vehicle. At that point, plaintiff’s vehicle was then bumped from behind, causing plaintiff’s wrist to become fractured.

The bumper car ride at Great America was inspected every morning by Great America’s maintenance and ride operations departments and every year by the California Department of Industrial Relations, Division of Occupational Health and Safety. On the morning of the injury, it was found to be working normally. In the years 2004 and 2005, there were 55 reported injuries on the bumper car ride, although plaintiff’s was the only reported fracture. Other reported injuries included contusions, lacerations, abrasions and strains.

In her complaint, plaintiff pleaded common carrier liability, willful misconduct, strict products liability and negligence. Plaintiff voluntarily dismissed her products liability causes of action and defendant moved for summary judgment on the remaining causes. The trial court granted defendant’s summary judgment motion, holding that the primary assumption of risk doctrine barred recovery. The trial court concluded that plaintiff’s injury arose from being bumped, which is a risk inherent in riding bumper cars. The trial court also found that there was no willful misconduct by defendant, and the heightened duty of care for common carriers did not apply.

The Court of Appeal, however, reversed the trial court, holding that the public policy of promoting safety at amusement parks precluded the application of the primary assumption of risk doctrine. Specifically, the Court of Appeal concluded that the doctrine was inapplicable to bumper car rides because such an activity was “too benign” to be considered a sport. (Weekly Law Resume June 23, 2011 (http://www.lowball.com/index.php/weeklylawresume-left/41-wlr/1033-june-23-2011).

The California Supreme Court granted defendant’s petition for review. The Supreme Court found in favor of defendant, granting its motion for summary judgment, and holding that the primary assumption of risk doctrine is not limited to activities classified as sports. The Court held that the primary assumption of risk doctrine also applies to 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.” Here, the Court reasoned that low-speed collisions between the vehicles were the entire purpose of the ride. The Court concluded that the inherent risk of minor injury from collisions cannot be eliminated without changing the basic character of the activity.

Plaintiff also argued that riders in bumper cars should fall under the heightened duty of care that is owed to passengers of a common carrier for reward. The Court, however, rejected this argument by distinguishing riders of bumper cars from passengers of common carriers, such as roller coasters. The Court noted that those who surrender themselves to a roller coaster give up their freedom of movement and action, while those riding in bumper cars exercise independent control over steering and accelerating the vehicles. Therefore, the rationale for the heightened duty of care for a common carrier; i.e., that the riders had delivered themselves into the control of the operator, did not apply to bumper car riders.

Plaintiff next argued that proprietors of recreational activities should be held to a greater duty of care because they are in the best position to minimize or eliminate risk and to bear the cost of doing so. However, the Court rejected this argument, noting that sponsors, organizers, and operators of recreational activities include non-commercial organizations and those without extensive budgets or paid staff. The Court found that these organizations may not be able to easily afford insurance or collect large fees from participants to cover the costs of such liability.

Lastly, plaintiff contended that defendant owed her a duty of care to eliminate head-on collisions from other bumper cars. Here too, the Court rejected plaintiff’s argument, finding that minor injuries can occur from collisions at any angle, and no qualitative distinction exists to impose such a duty of care.


This case extends the primary assumption of risk doctrine to include non-sport recreational activities where there is an inherent risk of injury that is a fundamental part of the activity. The Court noted that this holding should be construed narrowly in its application, to include only active recreational activities that are not essential to daily life, because these activities are particularly vulnerable to the chilling effect of potential tort liability.

For a copy of the complete decision see:


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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