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

by Low, Ball & Lynch

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.

© Low, Ball & Lynch | Attorney Advertising

Written by:

Low, Ball & Lynch

Low, Ball & Lynch on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.