Bumper Cars and Primary Assumption of the Risk: Nalwa v. Cedar Fair, LP (Part I of II)
posted by Kyle Graham
Must an amusement-park operator take reasonable, or even utmost, precautions to protect patrons from injuries associated with bumper-car “bumps”? This past week, I met with the attorney for the plaintiff in an interesting assumption of the risk case that raises this issue, and will be argued before the California Supreme Court next month.
(Full disclosure: I offered the attorney my thoughts regarding the case, and accepted in return exactly what these thoughts are probably worth: nothing. OK, he did kindly agree to give an impromptu guest-lecture to my Torts class. Second full disclosure: you know my prior, short guest posts? This is the opposite of those. To spare readers—a little—I will divide this post into two segments.)
One of the issues presented in Nalwa v. Cedar Fair, LP concerns whether the doctrine of “primary implied assumption of the risk” (hereinafter PIAoR) applies to shield the operator of a California amusement park from liability for an injury that results from a bumper-car collision at the venue. As I’ll discuss in my next post, the California Supreme Court may perceive this case as a one-off, and issue a ruling narrowly tailored toward bumper-car rides. On the other hand, particularly since the court has added two new members (Chief Justice Cantil-Sakauye and Associate Justice Liu) since its last big PIAoR case of this sort, it also might see the case as a good vehicle (rim shot) to clarify the blurry boundaries of PIAoR in California.
I’ll summarize the case and its procedural history after the jump.
The Nalwa case arises out of an accident on the Rue le Dodge bumper-car ride at the Great America amusement park in Santa Clara, California–just a few miles away from where I teach, not that that matters at all. The plaintiff, Dr. Smriti Nalwa, broke her wrist when she braced herself for, and then absorbed, what she alleges to have been a head-on bump from another car.
Dr. Nalwa asserts that Cedar Fair / Great America owed her a duty of care vis-a-vis this sort of accident, and that it should have taken additional precautions to either warn riders of the risks associated with head-on bumps (due to the relatively significant force that’s associated with these collisions), or design their bumper-car courses in a manner that would lessen the likelihood of head-on collisions. As to the latter precaution, Dr. Nalwa observes that since her accident, Cedar Fair has redesigned the Rue le Dodge ride so that it’s unidirectional; now, the bumper cars bump into each other as they circle around a center obstacle. (Cedar Fair’s other California bumper-car rides adopted similar unidirectional “courses” prior to Nalwa’s accident.) If you are interested, there exist YouTube clips that depict the Rue Le Dodge ride before and after this switch.
On the defendant’s motion for summary judgment, the trial court held that PIAoR applied to bar Nalwa’s claim. Nalwa appealed, and a divided Sixth District Court of Appeal panel reversed. The panel majority held PIAoR inapplicable under the circumstances, “where the illusion of risk (as opposed to actual risk) is marketed.” In declining to apply PIAoR, the majority also emphasized the regulated nature of the amusement-park industry. A dissenting judge disagreed with the majority’s analysis, and would have affirmed.
The California Supreme Court granted review. I don’t think that the court took this step solely because the Court of Appeal, in its opinion, brutally misattributed the phrase “with great power comes great responsibility” to “Stan Lee in the pop book and movie, Bat Man.” That said, confusing Batman and Spider-Man, and screwing up Batman’s name besides, probably didn’t help. (And don’t tell me the Court of Appeal was going retro / old-school with Batman’s name. If the majority had this intent, they wouldn’t have mentioned the movie, and would have referred to “The Bat-Man.”)
In all seriousness, if the California Supreme Court simply disagreed with the result in Nalwa, but saw the issue presented as a minor one (especially given Cedar Fair’s re-design of its bumper-car rides), it might have just order the opinion depublished. After all, as former California Chief Justice Ron George liked to say, supreme courts are courts of precedent, not error. The fact that the court granted review leads me to believe that it wants to use the case to clarify PIAoR’s parameters going forward.
In my next–even longer–post, I’ll discuss how I perceive the PIAoR issue in Nalwa, and what I suspect the court might (emphasis on “might”) do with the case.