Nalwa v. Cedar Fair, L.P. , 55 Cal. 4th 1148 ( 2012 )

Filed 12/31/12
IN THE SUPREME COURT OF CALIFORNIA
SMRITI NALWA, )
)
Plaintiff and Appellant, )
) S195031
v. )
) Ct.App. 6 H034535
CEDAR FAIR, L.P., )
) Santa Clara County
Defendant and Respondent. ) Super. Ct. No. CV089189
____________________________________)
Plaintiff, who fractured her wrist on a bumper car ride at an amusement
park, sued the park owner for negligence in not configuring or operating the
bumper car ride so as to prevent her injury. The superior court granted summary
judgment for defendant on the basis of the primary assumption of risk doctrine,
under which participants in and operators of certain activities have no duty of
ordinary care to protect other participants from risks inherent in the activity.
(Knight v. Jewett (1992) 3 Cal.4th 296, 315-316.) The Court of Appeal,
concluding the doctrine did not apply to bumper car rides, reversed.
We conclude the primary assumption of risk doctrine, though most
frequently applied to sports, applies as well to certain other recreational activities
including bumper car rides. We further conclude the doctrine applies 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. (See Gomez v. Superior Court (2005) 35 Cal.4th
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1125, 1141 [roller coasters and similar rides]). Finally, we hold defendant‟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. We therefore reverse the Court of Appeal‟s
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 5, 2005, plaintiff, Dr. Smriti Nalwa, took her nine-year-old son and
six-year-old daughter to Great America amusement park, owned and operated by
defendant Cedar Fair, L.P. In the afternoon, plaintiff and her children went on the
park‟s Rue le Dodge bumper car ride.
The ride consisted of small, two-seat, electrically powered vehicles that
moved around a flat surface. Each car was ringed with a rubber bumper and had a
padded interior and seatbelts for both driver and passenger. The driver of each car
controlled its steering and acceleration.
Plaintiff rode as a passenger in a bumper car her son drove, while her
daughter drove a car by herself. Plaintiff‟s son steered while plaintiff sat next to
him in the bumper car; they bumped into several other cars during the course of
the ride. Toward the end of the ride, plaintiff‟s bumper car was bumped from the
front and then from behind. Feeling a need to brace herself, plaintiff put her hand
on the car‟s “dashboard.” According to plaintiff‟s son, “something like cracked”
and plaintiff cried out, “Oh.” Plaintiff‟s wrist was fractured.
The Rue le Dodge ride was inspected annually for safety by the California
Department of Industrial Relations, Division of Occupational Health and Safety,
and was inspected every morning by defendant‟s maintenance and ride operations
departments. On the morning of plaintiff‟s injury, it was found to be working
normally. Fifty-five injuries were reported occurring on or around the Rue le
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Dodge ride in 2004 and 2005, including contusions, lacerations, abrasions and
strains. Plaintiff‟s was the only fracture reported.
Head-on bumping was prohibited on the Rue le Dodge ride, a safety rule
the ride operators were to enforce by lecturing those they saw engaging in the
practice and, if a guest persisted in head-on bumping, by stopping the ride and
asking the person to leave. At the time of plaintiff‟s injury, defendant operated the
bumper car rides at its four other amusement parks so that the cars could be driven
in only one direction.
In her operative complaint, plaintiff pleaded causes of action for common
carrier liability, willful misconduct, strict products liability (in two counts) and
negligence, but later dismissed the two products liability counts. The trial court
granted defendant‟s motion for summary judgment on the remaining causes of
action, concluding the primary assumption of risk doctrine barred recovery for
negligence because plaintiff‟s injury arose from being bumped, a risk inherent in
the activity of riding bumper cars. The heightened duty of care for common
carriers did not apply, the trial court found, because defendant had no control over
the steering and orientation of the individual bumper cars, nor was there any
willful misconduct as defendant did not act with knowledge or reckless disregard
of a likely injury.
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 the doctrine is inapplicable to bumper car
rides in particular because that activity is “too benign” to be considered a “sport.”
Even if the doctrine applied to the Rue le Dodge ride, the court further reasoned,
defendant could have reduced the ride‟s risks by configuring it to minimize head-
on collisions. The dissenting justice argued the primary assumption of risk
doctrine is not limited to those activities deemed “sports”; that its application to an
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amusement park ride does not violate any discernable public policy; and that the
risk of injury from any collision, including head-on bumping, is inherent in the
activity of riding bumper cars.
We granted defendant‟s petition for review.
DISCUSSION
A motion for summary judgment “shall be granted if all the papers
submitted show that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc.,
§ 437c, subd. (c).) A defendant “has met his or her burden of showing that a cause
of action has no merit if that party has shown that one or more elements of the
cause of action . . . cannot be established . . . .” (Id., subd. (p)(2).) Upon such a
showing, “the burden shifts to the plaintiff . . . to show that a triable issue of one or
more material facts exists as to that cause of action . . . .” (Ibid.)
“On review of an order granting or denying summary judgment, we
examine the facts presented to the trial court and determine their effect as a matter
of law. . . . [D]efendant asserted, and the trial court found, that plaintiff‟s
evidence failed to establish the „duty‟ element of plaintiff‟s cause of action for
negligence. Duty, being a question of law, is particularly amenable to resolution
by summary judgment.” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456,
464-465.)
We must decide whether, as a matter of law and on the undisputed facts
presented to the trial court, the primary assumption of risk doctrine relieved
defendant, as operator of the Rue le Dodge ride, of its duty of ordinary care to
protect plaintiff, a participant on the ride, from the risk of injuries resulting from
the collision or collisions that fractured her wrist.
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I. Application of Primary Assumption of Risk to “Nonsport”
Recreational Activities
“Although persons generally owe a duty of due care not to cause an
unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some
activities—and, specifically, many sports—are inherently dangerous. Imposing a
duty to mitigate those inherent dangers could alter the nature of the activity or
inhibit vigorous participation.” (Kahn v. East Side Union High School Dist.
(2003) 31 Cal.4th 990, 1003.) The primary assumption of risk doctrine, a rule of
limited duty, developed to avoid such a chilling effect. (Ibid.; Knight v. Jewett,
supra, 3 Cal.4th at p. 308.) 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. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162;
Kahn, at p. 1004.)
The parties disagree, first, as to whether a bumper car ride is among the
activities to which the doctrine of primary assumption of risk applies. Plaintiff
argues the doctrine, as an exception to the general duty of ordinary care, is
properly limited to certain narrow categories, one of which is active sports.
Plaintiff embraces the Court of Appeal majority‟s assessment that “[o]n a
commonsense level, we simply cannot conclude that riding in a bumper car as a
passenger implicates a sport within any understanding of the word” and urges that
we not “extend” the doctrine to apply to a bumper car ride.
Defendant maintains 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, because imposing a duty to minimize
inherent risks would tend to change the nature of such rides or cause their
abandonment. In defendant‟s view, a duty to minimize the inherent risk of injury
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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,” contrary to the policy motivating this court‟s primary assumption of
risk decisions, that of preventing common law tort rules from undermining
Californians‟ recreational opportunities. For reasons explained below, we agree
with defendant.
This court‟s seminal decision explicating and applying primary assumption
of risk in the recreational context, Knight v. Jewett, involved a sporting activity, an
informal game of touch football. (Knight v. Jewett, supra, 3 Cal.4th at p. 300
(Knight).) In applying the doctrine in that case, therefore, we naturally addressed
its use in “the sports setting,” explaining that certain dangers are often integral to
“the sport itself” and that defendants generally have no duty to protect a plaintiff
from “risks inherent in the sport itself.” (Id. at p. 315.) But in outlining the
doctrine generally, we used broader language, referring to “the nature of the
activity or sport” (id. at p. 309), “a potentially dangerous activity or sport” (id. at
p. 311), and “risks inherent in the activity or sport itself” (ibid.).
While our subsequent decisions applying the doctrine to recreation have,
like Knight, involved sports,1 two Court of Appeal decisions have found the
1 See Ford v. Gouin (1992) 3 Cal.4th 339, 342-343 (companion case to
Knight, applying rule to noncompetitive waterskiing); Cheong v. Antablin (1997)
16 Cal.4th 1063, 1065-1066 (downhill skiing); Kahn v. East Side Union High
School Dist., supra, 31 Cal.4th at pages 995-997 (instruction in competitive
swimming); Avila v. Citrus Community College Dist., supra, 38 Cal.4th at pages
160-168 (intercollegiate baseball); Shin v. Ahn (2007) 42 Cal.4th 482, 486 (golf).
Outside the recreation context, we have explained the “firefighter‟s rule”
and “veterinarian‟s rule,” precluding certain suits by workers in those occupations
for the negligent creation of hazards inherent in their work, as applications of the
primary assumption of risk doctrine. (See Priebe v. Nelson (2006) 39 Cal.4th
1112, 1122; Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538.)
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doctrine applicable to recreational activities not considered sports. (See Amezcua
v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 231-232
[organized, noncompetitive group motorcycle ride]; Beninati v. Black Rock City,
LLC (2009) 175 Cal.App.4th 650, 661 [participation in fire ritual at Burning Man
festival].) Other courts have reached the same result by applying a broad
definition of “sport” to include physical but noncompetitive recreational activities
(see Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1221 [organized,
noncompetitive group bicycle ride]; Record v. Reason (1999) 73 Cal.App.4th 472,
482 [“tubing,” i.e., riding an inner tube towed by a motor boat]) or by assessing
the nature of a recreational activity without attempting to classify it as a sport or
nonsport (see Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 253-
254 [riding in commercially operated river raft].)
In contrast, a few courts have, like the appellate court below, cited the
nonsport character of an activity as one ground for not bringing it within the
primary assumption of risk doctrine. (Kindrich v. Long Beach Yacht Club (2008)
167 Cal.App.4th 1252, 1258, 1262 [passenger who broke leg jumping from boat to
dock was not engaged in an active sport]; Shannon v. Rhodes (2001) 92
Cal.App.4th 792, 800 [boat ride on lake not a “ „sport‟ within any understanding
of the word”]; Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 328
[“recreational dancing . . . not a sport within the ambit of Knight”].)
We agree with the dissenting justice below, and 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.” (Beninati v. Black Rock
City, LLC, supra, 175 Cal.App.4th at p. 658.)
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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 work a basic alteration—or cause abandonment” of the activity.
(Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1003; see also
Shin v. Ahn, supra, 42 Cal.4th at p. 492, quoting Dilger v. Moyles (1997) 54
Cal.App.4th 1452, 1455 [“ „Holding [golfers] liable for missed hits would only
encourage lawsuits and deter players from enjoying the sport.‟ ”]; Avila v. Citrus
Community College Dist., supra, 38 Cal.4th at p. 165 [in baseball, recognizing tort
liability for hitting the batter with a pitch would tend to deter throwing inside, an
essential part of the sport]; Ford v. Gouin, supra, 3 Cal.4th at p. 345 [imposing tort
liability for negligence in towing water-skier might well chill participation and
“have a generally deleterious effect on the nature of the sport of waterskiing as a
whole”]; Knight, supra, 3 Cal.4th at p. 318 [doctrine avoids chilling vigorous
participation in sport].) The doctrine‟s parameters should be drawn according to
that goal.
The policy behind primary assumption of risk applies squarely to injuries
from physical recreation, whether in sports or nonsport activities. 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. In thus concluding, we do not
“expand the doctrine to any activity with an inherent risk,” as the majority below
cautioned.2 While inherent risks exist, for example, in travel on the streets and
2 We also do not disapprove the results in decisions previously cited as
limiting application of primary assumption of risk to sports (see ante, at p. 7). The
(footnote continued on next page)
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highways and in many workplaces, we agree with the lower court that “the
primary assumption of risk doctrine in its modern, post-Knight construction is
considerably narrower in its application.” (See Knight, supra, 3 Cal.4th at
pp. 311-312 [primary assumption of risk inapplicable to automobile accidents or
medical negligence].) But 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 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. In the
words of the dissenting justice below: “Imposing liability would have the likely
effect of the amusement park either eliminating the ride altogether or altering its
character to such a degree—by, for example, significantly decreasing the speed at
which the minicars could operate—that the fun of bumping would be eliminated,
(footnote continued from previous page)
doctrine may have been inapplicable in those cases for other reasons. (See, e.g.,
Shannon v. Rhodes, supra, 92 Cal.App.4th at p. 800 [imposing duty of ordinary
care on boat operator toward passengers does not require eliminating any inherent
aspect of the activity and will not deter participation in boating].)
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thereby discouraging patrons from riding. Indeed, who would want to ride a
tapper car at an amusement park?”
As she did in Knight and several cases since, Justice Kennard dissents here
from application of the primary assumption of risk doctrine. (Dis. opn. of
Kennard, J., post, at pp. 1-2.) In light of the dissenter‟s consistent urging that we
return to the traditional consent-based assumption of risk defense, it is worth
reiterating some of the reasons given in Knight for abandoning that defense in
favor of a limited-duty rule. (See Knight, supra, 3 Cal.4th at pp. 311-313.)3 The
traditional rule, resting on a legal fiction that the plaintiff had impliedly consented
to the activity‟s known risks, would completely bar the plaintiff‟s recovery
because of his or her unreasonable conduct, putting the defense in severe tension
with comparative fault principles adopted in Li v. Yellow Cab Co. (1975) 13
Cal.3d 804. (Knight, at p. 311.) In theory, moreover, it could apply to risks
beyond those inherent in the activity—even reckless or intentional misconduct,
were it shown the plaintiff was aware of the potential for such misconduct—and
apply as well to activities far beyond the realm of sports and recreation, such as
automobile travel and medical treatment, that carry known risks of injury from
others‟ negligence. (Id. at pp. 311-312.) Finally, the implied-consent theory‟s
focus on what the individual plaintiff subjectively knew about the nature and
magnitude of the risks being encountered subjected defendants to widely disparate
liability for the same conduct, and made summary judgment on the basis of
assumption of risk very rare, since the defense depended on proof of the particular
3 Although the cited discussion appears in a plurality opinion signed by only
three justices, Justice Mosk separately expressed agreement with this part of the
plurality opinion. (Knight, supra, 3 Cal.4th at p. 321 (conc. & dis. opn. of Mosk,
J.).)
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plaintiff‟s subjective knowledge and expectations. (Id. at pp. 312-313.) The
dissenting opinion here does not persuade us these considerations have lost their
force.
The dissent argues that the question of which risks are inherent in a
recreational activity is fact-intensive and hence unsuitable for resolution as a
matter of law, especially on a demurrer or a defense motion for summary
judgment. (Dis. opn. of Kennard, J., post, at pp. 4-5.) We disagree. Judges
deciding inherent risk questions under Knight may consider not only their own or
common experience with the recreational activity involved but may also consult
case law, other published materials, and documentary evidence introduced by the
parties on a motion for summary judgment. (See Avila v. Citrus Community
College Dist., supra, 38 Cal.4th at pp. 163-165; Kahn v. East Side Union High
School Dist., supra, 31 Cal.4th at pp. 999, 1011-1012, 1017; cf. Cabral v. Ralphs
Grocery Co. (2011) 51 Cal.4th 764, 775-776, fn. 5 [court may consult published
material on legal questions, including existence of a tort duty, without formally
taking judicial notice].) That deciding inherent risk may sometimes be difficult
does not persuade us it is beyond the competence of California courts.
II. Application of Primary Assumption of Risk to an Amusement
Park Ride
Plaintiff, however, contends that because amusement park rides are the
subject of state regulations for safety and inspection, and because operators of
some rides have been considered common carriers for reward, public policy
precludes applying the primary assumption of risk doctrine to amusement park
rides generally, including the bumper cars on which she was injured.
11
With regard to state regulation of amusement parks, plaintiff stresses she
does not claim defendant violated any applicable regulation in its operation of the
Rue le Dodge ride4 and is not arguing for a presumption of negligence under
Evidence Code section 669, subdivision (a) that would preclude application here
of the assumption of risk doctrine. (See generally Cheong v. Antablin, supra, 16
Cal.4th at pp. 1070-1072.) Instead, plaintiff argues “the proper focus is on what
public policy is reflected in these regulations and whether that policy supports
holding [defendant] legally responsible for the harm it caused [plaintiff].”
Plaintiff contends the extensive state regulations governing the design,
construction, maintenance and operation of amusement park rides exist for the
protection of riders‟ safety, demonstrating an overriding policy concern
inconsistent with application of the primary assumption of risk doctrine. As the
Court of Appeal majority put the argument, the policy considerations behind the
doctrine, avoiding the chilling effect of tort liability on vigorous participation, “are
reversed in the amusement park setting. As the regulatory scheme bears out, the
concern is not to excuse possible dangerous conditions in order to increase the
4 Only three regulations appear to specifically address bumper car rides,
though other regulations are no doubt applicable to bumper cars as well as other
rides. California Code of Regulations, title 8, section 3907, subdivision (b)
provides: “Rides that are self-powered and that are operated by passengers shall
have the driving mechanism so guarded and the guards so secured in place as to
prevent passengers from gaining access to the mechanism. The „Dodge-Em‟ type
of ride shall have the overhead screening free from holes that will catch the power
conducting device and allow it to hang-up or cause a whipping action of the
device.” California Code of Regulations, title 8, section 3195.9 provides in
subdivision (a) that “[l]ow speed vehicles designed for controlled collisions, such
as bumper cars, do not require emergency stopping controls” and in subdivision
(h)(6) that “[e]lectrically energized overhead screens used to power bumper car
type rides shall be free of holes that are not part of the design.”
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thrill of a ride. Instead, rider safety is of paramount concern. Public policy, under
the facts here, supports the imposition of a duty on amusement park owners to
protect the public from the possible grave dangers of amusement park rides. (Cal.
Code Regs, tit. 8, § 3900.)”5
We do not agree that the existence of safety regulations governing
amusement park rides exempts them from the primary assumption of risk doctrine.
To be sure, the assurance of relative safety from grave injury, which state
regulation helps to provide, is essential to amusement parks; few would
voluntarily ride a roller coaster that regularly caused serious personal injuries. But
perfect immunity from all risk of even minor injury is not generally the goal of the
amusement park rider, and the state regulations do not guarantee such complete
and perfect absence of risk. As Justice Cardozo, then Chief Justice of the New
York Court of Appeals, explained more than 80 years ago, the attractions of the
amusement park “are not the pleasures of tranquillity.” (Murphy v. Steeplechase
Amusement Co. (1929) 250 N.Y. 479, 483.) A small degree of risk inevitably
accompanies the thrill of speeding through curves and loops, defying gravity or, in
bumper cars, engaging in the mock violence of low-speed collisions. Those who
voluntarily join in these activities also voluntarily take on their minor inherent
risks. As for the rest: “The timorous may stay at home.” (Ibid.; see also Gardner
v. G. Howard Mitchell, Inc. (N.J. 1931) 153 A. 607, 609 [plaintiff assumed risk of
bumping on a “Dodgem” ride: “It was for the thrill of bumping and of the escape
5 The cited regulation provides that the orders governing amusement park
rides “establish minimum standards for design, maintenance, construction,
alteration, operation, repair, inspections, assembly, disassembly, and use of
amusement rides for the protection of persons using such rides.” (Cal. Code
Regs., tit. 8, § 3900, italics added.)
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from being bumped that plaintiff entered the contrivance . . . . The chance of a
collision was that which gave zest to the game upon which plaintiff had entered.
She willingly exposed herself to the contingency of a collision.”].)
Plaintiff also argues the public policy of protecting passengers of a
common carrier for reward, as expressed in Civil Code section 2100, precludes
limiting defendant‟s duty to riders on Rue le Dodge.6 In Gomez v. Superior Court,
we held that an operator of a “roller coaster or similar amusement park ride can be
a carrier of persons for reward” for purposes of Civil Code section 2100. (Gomez
v. Superior Court, supra, 35 Cal.4th at p. 1136, fn. 5 (Gomez).) At the same time,
however, we expressed no opinion “whether other, dissimilar, amusement rides or
attractions can be carriers of persons for reward.” (Ibid.)
Gomez‟s caveat applies here. Bumper car rides like Rue le Dodge are
dissimilar to roller coasters in ways that disqualify their operators as common
carriers. The dissenting justice below, we believe, analyzed this point correctly:
“A bumper car ride is quite different from a roller coaster. . . . A roller coaster is
constrained to a track and subject to the exclusive control of the operator. Those
choosing to ride a roller coaster „ “surrender[] themselves to the care and custody
of the [operator]; they . . . give[] up their freedom of movement and actions . . . .”
[Citation.]‟ (Gomez, supra, 35 Cal.4th at p. 1137.) . . . [¶] In contrast, a bumper
car ride such as Rue le Dodge consists of small electric cars that operate at
medium speeds around a flat surface track. . . . Cedar Fair and its employees
6 “A carrier of persons for reward must use the utmost care and diligence for
their safe carriage, must provide everything necessary for that purpose, and must
exercise to that end a reasonable degree of skill.” (Civ. Code, § 2100.)
Although at oral argument plaintiff‟s counsel suggested she does not
contend defendant was a common carrier, plaintiff‟s answer brief states: “Dr.
Nalwa maintains Cedar Fair was a common carrier when it operated Rue Le
Dodge.”
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maintain and inspect the ride; set maximum speeds for the minicars; load and
unload riders; activate the ride; have control over an emergency switch disabling
the electricity powering the minicars; and enforce various riding instructions and
safety rules. But once the ride commences, patrons exercise independent control
over the steering and acceleration of the cars. Unlike roller coaster riders, they do
not surrender their freedom of movement and actions. Rue le Dodge riders have
control over the entertainment element of the ride, the bumping, as they determine
when to turn and accelerate. [Citation.] A rider of a roller coaster has no control
over the elements of thrill of the ride; the amusement park predetermines any
ascents, drops, accelerations, decelerations, turns or twists of the ride.”
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. “The rule that carriers of
passengers are held to the highest degree of care is based on the recognition that
„ “[t]o his diligence and fidelity are intrusted the lives and safety of large numbers
of human beings.” ‟ ” (Gomez, supra, 35 Cal.4th at p. 1136.) A bumper car rider,
in contrast, does not entrust the operator with his or her safety from the risks of
low-speed collisions.
The undisputed facts in the summary judgment record demonstrate
defendant was not a common carrier for reward in its operation of Rue le Dodge.
The public policy supporting a higher duty of care for common carriers, therefore,
does not apply here and does not preclude application of the primary assumption
of risk doctrine.
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III. Defendant’s Duty as Operator of the Ride
Plaintiff argues that because defendant controlled and reaped economic
benefits from the operation of the Rue le Dodge ride, public policy supports
holding defendant to the ordinary duty of due care with regard to its conduct of the
ride. We agree that in delineating legal duty a defendant‟s relationship to the
activity in which the plaintiff was injured is a proper consideration, but not that the
relationship here makes imposition of an ordinary negligence duty appropriate.
Although the defendant in Knight was a coparticipant in the touch football
game that led to the plaintiff‟s injury, in articulating the rule of limited duty we
referred as well to sponsors and operators of an activity. (See Knight, supra,3 Cal.4th at pp. 316 [ski resort operator has no duty to remove moguls from run,
but does have a duty to maintain towropes in safe condition], 318 [citing decisions
on duties of sports facilities owners, equipment manufacturers, instructors and
coaches].) The scope of the duty owed to participants in active recreation, we
explained, depends not only on the nature of the activity but also on the role of the
defendant whose conduct is at issue. (Id. at pp. 317-318.) Our later decisions
establish that under the primary assumption of risk doctrine, operators, sponsors
and instructors in recreational activities posing inherent risks of injury have no
duty to eliminate those risks, but do owe participants the duty not to unreasonably
increase the risks of injury beyond those inherent in the activity. (Avila v. Citrus
Community College Dist., supra, 38 Cal.4th at p. 162; Kahn v. East Side Union
High School Dist., supra, 31 Cal.4th at pp. 1003, 1005.)
Plaintiff quotes the Court of Appeal majority‟s reasoning that a greater duty
should apply to proprietors of recreational activities because they are “uniquely
positioned to eliminate or minimize certain risks, and are best financially capable
of absorbing the relatively small cost of doing so.” As to the inherent risks of
injury from recreation, we disagree. A rule imposing negligence duties on
16
sponsors, organizers and operators of recreational activities would encompass not
only commercial companies like defendant but also noncommercial organizations
without extensive budgets or paid staff. Such groups might not easily afford
insurance to cover injuries that are inherent risks of the activity; nor could they
readily collect large fees from participants to cover that cost. The primary
assumption of risk doctrine helps ensure that the threat of litigation and liability
does not cause such recreational activities to be abandoned or fundamentally
altered in an effort to eliminate or minimize inherent risks of injury.
Finally, comparing this case to decisions addressing the duty to reduce
extrinsic risks of an activity, plaintiff argues defendant owed her a duty to take
reasonable measures to eliminate or minimize head-on bumping, which she
characterizes as beyond the inherent risks of a bumper car ride.7 Even assuming a
triable issue of fact exists that plaintiff‟s injury resulted from a head-on collision—
the record contains no direct evidence it did—we disagree. 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. (Avila v. Citrus Community College Dist., supra, 38
7 Plaintiff cites Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th
1072, 1084 (owner-operator of motocross track owed motorcyclist duty of
reasonable care to avoid collisions by posting flaggers to warn of fallen riders) and
Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 179 (organizer of marathon
had duty to provide promised adequate water and electrolytic fluids along course).
17
Cal.4th at p. 165.) Nor does defendant‟s operation of other bumper car rides so as
to channel the cars‟ travel mainly in one direction establish a duty to operate Rue
le Dodge in the same manner. The operator of a bumper car ride might violate its
“duty to use due care not to increase the risks to a participant over and above those
inherent” in the activity (Knight, supra, 3 Cal.4th at p. 316) by failing to provide
routine safety measures such as seat belts, functioning bumpers and appropriate
speed control, but does not do so by failing to restrict the angle of bumping.
Any attempt on our part to distinguish between angles of collision that pose
inherent risks and those that pose extrinsic risks would ignore the nature of a
bumper car ride, an activity that gives its mostly young participants the
opportunity to inflict and evade low-speed collisions from a variety of angles.
CONCLUSION
The risk of injuries from bumping was inherent in the Rue le Dodge ride,
and under our precedents defendant had no duty of ordinary care to prevent
injuries from such an inherent risk of the activity. The absence of such a duty
defeats plaintiff‟s cause of action for negligence as a matter of law. Plaintiff‟s
“willful misconduct” cause of action, which (as described by the lower court and
in plaintiff‟s briefing) rests on a duty to minimize head-on collisions, fails for the
same reason.8 Finally, in light of our conclusion defendant did not act as a
common carrier for reward in operating the bumper car ride, summary judgment
was also proper on the cause of action for common carrier liability.
8 Whether “willful misconduct” constitutes an independent cause of action or
is merely an element of various claims and defenses was not decided by the Court
of Appeal, identified as an issue in the petition for review, or briefed by the parties
in this court. An amicus curiae brief argues forcefully against recognition of such
a separate cause of action, but we decline to address the issue in this case.
18
DISPOSITION
The judgment of the Court of Appeal is reversed.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
19
DISSENTING OPINION BY KENNARD, J.
In Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), a plurality of this court
introduced a radical transformation of California‟s tort law: Participants in active
sports are exempt from the usual tort law standard of care — as measured by the
conduct of a reasonable person in like or similar circumstances — to prevent
injury to coparticipants. The only duty owed, the plurality said, is not to increase
the risk of harm “inherent” in a particular sport (id. at pp. 315-316 (plur. opn. of
George, J.)); whether a risk is inherent is a legal question to be decided by the
judge before trial (id. at p. 313). I dissented in Knight, noting the difficulty trial
judges would face in pretrial proceedings, on demurrer or on a motion for
summary judgment, in discerning “which risks are inherent in a given sport” (id. at
p. 337 (dis. opn. of Kennard, J.)). I perceived no good reason to abandon the
traditional defense of assumption of risk, which pertains to a plaintiff‟s knowing
and voluntary acceptance of the risk of injury in a particular activity.
Eleven years later, in Kahn v. East Side Union High School Dist. (2003) 31
Cal.4th 990 (Kahn), a majority of this court extended the reasoning of the Knight
plurality beyond sports participants by applying it to a high school swim coach
who supervised and trained sports participants. I disagreed, for reasons similar to
those expressed in my dissent in Knight, supra, 3 Cal.4th 296. (Kahn, supra, at
pp. 1021-1025 (conc. & dis. opn. of Kennard, J.).) Since then, I have reiterated
that view in two separate opinions. (Shin v. Ahn (2007) 42 Cal.4th 482, 500-502
1
(conc. & dis. opn. of Kennard, J.); Avila v. Citrus Community College Dist. (2006)
38 Cal.4th 148, 169-174 (conc. & dis. opn. of Kennard, J.) (Avila).)1
Today the majority further expands Knight‟s no-duty-for-sports rule, this
time by bringing within the rule‟s ambit “recreational activities” (maj. opn., ante,
at p. 1) (here, a bumper car ride in an amusement park), saddling trial judges with
the unenviable task of determining the risks of harm that are inherent in a
particular recreational activity.
I
In 2005, plaintiff took her nine-year-old son on a bumper car ride at Great
America, an amusement park in Santa Clara, California; she sat next to her son,
who steered the car. The ride was “multidirectional” (cars could go in all
directions). No written warnings prohibited “head-on” bumping, but riders who
deliberately collided head-on were told by the ride operator to stop. Plaintiff‟s car
1 Knight‟s no-duty-for-sports rule has been strongly criticized in various
legal journals. (See, e.g., Note, California Supreme Court Extends Assumption of
Risk to Noncontact Sports — Shin v. Ahn, 165 P.3d 581 (Cal. 2007) (2008) 121
Harv. L.Rev. 1253, 1260 [the California Legislature should “take Justice
Kennard‟s advice and restore traditional principles of negligence to the fore of
sports torts jurisprudence”]; Ursin & Carter, Clarifying Duty: California’s No-
Duty-for-Sports Regime (2008) 45 San Diego L.Rev. 383, 440 [“the only real use
of the inherent risk concept is to cause confusion”]; Comment, Looking Beyond
the Name of the Game: A Framework for Analyzing Recreational Sports Injury
Cases (2001) 34 U.C. Davis L.Rev. 1029, 1057 [“The Knight decision sets an
unreasonable standard of care for recreational sports injury cases that violates
public policy.”]; Note, Fore! American Golf Corporation v. Superior Court: The
Continued Uneven Application of California’s Flawed Doctrine of Assumption of
Risk (2001) 29 Western St. U. L.Rev. 125, 145-146 [“Knight‟s vague guidelines
regarding duty analysis” are “a flawed conceptualization of the doctrine of
assumption of risk” that have “produced uneven results.”]; Sugarman, Judges as
Tort Law Un-Makers: Recent California Experience with “New” Torts (1999) 49
DePaul L.Rev. 455, 485 [expressing “disagreement with the policy judgment that
recreational injuries are an appropriate place for such a „no duty‟ rule.”].)
2
was hit head-on and from the back in close succession. As plaintiff put her hand
on the car‟s dashboard to brace herself, she fractured her wrist. She sued
defendant Cedar Fair, L.P., the owner of the amusement park for, as relevant here,
negligence.
At the time of the injury, defendant owned four other amusement parks. In
those parks, the bumper car rides were unidirectional (cars could only go in one
direction, around an island), allowing rear-end and side collisions but minimizing
the likelihood of head-on collisions. Plaintiff here asserted that had the bumper
car ride at Great America been unidirectional, the head-on collision that fractured
her wrist would not have occurred.
Defendant successfully moved for summary judgment. The trial court
ruled that plaintiff could not recover on her cause of action for negligence, because
under the no-duty-for-sports rule defendant had no duty to prevent the bumper cars
from colliding head-on. In a two-to-one decision the Court of Appeal reversed,
holding that the no-duty-for-sports rule applies only to sports, and that a bumper
car ride is not a sport. This court granted defendant‟s petition for review.
II
Until the 1993 plurality decision in Knight, California had in negligence
cases followed the common law doctrine of assumption of risk, a defense to
liability for injuries resulting from “a specific, known and appreciated risk” to
which the plaintiff had voluntarily consented. (Knight, supra, 3 Cal.4th at p. 325
(dis. opn. of Kennard, J.).) The consent could be express (through a plaintiff‟s
spoken or written words) or implied (inferred from the plaintiff‟s conduct). (Ibid.)
The plurality in Knight proposed that, for injuries occurring during active sports,
the assumption of risk doctrine be replaced with a rule that the Knight plurality
called “ „primary assumption of risk‟ ” (Knight, supra, at p. 310 (plur. opn. of
George, J.)) and which I have called the “no-duty-for-sports rule” (e.g., Knight,
3
supra, at p. 336 (dis. opn. of Kennard, J.)). A majority of this court later embraced
the Knight rule. (See Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067; Kahn,
supra, 31 Cal.4th at pp. 995-996.)
Common law assumption of the risk was an affirmative defense to be
asserted and proved by the defendant at trial. Duty, by contrast, is a question of
law to be determined by the trial court before trial, on demurrer or on a motion for
summary judgment. The no-duty-for-sports rule reduces the traditional standard
of care — measured by the conduct of a reasonable person in like or similar
circumstances — by imposing on all those involved in sports activities
(participants, coaches, and hosts of sporting events) only the duty to avoid
increasing the danger beyond the risks that are “inherent” in the sport. Whether
the plaintiff knowingly assumed the risk of injury no longer matters. As my
dissent in Knight explained, the no-duty-for-sports rule “recast the analysis of
implied assumption of risk from a subjective evaluation of what a particular
plaintiff knew and appreciated about the encountered risk into a determination of
the presence or absence of duty legally imposed on the defendant . . . [,] thus
transforming an affirmative defense into an element of the plaintiff‟s negligence
action.” (Knight, supra, 3 Cal.4th at p. 324 (dis. opn. of Kennard, J.).)
Consequently, the rule “eliminate[d] altogether the „reasonable person‟ standard as
the measure of duty actually owed” (id. at p. 325) by those involved in sports
activities.
In an action seeking damages for a personal injury sustained while playing
a sport, determining which risks are inherent in that sport is a difficult task. Some
sports are so new or uncommon that their typical risks may not be evident. Even
for sports that are familiar and widely played, moreover, the risks of physical
injury to players of that sport are likely to vary greatly depending on, for example,
the participants‟ ages and genders, their levels of skill and experience, and the
4
presence or absence of protective clothing and equipment. Because of the many
variables, the “inherent risk” determination is often fact-intensive and ill-suited for
treatment as a question of law, which a trial court must decide without the benefit
of an evidentiary hearing. The difficulties that trial courts will encounter when
making these “inherent risk” determinations are greatly amplified by today‟s
decision expanding the no-duty-for-sports rule to also encompass recreational
activities that are not sports.
The majority gives this reason for applying the no-duty-for-sports rule to
recreational activities: “[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.” (Maj. opn., ante, at p. 9.) The
majority later asserts: “The primary assumption of risk doctrine helps ensure that
the threat of litigation and liability does not cause such recreational activities to be
abandoned or fundamentally altered in an effort to eliminate or minimize inherent
risks of injury.” (Id. at p. 17.) But the majority offers no evidence for that view.
Pertinent here is this comment by a major treatise on tort law: “It may be that
some courts are in the process of creating a freestanding limited-duty rule,
divorced from its foundation in the parties‟ expectations. The opinions suggest
that the duty should be limited because of the danger of a flood of litigation, and
because of a supposed policy of encouraging vigorous physical competition. Both
these reasons, as distinct from the parties‟ reasonable expectations, may be
doubted.” (1 Dobbs et al., The Law of Torts (2d ed. 2011), § 240, p. 868, fns.
omitted.)
A final point: Even if the common law assumption of risk doctrine were
still in place in California (see pp. 3-4, ante), plaintiff here would not necessarily
prevail in her action for personal injury. Under that doctrine, “the pertinent
inquiry is not what risk is inherent in a particular sport [or recreational activity];
5
rather, it is what risk the plaintiff consciously and voluntarily assumed.” (Avila,
supra, 38 Cal.4th at p. 173 (conc. & dis. opn. of Kennard, J.).) Thus, the question
here would be whether plaintiff voluntarily assumed the risk of the type of harm
that ensued from her decision to ride the bumper car, “with knowledge and
appreciation of that risk.” (Knight, supra, 3 Cal.4th at p. 326 (dis. opn. of
Kennard, J.).) Even if plaintiff did not assume that risk, defendant may not have
acted unreasonably by making the bumper car ride at Great America a
multidirectional ride, and thus may not have breached its duty of care toward
plaintiff. According to declarations in the appellate record, approximately
300,000 people rode on that ride in 2005, the year plaintiff was injured, and she
was the only one to suffer a fracture. Based on such evidence, a jury could
conclude that defendant was not negligent.
Because, for the reasons given above, I agree with the Court of Appeal that
the no-duty-for-sports rule should not be extended to a bumper car ride, which the
Court of Appeal observed is not a sport, I would affirm its judgment reversing the
trial court‟s grant of defendant‟s summary judgment motion.
KENNARD, J.
6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Nalwa v. Cedar Fair, L.P.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 196 Cal.App.4th 566Rehearing Granted
__________________________________________________________________________________
Opinion No. S195031
Date Filed: December 31, 2012
__________________________________________________________________________________
Court: Superior
County: Santa Clara
Judge: James P. Kleinberg
__________________________________________________________________________________
Counsel:
Law Offices of Ardell Johnson, Ardell Johnson; Christi Jo Elkin; Emanuel Law Group and Mark D.
Rosenberg for Plaintiff and Appellant.
Manning & Kass, Ellrod, Ramirez, Trester, Patrick L. Hurley, Jeffrey M. Lenkov and Stephen J. Renick for
Defendant and Respondent.
Duane Morris, John E. Fagan, Paul J. Killion and Jill Penwarden for California Ski Industry Association
and National Ski Areas Association as Amici Curiae on behalf of Defendant and Respondent.
Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholt and Michael L. Amaro for Park Management Corp.
doing business as Six Flags Discovery Kingdom, Magic Mountain LLC, LEGOLAND California LLC,
Agua Caliente, Bally Total Fitness Corporation, 24 Hour Fitness, GNS Development Corporation doing
business as Golf N‟ Stuff, Montasia LP, Butler Amusements, Inc., Christensen Amusements, Carnival
Midway Attractions, Brass Ring Amusements, Inc., Davis Enterprises and Amusements, Northridge
Skateland Enterprises, The Worldwide Outfitters and Guides Association, International Special Events and
Recreation Association and Scooters Jungle as Amici Curiae on behalf of Defendant and Respondent.
Snell & Wilmer, Mary-Christine Sungaila and Jessica E. Yates for California Chamber of Commerce as
Amicus Curiae on behalf of Defendant and Respondent.
David J. Ozeran as Amicus Curiae on behalf of Defendant and Respondent.
Horvitz & Levy, Frederic D. Cohen and Wesley T. Shih for California Attractions and Parks Association as
Amicus Curiae on behalf of Defendant and Respondent.
Gordon & Rees, Don Willenburg; Cole Pedroza and Joshua C. Traver for Association of Defense Counsel
of Northern California and Nevada and Association of Southern Defense Counsel as Amici Curiae on
behalf of Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Mark D. Rosenberg
Emanuel Law Group
702 Marshall Street, Suite 400
Redwood City, CA 94063
(650) 369-8900
Jeffrey M. Lenkov
Manning & Kass, Ellrod, Ramirez, Trester
801 South Figueroa Street, 15th Floor
Los Angeles, CA 90017
(213) 624-6900
Stephen J. Renick
Manning & Kass, Ellrod, Ramirez, Trester
801 South Figueroa Street, 15th Floor
Los Angeles, CA 90017
(213) 624-6900