recent_developments_logo-new-smallORANGE, CA  The California Supreme Court recently broadened the application of the primary assumption of risk doctrine, which limits liability of operators of sporting and certain other recreational activities. While many appellate courts have previously extended the doctrine to non-sport recreational activities, this was the first time the California Supreme Court addressed the issue.

In Nalwa v. Cedar Fair, plaintiff brought an action against an amusement park after suffering a broken wrist as a passenger in a bumper car ride.
The trial court granted defendant's summary judgment motion finding plaintiff's claims were barred by the primary assumption of risk doctrine, under which operators and participants of certain activities have no duty of ordinary care to protect other participants from risks inherent in the activity. Under the primary assumption of risk doctrine, the operator is liable only if the activity increases the risk inherent to the activity in which the participant engages.

The Court of Appeal reversed the trial court, 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." The Court of Appeal also held that defendant could have reduced the ride's risks by configuring it to minimize head-on collisions.

The Supreme Court reversed the Court of Appeal and held that the primary assumption of risk doctrine is not limited to activities classified as a sport, but applies 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 Supreme Court noted that the primary assumption of risk doctrine applies to bumper car collisions, regardless of whether or not one deems bumper cars a sport because the whole point of a bumper car is to bump with other cars. While this activity is not highly dangerous, such collisions do carry an inherent risk of minor injuries, and this risk cannot be eliminated without changing the basic character of the activity.

The California Supreme Court's holding in Nalwa v. Cedar Fair extends the primary assumption of risk doctrine not merely to activities that require physical exertion and elements of skill, but to recreational activities that have an inherent risk of minor injuries.

The Supreme Court also confirmed that the doctrine is available not just to co-participants, but to commercial operators who are engaged in the activity for profit. Ultimately, this may make it easier to obtain summary judgment of claims to which the primary assumption of risk doctrine is applicable.