With analysis worthy of a zen master, or perhaps worthy of Jedi master Yoda, a divided panel of California's Sixth District Court of Appeal has posited essentially this:
You cannot "assume the risk" of participating in a dangerous activity if you first assume that the risk is an illusion.
The particular risk under consideration? Roll up, friends! It is none other than the risk of injury to its riders posed by the humble bumper car. More specifically, it is the risk of being injured when bumped in a bumper car.
The appellate opinions [PDF] in the case of Nalwa v. Cedar Fair (June 10, 2011) run to 58 pages: a 20-page opinion from the 2-judge majority, and a 38-page dissent finding fault with every one of the majority's holdings. Those with a genuine interest in these things are advised to Read The Whole Thing, and reflect upon it in solitude. The relative brevity of a blog post does not permit the fine-grained analysis this opinion deserves, but the surfaces we can skim here are interesting enough.
The facts of the case are largely undisputed. In July, 2005, Dr. Smriti Malwa took her young children to the Great America theme park in Santa Clara, California. There, they chose to ride the "Rue le Dodge" bumper cars. Dr. Malwa rode as passenger in a car operated by her 10-year old son.
During the ride, [her] bumper car was hit head-on and then immediately hit from behind. Feeling 'pushed around,' and needing to 'brace' herself, [she] put her hand on the dash and fractured her wrist.
Litigation, rather than merriment, ensued.
In 2008, the trial court granted summary judgment in favor of the park operator, Cedar Fair, reasoning that
the doctrine of primary assumption of risk barred recovery . . . because [the] injuries arose from bumping, a risk inherent in the activity of riding bumper cars. Further, the court stated that, 'Defendant did not have a duty to reduce risks that are inherent to bumper car riding.'
On appeal―this week, nearly six years post-accident―the majority of the three-judge panel disagreed, reversing the judgment and returning the case to the lower court for further proceedings and possible trial.
Let's parse this through, shall we?
California's current doctrine of "primary assumption of risk" originated, and has been applied predominately, in cases involving sports injuries. In simplest terms, when a player/participant is injured in the usual course of events, either by another player or by physical conditions inherent in the sport, no legal liability will arise. Liability is imposed only when some act or omission of the defendant has made the sport more dangerous than it ordinarily would be.
As the Malwa majority opinion notes, this version of "assumption of risk"―which was "reinvented" by a "more conservative" California Supreme Court in the 1992 case of Knight v. Jewett―is of far more restricted application than was the traditional, common law version of the doctrine―which "[t]he pre-1986 liberal California Supreme Court had narrowed . . . to the 'point of virtual extinction.'"
As against Dr. Malwa, Cedar Fair argued that it had done nothing to make bumper car bumping any more risky than expected, and that the "primary assumption of risk" doctrine should be construed to apply beyond the context of sports. In short, Cedar Fair suggested a re-broadening of the doctrine so that injury resulting from the recognized risk inherent in most any inherently-risky activity should not give rise to liability for damages.
While the dissenting justice was prepared to move the law in that direction, the majority was having none of it. In large part the majority was convinced that doctrines appropriate to a sporting competion are not relevant to amusement parks specifically because amusement parks are elaborately regulated enterprises. In particular, although there is no suggestion that Cedar Fair's bumper cars were out of compliance with any applicable regulation, the fact of regulation in itself makes "primary assumption of the risk" in applicable.
Amusement parks, the majority opines, are not offering actual risk to their patrons. They are offering a mere simulacrum: the experience of quasi-risk in the absence of the real thing.
The very reason we go on amusement park rides is because we 'seek the illusion of danger while being assured of [a ride‘s] actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt.'
This line of reasoning springs to life in a remarkable discussion in a footnote early in the opinion, which serves to advance the majority's argument while demonstrating as well that "they just don't write 'em like they used to":
[Cedar Fair] relies on several out of state authorities which purportedly barred recovery against amusement parks because injuries sustained as a result of risks inherent in the ride. [Cedar Fair] fails to explain how these cases are persuasive or even relevant under a post-Knight analysis. We do note that the most auspicious Judge Cardozo, in Murphy v. Steeplechase Amusement Co. (N.Y. 1929) . . . , a case where the plaintiff broke a kneecap on an amusement park ride called the flopper, held that 'Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary . . . .' Judge Cardozo suggested that 'The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. . . . The timorous may stay at home.' While we certainly wouldn‘t presume to question Judge Cardozo‘s poetic alliteration [sic], his reasoning does not apply here. First of all, Cardozo was reviewing a case after a jury verdict, not on motion for summary judgment. Second, Cardozo‘s discussion focuses on plaintiff‘s knowing acceptance of the risk, not on the absence of duty, as the doctrine is now crafted in California. Finally, we cannot know, as the case does not reveal, what, if any, regulations New York had at the time regarding amusement park rides. Judge Cardozo‘s opinion makes no mention of any such protective legislation or regulations. Respondent‘s cases can be similarly distinguished. Our playing field is quite different. While amusement parks in 21st century California are still not retreats for meditation for the timid, riders here and now do get assurances of safety from a stringent regulatory scheme.
Pause, and reflect on the unspoken pseudo-syllogism here.
- Amusement parks are regulated in the interest of safety, and customers believe therefore that they are safe.
- This amusement park did not violate any applicable provision of the "stringent regulatory scheme," and the fact that the risk of injury is modest but not zero was readily apparent to a reasonable adult.
- The modest risk of injury must therefore be borne by the amusement park, not by the customer who had the option to seek entertainment elsewhere.
It is not hard to tell by the tone of this post that I consider this case wrongly decided: the former, broader version of the defense of "assumption of the risk" is past due for resurrection in California, and this seems as good a case as any in which to do it. Perhaps especially in a "stringently regulated" industry, the reality that Life is Risk (within reasonable limits) should not be denied. The unfortunate can befall any of us any day, through no fault of any one else, and fault is the only reasonable basis for a schema of injury compensation. The facing of these facts would be refreshing. Perhaps this is the case that will provide the California Supreme Court opportunity to revisit these issues and assumptions?
Related: Walter Olson at Overlawyered is the latest to report that Butlin's, the UK operator of holiday resorts, has resorted to banning bumping on its bumper cars to counter potential liabilities. The ban is particularly ironic given that company founder Sir Billy Butlin was the first to introduce the bumper car to England.
Photo: "View of the dodgems as a dodgem cars streak past. Cambridge Midsummer Fair 2005." Andrew Dunn, photographer; used under Creative Commons license, via Wikimedia Commons.