This week the California Court of Appeals, Sixth District, issued its ruling in Nalwa v. Cedar Fair, LP., holding that a California amusement park operator cannot rely on the doctrine of assumption of risk to defend against a negligence lawsuit because 1) doing so would undermine California's policy of strict regulation of amusement rides and 2) because, even putting aside public policy, the doctrine of assumption of risk simply does not apply to amusement rides in California. The decision is potentially a game changer in California, and will undoubtedly be influential in other ride related cases around the country.
Nalwa arose from an injury on the bumper car ride at Great America. The plaintiff was injured during a head-on collision that resulted in a broken wrist. The park had posted warning signs about the possibility of bumping and sudden movements, but did not specifically warn guests riding the bumper cars not to engage in head-on bumping. Furthermore, and of significant relevance to the Court, the ride was operated with an open floor plan that allowed cars to be driven in any direction. The Court noted that Great America's four sister-parks, each of which also had a bumper car ride, operated these rides with a center-island that required the cars to move in one direction only, thereby reducing (but not eliminating) the instances of head-on collisions. The Court found that "although head-on collisions were prohibited, the only precaution employed at Great America against such collisions was post-collision admonitions to riders from the ride operators."
Cedar Fair, the successor to Paramount as operator of the park, argued that it owed no duty to warn riders of possible injury from bumping, even head-on bumping, because this was a risk inherent in the activity of riding bumper cars. The trial court agreed with this argument and entered judgment in Cedar Fair's favor. On appeal, the Court disagreed.
The Court of Appeals, in a rather scathing opinion, held that the park could not rely on the assumption of risk doctrine as a defense. The court found that Cedar Fair's position "flies in the face of both California public policy and the law of torts." Specifically, the Court found that California, like many states, relates "standards for every aspect of amusement park ride safety," to allow a park to achieve "the illusion of danger while being assured of a ride's actual safety." The policy of regulating amusement rides to promote safety was, in the Court's judgment, totally inconsistent with allowing amusement park operators to assert assumption of risk as a defense and thereby avoid liability.
The Court also found that, even if public policy did not bar the application of the assumption of risk doctrine, the doctrine itself simply did not apply to amusement rides. The key to this issue was a prior California decision, Knight v. Jewett, which held that the application of the assumption of risk doctrine depends on "1) the nature of the activity or sport and 2) the relationship of the parties." The Court in Nalwa held that an amusement park ride failed on both of this factors.
First, the Court focused on the fact that riding an amusement ride is not a sport, and thus imposing liability on an operator will not affect the "nature" of the activity. While Knight and other cases recognized that holding owners and operators of sporting events liable for the inherent risks of the sport might result in reduced vigor and passion brought to the activity, the Court here found that no such concern was implicated in amusement park rides.
Second, the Court also found that an owner of an amusement park holds a special relationship with a guest that requires it "to minimize any risks associated with its rides, both because of its control and because the profits such parks make." In this regard, the Court took Cedar Fair to task for the inconsistent bumper car operations at Great America as opposed to the other former Paramount parks. The Court held that this inconsistency created an issue that the jury must resolve with respect to whether the park did enough to minimize risks.
Finally, the Court held that a jury issue existed as to whether a bumper car ride was similar enough to a roller coaster that it should be considered a "common carrier," a designation that would impose higher legal duties on Cedar Fair as the operator, and that the inconsistent operation of the bumper car ride could be evidence of willful misconduct from the park.
A vigorous, and well thought out, dissent disagreed with the Court's holding and noted most importantly, that there was no evidence that Cedar Fair failed to comply with state regulations or did anything to increase the inherent risk of riding a bumper car ride. Finding that Cedar Fair complied with its duty to warn of the inherent risks of riding a bumper car (i.e. bumping and sudden directional changes), the dissent would have affirmed the trial court's judgment dismissing the plaintiff's claim.
Nalwa is important on several levels. First, unless overturned by the California Supreme Court, it, in effect, eviscerates the assumption of risk doctrine as applied to amusement rides in California. Given the facts of the case and the evidence that Cedar Fair complied with all regulations and did nothing to increase the inherent risks of riding bumper cars, its tough to imagine any situation where the assumption of risk doctrine could still be used as a viable defense in a California lawsuit by an amusement ride operator.
Second, as a practical point, the Court's focus on inconsistent operation should be a red flag for operators who own or operator multiple versions of the same ride or similar rides in various locations. While those of us versed in operations understand that even similar looking rides may have peculiar characteristics that justify differing operations from location to location, judges and jurors are not as savvy. To them, one ride is the same as another, and differences in operations are difficult to understand without close examination. For example, the Court in Nalwa was obviously quite alarmed by the inconsistent operation within the former Paramount chain, however nowhere in the opinion does it indicate what, if any, explanation might exist for this inconsistency. Was there different speed settings on Great America's ride? Were there design differences in the ride units that justify different operation? Did the manufacturer of the ride have any requirements that might affect the placement of the "one-way" island on the floor? Furthermore, the opinion does not seem to address whether there might be an industry standard for operation of bumper cars or, more specifically, whether operating bumper cars without a center island might violate such a standard. From a purely anecdotal viewpoint, I know from my prior experience that I actually preferred operation without a center island because I found that operating bumper cars with an island allowed the vehicles to achieve greater speed before bumping another car thereby potentially resulting in a more sudden "bump." Was there any evidence on any of these questions presented to the trial court? It does not appear there was (and that's probably OK given the procedural status of this case), but I'm sure there will be if this case is ever tried. Given the focus on consistency of operations in this opinion, this is an area that operators and their lawyers must focus attention on in the future.
Third, the court's mention of the profits made by Cedar Fair is particularly troublesome. Does the focus on profitability imply that an unprofitable operator or a start up might be held to a lesser duty with respect to its rides. Indeed, the Court's opinion seems to assume that all operators have the stature of Disney, Universal, Six Flags or Cedar Fair, but plainly this is not the case. The Court's analysis seems to inject a new financial consideration into the application of the assumption of liability doctrine that leaves less profitable operators (in any industry - not just the amusement industry) with little guidance on the potential application of this doctrine moving forward.
UPDATE: A recent California federal court ruling may signal some doubt Nalwa's reasoning and holding.
SECOND UPDATE: The California Supreme Court heard argument on this case on October 3, 2012. Some thoughts about that argument can be found here.
- Erik H. Beard, Esq.
- I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.
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