Are California Courts Already Signaling Doubt About The Future Of The Nalwa Decision?

On Tuesday (8/16/11), the United States District Court for the Southern District of California issued an interesting decision in Wallace v. Busch Entertainment Corporation (now Seaworld Parks & Entertainment).  The factual background of the case is not especially remarkable - it is a rather run-of-the-mill personal injury lawsuit.  The plaintiff purchased a ticket to use the bungee trampoline in Seaworlds "Xtreme Zone," read and signed a liability waiver, followed the directions of the attendant, and was injured (a torn tendon in his left bicep).  The plaintiff sued alleging theories of negligence, negligence per se, gross negligence, breach of warranty, and products liability.  The court ultimately found that the plaintiff's breach of warranty and products liability claims were meritless and granted judgment in Seaworld's favor as to those counts.  Additionally, the court held that the plaintiff's negligence claim was foreclosed by the liability waiver he had signed, and therefore found in Seaworld's favor on that count as well. 

However, despite these victories, Seaworld did not prevail on plaintiff's negligence per se, and gross negligence claims, and it is in this respect that the case is really interesting - not because of anything the Court said, but because of what it didn't.


Two months ago, the California Court of Appeals decided Nalwa v. Cedar Fair, a case that has been largely and justifiably criticized from many in the amusement industry since its release.  In fact, the inaugural article in this blog was written about it.  In Nalwa, the California intermediate appellate court held that the doctrine of assumption of risk simply did not apply to amusement rides because 1) it would violate California's public policy as set forth in its amusement ride safety regulations, and 2) because owners of amusement rides had a duty "to minimize any risks associated with its rides, both because of its control and because the profits such parks make."

This background is relevant because, in Wallace, Seaworld raised the assumption of risk doctrine as a defense to the plaintiff's negligence per se claim.  (FYI, a "negligence per se claim essentially says that the defendant acted negligently because it violated a statute that was put in place to protect people like the plaintiff - here the plaintiff claimed that Seaworld violated California's Permanent Amusement Ride Inspection Program by improperly training the ride operators).  Given that Wallace appears to be the first amusement ride case to address assumption of risk under California law since Nalwa, the court's entire analysis could have gone something like this:

"Defendant relies on the doctrine of primary assumption of the risk, however, as the California Court of Appeals recently held in Nalwa v. Cedar Fair, that doctrine has no applicability in amusement ride cases.  Defendant's motion for summary judgment is therefore denied to the extent it relies upon this doctrine."

Except it didn't.  In fact, while the Court addresses the assumption of risk issue using much of the same general language and citing to most of the same cases that the Nalwa court looked at, the Wallace court never even mentions the Nalwa decision at all.   Indeed, the Court assumes, without any apparent hesitance, that the doctrine of assumption of the risk still applies to amusement ride cases under California law.  In this respect, while the court in Wallace finds that "given the nature of the activity, injuries to arms arising from flipping appear to be an inherent risk" involved in the bungee trampoline activity, the Court found that there was a question of fact as to whether Seaworld appropriately minimized the risk of injury by properly training its employees on the operation of the attraction.  In other words, the Court left open the door for Seaworld to prove at trial that its operator was appropriately trained and that it was not liable because the plaintiff assumed the risk of injury.  Quite a different result than in Nalwa.

So what does this mean?  Some might argue that the decisions were released so close to one another that maybe the Wallace court did not catch Nalwa before it released its decision.  I don't buy that.  Judges have very smart clerks that are paid to do little more than write opinions that are consistent with the current state of the law.  Nalwa is now two months old and is far too similar to Wallace to believe that it was simply overlooked.  Moreover, lawyers are not usually timid about bringing new case law to the attention of judges - particularly where it helps their case and would seem to be controlling authority on an issue.

So, I don't buy that this court just didn't know about Nalwa.  Instead, I think its possible (maybe likely) that this case signals a lack of confidence in the Nalwa decision.  By not addressing or citing the decision at all, the Court is not faced with the difficult task of trying to distinguish Wallace from Nalwa or being put in the awkward position of criticizing the soundness of the Court of Appeals' decision.  The Wallace court may well be signalling its belief that Nalwa won't represent California law for very long (a petition for review to the California Supreme Court is currently pending) and therefore that it is not willing to completely foreclose what could still be a viable defense for Seaworld should the case progress to trial.  By ignoring Nalwa now, the Wallace court essentially decided to wait and see what happens with the California Supreme Court  - if the Court ultimately affirms Nalwa, the Wallace court can always revisit its decision on assumption of the risk and find in the plaintiff's favor later.  But, in the event that Nalwa is reversed, the Wallace court will not have shut the door on a potentially vindicating defense for Seaworld.

It will be interesting to see if any future cases adopt this same stance.  In the meantime, Nalwa is 0-1 in cases where it probably should have been applied. 

UPDATE 11/22/11:  I've just returned from IAAPA Expo 2011 and have posted some updates on this case after having some interesting discussions at the convention.  You can find the update here.