Now, its worth noting that it is notoriously difficult to predict the outcome of a case based on the questions asked by a court during oral argument. So, what I'm about to say is a bit of a crap shoot, but half the fun of being in my business is getting worked up about what a judge, over whom you have no control, is going to do. With that in mind....
To recap for those of you unfamiliar with the Nalwa case: Nalwa is a surgeon in California who took her kids to Great America (then owned by Paramount, now owned by Cedar Fair) for the day. While riding the bumper car ride, she was apparently bumped from the front, bumped from the back, and somehow broke her wrist. She sued the park and the trial court granted summary judgment in favor of Cedar Fair. The trial court ruled that there are simply inherent risks assumed by riders on a bumper car - i.e. being bumped and, potentially, injured from the bumps - and that Cedar Fair had no duty to minimize those inherent risks because, to do so, would change the fundamental nature of the experience. On appeal, the Court of Appeals took a very narrow view of the assumption of the risk doctrine and held that it only applied to sports, not other recreational activities, and that California's regulation of amusement rides evidenced a strong public policy in favor of assuring guest safety that would be incompatible with allowing owners, like Cedar Fair, to avoid liability for ride-related injuries - even those that resulted from the inherent risks involved in the ride. This is, of course, a gross over-simplification of the decision below, but you can read here for a better summary and discussion if you so desire.
Which brings us to yesterday's hearing before the Supreme Court and the reason for my cautious optimism. So why my sunny outlook and is there anything I am concerned about? Of course (otherwise I wouldn't be writing this, now would I?).
Why I feel good about it: The justices spent a lot time asking line drawing questions - essentially trying to get the parties to help the Court determine what the confines of the assumption of risk doctrine should be and how it could be applied. Why is this important? Because if the Court is asking a lot of questions about line drawing, it could indicate that it is thinking about actually drawing a line. If a majority of the Court were leaning toward the conclusion reached in the Court of Appeals, i.e. the doctrine just doesn't apply to amusement park rides, there would be little reason to spend a lot of time talking about how far the doctrine should or could extend.
What I might be concerned about: Several questions attempted to pin down whether allowing a park owner to rely on assumption of the risk to avoid liability would leave open any possibility at all that an injured plaintiff could get to the jury if his / her injury was caused by being bumped or if the doctrine simply meant that the park would get a pass every time someone was injured on a bumper car. There was clearly an undercurrent of concern about imposing a rule that would basically give carte blanche to ride owners and operators to injure guests without potential liability.
Unfortunately, one question in this vein that seemed to pose some trouble for Cedar Fair's attorneys. One of the justices pressed relatively hard for an example of a bumping related injury that could survive dismissal if primary assumption of the risk applied to amusement rides. While Cedar Fair pointed to injuries from operator negligence, other patrons, or an electrical problem, its attorneys ultimately conceded that it was difficult to think of an example of a bumping related injury that could get to the jury. This is a bit concerning because, to me, it sounded like the particular justice asking the question was truly concerned about overreaching and was looking, not to play "gotcha" with Cedar Fair, but honestly to test the reach of the doctrine to be sure it would not be over broad. Unfortunately, that answer was not as clear as it perhaps could have been (through no fault of Cedar Fair's lawyers - you try fielding questions from seven of the smartest judges in the country, all at once, on esoteric rules of law and then see if you don't believe me).
Why I'm still optimistic despite this: Despite a less-than-ideal answer to this question, I think that if the justices just think this through, they will find their answer. The answer lies in the parameters of the doctrine itself. The doctrine says that there is no duty (and thus no liability) for injuries due to inherent risks of an activity - even if those risks could be minimized - but that liability could still exist if those inherent risks were somehow increased. And that's the kind of bumping cases that still survive. That's the answer the Court was looking for. If the assumption of the risk doctrine applies to amusement rides, it only applies so long as the owner / operator does nothing to actually increase the inherent risks of riding. So ... if a rider in a bumper car gets injured from a bump while the ride is operating totally normally, then there could be no liability. But if a rider is injured from a bump that is harder than normal because the operator, for example, negligently increased the power or disabled speed governors in the cars, such a claim could get to the jury and the park might still be liable. Once the Court gets there, the line drawing should be relatively easy and there should be little concern about an over broad doctrine.
Public Policy Gets Short Shrift
Why I feel Good About It: A major underpinning of the Court of Appeals' decision was California's public policy, embodied in its amusement ride regulations, in favor of ensuring guest safety on rides. The Court of Appeals held that, despite there being no evidence (or even any allegation) that Cedar Fair had violated any regulatory duty, the public policy was so strong that it precluded the application of the assumption of the risk doctrine to amusement rides entirely. The Supreme Court, on the other hand, asked no questions of the plaintiff about this issue and asked only a few softball questions about it to Cedar Fair's lawyers - essentially serving up a couple of questions perfectly designed to allow Cedar Fair to point out that it had complied with all its legal duties. For being such a major theme in the Court of Appeals, the entire issue was all but ignored by the Supreme Court. This could be an indication that the Court is discounting the weight of this argument.
What I might be concerned about: Or it might not be. The Court's silence on this topic conceivably could also signify that it has reached a consensus agreeing with the Court of Appeals, and thus that it doesn't need or want to hear any more about it from the parties.
Why I'm still optimistic despite this: Two reasons. First, I do find it significant that the Court only asked Cedar Fair's lawyers about public policy, but not the plaintiff's. If the Court had made up its mind or was leaning toward the plaintiff's view of things, it might make sense to give the plaintiff an opportunity to say something that firms up any lingering doubts or that might be useful in the Court's final written opinion. The fact that only Cedar Fair spoke on the issue could signal that the Court is leaning against the public policy argument. Second, and more importantly, if the Court were inclined to go with the policy argument to support a ruling against Cedar Fair, there would be no need to get into all the line drawing discussion I just discussed. The fact that 98% of the argument revolved around the contours of the doctrine, to me, indicates that the Court is not likely to find it inapplicable on public policy grounds.
Head On Collisions & Unidirectional Travel
Why I feel Good About It: Another significant factor in the Court of Appeals decision was its opinion that Cedar Fair 1) knew of the risks of head-on collisions as evidenced by the fact that its operators warned guests not to do it (but only after they already had), and 2) that other Paramount parks (now owned by Cedar Fair) had installed islands on the bumper car floor that required cars to travel in one direction, ostensibly to reduce the number of head on collisions. The Supreme Court, however, focused in on some weaknesses in the Plaintiffs' record, noting that there was nothing in the record that actually proved that unidirectional travel was there to prevent head on collisions. The justices also expressed some obvious doubt about whether deposition testimony from Great America's Ride Operations Manager that she understood the "no head on collisions rule" to be there for safety purposes, was sufficient to establish Cedar Fair's corporate policy - and the Plaintiff's attorney had very little to say to convince them that it did. Perhaps most significantly, the justices seemed to recognize that there was no actual evidence that the Plaintiff was injured by anything other than normal bumping. All of this could be a good sign that the Court is ready to depart from the Court of Appeals reasoning.
What I might be concerned about: These evidentiary problems are the kind of thing that could result in a somewhat empty victory for Cedar Fair. Given the import these factual issues had in the Court of Appeals, and the questions devoted to them in the Supreme Court, it is conceivable that the Court could hold that the doctrine of assumption of the risk applies to amusement rides, but that further evidence is necessary to determine whether it applies to Nalwa's claim in this case.
Why I'm still optimistic despite this: Despite being a former full-time manager of Cedar Fair, and still holding a great deal of affinity for my former employer, an empty victory for Cedar Fair is still a victory for the industry and that is more important to me as an attorney. Should the Court return with a ruling that confirms the applicability of the assumption of the risk to amusement rides in California, that would be a win for the entire industry. And, while not great for Cedar Fair in this case, it would be great for Cedar Fair and the rest of the industry in the years to come.
So there you have it. Sorry its a bit long-winded, but this was an important argument. Now, we wait for the decision.