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In 1992, Kight v. Jewittbegan the radical transformation of California’s tort law from one that turned on traditional notions of a breach of a duty of care to a state of law where defendants are, by law, shielded from significant portions of liability. Knight held that the only duty of care owed to a participant of a sport is to refrain from increasing the risk of injury inherent to that sport. In 2003, Khan expanded the scope of Knight to apply to not only the actual participants but also to those who may supervise or train the participants.

A 2013 decision by the California Supreme Court has expanded these protections to amusement park, carnival and fair operators. In fact, any person or organization who operates rides such as bumper cars receives additional protection against liability claims – at the expense of those who suffer serious injury on amusement park accidents. Essentially, the California Supreme Court has seen fit to shift the costs of injury on to the victims while potentially padding the bottom-line of some of the most profitable corporations in America.

The Expansion of the Assumption of Risk 

In 2005, Dr. Smriti Nalwa patronized the Great America Amusement Park with her son and daughter. Dr. Nawla and her son decided to ride the bumper cars ride which was named, Rue le Dodge. With her son as the driver, Dr. Nawla’s car was, in rapid succession, struck from behind and then in the front. The doctor’s son cried out that he had heard a cracking noise and Dr. Nawla Also cried out. Dr. Nawla had suffered a broken wrist due to bracing herself from the rapid acceleration and deceleration her car experienced from the successive impacts.

In Nawla the trial court granted a motion for summary judgment filed by the defendants on the grounds that the assumption of risk doctrine foreclosed the plaintiff’s claim. The matter was appealed to the Court of Appeal who reversed the lower court’s decision holding that the doctrine was limited in its application to traditional sports and not attractions at an amusement park. The defendant’s then appealed this ruling to the California Supreme Court

The California Supreme Court reversed the Appeals court ruling holding that, in regard to the assumption of risk doctrine, no distinction should be drawn between traditional sports and amusement park attractions. The Court wrote that, “[t]he policy behind primary assumption of risk applies squarely to injuries from physical recreation, whether in sports or nonsport activities. Allowing voluntary participants in an active recreational pursuit to sue other participants or sponsors for failing to eliminate or mitigate the activity’s inherent risks would threaten the activity’s very existence and nature…The doctrine thus applies to bumper car collisions, regardless of whether or not one deems bumper cars a ‘sport.” Thus, to the Court, the question seemed to turn on voluntary participation in physical recreation – an expansive and sweeping broad generalization that has the potential to eviscerate many individual’s ability to recover for their injuries.

The dissent argued for a more measured, and wise, approach in permitting a “traditional defense of assumption of risk, which pertains to a plaintiff’s knowing and voluntary acceptance of the risk of injury in a particular activity”. The dissent reasonably argued that it is difficult in pretrial proceedings to delineate exactly where inherent risk of an activity ends and an increased risk of harm begins. The California Supreme Court has essentially transformed an affirmative defense regarding the plaintiff’s state of mind into something that the plaintiff must prove to prevail. Even in Nawla the lack of other injuries suffered on the ride in the years and weeks prior to Dr. Nawla’s accident may be proof that the defendant was not negligent. But the majority’s adoption of this interpretation does not permit a defendant to clear their name based on the facts.

Thus this begs the question: Why is the California Supreme Court blindly and automatically foreclosing the rights of thousands, if not millions of injured Californians?

Thrill-seeker beware, especially in California.

International Association of Amusement Parks and Attractions

American Society for Testing and Materials - International

National Amusement Park Historical Association

World Waterpark Association

Themed Entertainment Association

If you or a family member has been injured in an accident, our personal injury attorneys can help you fight for justice and compensation. Contact us today for a free legal consultation.