By: Guy N. Webster
The California Supreme Court applied the primary assumption of risk doctrine, which previously had been applied in lawsuits involving primarily sports activities, to “non-sport” recreational activities. The Supreme Court decision addressed a split in the California Courts of Appeal on whether the primary assumption of risk defense was limited to so‐called “active sports.”
The plaintiff, who fractured her wrist while riding as a passenger in a bumper car at an amusement park, sued the park operator on theories of negligence and common carrier liability alleging that the operator should have employed available, additional safety measures. The defendant obtained summary judgment, on the basis that plaintiff assumed the risk of injuries from bumper car collisions. The Court of Appeal reversed the trial court, following a line of intermediate appellate decisions limiting the primary assumption of risk defense to “active sports,” holding that riding bumper cars did not qualify as an “active sport”.
In reversing the Court of Appeal, the California Supreme Court held that primary assumption of risk applies to non-sport recreational activities involving an inherent risk of injury to voluntary participants where the risk cannot be eliminated without altering the fundamental nature of the activity. The Court examined the public policy behind the assumption of risk doctrine and recognized that the public policy behind the doctrine is to avoid a chilling effect on activities which have certain inherent dangers, lest the imposition of liability fundamentally alter the nature of the activity or inhibit vigorous participation. The Nalwa Court concluded that the primary assumption of risk defense applies “squarely to injuries from physical recreation, whether in sports or non-sports activities.”
The Court declined to apply the heightened standard of common carrier liability to the defendant in relation to the bumper car ride. The Court also rejected the position that primary assumption of the risk should not apply to defendants who are subject to state safety regulations, such as amusement parks.
Practical note: The Assumption of Risk Doctrine now applies in a wider range of activities, not previously associated with “active sports”, with the new scope extending to activities with an inherent risk of injury to voluntary participants.