Key Decisions

February 2013 – Primary Assumption Of Risk Doctrine Extended

(filed under: Key Decisions Archive | February 22, 2013)

Primary Assumption Of Risk Doctrine Extended

Nalwa v. Cedar Fair, L.P.
(Cal. Sup. Ct.), filed December 31, 2012


Dr. Smriti Nalwa took her nine-year-old son and six-year-old daughter to Great America amusement park, owned and operated by Cedar Fair, L.P.

Nalwa and her children went on the park’s bumper car ride.  The ride consisted of small, two-seat, electrically powered vehicles that moved around a flat surface.  Each car was ringed with a rubber bumper and had a padded interior and seat belts for both the driver and passenger.  The driver of each car controlled its steering and acceleration.

Nalwa rode as a passenger in a bumper car her son drove.  They bumped into several other cars during the course of the ride.  Toward the end of the ride, their bumper car was bumped from the front and then from behind.  While bracing herself, Nalwa broke her wrist.

In the ensuing lawsuit, the trial court granted Cedar Fair’s motion for summary judgment.  It found that the primary assumption of risk doctrine barred recovery for negligence because Nalwa’s injury arose from being bumped — a risk inherent in the activity of riding bumper cars.  The trial court found that the heightened duty of care for common carriers did not apply because Cedar Fair had no control over the steering and orientation of the individual bumper cars, nor was there any willful misconduct as Cedar Fair did not act with knowledge or reckless disregard of a likely injury.

The Court of Appeal reversed.  It held that the public policy of promoting safety at amusement parks precludes application of the primary assumption of risk doctrine.  It also held that the doctrine was inapplicable to bumper car rides in particular because that activity was “too benign” to be considered a “sport.”


The California Supreme Court reversed.  It concluded the primary assumption of risk doctrine, although most frequently applied to sports, also applies to certain other recreational activities, including bumper car rides, where the activity’s nature involves an inherent risk of injury to voluntary participants and the risk cannot be eliminated without altering the activity’s fundamental nature.

People generally owe a duty of due care not to cause an unreasonable risk of harm to others.  However, some activities — and, specifically, many sports — are inherently dangerous.  Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.  The primary assumption of risk doctrine was developed to avoid such a chilling effect.

The Court rejected Nalwa’s argument that the doctrine applies only to “active” sports.  Not only did the Court’s language in the seminal case on the doctrine, Knight v. Jewett, 3 Cal.4th 296 (1992) [injury during a touch football game], contain language supporting its application to more than just sports, subsequent cases also applied it to other activities.

Amezcua v. Los Angeles Harley-Davidson, Inc., 200 Cal.App.4th 217 (2011), applied the doctrine to an organized, noncompetitive motorcycle ride.  Beninati v. Black Rock City, LLC, 175 Cal.App.4th 650 (2009), applied it to participation in fire ritual at the Burning Man festival. Moser v. Ratinoff, 105 Cal.App.4th 1211 (2003), applied it to an organized, noncompetitive group bicycle ride.  Record v. Reason, 73 Cal.App.4th 472 (1999), applied it to “tubing” (i.e., riding an inner tube towed by a motor boat).

Regarding bumper cars, the court noted:  “Low-speed collisions between the padded, independently operated cars are inherent in — are the whole point of — a bumper car ride.”

The Court also rejected Nalwa’s contention that because amusement park rides are the subjects of state regulations for safety and inspection, and because operators of some rides have been considered common carriers for reward, that public policy precludes applying the primary assumption of risk doctrine to amusement park rides.


As primary assumption of the risk is extended beyond traditional sporting activities, it becomes more and more difficult for courts to decide where to draw the line.