Nalwa v. Cedar Fair, LP, H034535

Decision Date10 June 2011
Docket NumberH034535
CourtCalifornia Court of Appeals Court of Appeals
PartiesSMRITI NALWA, Plaintiff and Appellant, v. CEDAR FAIR, LP, Defendant and Respondent.


(Santa Clara County Super. Ct. No. CV089189)

After appellant, Smriti Nalwa, M.D., broke her wrist on a bumper car ride at Great America amusement park, she sued respondent owner of the park, Cedar Fair L.P., for damages. She appeals from a judgment entered after the trial court granted respondent's motion for summary judgment on the grounds that the primary assumption of risk doctrine barred recovery. We will hold that primary assumption of risk is inapplicable to regulated amusement parks, that it does not apply to cases where the illusion of risk (as opposed to actual risk) is marketed and finally that in this case issues of fact predominate. Based on these holding we reverse the judgment.


On July 5, 2005, appellant, an OB/GYN physician and surgeon took her son, age 10 and daughter, age 7, for a day of fun at Great America Amusement Park, located in Santa Clara California. While there, the family decided to ride the two minute Rue Le Dodge bumper car ride. The ride consisted of a number of small car-like vehicles that moved in any direction around a flat surface track powered by electricity. In addition toan exterior bumper, the cars were padded throughout the interior and had seatbelts. The driver of each bumper car controlled both the steering of the car as well as its speed. Once the ride started, the respondent had no control over the individual cars.

In addition to Great America, respondent owns and operates four amusement parks in the United States and Canada. Each of these parks has a bumper car ride. In 2005, the four other parks configured their bumper car rides so that the cars were more likely to be driven in only one direction. Respondent knew that unidirectional travel helped to significantly reduce the number of head-on collisions. However, in 2005, although head-on collisions were prohibited, the only precaution employed at Great America against such collisions was post-collision admonitions to riders from the ride operators. At all times the two operators of the ride could turn off the electrical power and stop the cars.

Although respondent maintained control over any design or design modification of the ride, the California Code of Regulations, title 8, section 35, which regulates the operational safety of all amusement park rides, required respondent to conduct regular safety testing and report any accidents or injuries. (Cal. Code Regs., tit. 8, § 3900 et. seq.) The California Department of Industrial Relations, Division of Occupational Health and Safety (DOSH) inspected the ride annually and in 2004 and 2005 found no safety-related problems with the ride. On the morning of the incident, Great America staff inspected the ride and found it to be working within normal parameters.

Prior to boarding the ride, appellant saw posted warnings about the possibility of bumping and sudden movement and direction changes. However, there was no warning regarding the prohibition against head-on bumping. Appellant chose to ride as a passenger in the bumper car with her son while her daughter went in a bumper car by herself. During the ride, appellant's bumper car was hit head-on and then immediately hit from behind. Feeling "pushed around," and needing to "brace" herself, appellant put her hand on the dash and fractured her wrist.

In 2004 and 2005, 55 people, including appellant, were injured on the bumper car ride, however, appellant was the only one who suffered a fracture. In 2006, respondent finally modified the Rue Le Dodge ride at Great America to make it consistent with their other parks, by adding an island in the middle of the track so that riders all drive in the same direction.

On January 25, 2008, appellant filed her second amended complaint for personal injuries sustained on the Rue Le Dodge ride. The complaint alleged causes of action for common carrier liability, willful misconduct, strict products liability and negligence. After respondent filed a motion for summary judgment, appellant dismissed the products liability causes of action. The trial court granted the motion as to the remaining claims.

The court found that the doctrine of primary assumption of risk barred recovery both as to the regular negligence and the common carrier claims because appellant's injuries arose from bumping, a risk inherent in the activity of riding bumper cars. Further, the court stated that, "Defendant did not have a duty to reduce risks that are inherent to bumper car riding. [Citation.]" The court also found that there were no triable issues of material fact as to the willful misconduct cause of action because defendant established that "it did not act with the knowledge that injury was likely to result or with wanton and reckless disregard of the possible consequences. [Citation.]" Thereafter the trial court entered judgment in favor of defendant, and this appeal ensued.


This case is about a woman who took her children on a ride at an amusement park and broke her wrist: hardly an expected turn of events for a surgeon spending a family day of fun at Great America. She now seeks to recover from the park owners for this injury. The trial court found that the park owed her no duty under the primary assumption of risk doctrine, and thus, was not liable to her for the injury. The broad question before us is whether, and under what circumstances, an amusement park owner can be held liable for such a personal injury. The more specific question is whether theprimary assumption of risk exception applies to this case, barring recovery. That "is a question of law which must be decided on a case-by case basis." (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, citing Isaacs v. Hunting Memorial Hospital (1985) 38 Cal.3d 112, 124.)

Standard of Review

"A defendant moving for summary judgment must show either (1) that one or more elements of the plaintiff's cause of action cannot be established, or (2) 'that there is a complete defense to that cause of action.' [Citation.] '[T]he defendant has the initial burden to show that undisputed facts support each element of the affirmative defense.' [Citation.]." (Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 796 (Shannon)) "Once the defendant ... has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or defense thereto. . . ." (Code of Civ. Proc., § 437c, subd. (p)(2). Code of Civil Procedure section 437c, subdivision (c) provides, "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." The papers are to be construed strictly against the moving party and liberally in favor of the opposing party; any doubts regarding the propriety of summary judgment are to be resolved in favor of the opposing party. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189.) Here, respondent moved for summary judgment on the ground that the doctrine of primary assumption of risk barred recovery on the negligence based causes of action and thatplaintiff could not establish the elements of her causes of action for common carrier liability or willful misconduct.

On review from an order granting or denying summary judgment, we examine the facts presented to the trial court and determine their effect as a matter of law. (Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 464.) "The application of the affirmative defense of primary assumption of risk requires a legal conclusion that 'by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.' [Citation.]" (Shannon v. Rhodes, supra, 92 Cal.App.4th at pp. 795 -796) Where, as here, a defendant asserts that "plaintiff's evidence failed to establish the 'duty' element of plaintiff's cause of action for negligence," the trial court resolves the existence or nonexistence of a duty as a matter of law. (Parsons v. Crown Disposal Co., supra, 15 Cal.4th at pp. 464-465.) Issues of law are reviewed by this court de novo. (Shannon v. Rhodes, supra, at pp. 795-796.) Accordingly, we independently analyze the nature of appellant's activity at respondent's amusement park and both appellant's and respondent's relationships to that activity in order to determine whether, "as a matter of public policy, the [respondent] should owe the [appellant] a duty of care." (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 541.)

Primary Assumption of Risk Does Not Bar Recovery

"As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. (See Civ. Code, § 1714.) Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. [Citation.]" (Knight v. Jewett (1992) 3 Cal.4th 296, 315 (Knight), referencing Rowland v. Christian, supra, 69 Cal.2d 108.) According to respondent, however, a park owner cannot be held liable for such an injury. The risk of being...

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