You are probably familiar with the doctrine known as Primary Assumption of the Risk (“PAR”). The doctrine provides that in the context of certain activities, there is no legal duty to protect a participant from the types of risks “inherent” in the activity. For example, application of PAR resulted in no duty imposed on a ski resort to protect skiers from rocks or trees on the slopes. Likewise, no duty was imposed on contact sports participants from the risks of injury associated with contact during touch football. Legal duty in these situations has meant a limited duty to not unreasonably increase the risks “inherent” in the sporting activity. Of course, PAR would not apply if the act or omission of the venue or participant involved something not normally associated with, or “inherent” to, the sporting activity. An example of this would be providing defective equipment for the event, resulting in an injury while the participant is playing the sport.

Application of Primary Assumption of Risk to an Amusement Park Ride

In Nalwa v. Cedar Fair., LP (2012) 55 Cal 4th 1148, the California Supreme Court applied the doctrine of PAR to an amusement park ride. In Nalwa, Dr. Smriti Nalwa, took her children to the Great America amusement park in Northern California.  She was injured while riding as a passenger on a bumper car ride with her nine year old son. During the course of the ride, her bumper car was hit head on and then from behind. Plaintiff tried to brace for the crash by putting her hands on the car’s dashboard and in so doing, fractured her wrist.

Plaintiff filed suit alleging common carrier liability, negligence, and other counts that were later dismissed. The defense argued that plaintiff’s suit, specifically the negligence and common carrier causes of action, were barred by PAR because the injury incurred was from an activity inherent to the ride, namely, bumping the cars. The trial court agreed and granted summary judgment.

The 6th District Court of Appeal reversed the trial court upon the finding that PAR should not apply to amusement park rides. The court’s curious reasoning was that while bumping is inherent to the ride, head on bumping is not. The Court of Appeal imposed a duty on the venue to minimize the risks inherent in the ride as a matter of public policy. More significantly, the court distinguished the passive rider bumper car activity from contact sports where PAR has traditionally been applied. (Although that concept is also evolving because PAR has been applied to golf, usually a non contact sport!)

The Supreme Court reversed the decision reached by the Court of Appeal and stated the risk of injuries from bumping was inherent in the bumper car ride, and under case precedents defendant had no duty of ordinary care to prevent injuries from such an inherent risk of the activity. The absence of such a duty defeats plaintiff’s cause of action for negligence as a matter of law.

Application of Primary Assumption of Risk to Recreational Activities Not Considered Sports

While the California Supreme Court applied the doctrine to recreational sports, two Court of Appeal decisions have found the doctrine applicable to recreational activities not considered sports.  Amezcua v. Los Angeles Harley–Davidson, Inc. (2011) 200 Cal.App.4th 217, 231–232, [organized, noncompetitive group motorcycle ride]; Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 661, [participation in fire ritual at Burning Man festival].) Other courts have reached the same result by applying a broad definition of “sport” to include physical but noncompetitive recreational activities (see Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1221, [organized, noncompetitive group bicycle ride]; Record v. Reason (1999) 73 Cal.App.4th 472, 482  [“tubing,” i.e., riding an inner tube towed by a motor boat] ) or by assessing the nature of a recreational activity without attempting to classify it as a sport or nonsport (see Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 253–254 [riding in commercially operated river raft].)

The primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other 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 doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty “would work a basic alteration—or cause abandonment” of the activity.  For example, holding golfers liable for missed shots would only encourage lawsuits and deter players from enjoying the sport. In baseball, recognizing tort liability for hitting the batter with a pitch would tend to deter throwing inside, an essential part of the sport. Imposing tort liability for negligence in towing water-skier might well chill participation and have a generally deleterious effect on the nature of the sport of waterskiing as a whole.

The 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 Court in Nalwa did not expand the doctrine to any activity with an inherent risk. While inherent risks exist, for example, in travel on the streets and highways and in many workplaces, “the primary assumption of risk doctrine in its modern construction is considerably narrower in its application.” Active recreation, because it involves physical activity and is not essential to daily life, is particularly vulnerable to the chilling effects of potential tort liability for ordinary negligence. And participation in recreational activity, however valuable to one’s health and spirit, is voluntary in a manner employment and daily transportation are not.

The doctrine thus applies to bumper car collisions, regardless of whether or not one deems bumper cars a “sport.” Low-speed collisions between the padded, independently operated cars are inherent in and are the whole point of a bumper car ride. The point of the bumper car is to bump— you cannot have a bumper car unless you have bumps.  While not highly dangerous, such collisions, resulting in sudden changes in speed and direction, do carry an inherent risk of minor injuries, and this risk cannot be eliminated without changing the basic character of the activity. In the words of the dissenting justice : “Imposing liability would have the likely effect of the either eliminating the ride altogether or altering its character to such a degree—by, for example, significantly decreasing the speed at which the minicars could operate—that the fun of bumping would be eliminated, thereby discouraging patrons from riding.”

As Justice Cardozo, then Chief Justice of the New York Court of Appeals, explained more than 80 years ago, the attractions of the amusement park “are not the pleasures of tranquility.  A small degree of risk inevitably accompanies the thrill of speeding through curves and loops, defying gravity or, in bumper cars, engaging in the mock violence of low-speed collisions. Those who voluntarily join in these activities also voluntarily take on their minor inherent risks. As for the rest: The timorous may stay at home.”

The California Supreme Court’s decision in Nalwa may have far reaching ramifications not only for amusement park venues, but also in how sporting event and recreational sport venues regulate their activities.  This recent decision certainly provides food for thought this summer as we spend time with our families riding the rides at the fair or spending the day on the links with friends.

ABOUT THE AUTHOR: Kimberli C. Raines is senior counsel at Tyson & Mendes, LLP.  She specializes in the defense of personal injury, wrongful death, insurance bad faith and general liability matters.  Contact Kimberli at 858.263.4134 or

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