GETTING BUMPED AROUND: CALIFORNIA SUPREME COURT BROADENS ASSUMPTION OF THE RISK DOCTRINE

 In a recent good common sense ruling, on December 31, 2012, the California Supreme Court explained that the primary assumption of the risk doctrine is not limited to only sporting activities, but applies to a wide variety of "recreational activities." In so ruling, many of our clients can now benefit from the liability protections afforded from the doctrine to obtain dismissal from lawsuits arising from a plaintiff's voluntary participation in various activities on their properties.

    In Nalwa v. Ceder Fair, LP (2012) 2012 WL 6734705, plaintiff fractured her wrist while riding a bumper car at an amusement park. She sued the park operator alleging negligence, amongst other theories, and argued that defendant should have employed additional safety measures. Defendant filed a Motion for Summary Judgment based on the primary assumption of the risk doctrine that was granted by the trial court and later reversed by the Court of Appeal. However, the California Supreme Court reversed the Court of Appeal and confirmed the grant of summary judgment dismissing defendant from the case.

    The Court explained the policy underlying the primary assumption of the risk doctrine: "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 explained that "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. For that reason, a variety of recreational activities from water-skiing, snow skiing, competitive swimming, group motorcycle riding, riding an inner tube towed by a boat, and even participation in the fire ritual at the Burning Man festival are activities that warrant application of the primary assumption of the risk doctrine.

    As a consequence, the Court held "the primary assumption of risk doctrine, though most frequently applied to sports, applies as well to certain other recreational activities including bumper car rides." The Court applied the doctrine even though amusement parks are subject to state safety regulations and the park owners owe participants the heightened duty of care of a common carrier for reward. Notably, the Court did remind the parties that an exception to the rule existed, the doctrine cannot be applied when the defendant increases the risk of injury over and above that inherent in the activity.

    Based on Nalwa, we expect that our firm will be using the primary assumption of the risk doctrine more often to protect our clients from liability from injuries stemming from recreational activities. Potentially, the defense could exist to protect against injuries from those riding skateboards through common areas to people engaged in recreational jogging across your properties. As always, Bradley & Gmelich remains available to discuss this case and any other legal issue with you.