After appellant, Smriti Nalwa, M.D., broke her wrist on a bumper car ride at California's 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 holdings we reverse the judgment.
On July 5, 2005, appellant, an OB/GYN physician and surgeon took her son, age nine and daughter, age seven, 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 carlike vehicles that moved in any direction around a flat surface track powered by electricity. In addition to an 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, 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 postcollision 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, 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.) California's Department of Industrial Relations, Division of Occupational Safety and Health (DOSH) inspected the ride annually and in 2004 and 2005 found no safety-related
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 its 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 cause 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 cause 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,
"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, 795 [112 Cal.Rptr.2d 217] (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 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 may 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 [43 Cal.Rptr.2d 392].) 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 that plaintiff 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
The nature of the sport or activity is critical because Knight held that "defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself. . . ." (Knight, supra, 3 Cal.4th at p. 315.) As a result, post-Knight courts have, on a case-by-case basis, grappled with whether a sport or activity is of the type subsumed by the doctrine and, if so, what the inherent risks of such an activity are. In addition to the activity itself, courts must also look at the relationship of the parties to each other and to the sport. The Knight court hypothesized that sports injury cases could involve, "diverse categories of defendants whose alleged misconduct may be at issue" and "the applicable duty or standard of care frequently varies with the role of the defendant whose conduct is at issue. . . ." (Id. at p. 318.) The court in Kahn echoed the importance of the role played by the defendant. The court stated that, "Duties with respect to the same risk may vary according to the role played by particular defendants involved in the sport." (Kahn, supra, 31 Cal.4th at p. 1004, italics omitted.) The Knight/Kahn framework suggests that a court looking to apply the primary assumption of risk doctrine to nonparticipant defendants should first identify the category of defendant seeking the doctrine's protection and the role they play. Then a court should examine the policies applicable to that category of defendant, and in the commercial context, assess the policy impact of imposing a
In suggesting that primary assumption of risk bars recovery, respondent contends that amusement park rides are the type of sport or activity encompassed by the Knight doctrine. Respondent urges us to conclude that being bumped in a bumper car ride is an inherent risk of the activity, and that, even though respondent is the proprietor of the park, it did not owe appellant a duty of care to protect her from any injury resulting from being bumped. Respondent can point to no case, and we have found none, where a post-Knight California court has applied the primary assumption of risk doctrine to an amusement park owner.
The dissent proposes to abandon the sport-based analysis set out by Knight entirely and to expand the doctrine to any activity with an inherent risk. Such an expansion is unwarranted and unsupported by the case law. While any general analysis of risk surely begins with an idea that we all assume the risks of living, the primary assumption of risk doctrine in its modern, post-Knight construction is considerably narrower in its application. The dissent's expansive reading of Knight is unwarranted and an inappropriate exercise of judicial authority. Knight, by its own terms, limited the primary assumption of risk doctrine to sporting-type activities. In fact, the Knight majority specified that primary assumption of risk, post-Li, survives only in the limited context of sporting activities and the firefighter rule. (Knight, supra, 3 Cal.4th at p. 309, fn. 5.)
We do not go to amusement parks expecting to be injured. Common sense dictates that, while amusement park rides present a possibility of harm, breaking a bone is not a natural or expected consequence of going on a ride, whether that ride is a fast roller coaster, a stagecoach, a train or a bumper car ride of moderate speed which children are allowed to control. Respondents themselves admit that of the 600,000 people who rode the bumper car ride in the years 2004 and 2005, only 55 people sustained injuries, most of those minor. If park goers did fear injury, Walt Disney parks would surely not be grossing annual revenues nearing $11 billion.
We may draw a parallel between one regulated industry and another. The Occupational Safety and Health Administration (OSHA) (29 U.S.C. § 651), for example, has as its aim to control safety and health in the workplace. Many of the regulated activities are activities and conditions encountered within the normal scope of the work environment. The public policy behind assuring safety in the workplace is well settled. (29 U.S.C. § 651(b).) No one would argue that an employer could escape liability for a dangerous condition on its premises simply because the injury resulted from a job risk and that there was no specific OSHA regulation addressing it. Any determination regarding liability for workplace injury begins with the overriding public policy requiring an employer to provide a safe workplace. So here, any determination regarding liability of an amusement park owner must begin with the overriding public policy requiring the owners of amusement parks to make the parks safe for their patrons.
Recognizing this public policy, California courts have held owners of recreational rides to the higher standard of care usually imposed on common carriers. "There is an unbroken line of authority in California classifying recreational rides as common carriers. . . ." (Gomez, supra, 35 Cal.4th 1125, 1132.) In Kohl v. Disneyland, Inc. (1962) 201 Cal.App.2d 780 [20 Cal.Rptr. 367], the Court of Appeal held that the operators of a stagecoach ride at Disneyland were common carriers. In a subsequent case against Disneyland, the federal district court in California, held the park to the higher common carrier standard where a plaintiff riding on the Pirates of the Caribbean ride was injured after a boat in which she was sitting was struck from behind by
In Knight and its progeny "The court's major focus . . . ha[d] been the development of no-duty rules applicable to sporting activities." (Ursin & Carter, Clarifying Duty: California's No-Duty-for-Sports Regime, supra, 45 San Diego L.Rev. at p. 385.) Knight itself described the doctrine of primary assumption of risk as surviving in two limited contexts: In sporting events and the firefighter rule. (Knight, supra, 3 Cal.4th at pp. 309, 311-312 & fn. 5.) Although commentators have speculated how far the Knight doctrine would extend, some even speculating that amusement parks would attempt to bootstrap the doctrine to avoid liability, California courts have not hesitated to limit the application of the doctrine to its proper narrow focus, especially in the context of owners of facilities. (Ursin & Carter, Clarifying Duty: California's No-Duty-for-Sports Regime, supra, 45 San Diego L.Rev. at
In Shannon, supra, 92 Cal.App.4th 792, the court considered whether the primary assumption of risk doctrine applied to a passenger in a recreational speedboat being used to ride around on a lake. After reviewing a variety of cases involving different types of activities and sports where the doctrine did and did not apply, the court analyzed whether boating fell within the definition of a sport as it has been developed in the context of the primary assumption of risk. (Id. at p. 797.) The court accepted the existing rule, which defines a sport as an activity "`done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury,'" and added that to be considered a sport "as intended by the Knight court," an activity must entail "some pitting of physical prowess (be it strength based [i.e., weight lifting], or skill based, [i.e., golf]) against another competitor or against some venue." (Ibid., citing Record v. Reason (1999) 73 Cal.App.4th 472, 482 [86 Cal.Rptr.2d 547].) The court concluded that being a passenger in a boat under the circumstances of that case was "too benign to be subject to Knight." (Shannon, supra, 92 Cal.App.4th at p. 798.)
There can be no other logical conclusion under Knight. Amusement park owners' liability for injuries on their rides will affect the "nature" of rides. It will make them safer. However, given the regulatory requirements to assure safety on amusement park rides, we conclude that any effect on the rides can only be a positive one consistent with public policy.
We agree with the dissent in its characterization of the amusement as low risk. Indeed this point is emphasized in respondent's brief as well it should
With great power comes great responsibility.
Here, respondent is the owner of an amusement park. It holds the park open to the public with the promise of safe fun and excitement. Within the confines of state regulation, respondent maintains complete control over the design, maintenance and operation of the bumper car ride. Without question, it is best situated to minimize any risks associated with its rides, both because of its control and because of the profits such parks make.
Although bumping is part of the experience of a bumper car ride, head-on bumping is not. In fact, it is a prohibited activity. The evidence submitted in support and opposition of the motion showed that respondent was aware of the perils of allowing head-on collisions, and, as owner of the park, respondent had a duty to take reasonable steps to minimize those risks without altering the nature of the ride. (Knight, supra, 3 Cal.4th at p. 317; Kahn, supra, 31 Cal.4th at p. 1004.) Respondent had taken steps to eliminate or reduce the likelihood of head-on collisions at every other park prior to appellant's injury. However at Great America, the only precaution in place was for staff to admonish riders after a head-on collision had occurred. Since respondent had done so at its other parks, it can hardly claim that taking additional steps to minimize this risk of head-on collisions would have altered the nature of the bumper car experience. Therefore, there remain triable issues of material fact which cannot be resolved as a matter of law. It is for the trier of fact to determine, given the respondent's exclusive control over the design and operation of the ride, and the obvious steps it could, and ultimately did, take to minimize the risks of head-on collisions, whether respondent breached its duty to appellant, and whether that failure caused appellant's injury.
Because the negligence claims are not barred by the primary assumption of risk, it will also be for the trier of fact to determine whether the nature of the bumper car ride raised respondent to the status of a common carrier as set forth in Gomez, supra, 35 Cal.4th 1125. In Gomez the Supreme Court,
If respondent had simply failed to modify the ride to prohibit head-on collisions, we would agree with respondent that the evidence would not suggest anything more than mere negligence. However, the evidence here shows that respondent designed its bumper car ride to prevent head-on collisions at every other park it owned except Great America. It is undisputed that they knew the dangers of head-on collisions, and the failure to act in regards to the Great America ride could be characterized as intentional, because they had taken steps to prevent the risk everywhere except Great America. The only issue here is whether they knew or should have known that the injury was probable as opposed to possible. By its nature, that is a qualitative determination not easily susceptible to determination as a matter of law. The evidence presented at summary judgment showed that there were 55 injuries over a two-year period on that ride among hundreds of thousands
The judgment is reversed. Appellant to recover her costs on appeal.
Premo, J., concurred.
DUFFY, J., Dissenting.
Under the primary assumption of risk doctrine, in certain limited instances—usually (but not exclusively) involving sports— there is no legal duty to use due care to eliminate or protect a participant against risks inherent in the sport or activity itself. (Knight v. Jewett (1992) 3 Cal.4th 296, 315 [11 Cal.Rptr.2d 2, 834 P.2d 696] (Knight).) As recognized in 1996 and reiterated in 2005, "`[t]he full scope of the defense of primary assumption of risk has yet to be established.' [Citation.]" (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 870 [36 Cal.Rptr.3d 515] (Saville), quoting Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 530 [50 Cal.Rptr.2d 671].) Here, defendant, an amusement park, urges that the scope of the doctrine extends to its bumper car ride.
In July 2005, Smirti Nalwa, a physician, was injured on the Rue le Dodge bumper car ride at California's Great America amusement park in Santa Clara (Great America). She was a passenger, and her nine-year-old son was the driver of the bumper car. Nalwa sued the park's owner, Cedar Fair, L.P., alleging, inter alia, claims for negligence, common carrier liability, and willful misconduct. Cedar Fair moved successfully for summary judgment. The court, applying Knight, supra, 3 Cal.4th 296, concluded that the primary assumption of risk doctrine barred the negligence claim. The court also found Nalwa's claim for common carrier liability to be meritless, rejecting her
The majority holds that (1) the primary assumption of risk doctrine as enunciated in Knight does not apply here because Nalwa's injuries resulted from her participation in a ride at a "regulated amusement park[]" (maj. opn., ante, at p. 570); (2) it is for the trier of fact to determine whether Cedar Fair, under Gomez, was a common carrier owing its bumper car patrons a heightened duty of care (maj. opn., ante, at pp. 582-583); and (3) there are triable issues of fact that preclude summary adjudication of the willful misconduct claim (maj. opn., ante, at p. 584). I respectfully disagree with each conclusion.
Here, Nalwa participated in the Rue le Dodge ride knowing that she would be jostled about in her car as a result of bumping into other cars. The sole purpose of a bumper car ride is to enjoy the experience and thrill of minor-impact bumping. The name of the game is to bump and to attempt to avoid (often unsuccessfully) being bumped. My independent review of the record discloses no evidence that Cedar Fair increased the risk inherent in riding Rue le Dodge. Accordingly, based upon the nature of, and the inherent risks associated with, the activity, along with the parties' relationship to the activity, I would find that the primary assumption of risk doctrine bars Nalwa's negligence claim. Further, under Gomez, supra, 35 Cal.4th at page 1141, the Supreme Court held that an operator of a "roller coaster or similar amusement park ride" owes its patrons a heightened duty of care as a common carrier. The Gomez court, however, "express[ed] no opinion regarding. . . whether other, dissimilar, amusement rides or attractions can be carriers of persons for reward." (Id. at p. 1136, fn. 5.) Based upon this caveat and the narrow holding in Gomez, because the bumper car ride here is not similar to a roller coaster ride, I would hold that Cedar Fair was not a common carrier. Lastly, I find no evidence that Cedar Fair either acted with knowledge that injury was likely to result or with a wanton and reckless disregard of the possible consequences. Accordingly, I would conclude that summary adjudication of the willful misconduct claim was likewise proper.
Generally, a person owes a duty of due care to others, and he or she may be held liable if his or her careless conduct causes injury. (See Civ. Code,
Cedar Fair argued successfully below that the doctrine of primary assumption of risk barred Nalwa's negligence claim because her injuries resulted from her being bumped while riding as a passenger in a bumper car. Because being bumped and the attendant (but low) risk of injury were inherent in the bumper car activity itself, Cedar Fair (it argued) owed no duty to Nalwa to protect her against such risk.
An extended review of the primary assumption of risk doctrine is essential in order to determine whether the court properly applied it in this instance to bar Nalwa's negligence claim.
In Knight, supra, 3 Cal.4th 296—a plurality opinion authored by then Justice George—the high court addressed the doctrine of assumption of risk in connection with a woman's suit for personal injuries sustained during a coed touch football game among friends and acquaintances during a Super Bowl party. The court
The court in Knight recognized that "whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport." (Knight, supra, 3 Cal.4th at p. 309; see also Ford v. Gouin (1992) 3 Cal.4th 339, 342 [11 Cal.Rptr.2d 30, 834 P.2d 724].) It explained that the doctrine has been applied in sports settings as an exception to the general rule that persons must use due care to avoid injuries to others because "conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. . . . [Citation.] . . . [T]he nature of a sport is highly relevant in defining the duty of care owed by the particular defendant." (Knight, at p. 315.) As a caveat to this no-liability exception, the court stated, "Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort's negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant. [Citation.]" (Id. at pp. 315-316.)
Justice George next observed in Knight that primary assumption of risk cases have dealt with defendants having a variety of relationships with the
The doctrine, when applicable, operates as a "complete bar to the plaintiff's recovery." (Knight, supra, 3 Cal.4th at p. 315.) A court's determination that the primary assumption of risk doctrine applies constitutes a legal conclusion that no duty is owed. (Id. at p. 308.) Accordingly, the issue is often one that may be decided by summary judgment. (Id. at p. 313.) A defendant claiming that the doctrine is applicable bears the burden on summary judgment of establishing the absence of legal duty. (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395 [36 Cal.Rptr.2d 418].)
A host of cases following Knight have applied the primary assumption of risk doctrine in various contexts. In the interests of providing sufficient context to the application of the doctrine to this case, I discuss some of these appellate decisions.
In Ford v. Gouin, supra, 3 Cal.4th 339 (Ford), the companion case to Knight, the court upheld the trial court's granting of summary judgment in
In Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990 [4 Cal.Rptr.3d 103, 75 P.3d 30] (Kahn), the court applied the primary assumption of risk doctrine to a sports instructor, i.e., a swimming coach. The high
The high court addressed a personal injury claim by a batter hit by a beanball (pitch intentionally thrown at a batter by a pitcher) during an intercollegiate baseball game in Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148 [41 Cal.Rptr.3d 299, 131 P.3d 383] (Avila). The batter brought claims against the community college district that hosted the game. (Id. at p. 153.) Applying the primary assumption of risk doctrine, the court observed that "the host school's role is a mixed one: its players are coparticipants, its coaches and managers have supervisorial authority over the conduct of the game, and other representatives of the school are responsible for the condition of the playing facility. We have previously established that coparticipants have a duty not to act recklessly, outside the bounds of the sport [citation], and coaches and instructors have a duty not to increase the risks inherent in sports participation [citation]; we also have noted in dicta that those responsible for maintaining athletic facilities have a similar duty not to increase the inherent risks, albeit in the context of businesses selling recreational opportunities [citation]." (Id. at pp. 161-162.) The court held that the doctrine barred the claim against the school district. (Id. at pp. 163-166.)
In the 19 years since the Supreme Court decided Knight, there have been numerous reported decisions in which this state's Courts of Appeal have applied the primary assumption of risk doctrine to various factual settings, usually to various sports ranging from baseball to river rafting. (See Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1261 [84 Cal.Rptr.3d 824] [courts have applied primary assumption of risk in over 100 published cases].)
As noted, the determination of whether the primary assumption of risk doctrine applies in a given case is made from an evaluation of the nature of the activity involved and the parties' relationship to that activity. (Distefano v. Forester, supra, 85 Cal.App.4th at p. 1262.) I adhere to this two-part analysis below in determining whether Nalwa's negligence claim is barred by the doctrine.
Nalwa argues that "[t]ypically, the doctrine of primary assumption of risk applies to sports activity." From this statement, she suggests that the doctrine should not apply to an activity clearly not a sport such as riding in a bumper car. The majority agrees with this position. (See maj. opn., ante, at p. 579 ["On a commonsense level, we simply cannot conclude that riding in a bumper car as a passenger implicates a sport within any understanding of the word." (original italics)].) I would reject Nalwa's contention that because the activity was clearly not a sport, the doctrine is inapplicable.
It is true that the doctrine has been applied predominantly to activities which may be considered to be sports. (See fn. 7, ante.) And there has been some debate among appellate courts whether the doctrine of primary assumption of risk applies where the activity that resulted in the plaintiff's injury cannot be classified as a "sport." Some appellate courts have taken the
I believe that the broader view of the doctrine's application as expressed in Beninati, supra, 175 Cal.App.4th at page 658, is the correct one. In Knight, then Justice George, enunciating the basis upon which courts decide whether primary assumption of risk may apply, used the broad language that courts are to look to "the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport." (Knight, supra, 3 Cal.4th at p. 309, italics added; see Saville, supra, 133 Cal.App.4th at p. 870 [Knight held that doctrine "applied to activities or sports . . . [and did not] limit the scope of activities subject to the defense only to sports"].)
Further, I believe that a determination of the existence of a legal duty to a plaintiff injured in connection with his or her voluntary participation in a particular activity should not be left to the vagaries of assessing whether the activity constitutes a "sport." For example, although appellate courts have held differently, it is foreseeable that some courts might find the primary assumption of risk doctrine inapplicable to certain activities, such as fitness training (Rostai, supra, 138 Cal.App.4th 326), lifeguard training (Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428 [89 Cal.Rptr.2d 920]), cheerleading (Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112 [75 Cal.Rptr.2d 801]),
The court similarly applied the doctrine of primary assumption of risk in a nonsport setting in McGarry, supra, 158 Cal.App.4th 983. There, the court held that the doctrine barred the plaintiff's claims for injuries that arose from trying to grab a skateboard deck thrown into the crowd during a skateboard competition. It concluded that the risks of participating in the product toss were "self-evident. The products were not distributed to customers who waited politely in line for their turn; a limited supply of products was thrown into a throng of competitors. . . . That a competitor might fall and others land around and on him in an effort to secure the prize is an inherent risk of the competition." (Id. at p. 1000, fn. omitted.)
I conclude therefore that the fact that Nalwa was injured as a result of participating in an activity that was not a sport is not, of itself, an impediment to the application of the primary assumption of risk doctrine. (See McGarry, supra, 158 Cal.App.4th at p. 999 [doctrine's application not limited to sports]; Rostai, supra, 138 Cal.App.4th at p. 333 [same].)
The "integral conditions" of the bumper car activity at issue here are such that they "render the possibility of injury obvious." (Saville, supra, 133 Cal.App.4th at p. 867.) The fundamental nature of Rue le Dodge is the bumping of cars. Riders are continually jostled about during the ride. The purpose of the amusement park ride is to provide thrills and entertainment to its riders from bumping fellow riders while attempting to avoid being bumped by others. (Cf. Ferrari, supra, 32 Cal.App.4th at pp. 253-254 [inherent risk of injury from being jostled while passenger in raft during white-water rafting].) In her deposition, Nalwa agreed that the fun in the ride was the bumping, and that "[y]ou pretty much can't have a bumper car unless you have bumps." A sign posted at the ride's entrance entitled "RIDE WARNING—PLEASE READ" informed guests: "Rue Le Dodge cars are independently controlled electric vehicles. The action of this ride subjects your car to bumping. To experience this ride, you must be in good health and free from physical limitations. Expectant mothers and children under four (4) years of age should
Given that the whole point of the Rue le Dodge ride is bumping, imposing a duty of care for any injury resulting from a participant being bumped would clearly "either require that an essential aspect of the [activity] be abandoned, or else discourage vigorous participation therein." (Peart v. Ferro, supra, 119 Cal.App.4th at p. 72; cf. Rodrigo v. Koryo Martial Arts, supra, 100 Cal.App.4th 946 [tae kwon do activity of kicking, punching, and being
Therefore, based upon an evaluation of the integral conditions of Rue le Dodge and the conclusion that imposing a duty would alter the fundamental nature of the ride (Saville, supra, 133 Cal.App.4th at p. 867), I would tentatively conclude that the primary assumption of risk doctrine applies to an activity such as a bumper car ride. Before removing the "tentative" label to this conclusion, I examine two issues: (1) whether the nature of the participant's involvement in the activity here renders the doctrine inapplicable and (2) whether the fact that the activity is an amusement park ride suggests that the doctrine should not apply.
Nalwa argues that the doctrine is inapplicable because "[(1) n]o skill is required to take part and [(2)] the driving or riding in bumper cars is not supposed to present a risk of injury to the participants." I have addressed the second argument above: the fact that Rue le Dodge minicar riders are subjected to the possibility of repeated jostling as a result of bumping and being bumped rendered the possibility of injury, albeit slight, an obvious one.
Likewise, in Beninati, supra, 175 Cal.App.4th at page 655, the plaintiff's activity involved no skill or athleticism—he was injured after he apparently tripped over cable used to secure the burning effigy while he was attempting to place the photograph of a recently deceased friend in the embers of the Burning Man fire. The court rejected his argument that the primary assumption of risk doctrine was inapplicable to "`"low-impact" cultural activities of the sort found herein.'" (Id. at p. 656.) And in McGarry, supra, 158 Cal.App.4th at pages 988-989, the plaintiff was a spectator who participated in a product toss and was injured by others in the crowd after he caught the skateboard deck and fell to the ground—again, an activity that involved little skill or athleticism on the plaintiff's part.
Nalwa correctly points out that no California court has applied the primary assumption of risk doctrine to an injury claim arising out of participating in an amusement park ride. The absence of such authority, however, does not suggest that there should be an across-the-board rule precluding application of the doctrine to such activities. Indeed, several courts from other jurisdictions have denied recovery to plaintiffs injured on amusement park rides.
In Ramsey v. Fontaine Ferry Enterprises, Inc. (1950) 314 Ky. 218 [234 S.W.2d 738], the plaintiff was injured in a bumper-car-type ride involving motor scooters. Affirming the trial court's directed verdict in favor of the defendant amusement park, the court applied volenti non fit injuria to conclude that "the plaintiff assented to the engagement which brought about her injury. . . ." (Id., 234 S.W.2d at p. 739.) In so holding, the court observed that the ride was "arranged to provide thrills for its users by bumping into or dodging each other. There is no other lure. The game has its hazards, but one cannot be ignorant of them. [The p]laintiff entered the scooter for the purpose of engaging in the frolic. She deliberately exposed herself to the contingency which occurred. . . . Whilst the management had control of the electric current used by all of the scooters to propel their vehicles, [the plaintiff] had independent control of the motion of the scooter she was using." (Id. at pp. 738-739.)
Similarly, in Gardner v. G. Howard Mitchell, Inc. (1931) 107 N.J.L. 311 [153 A. 607], the plaintiff's claim for injuries resulting from being bumped during a Dodgem bumper car ride were held to have been barred. The court, also applying the maxim of volenti non fit injuria, held that "[i]t was for the thrill of bumping and of the escape from being bumped that [the] plaintiff entered the contrivance. . . . The chance of a collision was that which gave zest to the game upon which [the] plaintiff had entered. She willingly exposed herself to the contingency of a collision." (Id., 153 A. at p. 609; see
These out-of-state authorities are not binding precedent here. (See Gentis v. Safeguard Business Systems, Inc. (1998) 60 Cal.App.4th 1294, 1307 [71 Cal.Rptr.2d 122].) They, however, provide support for the conclusion that the primary assumption of risk doctrine may be applied to an activity involving an amusement park ride such as Rue le Dodge.
The majority concludes, however, that public policy dictates that the primary assumption of risk doctrine not apply in this instance. (Maj. opn., ante, at p. 578.) My colleagues note that amusement parks are subject to a "protective regulatory scheme . . . administered by the DOSH" (maj. opn., ante, at p. 576); "California courts have held owners of recreational rides to the higher standard of care usually imposed on common carriers" (maj. opn., ante, at p. 577); and public policy requires the imposition of a duty on amusement parks "to protect the public from the possible grave dangers of amusement park rides" (maj. opn., ante, at p. 577).
The majority asserts further that "[d]espite this history of holding owners and operators of amusement park rides to a higher standard of care in our society, [Cedar Fair] now crafts its argument to suggest that not only does it not owe a duty of care, but that it owes no duty at all to protect riders." (Maj. opn., ante, at p. 578, original italics.) I do not believe Cedar Fair is arguing it owed no duty at all to its patrons; rather, it claims that under Knight, it was not liable for Nalwa's injuries that were the result of known risks associated with being bumped in the Rue le Dodge ride, where it "did nothing to increase that inherent risk. . . ."
Under the primary assumption of risk doctrine, duty is determined not only by the nature of the activity, but also from "the `role of the defendant whose conduct is at issue in a given case.' [Citation.]" (Kahn, supra, 31 Cal.4th at p. 1004, quoting Knight, supra, 3 Cal.4th at p. 318.) The duties may vary depending on the specific role played by the defendant with respect to the sport or activity. (Kahn, at p. 1004.) "For example, a purveyor of recreational activities owes a duty to a patron not to increase the risks inherent in the activity in which the patron has paid to engage. [Citations.]" (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 482 [63 Cal.Rptr.2d 291, 936 P.2d 70] (Parsons).) Thus, as the court explained in Knight, although a ski resort owes no duty to eliminate risks such as moguls inherent in the sport itself, it may not increase the risks to participants by providing faulty equipment. (Knight, supra, 3 Cal.4th at pp. 315-316; see also Bjork v. Mason (2000) 77 Cal.App.4th 544, 555-556 [92 Cal.Rptr.2d 49] [doctrine inapplicable where defendant supplied defective towrope to tubing participants]; Harrold v. Rolling J Ranch, supra, 19 Cal.App.4th at pp. 586-587 [stable owed duty to patrons to provide horses that were not unduly dangerous].)
Here, Cedar Fair, as "a purveyor of recreational activities" (Parsons, supra, 15 Cal.4th at p. 482)—the owner and operator of an amusement park—did not owe a duty to Nalwa to eliminate or decrease the risks inherent in the bumper car ride; it was only bound to do nothing to increase those risks. (Knight, supra, 3 Cal.4th at pp. 315-316.) Just as the risks in skiing posed by moguls (id. at p. 315) or unpadded lift towers (Connelly, supra, 39 Cal.App.4th at pp. 12-13) are part of the sport itself, the risks associated with contacts between bumper cars are an inherent part of a bumper car ride. Rue le Dodge was not intended as a benign, jostle-free experience; its purpose was to provide its participants with the fun of bumping and being bumped. Bumps at Rue le Dodge—as Nalwa realized from her observations of the ride before entering the minicar with her son—could occur from any direction. The bumping subjected riders to sudden shifts in momentum, as indicated in the signs posted at the ride, thereby posing a risk of injury. Under the doctrine of primary assumption of risk, Cedar Fair had no legal duty to eliminate or protect Nalwa against the risk of injury associated with bumping. (Cf. Branco, supra, 37 Cal.App.4th at p. 193 [designer of motocross bicycle course required to refrain from designing jumps which created extreme risk of injury]; Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817,
The undisputed evidence is that Cedar Fair complied with its duty not to increase the risks to its bumper car riders, including Nalwa, over and above those inherent in the activity itself. A rubber bumper surrounded the minicars, and they were equipped with padded seats, steering wheels, and dashboards, and with seatbelts for the driver and passenger. Warning signs were posted at the entrance of the ride, cautioning that the cars were independently controlled electric vehicles subject to bumping and that guests with certain medical conditions should refrain from riding. In addition, the ride was inspected daily and weekly by defendant's maintenance and ride operations departments, as well as annually by DOSH (California's Department of Industrial Relations, Division of Occupational Safety and Health). And on the day of Nalwa's injury, the ride was inspected and found to be working properly. Very few injuries from Rue le Dodge were reported in 2004 and 2005, and all of them, except Nalwa's, appear to have been minor ones. (Cf. Lupash v. City of Seal Beach, supra, 75 Cal.App.4th at p. 1435 [emphasizing absence of prior accidents involving particular beach where the plaintiff was injured during lifeguard training].) Cedar Fair thus provided equipment in a "safe, working condition." (Knight, supra, 3 Cal.4th at p. 316.)
Nalwa asserts that the doctrine of primary assumption of risk does not apply because Cedar Fair had a duty to protect her from the risk of injury from head-on bumps, a risk not inherent in the ride. In support of this argument, Nalwa points to Cedar Fair's rule prohibiting head-on bumps at Great America, and the installation of center islands in the bumper car rides at its four other amusement parks. My colleagues agree with Nalwa, asserting that "[a]lthough bumping is part of the experience of a bumper car ride, head-on bumping is not." (Maj. opn., ante, at p. 582.) I disagree.
In Avila, supra, 38 Cal.4th at page 163, a baseball player struck by a pitch alleged that the school district breached its duty not to enhance the inherent
Similarly, Cedar Fair had no duty to protect its patrons from the specific risk of head-on bumps. There is no evidence in the record that operation of Rue le Dodge without a center island materially increased the risk of injury inherent in the ride. Nalwa and my colleagues point to the rule at Great America in 2005 prohibiting head-on bumps. Further, the majority asserts that the record shows that Cedar Fair "was aware of the perils of allowing head-on collisions ...." (Maj. opn., ante, at p. 582.) There is nothing in the record showing that the possibility that Rue le Dodge patrons might be subjected to head-on bumps presented a risk of injury (or "peril[]") beyond the risk of injury from any other bumping.
Nalwa also emphasizes that Cedar Fair's four other amusement parks operated with a center island to encourage unidirectional travel.
Therefore, given the nature of the bumper car ride involved here and the relationship of Nalwa and Cedar Fair to that activity, I would hold that the primary assumption of risk doctrine applied. Since Cedar Fair (1) owed no duty to protect its patrons, including Nalwa, from the risk of injury from bumps inherent in the activity, and (2) did nothing to increase those inherent risks, summary adjudication of Nalwa's negligence cause of action was proper.
Nalwa alleged in the first cause of action of her complaint that Cedar Fair was a common carrier in its operation of Rue le Dodge. The trial court concluded that under Gomez, supra, 35 Cal.4th 1125, the heightened duty of care of a common carrier did not apply to the bumper car ride. The majority concludes that this was error and that the matter of whether the bumper car ride was similar to a roller coaster ride—and thus whether common carrier
Carriers hired to transport passengers are generally subjected to a heightened standard of care in a majority of jurisdictions in this country. (See 3 Harper, James and Gray on Torts (3d ed. 2007) The Nature of Negligence, § 16.14, p. 565.) "This heightened duty imposed upon carriers of persons for reward stems from the English common law rule that common carriers of goods were absolutely responsible for the loss of, or damage to, such goods. [Citation.]" (Gomez, supra, 35 Cal.4th at pp. 1128-1129.) In California, a common carrier "must use the utmost care and diligence for [the] safe carriage [of its passengers, and] must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill." (§ 2100; see also CACI No. 902.) A common carrier, however, is not an insurer of its passengers' safety. (Gomez, supra, 35 Cal.4th at p. 1130; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785 [221 Cal.Rptr. 840, 710 P.2d 907] (Lopez).) "Rather, the degree of care and diligence which they must exercise is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and the practical operation of the business of the carrier. [Citations.]" (Lopez, at p. 785.)
Section 2168 defines a common carrier as "[e]veryone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages ...." Under the statute, therefore, "a common carrier ... is any entity which holds itself out to the public generally and indifferently to transport goods or persons from place to place for profit. [Citations.]" (Squaw Valley Ski Corp. v. Superior Court, supra, 2 Cal.App.4th at p. 1508; see also Black's Law Dict. (9th ed. 2009) p. 242, col. 1 ["
In Gomez, supra, 35 Cal.4th 1125, a woman's estate and her heirs brought a wrongful death action against an amusement park owner after the decedent sustained a fatal brain injury while riding the Indiana Jones attraction at Disneyland. The trial court sustained without leave to amend the defendant's demurrer to claims based upon section 2100, rejecting the contention that the amusement park was a common carrier. (Gomez, at p. 1127.) The Court of Appeal granted the plaintiffs' writ of mandate and directed that the court overrule the demurrer. (Id. at p. 1128.) The Supreme Court affirmed.
The court's four-member majority in Gomez observed that "common carrier" had been broadly defined by the Legislature (Gomez, supra, 35 Cal.4th at p. 1130) and that an "expansive definition" (id. at p. 1131) had been applied by California courts over a number of years. The high court's majority noted further—citing McIntyre, supra, 205 Cal.App.2d 489, Squaw Valley Ski Corp. v. Superior Court, supra, 2 Cal.App.4th 1499, Barr, supra, 138 Cal.App. 563, and Kohl, supra, 201 Cal.App.2d 780—that "[t]here is an unbroken line of authority in California classifying recreational rides as common carriers...." (Gomez, at p. 1132; cf. Simon v. Walt Disney World Co. (2004) 114 Cal.App.4th 1162 [8 Cal.Rptr.3d 459] [rejecting contention that defendant, in its general operation of Disneyland as a whole, as opposed to its operation of any specific ride, was a common carrier with respect to all park patrons].)
The high court further rejected the view that an amusement park could not be a common carrier because the purpose of the ride was to provide entertainment. It held: "A passenger's purpose in purchasing transportation, whether it be to get from one place to another or to travel simply for pleasure or sightseeing, does not determine whether the provider of the transportation is a carrier for reward. The passenger's purpose does not affect the duty of
Accordingly, in finding that the court should have overruled the demurrer, the high court concluded that "the operator of a roller coaster or similar amusement park ride can be a carrier of persons for reward under sections 2100 and 2101." (Gomez, supra, 35 Cal.4th at p. 1141.)
Therefore, the facially simple question confronting the court is this: Is a bumper car ride at an amusement park "similar" to a roller coaster? I would conclude that it is not.
In contrast, a bumper car ride such as Rue le Dodge consists of small electric cars that operate at medium speeds around a flat surface track. The amusement park concededly exercises some degree of control over Rue le Dodge and is responsible for its overall safety. Cedar Fair and its employees maintain and inspect the ride; set maximum speeds for the minicars; load and unload riders; activate the ride; have control over an emergency switch disabling the electricity powering the minicars; and enforce various riding instructions and safety rules. But once the ride commences, patrons exercise independent control over the steering and acceleration of the cars. Unlike roller coaster riders, they do not surrender their freedom of movement and actions. Rue le Dodge riders have control over the entertainment element of the ride, the bumping, as they determine when to turn and accelerate. (Cf. Lewis v. Mammoth Mountain Ski Area (E.D.Cal., Feb. 20, 2009, No. 1:07-CV-00497-OWW-GSA) 2009 U.S.Dist. Lexis 13050, pp. *33-*36 [2009 WL 426595] [common carrier liability not applicable to resort operating guided snowmobile tour where rider had complete control over vehicle].) A rider of a roller coaster has no control over the elements of thrill of the ride; the amusement park predetermines any ascents, drops, accelerations, decelerations, turns or twists of the ride. Moreover, although the allure of a roller coaster is the "the illusion of danger" (Gomez, supra, 35 Cal.4th at p. 1136), the appeal of a bumper car is the entertainment promised by the generally harmless fun of bumping other cars (and avoiding being bumped) at modest speeds.
Because I conclude that the bumper car ride here is not "a roller coaster or similar amusement park ride" (Gomez, supra, 35 Cal.4th at p. 1136), I would find Gomez distinguishable and that Cedar Fair was not a common carrier in connection with its operation of Rue le Dodge. I would therefore hold that the court below properly held that Nalwa's first cause of action was without merit.
Nalwa alleges in her second cause of action that Cedar Fair's decision to operate Rue le Dodge at the time of the 2005 incident without a center island, despite allegedly knowing that its absence presented an unreasonable risk of injury, constituted willful misconduct. She cites the portion of Cedar Fair's operating manual prohibiting head-on bumps and the fact that bumper car rides at its other amusement parks were unidirectional as evidence that it knew head-on bumps presented a risk of injury. Nalwa argues that Cedar Fair consciously chose to expose Rue le Dodge riders to risk of injury from head-on bumps by not installing a center island.
The majority holds that there was a triable issue of fact that precluded the granting of summary judgment in favor of Cedar Fair on this willful misconduct claim. (Maj. opn., ante, at p. 584.) I disagree.
Willful misconduct is "not a separate tort, but simply `"`an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care' [citations]."' [Citation.]" (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526 [61 Cal.Rptr.3d 304].) A willful misconduct claim has pleading requirements stricter than those of a negligence claim. (Ibid.; see also Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 361 [133 Cal.Rptr. 42].) "Negligence is an unintentional tort, a failure to exercise the degree of care in a given situation that a reasonable man under similar circumstances would exercise to protect others from harm. [Citations.] A negligent person has no desire to cause the harm that results from his carelessness [citation] ...." (Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869 [118 P.2d 465].) In contrast, willful misconduct involves the defendant's positive intent to harm another or action taken "`"with a positive, active and absolute disregard of its consequences."'" (Cope v. Davison (1947) 30 Cal.2d 193, 201 [180 P.2d 873], quoting Meek v. Fowler (1935) 3 Cal.2d 420, 425 [45 P.2d 194]; see also Delaney v. Baker (1999) 20 Cal.4th 23, 31-32 [82 Cal.Rptr.2d 610, 971 P.2d 986].) Stated otherwise, "[w]illful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results. [Citation.]" (O'Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903, 912 [159 Cal.Rptr. 125] (O'Shea), superseded on another ground by statute as stated in Hubbard v. Brown (1990) 50 Cal.3d 189, 194-195 [266 Cal.Rptr. 491, 785 P.2d 1183]; see also Rest.2d Torts, § 500, com. g, p. 590.)
Three elements must be present to elevate a potentially negligent act to one that may constitute willful misconduct. (Bains v. Western Pacific R.R. Co. (1976) 56 Cal.App.3d 902, 905 [128 Cal.Rptr. 778] (Bains).) First, there must
In determining the existence of willful misconduct, "constructive knowledge must be measured by an objective standard, since there is no other way to measure it.... [Citation.] `The ... test ... is whether a reasonable [person] under the same or similar circumstances as those faced by the actor would be aware of the dangerous character of his conduct.' [Citation.] `If conduct is sufficiently lacking in consideration for the rights of others, reckless, heedless to an extreme, and indifferent to the consequences it may impose, then, regardless of the actual state of mind of the actor and his [or her] actual concern for the rights of others, we call it wilful misconduct, and apply to it the consequences and legal rules which we use in the field of intended torts.'" (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 690 [217 Cal.Rptr. 522].)
Our high court has held that whether a case involves willful misconduct "presents questions of both fact and law. Insofar as the issues may relate to the credibility of witnesses, the persuasiveness or weight of the evidence and the resolving of conflicting inferences, the questions are of fact. But as to what minimum factual elements must be proven in order to constitute serious and wilful misconduct, and the sufficiency of the evidence to that end, the questions are of law." (Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102, 115 [251 P.2d 955].) Therefore, summary judgment may be appropriate where the plaintiff has failed to present sufficient facts to support a willful misconduct claim. (See Towns v. Davidson (2007) 147 Cal.App.4th 461, 470-473 [54 Cal.Rptr.3d 568] [court properly granted summary judgment where facts were insufficient to show that defendant skier acted recklessly in colliding with fellow skier, plaintiff]; O'Shea, supra, 97 Cal.App.3d at p. 913 [plaintiff failed to present evidence tending to show defendant's willful misconduct in maintaining dirt pile over which plaintiff rode motorcycle and sustained injuries; summary adjudication of willful misconduct issue proper].)
From the evidence presented in connection with the motion, a trier of fact could not reasonably conclude that Cedar Fair's conduct met all three elements required to support a willful misconduct claim. (See Bains, supra, 56 Cal.App.3d at p. 905.) Indeed, I conclude there was insufficient evidence to support a finding in favor of Nalwa as to any of the three elements.
But knowledge of the mere possibility of injury is insufficient to satisfy this first element. In Bains—a case arising out of the death of a person at a railroad crossing that had no automatic gate—the court rejected the plaintiffs' assertion that because the railroad was aware that injuries at railroad crossings without automatic gates were more likely, this satisfied the "peril" aspect of the first element of a willful misconduct claim. "[The plaintiffs] seem to contend that the `peril to be apprehended' is the potentiality of a collision between a vehicle and a train at an ungated crossing. To constitute willful misconduct, however, more must be shown than the bare possibility of injury. Otherwise, there would be little distinction between willful misconduct and negligence, since negligence is predicated upon a breach of duty which is imposed when there exists a foreseeable, or potential, risk of harm.... [¶] Almost every venture involves some risks, especially in the field of transportation. In the present case, [the plaintiffs] established that crossing accidents are reduced by 90 percent when automatic gates are installed at railroad crossings. All this demonstrates is that there is still the potentiality of a collision between a vehicle and a train even at gated crossings. Conceivably, if railroad bridges were constructed over all crossings, collisions would be totally eliminated. If such bridges were not constructed, under [the plaintiffs'] reasoning, a factual issue of willful misconduct would arise. The law does not impose such a burdensome duty, let alone label such inaction as willful or wanton misconduct. While it can always be contended that a particular accident should have been anticipated, it is only in situations where a defendant's conduct amounts to wantonness as opposed to a mere failure to perform a duty, that he [or she] will be held liable for willful misconduct [citation]." (Bains, supra, 56 Cal.App.3d at pp. 905-906; see also Perez v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 462, 471 [267 Cal.Rptr. 100].) Thus, there was no evidence here to support the first element enunciated in Bains.
Likewise, the evidence does not support a finding on the second element required for a willful misconduct claim. There must be a showing of "`actual
Finally, the evidence does not support a finding in favor of Nalwa as to the third element of willful misconduct, i.e., that Cedar Fair was guilty of a "`conscious failure to act to avoid the peril.' [Citation.]" (Bains, supra, 56 Cal.App.3d at p. 905.) Because there was no evidence that serious injury was probable, as opposed to a mere possibility, there was no "peril," and thus no conscious failure on Cedar Fair's part to take action to avoid it.
Cedar Fair's operation of Rue le Dodge in 2005 without a center island did not constitute willful misconduct. The operation of an amusement park and the rides within it involves some risk to the park's patrons. Rue le Dodge is no exception. Bumps between bumper cars—the whole point of the ride— naturally subject riders to sudden jarring and changes in direction. The fact that few, and—except for Nalwa's—relatively minor injuries were reported from Rue le Dodge over the years is contrary to Nalwa's contention that Cedar Fair operated a dangerous ride with willful disregard for the likelihood of prospective injuries to be suffered by its patrons. Further, there is no evidence that the potential for head-on bumps at Rue le Dodge made injury to patrons a probable occurrence, or that Cedar Fair was on notice of the probability of injury. The installation of a center island to discourage head-on bumps may have reduced any risk of injury. But as discussed above (see pt. I.B., ante), Cedar Fair had no legal duty to reduce risks inherent in the bumper car activity itself. Its decision to implement those safety features it employed, excluding a center island, did not present an issue of fact from which it might be concluded that Cedar Fair intended to harm its patrons or acted in reckless disregard for their safety.
I agree with my colleagues that where sufficient facts are presented from which it may be concluded that the defendant acted with a "`"positive intent actually to harm another or ... with a positive, active and absolute disregard of [the] consequences [of defendant's actions]"'" (Cope v. Davison, supra, 30 Cal.2d at p. 201), the inquiry "is a qualitative determination which should be left to the trier of fact." (Maj. opn., ante, at p. 584.) Here, however, the facts presented were legally insufficient to support a claim of willful misconduct, and the court properly concluded that such claim was without merit.
I would affirm the judgment entered on the order granting summary judgment.
All further statutory references are to the Civil Code unless otherwise specified.
