Legal View: Amusement Park faces liability for bumper car injury

By Pat Murphy The Daily Record Newswire With millions of potential plaintiffs flocking to amusement parks this summer, personal injury attorneys will be happy to learn that at least one California court has eliminated the assumption of risk doctrine in a most unlikely context: the ever-popular bumper car ride. The court held that the primary assumption of risk doctrine is inapplicable to amusement park rides ''where the illusion of risk (as opposed to actual risk) is marketed.'' This would seem counterintuitive in the extreme with respect to bumper cars since the ride involves driving funny little cars around in an enclosed space, the object being to crash into your fellow drivers. As you're lining up to get your turn in a bumper car, why wouldn't you think that there's a chance of a freak injury as you're being knocked about? Well, Dr. Smriti Nalwa certainly didn't anticipate a fractured wrist when she boarded the Rue Le Dodge bumper car ride at the Great America Amusement Park in Santa Clara, California. The OB/GYN physician and surgeon took her two kids to the park on July 5, 2005. During a bumper car ride with her 10-year-old son, her car was struck head-on by another car. Immediately following that collision, she was struck from behind. Instinctively, Dr. Nalwa tried to brace herself during the crash, thus the broken wrist. Dr. Nalwa sued Great America for common carrier liability and negligence under California law. According to Dr. Nalwa, Great America was at fault for not taking steps to eliminate head-on collisions on its bumper car ride. Evidently, the amusement park industry has recently recognized that there is a particular hazard with head-on collisions. Across the country, parks have begun to remedy the problem by adding an island in the middle of bumper car tracks so that riders all drive in the same direction. Great America modified its bumper car track in 2006, after Dr. Nalwa's accident. Great America nonetheless argued that both the common carrier and ordinary negligence claims were barred because Dr. Nalwa's injuries were the result of bumping, an inherent risk of riding bumper cars. A state trial judge granted Great America's motion for summary judgment on this basis, but that decision was reversed earlier this month by the California Court of Appeal. The state appellate court concluded that public policy bars the application of the primary assumption of risk doctrine under these circumstances, explaining that the ''very reason we go on amusement park rides is because we 'seek the illusion of danger while being assured of [a ride's] actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt.' ... ''While some rides may have inherent dangers oweing to speed or mechanical complexities, parks which operate for profit hold out their rides as being safe with the expectation that thousands of people, many of them children, will be riding. In California, this 'thrilling-while-safe' illusion is maintained not only through complex design, but also by a protective regulatory scheme governing amusement parks.'' Moreover, the court observed that Dr. Nalwa's lawsuit would not be barred by assumption of risk in any event because amusement park owners owe a heightened duty of care to their patrons. ''Here, [Great America] 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,'' the court said. (Nalwa v. Cedar Fair) Justice Wendy Park Duffy dissented, concluding that the case fell squarely within the assumption of risk doctrine. ''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 dissenting justice wrote. ''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.'' I side with Justice Duffy on this one and regret the fact that the amusement park industry has taken steps to eliminate head-on collisions from bumper car rides. Sure, there's a risk of being hurt, but in my experience the head-on collisions were the most fun. In my mind, the millions of ear-to-ear smiles generated by the really good bumper car thwackings are well worth the occasional freak injury. Published: Thu, Jul 7, 2011

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