Nalwa v. Cedar Fair 6/10/11 CA6

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H034535

Case Date: 08/31/2011

Preview:Filed 6/10/11

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

SMRITI NALWA, Plaintiff and Appellant, v. CEDAR FAIR, LP, Defendant and Respondent.

H034535 (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. FACTUAL AND PROCEDURAL BACKGROUND 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 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, 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 headon 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,

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