When we go to an amusement park, we expect to have fun and not get hurt. But if you take a ride on a bumper car and if you get hurt, you may be assuming the risk of that injury, according to a recent California Supreme Court case.
In the recent California Supreme Case of Smiriti Nalwa v. Cedar Fair, LP, a person brok her wrist while riding on a bumper car at an amusement park. She sued the amusement park for various causes of action. The trial court ruled the amusement park was not liable. The Appellate Court reversed and found the amusement park was liable. The case went all the way to the California Supreme Court which ruled recently the amusement park was not liable for an injury while riding on a bumper car. After reviewing a long line of cases where a person was hurt while participating in some form of physical activity, the Supreme Court ruled that when riding a bumper car, the rider is assuming the risk of getting hurt.
Assuming the risk is a defense to a lawsuit that is often used when a person is hurt in sport type related activities. For example, a batter getting hit by a baseball pitch is a risk that one assumes when playing the sport. Riding a bumper car, however, would not be considered to be a sport to many people. The California Supreme Court, however, referred to riding a bumper car as “active recreation”, which is an activity that one voluntarily participated in when hurt. Therefore, when the hurt person got into the bumper car and drove the bumper car around, that person was voluntarily assuming the risk of getting hurt.
The California Supreme Court, did, however, consider situations where a person may not be assuming the risk of getting hurt on a bumper ride. One way to avoid such a defense to your case is to raise the “negligence per se” argument, which means that as a matter of law, someone was presumed negligent. See Evidence Code 669; See Cheong v. Antablin (1997) 16 Cal.4th 1063. That argument prevents a defendant from using the assumption of risk defense to defeat your lawsuit. To make the negligence per se argument, you need find a safety regulation that the amusement park may have violated. In California, the safety regulations for amusement type rides can be found in Cal. Code. Regs. Title 8, §3900.
Another way to avoid the assumption of risk defense is to argue that the amusement ride was a common carrier. The common carrier argument applies typically when you are paying for a ride. This argument is typically used when people are hurt in cabs, taxis, buses, etc., but California courts do recognize that amusement park rides can be common carriers. See
Gomez v. Superior Court (2005) 35 Cal.4th 2 1125, 1241. This type of argument will boil down to the specific type of ride you were in when you were hurt. The less control you have over your amusement park ride, the more likely the amusement park ride would be a common carrier.
In a case where I represented a person hurt on a bumper car ride we raised the common carrier argument. The insurance defense law firm tried to have my client’s case dismissed arguing that the amusement park had no control over the bumper car. The insurance company compared the bumper ride to someone renting a car; once a person got into the car, that person was on their own without any interference from the amusement park. I argued just the opposite; that the bumper car never leaves the track, it goes in one direction, the car is maintained (fixed, repaired, etc.) by the amusement park. Interestingly, when I personally investigated the amusement ride site, I saw there were buttons right by the attendant that he/she could push in a moment’s notice to stop the bumper cars in their tracks. That push of a button gave the amusement park even more control over the ride. The trial court agreed with my client, and the case was not dismissed.
With this recent California Supreme Court ruling, it would be more difficult, but not impossible, to hold an amusement park company liable for your injuries caused by the ride. One will need to know specifics of the type of ride; the control one had over that ride, and if there are any safety regulations that govern the ride. If you were hurt on an amusement park ride, it is suggested for you to consult with an attorney experienced in amusement park ride injuries to know and protect your rights.
