California Supreme Court Expands Activities in Which the Participant Assumes the Risk of Injury

June 9th, 2013

In Nalwa v. Cedar Fair, L.P., 55 Cal. 4th 1148 (2012), decided in December, 2012, the California Supreme Court expanded the application of the “primary assumption of risk” doctrine, which had previously been limited to sporting activities, to potentially any inherently dangerous recreational activity. The doctrine acts as an absolute defense for co-participants, organizers and business operators against liability for injuries caused by risks that are inherent in an activity.

The plaintiff in Nalwa sued an amusement park after she fractured her wrist when the bumper car she was riding in collided with another bumper car.  The plaintiff argued that the park owed her a duty of care to prevent injury, and that the ride was designed in an unsafe manner.  The amusement park argued that the plaintiff assumed the risk of injury, because her injury was a result of the danger normally inherent in riding in a bumper car.

Prior to Nalwa, the Supreme Court’s application of the primary assumption of risk defense had been limited to plaintiffs who had participated in inherently dangerous sporting activities. The court had reasoned that, in those circumstances, imposing liability for injury upon co-participants in, and organizers of, inherently dangerous sporting activities could change the nature of the activity, or might inhibit vigorous participation. Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.  The primary assumption of risk doctrine evolved to prevent such a “chilling effect” upon participation in sporting activities in which the risk of injury is inherent. Knight v. Jewett, 3 Cal.4th 296.

The Supreme Court in Nalwa held that “the primary assumption of risk doctrine is not limited to activities classified as sports, but applies to other recreational activities involving an inherent risk of injury to voluntary participants…where the risk cannot be eliminated without altering the fundamental nature of the activity.” (55 Cal. 4th 1148 (2012)).  Riding a bumper car is an inherently risky recreational activity and the plaintiff fractured her wrist during a collision, which is a risk inherent in participating in a bumper car ride.

The Nalwa decision should provide support to vessel owners and operators who argue that certain accidents and injuries in connection with the operation of recreational vessels are risks that are within the range of those expected and inherent in the activity.  Therefore, these risks are assumed by the plaintiff/participant.

It must be emphasized, however, that the primary assumption of risk doctrine only protects co-participants, operators and organizers of recreational activities from liability for risks normally inherent in the activity.  Nalwa does not change the legal principle that a co-participant, operator or organizer can be liable for injuries from the activity where they commit acts or omissions which increase the inherent dangers in the activity, beyond those which would normally be expected.

If you have questions about the Nalwa decision or how it might affect you or your business?  Please contact Mark Tepper at mtepper@cwlfirm.com  or Galin Luk at gluk@cwlfirm.com if you have any questions at or (415) 438-4600.