49 Cal.App.5th 493
Cal. Ct. App.2020Background
- Sean Sharufa fractured his hip and pelvis after slipping from a seated inner tube onto his stomach while descending a waterslide at Raging Waters (operated by Festival Fun Parks). His feet struck the bottom of the splash pool with force.
- Sharufa sued for negligence, negligent misrepresentation, and products liability (including strict liability and breach of express/implied warranties). Festival Fun Parks moved for summary judgment/adjudication.
- Plaintiff submitted a mechanical engineer's declaration opining that stomach-first sliding increases entry velocity and risk; the trial court excluded that declaration as inadmissible expert opinion.
- The trial court granted summary adjudication for Festival Fun Parks on all claims except negligent misrepresentation; that claim was later dismissed without prejudice to allow entry of judgment, and Sharufa appealed.
- On appeal the court held (1) waterslide operators are common carriers—owing the heightened duty of utmost care—but affirmed summary adjudication of the negligence claim because no admissible evidence of breach remained; and (2) the record was insufficient to determine whether the park supplied a product or a service, so the court reversed the summary adjudication as to strict-liability and negligence-based products liability claims and remanded for further proceedings. Warranty claims were affirmed against Sharufa (he conceded lack of a sale).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is a waterslide operator a common carrier (heightened duty)? | Waterslide is an amusement "thrill ride" like a roller coaster; operator owes utmost care (common carrier). | Waterslide is participatory (some rider control) and akin to bumper cars; primary assumption of risk applies. | Waterslide operator is a common carrier; primary assumption of risk precluded. |
| Was summary adjudication of negligence improper? | Festival breached by failing to warn that stomach-first sliding increases entry velocity and risk (engineer opinion). | No admissible evidence of breach; expert excluded. | Affirmed: negligence adjudicated for defendant because no admissible evidence of breach. |
| Do products liability theories apply (product vs. service)? | Admission buys use of the waterslide (product); park is part of chain of distribution—products liability applies. | Park primarily provides services/entertainment; it is not a supplier in the product-distribution chain. | Reversed as to strict-liability and negligence-based products liability: record is insufficient to resolve product-vs-service; remand for further factual development. |
| Do warranty-based claims (express/implied) survive? | Warranties attach to defective product provided to patron. | No sale occurred; warranties require a sale. | Affirmed for defendant: plaintiff offered no response at appeal and conceded the warranty claims fail for lack of a sale. |
Key Cases Cited
- Gomez v. Superior Court, 35 Cal.4th 1125 (operator of roller coaster or similar amusement ride is a common carrier)
- Nalwa v. Cedar Fair, L.P., 55 Cal.4th 1148 (lack of rider control is key to common carrier analysis; primary assumption of risk precluded where common carrier duty applies)
- Squaw Valley Ski Corp. v. Superior Court, 2 Cal.App.4th 1499 (common carrier standard applied to chair lifts; statutory definition broadly construed)
- Grotheer v. Escape Adventures, Inc., 14 Cal.App.5th 1283 (hot air balloon operator not a common carrier; contrasts with predeterminative-route rides)
- Ferrari v. Grand Canyon Dories, 32 Cal.App.4th 248 (products-liability inapplicable where defendant predominantly provides a service—guided rafting)
- Ontiveros v. 24 Hour Fitness USA, Inc., 169 Cal.App.4th 424 (fitness club primarily a service provider; not a supplier of equipment for products liability)
- Garcia v. Halsett, 3 Cal.App.3d 319 (laundromat supplied washing machines to public; treated as providing product usage—products liability applied)
- Merrill v. Navegar, Inc., 26 Cal.4th 465 (overview of products liability purpose and who may be liable)
- Peterson v. Superior Court, 10 Cal.4th 1185 (products liability reaches entire distribution chain)
- Brooks v. Eugene Burger Management Corp., 215 Cal.App.3d 1611 (mere occurrence of accident does not by itself suggest negligence)