*1 Dec. S195031. 2012.] [No. NALWA, Plaintiff and
SMRITI Appellant, FAIR, L.P., Defendant and Respondent.
CEDAR
Counsel Johnson, Elkin; Johnson; Law Offices of Ardell Emanuel Ardell Christi Jo Law and Mark D. Rosenberg for Plaintiff Group Appellant. Kass, Ellrod, Ramirez, Trester, &
Manning Patrick L. M. Hurley, Jeffrey Lenkov and Steven J. Renick for Defendant and Respondent. Morris,
Duane E. John Paul J. Killion and Jill Penwarden for California Fagan, Ski Association and National Industry Ski Areas Association as Amici Curiae on behalf of Defendant and Respondent.
Prindle, Amaro, Goetz, Barnes & Reinholtz and Michael L. Amaro Hillyard, for Park Management business as Six Corp. doing Flags Kingdom, Discovery LLC, LLC, Caliente, Mountain Magic LEGOLAND California Agua Bally *4 Fitness, Total Fitness 24 Hour GNS Corporation, Development Corporation Stuff, LP, Amusements, Inc., business as Golf doing N’ Mountasia Butler Amusements, Attractions, Christensen Carnival Brass Midway Ring Amusements, Inc., Amusements, Davis and Skateland Enterprises Northridge Association, The Worldwide Outfitters and Enterprises, Guides International Events and Recreation Special Association and Scooters Amici Jungle as Curiae on behalf of Defendant and Respondent. Wilmer,
Snell & and Mary-Christine Sungaila Jessica E. Yates for California Chamber of Commerce as Amicus Curiae on behalf of Defendant and Respondent. J.
David Ozeran as Curiae Amicus on behalf of Defendant and Respondent. Horvitz & Frederic D. Levy, Cohen and T. Shih for California Wesley and Attractions Parks Association as Amicus Curiae on behalf of Defendant and Respondent. Rees,
Gordon & Don and Willenburg; Cole Pedroza Joshua C. Traver for Association of Defense Counsel of Northern California and and Nevada Association of Southern Defense Counsel as Amici Curiae on behalf of Defendant and Respondent.
Opinion Plaintiff, who car ride at WERDEGAR, fractured her wrist on bumper J. in not sued the owner for negligence configuring amusement park, park court car ride so as to her injury. superior operating prevent for defendant on the basis of primary granted summary judgment doctrine, under in and of risk which participants operators care to other certain activities have no duty ordinary protect participants v. Jewett Cal.4th activity. (Knight from risks inherent 696].) The Court of concluding 315-316 834 P.2d Cal.Rptr.2d Appeal, rides, did not reversed. the doctrine apply doctrine, most though of risk We conclude primary assumption well to certain other recreational sports, applies frequently applied car rides. We further conclude doctrine activities including bumper here, to state amusement are though subject to the ride even parks applies rides, owe even as to some owners park safety regulations though, (See care a common carrier for reward. heightened duty participants Court (2005) 35 Cal.4th Superior Gomez defendant’s rides]). and similar we hold Finally,
113 P.3d coasters 41] [roller doctrine—the duty limited of care under that inherent in the risk of over above not to increase unreasonably car rides—did not extend to essential to bumper collisions low-speed reverse the the cars. We therefore head-on collisions between preventing Court of Appeal’s judgment. Background Procedural
Factual *5 Nalwa, and 5, 2005, her son nine-year-old Dr. Smriti took On July plaintiff, owned and operated to Great America amusement park, six-year-old daughter afternoon, went Fair, and her children L.P. In the plaintiff defendant Cedar by car ride. Rue le Dodge bumper on the park’s small, two-seat, vehicles electrically powered
The ride consisted of and a rubber Each car was with ringed bumper around a flat surface. moved The driver and for both driver passenger. had a interior and seatbelts padded its and acceleration. steering of each car controlled drove, while her car her son a in a bumper Plaintiff rode as passenger next while sat son steered plaintiff a car herself. Plaintiff’s by drove daughter car; him other cars during into several in the they bumped bumper ride, car was bumper end of the plaintiff’s the ride. Toward the course of herself, brace a need to Feeling then from behind. the front and bumped son, According plaintiff’s the car’s “dashboard.” her hand on plaintiff put out, Plaintiff’s wrist was cried “Oh.” and like cracked” “something fractured. for California’s annually safety by
The Rue le ride was Dodge inspected Relations, Health and Division of Occupational of Industrial Department defendant’s maintenance morning by and was every Safety, inspected it was found injury, morning plaintiff’s On ride operations departments. on or occurring were reported working normally. Fifty-five injuries to be contusions, including le ride in 2004 around the Rue Dodge lacerations, fracture only reported. Plaintiff’s was abrasions and strains. ride, rule Rue le Dodge safety on the
Head-on was prohibited bumping in the saw they engaging those lecturing the ride were to enforce by operators the ride and, in head-on bumping, stopping if a guest persisted practice defendant injury, to leave. At the time plaintiff’s and asking person that the amusement so parks car rides at its four other operated bumper one direction. only cars could be driven of action for common causes
In her operative complaint, plaintiff pleaded misconduct, counts) (in two liability strict carrier willful liability, products The trial counts. liability but later dismissed the two negligence, products the remaining summary judgment court defendant’s motion for granted action, doctrine barred of risk causes of concluding primary assumption arose from being bumped, because recovery negligence plaintiff’s inherent The heightened duty cars. activity riding bumper risk found, common court because care for carriers did not the trial apply, of the individual defendant had no control over the and orientation steering cars, defendant did not act nor was there willful misconduct as any a likely injury. with or reckless knowledge disregard decision, that the holding public The Court of reversed in a divided Appeal at amusement safety precludes application policy promoting parks doctrine, and the doctrine is inapplicable of risk primary assumption “too to be benign” because that is car rides particular ride, to the Rue le Dodge Even if the doctrine applied considered “sport.” reasoned, risks by have reduced the ride’s the court further defendant could justice argued head-on collisions. The dissenting it to minimize configuring activities doctrine is not limited those ride does not its to an amusement park deemed “sports”; application *6 any that the risk of injury violate discemable any public policy; collision, riding in the activity is inherent head-on including bumping, cars. defendant’s for review.
We granted petition
Discussion all the be if granted papers A “shall summary judgment motion fact and that as to material any show that there is no triable issue submitted the is entitled to a a moving (Code as matter of law.” Civ. party judgment Proc., 437c, (c).) subd. A defendant “has met his or her burden of showing § that a cause of action has no merit if that has shown that one or more party elements of the . (Id., cause of action . . cannot be established . . . .” subd. a such “the burden shifts to the ... to (p)(2).) Upon showing, show that a triable issue of one or more material facts exists as to that cause (Ibid.) . . . .” action
“On review of an order we granting denying summary judgment, examine the facts to the trial court determine their effect as a presented asserted, found, [Djefendant matter of law. . . . and the trial court evidence failed to the element plaintiff’s ‘duty’ establish cause plaintiff’s law, of action for a negligence. Duty, being is question particularly (Parsons amenable to resolution by v. Crown summary judgment.” Disposal 456, 291, (1997) 70].) Co. 15 Cal.4th 464-465 936 P.2d Cal.Rptr.2d [63 whether, We must decide a matter of law and the as facts undisputed court, to the trial presented of risk doctrine relieved primary assumption defendant, ride, of the Rue le care Dodge ordinary of its operator duty ride, to a on the from the protect injuries resulting risk of plaintiff, participant from collision or collisions that fractured her wrist.
I. Primary Risk to Application Assumption “Nonsport” Recreational Activities a owe of due care not to cause
“Although persons generally duty Code, 1714, (Civ. (a)), unreasonable risk of harm to subd. some § others activities—and, specifically, many sports—are inherently dangerous. Impos inherent alter the nature of the ing those could duty mitigate dangers (Kahn or inhibit v. East Side Union activity vigorous participation.” High 30].) School Dist. 31 Cal.4th 75 P.3d Cal.Rptr.3d doctrine, The of risk a rule of limited duty, developed Jewett, (Ibid.; avoid effect. 3 Cal.4th at chilling Knight such 308.) Where the doctrine to a recreational activity, applies operators, instructors and owe other only participants participants act over that inherent in the not to so as increase risk (Avila v. Citrus Dist. activity. Community College Kahn, 383]; 131 P.3d at first, car ride is among as to whether disagree, parties
activities to which the doctrine of primary assumption applies. doctrine, of ordinary Plaintiff as an argues general duty exception care, active limited to certain narrow one of which is categories, is properly assessment that majority’s Plaintiff embraces the Court of Appeal sports.
1155 a level, riding cannot conclude we simply a commonsense “[o]n understanding any a within sport car as a implicates passenger a to to bumper the doctrine apply “extend” that we not word” and urges ride. not of risk is assumption doctrine of maintains the primary
Defendant involve rides that amusement park to to and should apply limited sports cars, a duty because imposing including of injury, inherent risks rides or the nature of such tend to change would minimize inherent risks view, minimize the duty defendant’s In cause their abandonment. amusement car rides would “requir[e] from bumper inherent risk of injury them with rides and to their rides existing replace to eliminate operators park different,” this motivating contrary policy fundamentally that are decisions, law common that of preventing of risk court’s primary assumption For opportunities. Californians’ recreational undermining rules from tort below, with defendant. agree reasons we explained assumption decision applying primary This court’s seminal explicating Jewett, context, involved sporting v. Knight in the recreational Jewett, 3 Cal.4th v. (Knight supra, of touch football. an informal activity, game case, therefore, we in that In the doctrine at 300 p. (Knight).) applying certain in “the setting,” explaining addressed its use naturally sports generally and that defendants to “the itself’ are often dangers integral sport (Id. in the itself.” from “risks inherent sport have no protect language, we used broader the doctrine generally, But in outlining 309), “a (id. at potentially nature of the or activity sport” to “the referring 311), and “risks inherent (id. at p. dangerous activity sport” (ibid.). itself’ or sport have, recreation the doctrine to
While our
decisions applying
subsequent
have found
like
Court of
decisions
involved
two
Knight,
Appeal
sports,1
(See
not considered sports.
to recreational activities
doctrine applicable
217,
(2011)
Inc.
200
Harley-Davidson,
Cal.App.4th
v. Los Angeles
Amezcua
1
30,
339,
(1992)
P.2d
Cal.Rptr.2d
724]
342-343
834
See Ford
Gouin
v.
3 Cal.4th
[11
waterskiing); Cheong v. Antablin
Knight, applying
noncompetitive
rule to
(companion case to
859,
1063,
(downhill
skiing);
P.2d
(1997)
946
Cal.Rptr.2d
817]
1065-1066
[68
16 Cal.4th
Dist.,
(instruction in
High School
pages
231-232 Cal.Rptr.3d. [organized, noncompetitive [132 group motorcycle 567] ride]; 650, Beninati v. Black Rock City, (2009) LLC 175 661 Cal.App.4th [96 Cal.Rptr.3d in fire ritual at [participation festival].) Man Burning 105] Other courts have reached the same result a broad by definition of applying “sport” to include but physical (see recreational noncompetitive activities Moser v. 1211, (2003) 105 1221 Cal.App.4th Cal.Rptr.2d [orga- [130 198] Ratinoff nized, ride]; noncompetitive Record v. group bicycle (1999) Reason 73 472, i.e., 482 Cal.App.4th an inner Cal.Rptr.2d [“tubing,” riding [86 547] tube towed boat]) a motor by or the nature by assessing of a recreational without activity it attempting (see as a classify sport Ferrari v. nonsport 248, Grand Canyon (1995) Dories 32 253-254 Cal.App.4th Cal.Rptr.2d [38 [riding raft].) river commercially operated 65] contrast, have,
In below, a few courts like the court cited the appellate character of an nonsport as one for ground not it within the bringing primary (Kindrich of risk doctrine. assumption v. Beach Yacht Long Club (2008) 1252, 1258, 167 1262 Cal.App.4th Cal.Rptr.3d [passenger [84 824] who broke leg from boat to dock jumping was not in an active engaged (2001) Shannon v. Rhodes sport]; 92 800 Cal.App.4th Cal.Rptr.2d [112 “ ride on lake not a ‘sport’ any understanding 217] [boat within. word”]; Bush v. Parents WithoutPartners 17 328 Cal.App.4th . . Cal.Rptr.2d dancing . not within the ambit of sport 178] [“recreational Knight”].) below, Beninati,
We with the agree dissenting justice and the court in that the primary doctrine is not limited to activities classified as but as well to sports, other recreational activities applies an inherent “involving risk . . . voluntary where the participants risk cannot be eliminated without altering fundamental nature of the LLC, (Beninati activity.” v. Black Rock City, 175 supra, Cal.App.4th p. of risk doctrine rests on a straightforward policy
foundation: the need to avoid in or chilling vigorous participation sponsorship of recreational activities a tort to eliminate or reduce the imposing risks of harm inherent in those activities. It operates premise such “would work a basic alteration—or cause imposing legal duty Dist., (Kahn abandonment” of the v. East Side Union School activity. High Ahn, 1003; 31 Cal.4th at supra, see Shin v. 42 Cal.4th at p. supra, p. 54 quoting Dilger Moyles Cal.App.4th liable for would ‘Holding [golfers] missed hits only encourage
591] [“ ”]; lawsuits and deter Avila v. Citrus players enjoying sport.’ Dist., baseball, Community College supra, recogniz [in tort for the batter with a tend to deter ing liability hitting would pitch Gouin, Ford v. inside, an essential
throwing sport]; part towing might water-skier negligence tort liability [imposing the nature deleterious effect on chill “have generally well participation *9 whole”]; 3 at 318 supra, Cal.4th Knight, waterskiing p. of the sport The doctrine’s in chilling vigorous participation sport].) avoids [doctrine to according be drawn that goal. should parameters to injuries squarely behind of risk policy primary assumption applies recreation, Allowing in activities. from whether or physical sports nonsport to in sue other partici- an active recreational voluntary pursuit participants the inherent activity’s or for to eliminate or failing mitigate pants sponsors and nature. In thus conclud- risks would threaten the existence activity’s very risk,” as the to with an inherent we do not doctrine ing, any activity “expand exist, in example, the below cautioned.2 While inherent risks for majority the we with travel on the streets and and in highways many workplaces, agree modem, doctrine lower court that “the of risk in its primary assumption (See its construction is narrower in post-Knight considerably application.” at Knight, 311-312 of risk supra, [primary assumption inappli- pp. recreation, to medical But active cable automobile accidents or negligence].) life, is because it involves is not essential physical activity daily for liability to the tort chilling vulnerable effects particularly potential in valu- activity, And recreational however ordinary negligence. participation able to health and a manner one’s is in spirit, voluntary employment are not. daily transportation collisions, thus
The doctrine regardless applies bumper cars collisions whether or not one deems bumper “sport.” Low-speed between the cars are inherent in—are operated padded, independently whole of—a car ride. As in her point bumper plaintiff agreed deposition: can’t . . You much “The of the car is to . point bump—[f] pretty [f] highly dangerous, have a car unless have While not bumps.” you collisions, direction, do carry resulting changes such in sudden in speed eliminated and this cannot be without an inherent risk of minor risk injuries, dissenting the words changing activity. the basic character of the In amuse would effect of the liability likely below: have justice “Imposing character altogether altering either the ride its park eliminating ment. at for which decreasing such degree—by, example, significantly speed eliminated, the fun of would be bumping minicars could operate—that limiting application the results in cited as disapprove previously We also do not decisions ante, (see 1156). may have been of risk at The doctrine sports Rhodes, supra, (See, Shannon e.g., inapplicable those cases for other reasons. in does ordinary operator passengers care boat toward Cal.App.4th [imposing at not eliminating any participation of the and will deter require aspect not inherent boating].) Indeed, thereby discouraging patrons from riding. who would want to ride a car tapper an amusement park?” since,
As she did in
Knight
and several
cases
Justice Kennard dissents here
application
primary
(Dis.
of risk
assumption
doctrine.
opn.
Kennard, J.,
post,
1164-1165.)
In
pp.
light of the dissenter’s consistent
that we
urging
return to the traditional consent-based
defense,
it is worth
some of the
reiterating
reasons
Knight
given
abandoning
defense in favor of a
(See
rule.
Knight,
limited-duty
rule,
311-313.)3 The
pp.
traditional
on a
resting
fiction that
legal
had
risks,
consented to
impliedly
known
would
activity’s
bar the
completely
because of
plaintiff’s recovery
his or her unreasonable
conduct,
the defense in
putting
severe tension with
fault
comparative
prin-
*10
in Li v.
Yellow Cab Co.
ciples adopted
The dissent argues that the of which risks are inherent question recreational is fact intensive and hence unsuitable for resolution aas law, matter of aon demurrer or a especially defense motion for summary (Dis. Kennard, J., judgment. of post, 1166-1167.) opn. We pp. disagree. Judges inherent risk Knight deciding under questions consider not may only their own or common with the recreational experience activity involved but law, materials, also may consult case other and published documentary evidence introduced on a motion for parties (See summary judgment. Dist., Avila v. Citrus Community 163-165; College supra, 38 Cal.4th at pp. Dist., Kahn v. East Side Union High School supra, 31 Cal.4th at pp. 1011-1012, 1017; cf. Cabral v. Co. Ralphs Grocery 775-776, fn. 5 P.3d may consult 1170] [court material on published legal existence of a tort questions, including duty, 3 Although appears the cited plurality opinion signed by only justices, discussion in a three agreement Justice plurality opinion. (Knight, separately expressed Mosk with part this of the Mosk, supra, (conc. J.).) 3 Cal.4th at p. opn. & dis. of notice].) may inherent risk deciding That formally taking judicial
without is beyond be does not us it competence sometimes difficult persuade courts. California Park Risk an Amusement Assumption Primary
II. Application of Ride Plaintiff, however, are the amusement rides contends that because park for and because subject safety operators of state regulations inspection, reward, have carriers for public policy some rides been considered common risk doctrine amusement applying precludes was injured. rides cars which she generally, including park she With stresses regard regulation parks, state amusement plaintiff in its regulation does not claim defendant violated any applicable operation le Dodge negligence Rue ride4 is not for arguing presumption (a) under Evidence section subdivision that would Code preclude generally Cheong (See here risk doctrine. application Antablin, Instead, “the 1070-1072.) argues 16 Cal.4th at pp. focus is is in these regulations on what reflected proper public policy whether that holding legally responsible policy supports [defendant] harm it caused [plaintiff].” *11 design,
Plaintiff contends the extensive state the regulations governing construction, for amusement rides exist maintenance and of operation park concern the of protection demonstrating overriding policy riders’ safety, with risk As inconsistent of the of doctrine. primary assumption application the of the the considerations Court majority put argument, policy Appeal doctrine, liability vigorous behind the the effect of tort avoiding chilling the “are in the amusement As setting. regulatory reversed participation, park out, dangerous scheme bears the concern is not to excuse conditions possible Instead, rider is of safety in order to the thrill of a ride. paramount increase here, duty of a concern. Public under the facts the policy, supports imposition, 4 rides, regulations though car other Only appear specifically bumper three to address regulations bumper are no well as other rides. California Code applicable doubt cars as 3907, 8, (b) Regulations, are and provides: self-powered title subdivision “Rides that section guards and so by passengers driving guarded that the mechanism the operated are shall have so The passengers gaining as to the mechanism. place prevent secured in from access ‘Dodge-Em’ screening free holes that will catch the type of shall have the overhead from ride device.” conducting hang-up allow cause a action of the power whipping device and it to or 8, (a) that Regulations, provides “[l]ow California Code of title section in subdivision 3195.9 cars, collisions, require for such as do not speed designed vehicles controlled (h)(6) energized “[e]lectrically overhead emergency stopping controls” in subdivision are power bumper part rides shall be free of holes that not type screens used to design.” on amusement owners to the from the park protect public possible grave (Cal. dangers 3900.)”5 of amusement rides. Code tit. park Regs, § We do not that the existence agree of safety regulations governing amusement rides them from the park exempts risk sure, doctrine. To be the assurance relative from safety grave injury, which state is regulation essential to amusement helps provide, few would parks; ride roller voluntarily coaster that regularly caused serious injuries. personal But perfect immunity from all risk of even minor is not generally rider, goal of the amusement the state park regulations guarantee do not Cardozo, such of risk. complete perfect absence As Justice then Chief Justice of the New York Court of more than Appeals, years explained ago, attractions of amusement “are park not the pleasures tranquillity.” (Murphy v. Amusement Co. Steeplechase 250 N.Y. N.E. 173].) A degree small risk inevitably thrill of accompanies speeding or, cars, curves and through loops, defying gravity engaging mock violence of collisions. Those who in these low-speed voluntarily join activities also take on their voluntarily minor inherent risks. As for rest: Mitchell, (Ibid.; see Gardner v. G. Howard “The timorous at home.” may stay Inc. N.J.L. 311 A. assumed risk of [plaintiff 609] on a bumping “Dodgem” ride: “It was for the thrill of and of the bumping being entered contrivance .... escape bumped plaintiff chance of a which collision was that zest to the which gave game upon had entered. She herself to the of a willingly exposed contingency collision.”].)
Plaintiff argues also of a policy public protecting passengers reward, common carrier for Civil Code section expressed le limiting Dodge.6 Gomez defendant’s riders on Rue In v. precludes Court, Superior we held that an “roller of a coaster similar operator amusement ride can be a reward” carrier for park persons purposes Court, (Gomez Superior supra, Civil Code section 2100. *12 (Gomez).) however, time, fn. At we no the same p. expressed opinion other, dissimilar, “whether amusement rides or attractions can be carriers of (Ibid.) for reward.” persons regulation provides governing The cited that orders amusement park the rides “establish maintenance, construction, alteration, design, operation, repair, inspec
minimum standards for tions, protection persons using the disassembly, assembly, and amusement use of rides for (Cal. added.) such rides.” Regs., tit. Code italics § diligence “A carrier for use the care and their persons reward must utmost for safe carriage, necessary and to that provide everything purpose, must for that must exercise end a Code, (Civ. 2100.) degree skill.” reasonable § Although argument suggested does not plaintiffs oral counsel she contend defendant was carrier, Fair plaintiff’s a common answer brief states: “Dr. Nalwa maintains Cedar was a Dodge.” operated common carrier it Rue Le when le are Dodge car like Rue here. rides Bumper caveat applies
Gomez’s their as common that ways operators to roller coasters in disqualify dissimilar believe, below, this cor- analyzed point we carriers. The dissenting justice ... A roller a roller coaster. different from “A car ride is quite rectly: bumper of the the exclusive control a track and to subject is constrained to coaster ‘ themselves ride a roller coaster Those choosing operator. “surrender^ their freedom . . . they give[] up care and custody [operator]; the (Gomez, supra, and actions ...” movement [Citation.]’ contrast, consists as Rue le 1137.) Dodge car ride such In bumper ...[][] surface around flat at medium speeds of small electric cars operate ride; set and its maintain inspect track. . . . Cedar Fair employees ride; riders; minicars; unload activate for the load and maximum speeds electricity disabling powering have control over an switch emergency minicars; But once rules. riding safety and enforce various instructions commences, steering control over the exercise the ride patrons independent riders, do not coaster they and acceleration of the cars. Unlike roller have and actions. Rue le riders Dodge surrender their freedom of movement ride, as they element of the the bumping, control over the entertainment a roller coaster and accelerate. A rider of determine when to turn [Citation.] ride; of thrill of the the amusement park has no control over the elements ascents, accelerations, decelerations, twists turns or any drops, predetermines of the ride.” words, are not carried or
Riders on Rue le in other Dodge, passively in a game, trying from one to another. They actively engage transported place holding The rationale for others or avoid themselves. bump being bumped carrier of a roller coaster to the duties of common the operator riders, into the control of the reward—that delivered themselves having care for their does safety—simply are owed the highest degree operator, from the risks inherent in bumping. not car riders’ safety apply of care is are held to the highest degree “The rule that carriers of passengers ‘ are intrusted diligence fidelity based on the his recognition “[t]o ’ ” (Gomez, human beings.” lives and numbers of safety large contrast, rider, entrust does not A collisions. with his or her risks safety low-speed operator defend- record demonstrate The facts in the summary judgment undisputed Rue le Dodge. for reward in its ant was not a common carrier operation carriers, of care for common a higher duty public policy supporting *13 therefore, of the here and does not preclude application does not apply of risk doctrine. primary assumption Duty Operator the Ride
III. Defendant’s Plaintiff that because defendant argues controlled and eco reaped ride, nomic benefits from the of the Rue le operation Dodge public policy defendant to the supports holding of due care with ordinary duty regard its conduct of the ride. We that in agree delineating legal defendant’s duty to the in activity which was is a relationship injured proper consideration, but not here makes of an relationship imposition ordinary negligence duty appropriate. the defendant Knight
Although in was a in the touch coparticipant football led to the game the rule of plaintiff’s injury, articulating limited (See we referred as well to and an duty sponsors operators activity. Knight, supra, resort has no pp. duty remove operator [ski run, from moguls but does have to maintain duty safe towropes condition], owners, decisions on [citing duties facilities sports equip manufacturers, coaches].) ment instructors and of the owed to duty scope recreation, in active we not participants only on nature explained, depends but also on the role of the defendant whose conduct is at issue. (Id. 317-318.) Our later decisions establish that under the pp. primary doctrine, and instructors in recreational operators, sponsors risks, activities inherent risks have no to eliminate those posing injury duty but do owe not to duty unreasonably increase risks of participants (Avila Community v. Citrus those inherent injury beyond activity. Dist., 162; Kahn v. East College supra, High Side Union 38 Cal.4th at Dist., 1003, School 31 Cal.4th at pp.
Plaintiff the Court of that a majority’s quotes Appeal reasoning greater should of recreational activities are because apply proprietors they risks, minimize to eliminate certain or are best “uniquely positioned small cost of so.” As to financially capable absorbing relatively doing recreation, the inherent risks of we A rule disagree. imposing negligence duties of recreational sponsors, organizers operators activities would not commercial like defendant only encompass companies but also noncommercial without extensive staff. organizations budgets paid Such not afford insurance to cover that are might easily injuries groups inherent risks of the nor could collect fees from activity; they readily large to cover that cost. The of risk doctrine helps participants recre- ensure that the threat of does not cause such litigation liability ational activities to be abandoned or altered in effort fundamentally eliminate or minimize inherent risks of injury.
1163 to duty to decisions addressing this case Finally, comparing her a reduce extrinsic risks of an activity, plaintiff defendant owed argues minimize head-on bumping, take measures to eliminate or to reasonable duty a car ride.7 the inherent risks of bumper which she characterizes as beyond that resulted injury Even a triable issue of fact exists assuming plaintiff’s it did—we a record contains no direct evidence from head-on collision—the are generally from cars bumper While risks disagree. bumping low, No at any angle. a could occur from qualitative minor injury bumping collision, hence no among angles distinction exists possible 180-degree basis exists to a of care duty uniquely principled impose while to discourage collisions. And to defendant’s efforts plaintiff points head-on efforts at risk do not demon voluntary minimizing such bumping, so; an strate defendant bore a to do not rule legal duty every imposed by a a activity legal to in recreational reflects organizer agreed by participants Dist., (Avila Community College v. Citrus 38 enforceable in tort. duty Nor does of other car rides bumper defendant’s operation so as to channel the cars’ travel in one direction establish mainly duty Rue le manner. of a same operate Dodge operator car ride violate its to use due care not to increase the risks to might “duty activity (Knight, supra, over and above those inherent” in the 3 participant 316) Cal.4th routine measures such as by failing safety provide seatbelts, control, but does not do functioning bumpers appropriate speed so to restrict the by failing angle bumping. that
Any angles our between collision attempt part distinguish inherent risks and extrinsic would the nature ignore those risks pose pose ride, of a its gives mostly young participants to inflict and evade collisions from a opportunity variety angles. low-speed
Conclusion ride, The risk of was inherent in the Rue le injuries bumping Dodge and under care to ordinary our defendant had no precedents duty prevent from such an inherent risk of the The absence such injuries activity. duty a matter law. Plaintiff’s defeats cause of action for plaintiff’s negligence action, court (as “willful misconduct” cause of which described lower by collisions, fails and in rests on a to minimize head-on briefing) plaintiff’s Images, Ltd. cites Rosencrans Dover Cal.App.4th Plaintiff motorcyclist duty care Cal.Rptr.3d (owner-operator of motocross track owed of reasonable 22] Racing, v. Elite Inc. riders) flaggers avoid to warn of fallen posting collisions Saffro duty to (organizer of marathon had Cal.App.4th 179 497] course). provide promised adequate electrolytic along water and fluids *15 for the same reason.8 in of our conclusion defendant did not act Finally, light ride, as a common carrier for reward in the summary operating was on the also cause action for common carrier judgment proper liability.
Disposition The of the Court of is reversed. judgment Appeal J., Liu, J., J., Baxter, J., Chin, J., C. Cantil-Sakauye, Corrigan, concurred.
KENNARD, J., (1992) v. Jewett 3 Cal.4th Dissenting. In Knight 296 [11 2, a 834 P.2d a of this court introduced Cal.Rptr.2d (Knight), plurality 696] radical transformation of California’s tort law: in active sports Participants are from the usual tort law standard of care—as measured by exempt conduct of a reasonable in like or similar circumstances—to prevent person owed, said, not to is injury coparticipants. only duty plurality “inherent” (id. harm in a at 315-316 increase risk of particular sport pp. J.)); whether a risk is inherent is a to be George, legal (plur. opn. question 313). (id. noting decided before trial at I dissented in by judge Knight, p. on demurrer or trial would face in difficulty judges pretrial proceedings, are inherent in on a motion for in “which risks summary judgment, discerning Kennard, (id. (dis. J.)). I no good a at given perceived sport” opn. risk, which reason to abandon the traditional defense of a of the risk of knowing voluntary pertains plaintiff’s acceptance ain particular activity. later, (2003) in Kahn East Side Union School Dist. High Eleven years 103, (Kahn), of this court 75 P.3d a majority Cal.4th 990 Cal.Rptr.3d [4 30] participants by extended the reasoning Knight plurality beyond sports coach who and trained supervised sports it to school swim high applying dissent my I for reasons similar to those expressed participants. disagreed, (Kahn, (conc. & dis. 3 Cal.4th 1021-1025 pp. 296. Knight, supra, Kennard, then, I have reiterated that view in two J.).) separate Since opn. (Shin Cal.Rptr.3d v. Ahn Cal.4th 500-502 opinions. Kennard, (conc. J.); Community Avila v. Citrus 165 P.3d & dis. opn. 581] merely action or is independent constitutes an cause of Whether “willful misconduct” by Appeal, identified as and defenses was not decided the Court element of various claims review, in this An amicus curiae brief parties or briefed court. petition an issue in the action, but we decline to recognition separate cause of argues forcefully against of such address the issue in this case. Dist. 131 P.3d
College 169-174 Kennard, (conc. J.) (Avila).)1 & dis. opn. 383] rule, further this Today majority expands Knight’s no-duty-for-sports time within the “recreational by bringing rule’s ambit activities” (maj. opn., ante, 1152) (here, car ride in an amusement saddling park), trial with the unenviable task of the risks of harm that are judges determining inherent in a recreational particular activity.
I 2005, In took her on a at plaintiff nine-year-old son ride Great bumper America, Clara, California; an amusement in Santa she sat next to her park son, who steered the car. The (cars ride was “multidirectional” could in all go directions). No written “head-on” but riders warnings prohibited bumping, who collided head on were told the ride deliberately operator stop. Plaintiff’s car was hit head on and the in back close succession. As herself, her hand car’s dashboard to brace she fractured plaintiff put Fair, L.P., her wrist. She sued defendant Cedar the owner of the amusement for, here, as relevant park negligence.
At the time of the defendant injury, owned four other amusement In parks. those (cars car rides were unidirectional could in parks, bumper only go direction, island), one around an rear-end and side collisions but allowing minimizing likelihood of head-on collisions. Plaintiff here asserted that unidirectional, had the car ride at Great America been bumper head-on collision that fractured her wrist would not have occurred.
Defendant moved for The trial court ruled successfully summary judgment. could not recover on her cause of action for because plaintiff negligence 1 Knight’s (See, no-duty-for-sports strongly legal journals. rule has been criticized in various Note, Supreme Assumption e.g., Sports—Shin Court Extends Risk to Noncontact v. California of Ahn, 803, (Cal. 2007) (2008) 42 Cal.4th 482 165 P.3d 581] 121 Harv. L.Rev. 1253, Legislature 1260 California should “take Justice Kennard’s advice and restore [the Carter, principles negligence traditional of to the fore sports jurisprudence”]; torts Ursin & Duty: Clarifying No-Duty-for-Sports Regime (2008) Diego 45 San L.Rev. 440 California’s Comment, confusion”]; Looking only real concept use of the inherent risk is to cause [“the Beyond Analyzing Sports Injury the Name the Game: A Framework Recreational Cases for (2001) Knight 34 U.C. Davis L.Rev. 1057 decision sets unreasonable standard [“The Note, Fore! American of care for sports public policy.”]; recreational cases that violates Corporation Superior Application Court: The Continued Uneven Golf of California’s Assumption [“Knight’s Flawed Doctrine Risk W. St. U. L.Rev. 145-146 29 vague guidelines regarding duty analysis” conceptualization are “a flawed of the doctrine of results.”]; Sugarman, Judges as Tort Law assumption “produced that have risk” uneven Experience Un-Makers: Recent with “New” Torts DePaul L.Rev. California “disagreement [expressing policy judgment injuries appropri with the that recreational are an rule”].) place duty’ ate for such a ‘no had under rule defendant no prevent no-duty-for-sports the Court of cars from head on. In a two-to-one decision colliding reversed, rule only holding no-duty-for-sports applies Appeal court granted and that a car ride is not a This sport. sports, defendant’s for review. petition
II had Knight, California in negligence Until the 1993 decision plurality risk, a defense to followed the common law doctrine of assumption cases from “a known and risk” for liability injuries resulting specific, appreciated (Knight, supra, which the had consented. voluntarily Kennard, be (dis. J.).) (through The consent could express opn. words) (inferred from the plaintiff’s or written spoken implied plaintiff’s that, conduct). (Ibid.) Knight occurring injuries The plurality proposed be with a rule active tire of risk doctrine replaced during sports, “ ” (Knight, supra, of risk’ Knight that the called ‘primary assumption plurality J.)) I have called the “no-duty-for- and which George, (plur. opn. *17 Kennard, (dis. J.)). of A Knight, supra, at 336 opn. rule” sports (e.g., p. Antablin Knight Cheong (See the rale. of this court later embraced majority Kahn, 817]; P.2d Cal.4th 946 995-996.) pp. to be the risk was an affirmative defense Common law contrast, a at trial. is Duty, by question and the defendant by asserted proved trial, or on a court before on demurrer law be determined the trial by the rale reduces The summary judgment. no-duty-for-sports motion for the conduct of reasonable by person traditional standard of care—measured involved in on all those circumstances—by sports in like or similar imposing coaches, events) the only duty and hosts of sporting activities (participants, the the that are “inherent” in sport. the risks danger beyond avoid increasing no matters. longer assumed the risk of knowingly injury Whether the plaintiff the rale “recast Knight the no-duty-for-sports dissent my explained, As of what a from a evaluation subjective of risk analysis implied assumption encountered risk into about the knew and appreciated particular plaintiff the legally or absence of duty imposed determination presence into an element of ...[,] an affirmative defense thus transforming defendant (dis. at (Knight, supra, p. action.” negligence the plaintiff’s Kennard, altogether the rale J.).) Consequently, “eliminate[d] opn. (id. at owed” actually the measure of duty as ‘reasonable standard person’ activities. 325) those involved sports p. sustained while playing for a damages injury seeking personal
In an action a difficult task. in that is are inherent sport which risks determining a sport, Some are so new or uncommon that their sports risks not be typical may moreover, evident. Even for that are familiar and sports widely played, risks of physical of that are players likely sport vary greatly on, for depending their levels of example, participants’ ages genders, skill and and the experience, absence of presence protective clothing variables, Because of the equipment. many “inherent risk” determination is law, often fact intensive and ill-suited for treatment as a which a question trial court must decide without benefit of The evidentiary hearing. difficulties that trial courts will encounter when these “inherent risk” making determinations are greatly by today’s decision the no- amplified expanding rule to also duty-for-sports recreational encompass activities are not sports. The this majority gives reason for rule to applying no-duty-for-sports recreation, “[Ajctive recreational activities: because it involves physical life, and is not essential to daily is vulnerable to the particularly effects chilling tort potential liability ordinary negligence.” (Maj. opn., ante, 1157.) The p. later majority asserts: “The doctrine ensure that the helps threat of litigation liability does not cause such recreational activities to be abandoned or fundamentally altered in an (Id. effort to eliminate or minimize inherent risks of injury.” But offers no evidence majority for that view. Pertinent here is comment this aby major treatise on tort law: “It be that some may courts are in the process rule, creating freestanding divorced limited-duty from its foundation in the parties’ The expectations. that the opinions suggest should be limited because of the danger of a flood of and because litigation, of a supposed policy encouraging reasons, vigorous Both physical these competition. distinct from the parties’ reasonable (1 be doubted.” expectations, may Dobbs al., et (2d Law of 2011), Torts ed. omitted.) fns. §
A final Even point: if the common law of risk doctrine were still in ante), (see 1165-1166, in California place pp. here plaintiff would not necessarily doctrine, in her action for prevail personal injury. Under that “the pertinent is not what inquiry risk is inherent in a particular sport [or rather, recreational it activity]; is what risk the plaintiff consciously (Avila, voluntarily assumed.” supra, (conc. 38 Cal.4th at & dis. opn. Kennard, Thus, J.).) here would be whether question plaintiff voluntarily assumed the risk of the of harm that ensued from her type decision ride car, “with that (Knight, knowledge risk.” appreciation Kennard, (dis. J.).) Even if opn. did not assume plaintiff risk, defendant may not have acted unreasonably by making ride, car ride at Great America a multidirectional and thus not have may breached its of care toward plaintiff. According declarations record, 300,000 appellate approximately rode on that ride in people year was injured, she was the one to suffer a only fracture. Based evidence, on such could jury conclude that defendant was not negligent. Because, above, for the reasons I with the Court of given agree Appeal ride, rule extended should not be to a bumper no-duty-for-sports its is not a I would affirm sport, which the Court of observed Appeal the trial of defendant’s reversing grant summary judgment court’s judgment motion.