In an interesting intermediate appellate court decision out of California [PDF], a court ruled that primary assumption of risk doesn’t apply in the context of amusement park rides and that factual issues predominated, such that summary judgment was inappropriate.  The case arose out of a doctor’s visit to Cedar Fair’s Great America ride and the park’s alleged failure to reduce the risks of head-on collisions on their bumper cars.  (The doctor broke her wrist.)  The decision is worth reading for at least three reasons:

  1. It includes a particularly entertaining footnote addressing Cardozo’s famous Murphy case — worth a read for that alone.
  2. More centrally, it has a fascinating analysis in which the majority bases its conclusion that primary assumption of risk doesn’t apply on the fact that amusement parks specifically market the illusion of risk, citing California cases in which amusement rides were deemed common carriers.  The court properly notes that the inherent-risk flavor of assumption of risk is essentially a no-duty finding.
  3. The court cites Stan Lee.  That’s awesome.


It’s an interesting and well-written opinion, probably correct given the overall trend away from use of assumption of risk and no-duty arguments.

Addendum: Screamscape fears massive implications of the decision.  While I suppose it’s possible that it’ll cause parks to shut down rides, I think it’s very unlikely to do so.  Remember the context: the court concluded only that the park had a duty to act reasonably in connection with potential injuries like this — it didn’t conclude that the park breached that duty or acted negligently.  Reversing summary judgment is very different than concluding that the park breached the standard of care, and I would guess that a jury wouldn’t find that the park acted negligently in how it ran the ride.

As the court notes, a significant majority of parks (including some of Cedar Fair’s before this accident, and Great America after) have already made bumper cars one-way with an island to reduce the risk of head-on collisions.  I happen to prefer free-for-alls (and in fact have been willing to accept the risk of head-on collisions), but don’t particularly see the shift as being a terrible awful no-good very bad thing.  It’s just a tweak.

Just as declaring roller coasters common carriers hasn’t remotely shut down coasters in California (as predicted by CAPPA at the time), this, too, won’t have any major — or probably even very many minor — implications, in my view.

Another update: Declarations & Exclusions thinks the case is wrongly decided.  I don’t much disagree — I’d be okay with a broader assumption of risk, broad enough to capture this — but think the case was rightly decided under California’s overall trend (one generally reflected nationwide) towards narrowing no-duty rules.