Wednesday, July 06, 2011

Nalwa v. Cedar Fair (Cal. Ct. App. - June 10, 2011)

Sometimes I agree with neither the majority nor the dissent.  This time I agree with both.

With respect to the former, I agree with Justice Rushing that the primary assumption of the risk doctrine doesn't apply to bumper cars in an amusement park.  That doctrine principally applies to sports activities.  It's not applicable to bumper cars.  It goes too far to try to extend it there.  The California Court of Appeal shouldn't do so.

With respect to the latter, however, I agree with Justice Duffy that it seems a bit crazy to let someone sue for injuring their hand on a bumper car because they were smashed.  That's the whole point.  There's smashing.  Sure, you could make it safer.  You could make the cars go one way.  You could put bigger bumpers on them.  You could include airbags.  You should stop them from bumping.  But when plaintiff got in the car, it was clear these were just regular old bumper cars.  I don't think they should be permitted to sue.

Whether one accomplishes this result through a negligence analysis or assumption of the risk or primary assumption of the risk, I concede, is unclear to me.  I don't think it should be the last of these.  But I also think I know the proper result.  And liability -- or even a trial -- isn't it.