One bad thing about being in academia is that you don't have a keen sense of when (or if) "regular" people work over the holidays. Do people really work on Monday, December 31?
Though I guess you could easily call that a good thing as well.
Fortunately the California Supreme Court lets me know. Yes, Virginia, some people are indeed at work on New Year's Eve. Cranking out opinions so the winners have something extra to celebrate and giving the losers an even bigger excuse to drown their sorrows on this particular evening.
It's a case about bumper cars and primary assumption of the risk. The California Supreme Court has led the state courts in a relentless expansion of this doctrine in the sports context, applying the doctrine to immunize defendants in a wide variety of settings. It does so again today, making clear that the doctrine doesn't just apply to "sports" (however expansively defined), but applies equally to a plethora of activities more broadly defined as "recreational" instead. Barring a lawsuit, here, for injuries sustained in a bumper car accident.
Justice Kennard has been a vocal opponent of the expansion of this defense, and -- not surprisingly -- dissents here as well. Repeating and expanding upon the arguments she's made in prior dissents.
But I think this is a bad case for Justice Kennard, and one in which it's difficult to articulate persuasively her position. Instead, I think that Justice Werdegar's majority opinion is quite powerful. Seemingly spot on, at least to me. And this from someone who's somewhat sympathetic to Justice Kennard's reservations.
Justice Werdegar just seems right that the whole bumper cars is to bump, and that allowing liability for bumping accidents might indeed chill the underlying recreational activity. Could a defendant institute technological limitations on, for example, head-on bumping -- for example, by only allowing one-way travel by the bumper cars -- or, as here, more rigorously enforce its internal policy against this practice? Sure it could. And, yes, such efforts might well have prevented the fracture here.
But it nonetheless seems right to me that when you get into a bumper car that allows multi-directional travel and in which some head-on bumping might occur, that's a classic example of assumption of the risk. I also agree that there's a downside to chilling this practice. Some people -- myself included -- may like the ability to slam (and be slammed) head on. To impose liability -- or to permit post hoc explanations of subjective intent be largely dispositive -- would indeed risk elimination of this particular recreational practice. That's not socially beneficial. So creating a primary assumption of the risk defense in this context makes sense to me.
Could you obtain some of these benefits through more traditional (and limiting) doctrines? Sure. Some. Not all. Are there difficult lines to be drawn regarding what's "inherent" in a sport and what's not? Yep. Definitely.
But I think the judiciary can do that. We all have -- or can fairly readily obtain -- some experience with the underlying recreational concepts. We can draw lines between what's "inherent" in a sport and what's not in a way that preserves the utility of the underlying act. Judges can likely do so better than episodic juries who are confronted by episodic cases involving sympathetic, uniformly injured participants.
So even if you're not a bumper car, or primary assumption of the risk, devotee, I think there's still a lot to be said for Justice Werdegar's opinion here. Which is something I could (and would) readily sign onto.
But if you're headed out to an amusement park with your kids during the New Year, watch out for those bumper cars. They might just get a tiny bit more violent after today.
Goodbye 2012. Welcome 2013.
