NALWA v. CEDAR FAIRRespondent’s Opening Brief on the MeritsCal.December 15, 2011Case No. 8195031 “rere paw fon % Bad Ny yalePREME COURT Vi : Vv ve In the Supreme Court of California BEC 18 201! ote ee tate oe ‘ rye HfiOw KR. One ohShaete SMRITI NALWA, sesite Plaintiffand Appellant, VS. CEDARFAIR,LLP., Defendant and Respondent. OPENING BRIEF ON THE MERITS Petition Following Published Opinion of the Court of Appeal, Sixth Appellate District filed on June 10, 2011 in Case No. H034535, Reversing the Judgment of the Superior Court of the State of California for the County of Santa Clara, the Hon. James P. Kleinberg, Judge Presiding, in Santa Clara County Superior Court Case No. 1-07-CV089189 Jeffrey L. Lenkov, Esq. (SBN 156478) Patrick L. Hurley, Esq. (SBN 174438) Steven J. Renick, Esq. (SBN 101255) MANNING & KASS MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP ELLROD, RAMIREZ, TRESTER LLP 1 California St., Suite 1100 801 So. Figueroa St., 15th Floor San Francisco, CA 94111 Los Angeles, California 90017 Telephone: (415) 217-6990 Telephone: (213) 624-6900 Attorneysfor Defendant and Respondent, CEDARFAIR,L.P. Case No. 8195031 In the Supreme Court of California SMRITI NALWA, Plaintiffand Appellant, VS. CEDARFAIR,LP. , Defendant and Respondent. OPENING BRIEF ON THE MERITS Petition Following Published Opinion of the Court of Appeal, Sixth Appellate District filed on June 10, 2011 in Case No. H034535, Reversing the Judgmentof the Superior Court of the State of California for the County of Santa Clara, the Hon. James P. Kleinberg, Judge Presiding, in Santa Clara County Superior Court Case No. 1-07-CV089189 Jeffrey L. Lenkov, Esq. (SBN 156478) Patrick L. Hurley, Esq. (SBN 174438) Steven J. Renick, Esq. (SBN 101255) MANNING & KASS MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP ELLROD, RAMIREZ, TRESTER LLP 1 California St., Suite 1100 801 So. Figueroa St., 15th Floor San Francisco, CA 94111 Los Angeles, California 90017 Telephone: (415) 217-6990 Telephone: (213) 624-6900 Attorneysfor Defendant and Respondent, CEDARFAIR,L.P. TABLE OF CONTENTS Page TABLE OF AUTHORITIES ..... 0.0... eceens iil STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ........ 1 INTRODUCTION ........ 0.bccnene 2 STATEMENT OF THE FACTS .......cee e ee een tee eens 5 STATEMENT OF THE CASE ....... 0. ceceeens 10 LEGAL ARGUMENT....... 0.0.0 c eee ne teens 12 1, THE DEVELOPMENTOF THE DOCTRINE OF PRIMARY ASSUMPTIONOF RISK DOCTRINEIN THIS COURT ...... 12 THE DOCTRINE OF PRIMARY ASSUMPTIONOF RISK SHOULD APPLY TO AMUSEMENTPARK RIDES WHICH INVOLVE INHERENT RISKS OF INJURY .......--.---55: 20 THE FACT THAT AMUSEMENTPARKSARE SUBJECT TO REGULATION DOES NOT PRECLUDE THE APPLICATION OF THE PRIMARY ASSUMPTIONOF RISK DOCTRINE TO AMUSEMENTPARK RIDES . 2.0.6... eeeees 30 THE FACT THAT AMUSEMENTPARKS MAY OWE A HIGHER DUTY OF CARE TO THEIR CUSTOMERS DOES NOT PRECLUDE THE APPLICATION OF THE PRIMARY ASSUMPTION OF RISK DOCTRINE TO AMUSEMENTPARK RIDES...... 6.0.00 eee ees 38 THERE IS NO EVIDENTIARY SUPPORT FOR THE MAJORITY’S CONCLUSION THAT HEAD-ON COLLISIONS ARE NOT RISKS INHERENT IN BUMPER CAR RIDES 1... 0.0... ccceee eee tees 42 CONCLUSION .... 0... ccceee ete n eens 48 -ii- TABLE OF AUTHORITIES CASES Page Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650 ........ 21 Cheong v. Antablin (1997) 16 Cal.4th 1063 .............005. 34, 35, 37 Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409 ..........eee 35 Fonseca v. County ofOrange (1972) 28 Cal.App.3d 361 ............. 12 Ford v. Gouin (1992) 3 Cal.4th 339 2...cee eee 16, 35 Gardner v. G. Howard Mitchell (1931) 107 N.J.L. 311 «2... eee eee 28 Jekyll Island State Park Authority v. Machurick (Ga.Ct.App. 2001) 250 Ga.App. 700 ....... 6. eee eee ee eee ee 26 Kahn v. East Side Union High School District (2003) 31 Cal.4th 990 ... 18 Knight v. Jewett (1992) 3 Cal.4th 296 cece eee eee eens 2, 3, 12, 14-18, 20, 21, 25, 29, 39, 40, 49 Leslie v. Splish Splash at Adventureland, Inc. (N.Y.App.Div. 2003) 1 A.D.3d 320 2.00.0... 0. eee eee eee 28, 29 Liv. Yellow Cab Co, (1975) 13 Cal.3d 804 ... 0.0.0... 0c e ee eee eee 13, 14 Murphy v. White City Amusement Co. (Ill.App.Ct. 1926) 242 Il-App. 56 11.0... ee eee eee 26 Nalwav. CedarFair, L.P. (2011) 196 Cal.App.4th 566 Lee eee ee eee e en ene teens 1, 3, 21-25, 29-32, 36-47 Neighbargerv. Irwin Industries, Inc. (1994) 8 Cal.4th 532 ...... 2, 16, 17 ~ ili - Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456............ 17, 18 Pfisterer v. Grisham (Ind.Ct.App. 1965) 137 Ind.App. 565 ........... 27 Priebe v. Nelson (2006) 39 Cal.4th 1112.0... ....... 0... .005- 2, 19, 20 Ramsey v. Fontaine Ferry Enterprises, Inc. (1950) 314 Ky. 218 .... 27,28 Ratcliffv. San Diego Baseball Club (1938) 27 Cal.App.2d 733 ........ 39 Russo v. Range, Inc. (Ill.App.Ct. 1979) 76 IllApp.3d 236 ......... 26, 27 Shahinian v. McCormick (1963) 59 Cal.2d 554 aeeuesveebeuvennas 36 Shin v. Ahn (2007) 42 Cal.4th 482 20.0...eeeee 20 STATUTES, REGULATIONSAND RULES California Code of Regulations, Title 8, section 3195.9 .............. 32 California Rules of Court rule 3.1354 20.0...es 11 -iv- STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1. Is the primary assumption of risk doctrine limited to active sports,i.e. activities “done for enjoymentorthrill, requir[ing] physical exertion as well as elements ofskill, ... involv[ing] a challenge containing a potential risk of injury, and ... entail[ing] some pitting of physical prowess (be it strength based... or skill based ...) against another competitor or against some venue”(Nalwav. Cedar Fair, L.P. (2011) 196 Cal.App.4th 566, 579;citation and internal quotation marks omitted)? 2. Does the fact that amusementparks are subject to regulation meanthat public policy entirely bars the application ofthe primary assumption of risk doctrine to amusement park rides? 3, Are the owners of amusement parks (and other purveyors of recreational activities) subject to a special version of the primary assumption of risk doctrine that imposes a duty on those ownersto take steps to eliminate or decrease any risks inherent in their rides? INTRODUCTION This case arises from an incident in whichtheplaintiff allegedly broke her wrist as a result of a bumpercar collision at an amusement park. The defendant park was granted summary judgment pursuant to the primary assumption ofrisk doctrine. The Court of Appeal reversed, holding that the doctrine did not apply to amusementparkrides. The Court of Appeal held that the doctrineof primary assumption of risk only applies to active sports, and thus could not be applied to amusement park rides — such as the bumpercars on whichthe plaintiff was riding at the time ofher injury — becausetheynotactive sports. But in noneofthe casesin. which this Court has addressed the issue of primary assumption of risk — including the seminal case ofKnight v. Jewett (1992) 3 Cal.4th 296 — hasthis Court imposed sucha restriction on the applicability of the doctrine, nor is such a limitation inherentin the rationale underlying the doctrine. In fact, this | Court itself has applied the doctrine in cases which did not involve active sports. See Neighbargerv. Irwin Industries, Inc. (1994) 8 Cal.4th 532 (fire- fighters) and Priebe v. Nelson (2006) 39 Cal.4th 1112 (kennel workers). There is nothing about the doctrine of primary assumption ofrisk that precludesit from being applied in situations other than active sports; and in particular nothing to preventit from being applied to amusementparkrides. -2- Contrary to the majority’s conclusion below,refusing to apply primary assumption of risk to amusementpark rides will not result in “mak[ing] them safer.” (Nalwa, supra, 196 Cal.App.4th at 579.) Rather, if the doctrine does not apply to amusementparkrides, then the operators ofamusementparks will be obliged to eliminate the risks inherent in the rides they offer at their parks, evenifthat requires altering the fundamental nature of those rides. That will not result in the rides being made safer. Rather those rides will cease to exist, to be replaced by ridesthat are fundamentally different. In essence, the major- ity below hasstated a public policy that amusement park operators can only offer rides that truly do provide only “the illusion of danger”, without any actualrisk of injury. (/d. at 607.) This Court has not recognized sucha policy, and its opinions addressing primary assumption of risk indicate that it would not support such policy. The defendant would suggestthat this Court’s opinion in Knight stands for the proposition that it is the policy of this state to permit people to engage in a broad variety of recreational activities, even if some of those activities do involve an inherentrisk of injury to the participants, and that the persons and entities that enable these individuals to participate in these activities will not be held liable if on occasion those inherent risks cause a participant to suffer injury. Applying the doctrine of primary assumption ofrisk to amusement -3- park rides is fully consistent with thatpolicy. The majority below held that applying primary assumptionofrisk to amusement parks would be contrary to the public policy encompassed by the “protective regulatory scheme” governing the operation of amusementparks. However, a review of those regulations offers no support for the majority’s conclusion, and in fact shows that the policy reflected these regulations explicitly permits amusement parks to operate bumpercar rides, despite the risks that may arise from thecollisions that are an inherent part of such rides. Finally, the majority below concluded that amusement park operators owea higherduty of care to their customersandthatthis precludesthe appli- cation of the primary assumption ofrisk doctrine to amusementparkrides. However, there is no support in the case law for such a conclusion. Com- plying with such aninterpretation of the law would force amusement parks to alter the fundamental nature of manyoftheir rides in order to comply withit, and there is no public policy justification for imposing such a duty on amusementpark operators. Noneofthe groundsoffered by the majority below for their decision to reverse the summaryjudgmenthas any merit. Accordingly, this Court should reversethe decision ofthe Court ofAppeal andreinstate the trial court’s order granting the defendant’s motion for summary judgment. 4. STATEMENT OF THE FACTS On July 5, 2005, plaintiff Smriti Nalwa, M.D. went to California’s Great America amusementpark in San Jose, California with her nine year old son and six year old daughter. (Clerk’s Transcript [“CT”] 61, 70-71.) While at the park, plaintiff and her children decided to go on the Rue Le Dodge bumpercar ride. Plaintiff watched the ride while they were waiting in line to get on the ride. (CT 76-77.) Whenit wastheir turn to ride, plaintiff and her son got into one bumper car and her daughter got into another by herself. Plaintiff's son drove and plaintiff sat next to him in the bumper car. (CT 78, 88.) Plaintiff and her son knewthat, during the ride, they would be bumpedbythe other cars. According to plaintiff and her son, getting bumped by other cars was what made the ride fun. (CT 80-81, 100-01.) Afterthe ride started, plaintiff’ s son controlled the bumpercar in which he andplaintiff were riding. Plaintiff's son steered the car and bumpedinto several other cars during the ride. (CT 79, 81, 100.) Near the end ofthe ride, plaintiff's bumper car was bumped from the front and then from behind. Whenshe was bumped from behind,plaintiff put her left hand out to brace herself and fractured her wrist, as the plaintiff explained in her deposition. Sure. Describe for us how theactual collision occurred — Sure. — which injured your left wrist. P O P Right. We were on— already a couple ofminutes. Sanjit wasdriving. He was at the wheel. And after sometime, I felt —I saw a car comingin front —- bumpus from front, and then I felt a bump from the back, and I felt myself moving — you know being pushed — pushed around. And I had no wayto hold, and at that point as | — to brace myself, I put my palm on the dashboard — whateverit was in front, I knew that was the dashboard; and I put my hand overthere. So you were bumped from the front — Andthe back. —and from the back? Yes. Which bumpoccurredfirst, front or back? You know,I think the — I — the front — the front. Okay. But you knew — you knew from watching theO P O P O P bumpercar and you knew from sitting in the bumpercar during the experience that you were going to be bumped. A. That’s correct. But I felt that I had —I felt I was being almost thrown out, you know, so I needed to brace myself. I was being pushed around —” (CT 85:14 - 86:20; emphasis added.)’ ' Plaintiff asserted in her Appellant’s Reply Brief (at page 5) that “Respondent argues, for the first time, that Appellant’s injuries were not caused by a head-on collision” and therefore the issue was “not properly before this Court.” Defendant explainedin its Petition for Rehearing (at pages 13-17) that plaintiff was incorrect. This issue is discussed at length in footnote 4 below, at pages 47-48. The Rue Le Dodge bumpercar ride consisted of a number of small, car-like vehicles that moved arounda flat surface track poweredbyelectricity. (Declaration of Jessica Naderman in Support of Motion for Summary Judgmentat {3 and Ex. A to NadermanDecl. [found in the record as Exhibit A to Cedar Fair’s Motion to Augment Record on Appeal].) The cars were surrounded by a rubber bumper. (NadermanDecl.at 3, Ex. A to Naderman Decl.) The driver of each bumpercar controlled both the steering of the car as well as its speed. (CT 79, 87; Naderman Decl. at 4.) Once the ride started, Cedar Fair did not control the individual bumpercars. (Naderman Decl. at § 4.) Each bumpercar had a padded seat, padded sides, a padded steering wheel, and a padded dash board. The cars were also equipped with twoseatbelts to restrain the driver and passenger during the ride. (Naderman Decl. at § 5.) The ride lasted approximately two minutes. (Naderman Decl. at { 4.) There were warningsignspostedat the entrance ofthe bumpercarride in July 2005. One warning sign was entitled “RIDE WARNING- PLEASE READ”andinformed people waitingin line for the ride that “Rue Le Dodge cars are independently controlled electric vehicles. The action of this ride subjects your car to bumping.” (Naderman Decl. at 6.) Another posted sign informed gueststhat the bumpercarride “is a medium speed ride whereriders -7- may encounter unexpected changesin direction and/or speed during portions of the ride.” (Naderman Decl. at 97.) Plaintiff saw these signs before she got on the ride. (CT 92.) The Rue Le Dodgeride wasreconfiguredin 2006(i.e. after the incident at issue in the underlying lawsuit) to add an island in the middle ofthe track which encouragedridersto ride in the same direction. (CT 158.) This change was made to make the Rue Le Dodgetrack consistent with bumpercar tracks at other amusement parks owned by Cedar Fair. (CT 159.) The change in the track reduced, but did not eliminate, head-on collisions. (CT 210.) The bumpercarride was inspected annually for safetyby the California Department of Industrial Relations, Division of Occupational Health and Safety (“DOSH”). DOSHinspected the bumper car ride in 2004, 2005 and 2006 and found no safety-related problems with the operation of the ride. (Naderman Decl. at § 8.) The ride was inspected every morning by both the maintenance and ride operations departments of the amusement park. On the morningofthe incident, the ride was inspected and was foundto be working normally. (Naderman Decl. at {| 9.) Approximately 300,000 people ride the Rue Le Dodgeride every year. (Naderman Decl. at § 10) In 2004, there were only twenty-eight injuries reported as having occurred on or around the bumpercarride, including four _8- contusions, fourteen abrasions, three lacerations, and four strains. In 2005 there were twenty-seven injuries reported (including plaintiffs injury) as having occurred on or around the bumpercarride, including six contusions, thirteen abrasions, and two strains. Other than plaintiff, there were no fractures reported as a result of the bumpercarride in 2004, 2005, or 2006. (CT 108.) STATEMENT OF THE CASE On January 25, 2008, plaintiff filed a Second Amended Complaint against CedarFair containing causes ofaction for (1) commoncarrierliability, (2) willful misconduct, (3) strict liability [design defect], (4) strict liability {distribution of defective product], and (5) negligence. (CT 1-7.) Cedar Fair filed a motion for summary judgment as to the Second Amended Complaint. In responseto the motion, plaintiff dismissed the two products liability causes of action. Asto the remaining claims,thetrial court granted summaryjudgment on April 3, 2009. (CT 238-40.) In granting the motion,thetrial court found that “Plaintiffs injury arose from being bumped during a bumper-car ride, whichis a risk inherentin the activity of riding bumpercars.” (CT 238.) Thetrial court found that the duty of care for commoncarriers did not apply because Cedar Fair “had no control overthe steering andorientation ofthe individual bumpercars.” (CT 23 8-39.) Even ifCedar Fair were considered a commoncarrier,the trial court found that the doctrine of primary assumption ofrisk barred plaintiff's claims because Cedar Fair did not have a duty to protectplaintiff from risks inherent in the activity. (CT 239.) The trial court rejected plaintif? s argument that Cedar Fair was negligent in failing to reconfigure the bumpercar track prior to the injury -10- because “any type of bumping — either head-on or from the rear — is inherent in the activity of riding bumper cars. Defendant did not have a duty to reduce risks that are inherent to bumper-car riding. (See Balthazorv. Little League Baseball (1998) 62 Cal. App.4th 47, 52.)” (CT 239.) Thetrial court declined to rule on plaintiff’ s objections to evidence submitted in support ofthe motion on the ground that the objections did not comply with California Rules of Court rules 3.1354(b)(3) and (c). (CT 239-40.) Judgment was entered in Cedar Fair’s favor on June 8, 2009. (CT 244.) The plaintiff appealed from the judgment. (CT 254) The Court of Appeal issuedits opinion ontheplaintiff's appeal on June 10, 2011, reversing the judgment. Justice Wendy Clark Duffy dissented from the decision. The defendantfiled a petition for rehearing following thefiling of the appellate court’s opinion. Thatpetition was denied on July 7, 2011. Justice Duffy indicated that she would have granted the petition. On July 21, 2011, the defendantfiled a petition for review with this Court. The plaintiff declined to file an answer. On August 31, 2011, this Court granted the defendant’s petition for review. -ll- LEGAL ARGUMENT 1. THE DEVELOPMENT OF THE DOCTRINE OF PRIMARY ASSUMPTION OF RISK DOCTRINE IN THIS COURT This case presents a fundamental question: what is the proper scope of the primary assumptionofrisk doctrine? Should it apply onlyto active sports, as the majority below concluded? Or shouldit apply to all activities which involve inherent risks? Or should the limits of the doctrine’s applicability be placed somewherein between? To answerthis question,it will help if wefirst examine the history of the doctrine. As this Court noted in Knight v. Jewett, supra (1992) 3 Cal.4th 296, 303, “the assumption of risk doctrine long has caused confusion both in definition and application, because the phrase ‘assumption ofrisk’ traditionally has been used in a number of very different factual settings involving analytically distinct legal concepts.” In Fonseca v. County ofOrange (1972) 28 Cal.App.3d 361, 368-369, the Court ofAppeal offered an example ofhow this problem had manifested itself in California. “It has been repeatedly noted that contributory negligence and assumption of risk are separate and distinct defenses. Assumption ofrisk involves the negation of defendant’s duty, contributory negligence is a defense to a breach of such duty; assumption ofrisk mayinvolve perfectly reasonable conducton -12- plaintiffs part; contributory negligence never does; assumption of risk typically embraces the voluntary or deliberate incurring ofknownperil; contributory negligence frequently involves the inadvertentfailure to notice danger. The courts have frequently recognized that there is an area ofoverlap between the two doctrines,so that identical facts maygive rise to both defenses, The overlap has been described as follows: ‘[The] plaintiffs conduct in encountering a known risk may be in itself unreasonable, because the dangeris out of all proportion to the advantage which he is seeking to obtain. ... If that is the case, his conduct is a form of contributory negligence, in which the negligence consists in making the wrong choice and voluntarily encountering a known unreasonablerisk....”” (citations omitted) The relationship between assumption of risk and contributory negligence required this Court to address the continuing viability of the assumptionof risk doctrine when it adopted comparative negligence in Liv. Yellow Cab Co. (1975) 13 Cal.3d 804, 824-825. “The third area of concer,the status of the doctrines of last clear chance and assumption of risk, involves less the practical problems of administering a particular form of comparative negligence than it does a definition of the theoretical outline ofthe specific form to be adopted. ... As for assumptionofrisk, we have recognized in this state that this defense overlapsthat of contributory negligence to some extent and in fact is made up of at least two distinct defenses. “To simplify greatly, it has been observed . . . that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence,plaintiff's conduct, although he may encounterthat risk in a prudent manner, is in reality a form of contributory negligence .... Other kinds ofsituations within the doctrine of assumptionofrisk are those, for example, where plaintiffis held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve -13- contributory negligence, but rather a reduction of defendant’s duty of care.’ Wethink it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption ofrisk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence.”(citations omitted) As this Court discussed in Knight, the Li court’s decision regarding the extent to which assumption of risk survived the adoption of comparative negligence unfortunately did not definitively resolve the issue. “Prior to the adoption of comparative fault principles of liability, there often was no need to distinguish between the different categories of assumption of risk cases, because if a case fell into either category,the plaintiffs recovery wastotally barred. With the adoption of comparative fault, however, it becameessential to differentiate betweenthedistinct categories of cases that traditionally had been lumped together under the rubric of assumption ofrisk. This court’s seminal comparative fault decision in Li, supra, 13 Cal.3d 804,explicitly recognized the needforsuchdifferentiation, and attemptedto explainwhich category of assumption of risk cases should be mergedinto the comparative fault system and whichcategory should not. .... “(The Li decision, supra, 13 Cal.3d 804, clearly contemplated that the assumption ofrisk doctrine was to be partially merged or subsumed into the comparative negligence scheme. SubsequentCourt ofAppealdecisions have disagreed, however, in interpreting Li, as to what category of assumption of risk cases would be merged into the comparative negligence scheme.” (Knight, supra, 3 Cal.4th at 304, 306.) This Court resolvedthis uncertainty abouthow Li should be interpreted by providingthis definitive explanation ofthe relevantportion ofthat opinion. -14- “W]e believe it becomesclearthat the distinction in assumption of risk cases to which the Li court referred in this passage was not a distinction between instances in which a plaintiff unreasonably encounters a known risk imposed by a defendant’s negligence and instances in which a plaintiff reasonably encounters such a risk. Rather, the distinction to which the Li court referred was between (1) those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk — the category of assumption of risk that the legal commentators generally refer to as “primary assumption of risk’ — and (2) those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breachofthat duty — what most commentators have termed ‘secondary assumption ofrisk.’ Properly interpreted, the relevant passage in Li provides that the category of assumption of risk cases that is not merged into the comparative negligence system and in whichtheplaintiff's recovery continues to be completely barred involves those cases in whichthe defendant’s conduct did not breach a legal duty of care to the plaintiff, i.e., ‘primary assumption ofrisk’ cases, whereas cases involving ‘secondary assumption ofrisk’ properly are merged into the comprehensive comparative fault system adopted in Zi. .... [T]he question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiffs conduct, but rather on the nature ofthe activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” (Knight, supra, 3 Cal.4th at 308, 309; footnotes omitted.) This Court summarizedits “general conclusionsas to the currentstate of the doctrine of assumptionofrisk in light of the adoption of comparative fault principles in Li” as follows: -15- “In cases involving ‘primary assumption of risk’ — where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owesno legal duty to protect the plaintiff from the particularrisk of harm that caused the injury — the doctrine continues to operate as a complete bar to the plaintiff's recovery.” (Knight, supra, 3 Cal.4th at 314-315.) This Court, having resolved the uncertainty regarding the natureofthe assumption ofrisk doctrine after the adoption ofcomparative negligence, then proceeded to apply that rule to the case before it, which happened to involve a sporting activity (touch football). (Knight, supra, 3 Cal.4th at 315.) Thus there necessarily was a lengthy discussion by this Court of the issue of the extent of the duty imposed onparticular defendants by a plaintiffs partici- pation in a sporting activity. However,at no pointdid this Court state that the doctrine of primary assumptionofrisk that it had recognized in Knight was limited to sports. Norit did make such a statement in Knight’s companion case, Ford v. Gouin (1992) 3 Cal.4th 339, which also happened to involve a sporting activity. To the contrary, the discussion in Knightreferred to above wasspecifically about “the application of the assumption of risk doctrine ina sports setting” (Knight, supra, 3 Cal.4th at 313; see also id. at 312), clearly indicating that this Court believed that there were othersettings in which the doctrine could be applied. This Court’s opinion in Neighbarger v. Irwin Industries, Inc., supra (1994) 8 Cal.4th 532 also indicates that this Court did not view the doctrine of -16- primary assumption of risk as being limited to sporting activities. In Neighbarger, this Court considered the scope of the application of the “firefighter’s rule” — under which “a memberofthe public who negligently starts a fire owes no duty of care to assure that the firefighter who is summoned to combatthefire is not injured thereby” — in light of the primary assumption ofrisk doctrine. (/d. at 538-539.) This Court concludedthat “[t]he firefighter’s rule should not be viewed as a separate concept, but as an example of the proper application of the doctrine of assumption ofrisk, that is, an illustration ofwhenit is appropriate to find that the defendant owes no duty of care.” (Ud. at 538.) InParsons v. Crown DisposalCo. (1997) 15 Cal.4th 456, 481-482,this Court rejected the Court of Appeal’s interpretation of Knight as providing “support for a general duty not to increase the risk inherent in whatever sporting or recreationalactivity a plaintiff happensto be pursuing, regardless of the lack of relationship betweenthe parties.” ‘“‘We did not imposesuch a generalduty in Knight, supra, 3 Cal. 4th 296. On the contrary, Knight, consistently with established case law, simply requires courts in each instance to examine the question of duty in light of the nature of the defendant’s activities and the relationship of the parties to that activity. (Knight, supra, 3 Cal. 4th at pp. 309, 313, 318; accord, Neighbarger, supra, 8 Cal. 4th at p. 541 [‘We... keep in mind ._.. the nature of the defendant’s activities and the relationship of the plaintiffs and the defendant to that activity to decide -17- whether, as a matterofpublic policy, the defendant should owe the plaintiffs a duty of care.’].)” (Parsons, supra, 15 Cal.4th at 482.) This analysis of Knight does not suggest that this Court viewed the primary assumption ofrisk doctrine as being limited to sporting activities. InKahn v. East Side Union High SchoolDistrict (2003) 31 Cal.4th 990, this Court addressed the question ofthe proper application of the doctrine of primary assumption ofrisk whenthere is an allegation that an athletic coach’s negligence contributed to an athlete’s injury. In the course of its opinion,this Court explained the rationale for the existence of the primary assumption of risk doctrine. “Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities — and, specifically, many sports — are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. In a game of touch football, for example, there is an inherentrisk that players will collide; to impose a general duty on coparticipants to avoid the risk of harm arising from a collision would worka basic alteration—or cause abandonment—ofthe sport. We addressed this problem in Knight, supra, 3 Cal.4th 296.” (Kahn, supra, 31 Cal.4th at 1003.) Later in its opinion this Court noted that primary assumption ofrisk cases “frequently arise in the context of active sports”. (Kahn, supra, 31 Cal. 4th at 1004.) Thus this Court again indicated that primary assumption of risk is notlimited to sporting activities. - 18 - In Priebe v. Nelson, supra (2006) 39 Cal.4th 1112, 1115, this Court was asked to extend “the so-called veterinarian’s rule” to “a commercial kennel worker [who]... was bitten and seriously injured by [defendant’s] dog while it was boarded at the kennel that employed her.” This Court explained that: “Tulnder that rule, which is a recognized application of the doctrine of primary assumption of risk, a dog owner who contracts with a veterinarianto treat his or her dog is generally exempt from liability should the dog bite or injure the veterinarian or veterinarian’s assistant during such medical treatment.” (/bid.) Onceagain, this Court indicated that the primary assumption ofrisk doctrine applies to more thanjust sportingactivities. Whatcan be drawnfrom this series of cases is that, while the primary assumption of risk doctrine may findits greatest applicability in the sporting arena, this Court has notlimitedits scope to sporting activities. Thus, contrary to the conclusion ofthe majority below,the doctrine can,at least in theory, be applied to an activity such as a bumpercar ride at an amusement park. As will be discussed below,that “theory” should becomethe practicein this state. If an amusement park ride, such as the bumpercar attraction on which the plaintiffwasridingat the time ofherinjury, contains an inherent risk ofinjury, the doctrine ofprimary assumption ofrisk should applyto bara plaintiff from suing the defendant who madethatride availableto the plaintiff, so long as the defendant has not acted to increase the risk inherent in thatride. -19- 2. THE DOCTRINE OF PRIMARY ASSUMPTION OF RISK SHOULD APPLY TO AMUSEMENT PARK RIDES WHICH INVOLVE INHERENTRISKS OF INJURY Asthe cases discussed in Section 1 above makeclear, the doctrine of primary assumptionofrisk “imposes categorical limits on the defendant’s duty of care. Thus, the doctrine ofprimary assumption ofrisk is a limitation on the plaintiff’s cause ofaction rather than an affirmative defense.” (Priebe, supra, 39 Cal.4th at 1135.) In other words, “[t]he primary assumption ofrisk doctrine operates to limit the duty owed by the defendant.” (Shin v. Ahn (2007) 42 Cal.4th 482, 499 [in which this Court held that the primary assumption ofrisk doctrine applies to golf.]) Therefore, in order to determine whether the doctrine of primary assumption of risk should apply to amusement park rides which involve inherent risks of injury, we first must understand the nature of the duty that would otherwise be imposed on the operator of an amusement park if the doctrine were notto apply. This Court explained in Knight, supra, 3 Cal.4th at 315-316 that: “Although defendants generally have nolegal duty to eliminate (or protect a plaintiff against) risks inherentin the sport itself, it is well established that defendants generally do have a duty to use duecare notto increase the risks to a participant over and above those inherent in the sport.” - 20 - Thus, where the doctrine of primary assumption of risk applies, it extinguishes any duty that might otherwise exist for a defendant to eliminate the risks inherentin the activity at issue. Conversely then, where the doctrine is found not to be applicable, a plaintiff can argue that a duty should be im- posed on the defendantto eliminate those risks or to protect persons such as the plaintiff from those risks, even if those risks are inherent in the activity. That is what the plaintiff here sought in arguing that the doctrine should not be applied to amusementpark rides, and that is exactly what the majority below held: that the defendant’s predecessor did have a “duty to protect appellant ... from the risks associated with its rides.” (Malwa, supra, 196 Cal.App.4th at 578.) | But in deciding that such a duty exists, the majority below raises the fundamentalissuethat led to this Court’s holding in Knight: the concern that imposing such a duty may fundamentally alter the nature of the activity. (Knight, supra, 3 Cal4th at 319.) “Although Knight involved injuries occurring during a game of touch football, it is clear from the opinion that the doctrine applies not only to sports, but to other activities involving an inherent risk of injury to voluntary participants like Beninati, where the risk cannot be eliminated without altering the fundamental nature ofthe activity.” (Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658.) -21- The majority below acknowledged that “[rJiding as a passenger in a bumpercar ina closedcircuit ... provide[s] bumpsandjolts...” (Nalwa, supra, 196 Cal.App.4th at 579.) “Prior to boarding the ride, appellant saw posted warnings aboutthe possibility ofbumping and sudden movement anddirection changes.” (/d. at 571.) This is the fundamental nature of a bumpercarride. As Justice Duffy commentedin her dissent below: “Here, Nalwa participated in the Rue le Dodge ride knowingthat she would bejostled aboutin her car as a result of bumpinginto other cars. The sole purpose of a bumpercarride is to enjoy the experience andthrill of minor-impact bumping. The name of the game is to bump andto attempt to avoid (often unsuccessfully) being bumped.” (/d. at 585; dis. opn. of Duffy, J.) Theplaintiffhere was injured because ofa risk inherentin this activity: her bumper car was bumpedby another bumpercar. Ifprimary assumption of risk does not apply, then the defendant had a duty to eliminate — or otherwise protect the plaintiff from — that risk of injury. As noted in the Statementof Facts above (at page 7), each bumpercar had a paddedseat, paddedsides, a paddedsteering wheel, and a padded dash board. The cars were equipped with seat belts to restrain the driver and passengerduring the ride. (Naderman Decl. at] 5.) Yet all ofthat wasnotsufficient to preventthe plaintiff from suffering an injury while on theride, and the plaintiff has not suggested that there were any other safety devices that could have been added to the individual bumper -22- cars to protect her from the potential of injury when one bumpercarstrikes another. How then could the defendant meeta duty to eliminatethe possibility that a passenger might suffer injury while on the ride? The mostdirect solution would be to eliminate any bumping from the ride. But this method of meeting the defendant’s duty would unquestionably change the fundamental nature of the activity. As the majority below acknowledged, “bumpingis part of the experience of a bumpercar ride ...” (Nalwa, supra, 196 Cal.App.4th at 582.) Alternatively, the defendant could substantially decrease the speed of the bumpercars, so that any impacts that do occur would lack sufficient power to cause injury. As the majority below recognized, “[r]iding as a passengerin a bumpercar ina closedcircuit ... provide[s] bumpsandjolts ...” (Ud. at 579.) It is those jolts that have the potential to cause harm,andthose are what would haveto be eliminated to completely protect the riders from any risk of injury. This too would fundamentally alter the nature of the activity. As Justice Duffy observed in her dissent below, “who would wantto ride a tapper car at an amusement park?” (Id. at 597; dis. opn. of Duffy, J.; italics in original, footnote omitted.) Similar difficulties would confront the defendantin trying to meet this duty in regard to other amusementpark thrill rides. Can you eliminate the -23- risks associated with a roller coaster without eliminating the twists, turns, and sudden drops that are inherent to the ride? Or the risks associated with a Scrambler without eliminating the sudden changes in direction that are its hallmark? Or the risks associated with a Tilt-A-Whirl without eliminating its random changes in spinning motion? The majority below concludedthat none of this matters; that the only concern is “the overriding public policy requiring the owners of amusement parks to make the parks safe for their patrons.” (Nalwa, supra, 196 Cal.App.4th at 577.) “Amusement park owners’ liability for injuries on their rides will affect the ‘nature’ of rides. It will make them safer. However, given the regulatory requirements to assure safety on amusementpark rides, we conclude that any effect on the rides can only be a positive one consistent with public policy.” (/d. at 579.) The majority fails to appreciate the reality of what they are requiring. They are not making therides safer. Rather, they are requiring amusement parks operatorsto eliminatetheir existing rides and to replace them with rides that are fundamentally different. In essence, the majority is stating a public policy that amusementparkoperators can only offerrides that truly do provide only “the illusion of danger” without any actualrisk of injury. (Ud. at 607.) Butifthis is to be the public policy of California, how can welogically limit its application to amusement parks? Ifit is the policy ofthe state to -24 - protect its citizens by ensuring that they do not participate in activities that present any real risk of injury, how can wejustify applying the primary assumptionofrisk doctrine to a host ofsports and recreational activities which are conducted across California? Eachyear, individuals — adults and children alike — break bones and suffer other injuries using the numerousski resorts that are permitted to operate throughout the state. People fall while rock climbing, sometimes suffering fatal injuries. People are thrown from horses they are riding, while others crash driving off-road vehicles. Logically, shouldn’t the policy espoused by the majority below apply equally to these activities, precludingthe application ofprimary assumption ofrisk to them as well? Yet primary assumption of risk has been applied in all of these circumstances. (See the cases collected in footnote 7 of the dissent below. [Nalwa, supra, 196 Cal.App.4th at 591, fn.7; dis. opn. of Duffy,J.]) The defendant would contend that this Court in Knight came to the opposite conclusion, implicitly finding that it is the policy of this state to permit people to engage in a broad variety of recreational activities, even if some of those activities do involve the risk of injury to the participants, and concluding that the persons and entities that enable these individuals to participate in these activities should not be heldliable if on occasion therisks inherent in those activities cause a participant to suffer injury. -25- Other states have reached similar conclusions regarding the extent to which amusementpark operators should beheldliable for injuries suffered by guests. “Georgia courts have addressed the issue of assumption ofrisk in connection with amusementpark rides on a number of occasions and have held that a person who uses such rides assumesthe risk of injury arising ‘as a result of the natural and obvious hazards necessary to the purpose of the device.’ [Citation omitted.]” (Jekyll Island State Park Authority v. Machurick (Ga.Ct.App. 2001) 250 Ga.App. 700, 701) In Illinois, “the doctrine of assumption of risk presupposes that the danger which caused the injury was one which ordinarily accompanied the activities ofthe plaintiffand thatthe plaintiffknew or should have knownboth the danger andthe possibility of the injury existed before the occurrence.” (Russo v. Range, Inc. (Ill.App.Ct. 1979) 76 Hl.App.3d 236, 237.) The Russo court explained “[t]he theory operates as a valid defense in three separate situations”, including “where a plaintiff involved in some type of relationship with the defendant,is said to ‘impliedly consent’ to excusing a defendant from a legal duty which wouldotherwise exist.” (/d. at 238.) The court offers as an example the case of Murphy v. White City AmusementCo. ? Georgia’s version of assumptionofthe risk appears to be similar to California’s before the adoption ofcomparative negligence. See Jekyll Island State Park Authority, supra, 250 Ga.App.at 700. - 26 - (Ill.App.Ct. 1926) 242 Ill.App. 56, in which the Court of Appeals of Illinois “held that a patron at an amusement park who knew how ride operated and was aware ofthe risk that its violent bouncing might injure her, assumed the risk of the injury she suffered on the ride.” (Russo, supra, 76 Ill.App.3d at 238.) In Pfisterer v. Grisham (Ind.Ct.App. 1965) 137 Ind.App. 565, 566,the plaintiffwasinjured while usinga slide at a “public lake and amusement area”. The Court ofAppeals ofIndiana concludedthat, under the facts presented, the trial court haderredin giving an instruction on assumptionofrisk (id. at 569- 570), explaining that while the “Appellant assumed or incurred the risks inherent and incidentto the use ofthis slide, ... she did not assumeor incurthe risk that the slide might be defectively constructed.” | (Ud. at 572.) In Ramsey v. Fontaine Ferry Enterprises, Inc. (1950) 314 Ky. 218, the defendant offered a motorscooter attraction at its amusementpark. (Jd. at 219.) The plaintiff alleged that one of the other motor scooter riders “struck plaintiff's scooter in the side, causing her to runinto anisland in the center of the rink, and before she could regain control of her scooter, other scooters collided with her knocking her against the wall and injuring her.” (Ibid.) The Kentucky Court of Appeals (then the Commonwealth’s highest court) concludedthat: -27- “The entire device is arranged to provide thrills forits users by bumping into or dodging each other. There is no other lure. The gamehasits hazards, but one cannot be ignorant of them. Plaintiff entered the scooter for the purpose of engaging in the frolic. She deliberately exposedherselfto the contingency which occurred. ... [Pllaintiff assented to the engagement which brought about her injury and in such circumstances the law will enforce the maxim volenti non fit injuria (no legal wrong is done to him who assents).” (Jd. at 220; citations omitted.) In Gardner v. G. Howard Mitchell (1931) 107 N.J.L. 311, 312-313, the plaintiff was injured when she was bumped while on a bumpercarride. The New Jersey Court of Errors and Appeals (then the state’s highest court) concludedthat: “Tt was for the thrill of bumping andofthe escape from being bumped that plaintiff entered the contrivance and remained there after opportunity for exit had occurred. The chanceofa collision was that which gave zest to the game upon which plaintiffhad entered. She willingly exposedherselfto the contingencyof a collision. It is an ancient maxim that that to which a person assents is not esteemed in law an injury;or, in more technical language, volenti nonfit injuria. ... [O]ne who takes part in such a sport accepts the dangers that inherein itso far as they are obvious and necessary, ...” (/d. at 314-315, citations omitted.) In Leslie v. Splish Splash at Adventureland, Inc. (N.Y.App.Div. 2003) 1 A.D.3d 320,321, “{t]he plaintiff allegedly sustained personal injuries while riding a water slide at the defendant’s water park. The defendant moved for summary judgment dismissing the complaint based upon the doctrine of - 28 - assumption of risk. The Supreme Court denied the motion ...” The Appellate Division of the New York Supreme Court reversed, explainingthat: “A plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreationalactivitiesif it is determined that he or she assumedthe risk as a matter of law. A voluntary participant in a sporting or recreational activity consents to those commonly-appreciated risks which are inherent in andarise outofthe nature of such activity generally, and which flow from the participation.” (Jbid.; citations omitted.) As Justice Duffy noted in her dissent below, “[t]hese out-of-state authorities are not binding precedenthere. [Citation.] They, however, provide support for the conclusionthat the primary assumption ofrisk doctrine may be applied to an activity involving an amusement park ride such as Ruele Dodge.” (Nalwa, supra, 196 Cal.App.4th at 600; dis. opn. of Duffy,J.) In Knight, this Court concluded that the “question whether the defendant oweda legal duty to protectthe plaintiff from a particularrisk of harm”turns “on the nature of the activity or sport in which the defendantis engaged andtherelationship ofthe defendantandtheplaintiff to that activity or sport.” (Knight, supra, 3 Cal.4th at 309.) Here, the plaintiff voluntarily chose to participate in an activity — a bumpercar ride — being offered by the defendant, an activity which entailed a small, but inherent, risk of injury. That risk of injury cannot be eliminated from that ride without changing its fundamental nature. As will be discussed below, the majority below has not -29- offered a convincing policy reason why amusement park operators should be held liable if an injury doesresult from the risks inherent in such an activity. 3. THE FACT THAT AMUSEMENTPARKS ARE SUBJECT TO REGULATION DOES NOT PRECLUDE THE APPLICATION OF THE PRIMARY ASSUMPTION OF RISK DOCTRINE TO AMUSEMENT PARK RIDES The majority below concluded that applying the doctrine of primary assumption of risk to amusement park rides would violate public policy because the amusement park industry is subject to state regulation. Specifically, the majority rejected the application of the primary assumption of risk doctrine to the present case because amusementparksare subject to a “protective regulatory scheme” administered by the California Department of Industrial Relations, Division of Occupational Health and Safety (“DOSH”). (Nalwa, supra, 196 Cal.App.4th at 576.). The majority explainedthat: “These regulations set standards for every aspect of amusement park ride safety, including ‘design, maintenance, construction, alteration, operation,repair, inspections, assembly, disassembly, and use of amusementrides... .” The Supreme Court itself has recognized that a statute, ordinance or regulation could, under the propercircumstances, ‘impose a duty of care on defendant that may otherwise be precluded underthe principals set forth in Knight.’ The elaborate regulatory scheme governing California amusement parks, was, by its own terms, established ‘for the protection ofpersons using such rides.’ This is exactly the type - 30 - of regulation which imposes a duty on the operators of such rides irrespective of Knight’s no-duty rule.” (Jd. at 576-577, citations omitted.) The majority continued that “[a]s the regulatory scheme bears out, the concern is not to excuse possible dangerous conditions in orderto increase the thrill ofa ride. Instead, rider safety is ofparamount concern.” (/d. at 577.) The majority therefore concludedthat the regulations impose on the ownersof amusement parksa duty“to protect the public from the possible grave dangers of amusementparkrides.” bid.) The majority thus essentially held that the mere fact that California has put in place regulations to protect persons using amusementpark rides was sufficient to preclude the application of the primary assumptionofrisk doctrine to such rides, on the theory that permitting the doctrine to be applied to such rides would amountto a finding that the amusement park owner “has no duty to protect the appellant who entrusted herlife to respondent from the risks associated with its rides.” (Ud. at 578.) The majority’s analysis doesnottake into accountthe actual regulatory schemethat California has put in place regarding amusementpark rides. The majority does not discuss the specific regulations that applied to the defendant’s bumpercarride, noris there any suggestion that the operation of -31- the defendant’s bumpercar ride in any way breached the protective scheme actually created by these regulations. The majority acknowledges in its opinion that “[t]he California Department of Industrial Relations, Division of Occupational Health and Safety (DOSH)inspectedthe ride annually and in 2004 and 2005 found no safety-related problemswiththe ride.” (/d. at 570-571.) The majority never explains how DOSH could have made those findings if, as the majority appears to have concluded, the mannerin whichthe ride was being maintained or operated created a safety hazard in violation of the governing “protective regulatory scheme”. The problem with the majority’s conclusion is that the actual regu- lations do not support it. As Justice Duffy noted in her dissent below,“there is no suggestion here that Cedar Fair failed to comply with any statute or regulation as a result of which Nalwawasinjured.” (Nalwa,supra, 196 Cal. App.4th at 600;dis. opn. of Duffy, J.) In fact, the only reference to “bumper cars” found anywherein the California Code ofRegulationsis foundin section 3195.9(a) of Title 8, which providesthat: “Ride conveyance vehicles shall be provided with emergency brakesorother equally effective emergency stopping controls, if upon failure of normal stopping controls, collision may reasonably be expected to occur andresult in patron injury -32- or equipment damage. Low speed vehicles designed for controlled collisions, such as bumper cars, do not require emergency stopping controls.” (emphasis added) In other words, the “protective regulatory scheme” on which the majority based its conclusion that “public policy bars the application of the primary assumptionof risk” to amusementpark rides in fact explicitly per- mits the maintenance and operation of bumpercarrides and their attendant collisions. If it is public policy to permit amusementparks to offer bumper car rides in which collisions will occur, then that public policy necessarily permits amusementparks to engagein that activity despite the risk of injury inherentin it. | Giventhat the majority itself recognized the significance ofthere being a regulatory scheme governing bumpercarrides, its conclusion that public policy precludesthe application ofthe primary assumptionofthe risk doctrine is inconsistent with — and indeed would undermine — the public policy that is disclosed by the actual provisions ofthat regulatory scheme. The defendant would thus contend that the actual public policy embraced by the state’s regulatory scheme not only does not bar the application of the primary assumptionofthe risk doctrine in these circumstances,it actually compelsits application here. -33- This Court’s decision in Cheong v. Antablin (1997) 16 Cal.4th 1063 undermines the majority’s apparent conclusion that the mere existence of a regulatory scheme precludes the application of the doctrine of primary assumption ofrisk to the regulated industry — even whenthe evidence reveals no violation of those regulations by the defendant and explicit authorization — in those regulations for the very activity that the majority suggests is barred by the regulatory scheme. Cheonginvolved claim arising from a collision between twoskiers. (Id. at 1065.) The issue before this Court was“whether the injured skier has a valid action in tort against the uninjured skier.” (/d. at 1065-1066.) This Court concludedthat the trial court properly granted summary judgmentin favor of the defendant. (/d. at 1066.) The plaintiff had argued that the trial court erred in finding that primary assumptionofrisk barred his claim. He argued that a Placer County ordinance relating to skiing “impose[d] a higher duty on defendant than Knight establishes.” (Id. at 1069.) This court disagreed. “We recognize that Knight was a development of the common law of torts. Within constitutional limits, the Legislature may, if it chooses, modify the commonlaw bystatute. [Citations.] Whethera local ordinance such as the Placer Code can modify Knight is less clear. We need not decide this question here because we conclude that the ordinance does not modify the Knight standard even if we assumeit could. [{]] The ordinance -34- evinces no clear intent to modify common law assumption of risk principles.” (bid.) If the mere existence of a regulatory scheme were sufficient to bar application ofthe primary assumptionofrisk doctrine — as the majority below seems to have concluded — this Court would have reached the opposite conclusion in Cheong. But it didn’t, thereby conclusively refuting the conclusion reached by the majority below. Indeed, this Court has applied primary assumptionofrisk in at least two situations where the activity was regulated: Cheong (snow skiing) and Ford, supra (waterskiing). This is not to say that statutes — and perhaps regulations and local ordinances — cannot impose duties on defendants that are not subject to primary assumption ofrisk, as this court foretold in Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, 430-431: “Where an ordinanceis a police regulation, made forthe protection of humanlife, it is an obligation imposed upon the defendant by a salutary police regulation and the doctrine of assumption ofthe risk does not apply. ... In Friedman v. Pacific OutdoorAdy. Co., 74 Cal.App.2d 946, 952-953, it was said that the doctrine of volenti nonfit injuria is not applicable wherethe injury arises from a violation of an ordinance. ... Even though a person may waive the benefit of a law enacted for his own benefit an ordinance enacted for the public good cannot be contravened by private agreement. Public policy requires that duties imposed by statute be discharged and that those who are affected cannot suspend the operation of the law either by waiver or by express contract.”(citations omitted) (See also Ford, supra, 3 Cal.4th at 355-356.) -35- Similarly, in Shahinian v. McCormick (1963) 59 Cal.2d 554, 558, which related to a water skiing accident, this Court commentedthat: “The key question in such is whether public policy as declared by a statute or ordinance precludes a defendant from asserting the defense of assumption ofrisk againsta plaintiff. [Citations.] Thatis a legislative not a judicial question. The legislative body here involved has fixed thatpolicy in the instant case.” Cd. at 565.) These cases indicate that the determination of whether the enactment of a statute or ordinance precludes the application of primary assumption of risk to a particular duty encompassedbythatstatute or ordinance depends on the legislative act itself. That makes even more significant the majority’s failure to point to any evidencethat would suggest that the park operator here “failed to comply with anystatute or regulation as a result ofwhich Nalwa was injured.” (Nalwa, supra, 196 Cal. App. 4th at 600; dis. opn. of Duffy, J.) Absent the identification of some specific regulation which the defendant allegedly violated in regard to its bumpercar ride, there is no way to even begin to evaluate “whether public policy as declared by [that regulation] precludes a defendantfrom asserting the defense of assumption ofrisk against a plaintiff.” (Shahinian, supra, 59 Cal.2dat 565.) So, contrary to the conclusion of the majority below, the mere fact that amusementparks are subject to regulation does not preclude the application of the primary assumption of risk doctrine to amusementparkrides. While - 36- there may be circumstances where a particular regulatory scheme “evinces [a] clear intent to modify common law assumptionofrisk principles” (Cheong, supra, 16 Cal.4th at 1069), the majority failed to support its conclusion that such an intent can be foundin the regulatory schemeat issue here. Rather, the maj ority merely concluded that because “[t]he elaborate regulatory scheme governing California amusementparks, was, by its own terms,established ‘for the protection ofpersonsusing suchrides.’ (Cal. Code Regs., tit. 8, § 3900.)”it is therefore “the type of regulation which imposes a duty on the operators of such rides irrespective of Knight’s no-duty rule.” (Nalwa, supra, 196 Cal.App.4th at 576-577.) The majority failed to show that the “protection ofpersons using such rides” contemplated by these regulations explicitly or implicitly incorporated a requirement that amusement park operators eliminate all risks inherent in those rides. The majority thus failed to show that the regulations reflect a “clear intent to modify common law assumption of risk principles” (Cheong, supra, 16 Cal.4th at 1069). To the contrary, as shown above,the regulationsclearly contemplate that amusement park operators such as the defendant will offer rides in which therisk of injury is inherent. Thus, the majority in its opinion failed to establish that the existence of the regulatory schemeat issue here precluded the trial court from applying -37- the primary assumption ofrisk doctrine to the incident in whichthe plaintiff here was injured. 4, THE FACT THAT AMUSEMENT PARKS MAY OWE A HIGHER DUTY OF CARE TO THEIR CUSTOMERS DOES NOT PRECLUDE THE APPLICATION OF THE PRIMARY ASSUMPTION OF RISK DOCTRINE TO AMUSEMENTPARK RIDES The majority in its opinion held that even if “an amusementpark ride is the type ofsport or activity contemplated by ... Knight and its progeny, respondent’s position as owner of [the] park nonetheless would invoke a higher duty of care even under the current construction of the primary assumption ofrisk doctrine.” (Nalwa, supra, 196 Cal.App.4th at 580.) “With great power comesgreat responsibility. Because of their position of control over the premises they hold open to the public for profit, proprietors are uniquely positioned to eliminate or minimize certain risks, and are best financially capable of absorbing the relatively small cost of doing so. Holding owners responsible for minimizing risk is just good policy. Failure to do so could expose the public to unnecessary risk. .... It is entirely consistent with both Knight and the prevailing commercial premises liability case law to impose reasonable duties to minimizerisk on defendants whoholdtheir premises open to the public for profit. .... Without question, [the respondent]is best situated to minimize anyrisks associated with its rides, both because of its control and because of the profits such parks make.” (Id, at 581-582; citations and footnote omitted.) - 38 - The problem with this argumentis that it reflects a misunderstanding of Knight. The majority contends that it is merely following this Court’s holding in Knight “that proprietors should be obligated to take steps ‘in order to minimizetherisk [to their patrons] without altering the nature ofthe sport.’ (Knight, supra, 3 Cal.4th at p.317.)” (Nalwa,supra, 196 Cal.App.4th at 580.) The majority cites several cases that the majority explains “followedsuit, finding a duty to minimize risks based on the defendant’s control over the instrumentalities of the injury.” (/bid.) Atthe portion of the Knight opinioncited by the majority, this Court was discussing the case of Ratcliff v. San Diego Baseball Club (1938) 27 | Cal.App.2d 733,in which a baseball spectator was injured when she washit by an accidentally thrown bat. (Knight, supra, 3 Cal.4th at 3 17.) This Court explained that whatwasat issue in that case wasnot a duty on the part of the stadium ownerto prevent the bat from being thrown,but rather the owner’s duty “to provide a reasonably safe stadium with regard to the relatively common(but particularly dangerous) hazard of a thrownbat.” (Ibid.) In other words, what this Court was pointing out was that, while a purveyor ofrecreationalactivities does not have a duty to eliminate the risks inherentin an activity, it may have a duty to take reasonablesteps to protect its customers from the consequences of those inherent risks. In the case of 39 - the baseball stadium, while the owner did not have a duty to eliminate the likelihood of a bat being thrown, the owner did have a duty “to provide the patron ‘protection from flying bats, at least in the area where the greatest danger exists and where such an occurrence is reasonably to be expected.’ (Ratcliff v. San Diego Baseball Club, supra, 27 Cal.App.2d atp. 736.) (Knight, supra, 3 Cal.4th at317.) This is the same rule followedin the various other cases cited by the majority on this issue, to the extent that the defendants in those cases exercised “control over the instrumentalities of the injury” (as shown by the majority in its brief description of these casesin its opinion). (Nalwa, supra, 196 Cal.App.4th at 580.) However, the majority is not applying thatrule to the defendantin this case. It is not saying that the defendantfailed to take adequate steps to protect the plaintiff and its other patrons from the consequences of the risk of collisions inherent in the bumpercarride, such as by failing to have adequate padding on the vehicles or by failing to provide a seat belt. (The evidence showsjust the opposite.) Rather, the majority held that the defendant had a duty to actually eliminate therisk ofits patrons being involved in a potentially injury causing collision in the first place. Thatis not what this Court held in Knight; in fact, it is directly contrary to that holding. - 40 - Thefact that an amusement park operator may be “uniquely positioned to eliminate or minimize certain risks” associated with their rides (Nalwa, supra, 196 Cal.App.4th at 581) does not justify impose such a duty on the operatorif the net effect will either be to force the operator to fundamentally changethe natureofthe ride orto eliminateit altogether. The fundamental error of the majority’s analysis can be seen in its statementthat “[h]olding owners responsible for minimizingrisk is just good policy. Failure to do so could exposethe public to unnecessary risk.” (/d. at 581-582.) If a risk of injury is inherent in a ride, and that risk cannot be eliminated without fundamentally altering the nature of the ride, then “expos[ing] the public”to thatrisk is not “unnecessary”; rather,itis inevitable, unlessit is the public policy ofthis state that amusementpark operators are not to expose their guests to any risk of injury on anyoftheir rides. Yet, as was discussed in Section 3 above, the majority has not shown that such a public policy exists. Thus, there is no support in the case law for the majority’s attempt to impose on owners of amusement parks a special version of the primary A] - assumption ofrisk doctrine that imposes a duty on those ownersto take steps to eliminate even those risks inherentin their rides.’ 5. THERE IS NO EVIDENTIARY SUPPORT FOR THE MAJORITY’S CONCLUSION THAT HEAD-ON COLLISIONS ARENOTRISKSINHERENT INBUMPER CAR RIDES The majority’s opinion contains what amounts to a fall-back position justifying its decision even if its conclusions about the scope of the appli- cability of the primary assumption of risk doctrine were to be successfully challenged. “Although bumpingis part ofthe experience ofa bumper car ride, head-on bumpingis not. In fact, it is a prohibited activity. The evidence submitted in support and opposition of the motion showed that respondent was awareoftheperils of allowing head-on collisions, and, as owner of the park, respondent had a duty to take reasonable steps to minimize those risks without altering the nature of the ride. (Knight, supra, 3 Cal.4th at p. 317; Kahn, supra, 31 Cal.4th at p. 1004.) Respondenthad takenstepsto eliminate or reducethe likelihood of head-on collisions at every other park prior to appellant’s injury.” (Nalwa, supra, 196 Cal.App.4th at 582.) 3 This analysis would also apply to the majority’s implicit conclusion that the higher standard of care imposed on commoncarriers precludes the application of primary assumption of risk in thosesituations as well. See Nalwa, supra, 196 Cal.App.4th at 582-583.) Thus, the trial court wascorrect in concluding that primary assumption of risk required the granting of summaryjudgmentas to the commoncarrier causeofaction,just as it required the granting of the motionasto the plaintiffs negligence cause of action. (Ud. at 571.) -42- The actual evidence before the trial court does not support any ofthis, as the defendantpointed outin its Petition for Rehearing (at pages 1-5). The following is a direct quotation ofthe relevant portions of that Petition: 1) “In 2005, the four other parks configured their bumpercar rides so that the cars were morelikely to be drivenin only one direction.” ([Nalwa supra, 196 Cal.App.4th at 570.]) The evidence does not support this statement. Rather it merely showsthat in 2005, the bumpercar rides at the four other parks were configured for unidirectional travel. (CT 159-160.) There is nothing in the record to indicate that in 2005 — or at any other time — there was a re-configurationofthe ridesat these other parks changingtherides into a unidirectional configuration. 4) “Although bumpingis part of the experience of a bumpercar ride, head-on bumpingis not.” ([Nalwa, supra, 196 Cal.App.4th at 582.]) There is nothing in the record to support this conclusory statement. In fact, the evidence supports exactly the opposite conclusion. The evidence makes clear that head-on bumping will happen on bumpercarrides unlessthe rideis changedto prevent suchcollisionsorrules are put in place to prevent head-on bumping from occurring. Thus, head-on bumping is part of the experience of - 43 - a bumpercarride unless the ride is modified or the riders’ freedom ofaction is restricted. 5) “The evidence submitted in support and opposition ofthe motion showedthat respondent wasawareoftheperils ofallowing head-oncollisions, . ([Nalwa, supra, 196 Cal.App.4th at 582.]) Thereis no evidence to support this statement. All the evidence showsis that the defendant’s predecessor had put rules in place to limit head-on collisions, but there was no specific evidence offered as to why that decision was made. All that can be foundin the record is Jessica Naderman’s answerin the affirmative to the question of whethershe personally regarded the “no head-on bumpingrule... as a rule that was out in place for the safety of riders on the Rue Le Dodge bumpercar.” (CT 161:20 - 162:2.) But there is nothing in that statement that indicates that either Ms. Nadermanoranyother ofthe defendant’s predecessor’s employees had any knowledge or “awareness” of any supposed “perils” of allowing head-on collisions, much less what these supposed “perils” might be. 6) “Respondent had taken steps to eliminate or reduce the likelihood of head-on collisions at every other park prior to appellant's injury.” ({Nalwa, supra, 196 Cal.App.4th at 582]; emphasisin original.) As discussed in regard to item No. 1 above, there is nothing in the record to indicate that the defendant’s predecessor had re-configured the rides atits - 44 - other parks to change them into a unidirectional configuration, or had taken any other steps at those other parks to “eliminate or reduce the likelihood of head-on collisions”. The evidence merely showsthat the bumpercarrides at those other parks were configured for unidirectional travel. (CT 159-160.) There is nothing in the record to indicate that there was a change from how those particular rides had originally been designed and manufactured, noris there anything in the recordto indicate thatifthe unidirectional configuration was a change from the original design, such re-configuration was done to “eliminate or reducethe likelihood of head-on collisions”. 7) ‘However, the evidence here showsthat respondentdesignedits bumpercar ride to prevent head-oncollisions at every other park it owned except Great America.” ([Nalwa, supra, 196 Cal.App.4th at 583); emphasis in original.) As discussed above in regard to item No. 6 above, there is nothing in the record to indicate that the bumpercarridesat the other parks were designed “to prevent head-oncollisions”, or even that the defendant’s predecessor had anything to do with the design of the bumper car rides found at its various parks. 8) “It is undisputed that they knew the dangers of head-on collisions, ...” ((Nalwa, supra, 196 Cal.App.4th at 583.]) As discussed above in regard to item No.5 above,there is nothing in the recordto indicate that the - 45 - defendant’s predecessor or any of its employees “knew of the dangers of head-on collisions,” or what those supposed dangers mightbe. 9) ce they had taken steps to prevent the risk everywhere except Great America.” ([Nalwa, supra, 196 Cal.App.4th at 583.]) As discussed abovein regardto item No. 6 above,there is nothing in the record to show that the defendant’s predecessor had “taken steps to prevent the risk” of head-on collisionsat any ofits parks, or what that supposed risk mightallegedly have been. [End ofquotationfrom Petitionfor Rehearing| So, evenifthe plaintiff were injured as a result of a head-on collision, there is nothing in the evidence that was before the Court ofAppeal to support the majority’s conclusion that there is anything different about a head-on collision than any othertype ofcollision in a bumper car. All such collisions are a risk inherent in the ride. Contrary to the majority’s conclusion,it is simply irrelevant whetherthe plaintiff was injured in a head-oncollision. Significantly, the majority neverstates that the plaintiff actually was injured as the result of a head-on collision. It writes that the accident happened as follows: “During the ride, appellant’s bumper car was hit head on and then immediately hit frombehind. Feeling ‘pushed around,’ and - 46 - needing to ‘brace’ herself, appellant put her hand on the dash and fractured her wrist.” (Nalwa, supra, 196 Cal.App.4th at 571.) The majority’s description of how this accident occurred is thus same as the defendant’s description (see page 5 above), and both are consistent with the way the plaintiff described the accident in her deposition testimony. (See page 6 above.) Therefore, even if there were factual support for the majority’s fall- backposition, it wouldstill not justify the majority’s reversal of the granting of the motion for summary judgment. It simply makes no difference here whether or not head-on bumping is a risk inherent in bumpercar rides, because the plaintiff was not injured as a result of a head-on collision.’ 4 Theplaintiff argued in her Appellant’s Reply Brief (at page 5) that it was only on appealthat the defendantraised the claim that the plaintiff's injuries were not caused by a head-on collision and that therefore any such arguments had been waived. There was, and is, no merit to that assertion. The defendantagreesthatit did not raise the causation issue as a basis for granting its motion for summaryjudgment.It raised the issue on appealto establish that the plaintiffs argument as to whythe already granted summary judgmentshouldbereversed had nobasis in fact, and thus could not provide a legitimate basis for reversing the summaryjudgment. The defendant does not dispute that its motion for summaryjudgment was not madeor granted onthebasisthat there wasno causal link betweenits alleged breach of duty and the injuries suffered by the plaintiff. Rather, summaryjudgment was requested and granted onthebasis that the defendant had no duty to protectthe plaintiff from injuries caused by any bumping ofthe bumpercar in whichshe wasriding — regardless of the direction from which (continued on nextpage) -47- CONCLUSION While the specific issue presented in this case is whether, and to what extent, the primary assumption of risk doctrine applies to amusement park rides, the resolution of that issue depends in resolving a more general one: whatis the proper scopeofthe primary assumption ofrisk doctrine? The majority below concludedthat it should only apply to active sports. (continuedfrom previous page) that bumping came,that the defendant wasnotsubjectto the higher duty of a commoncarrier, and that the defendant’s actions did notarise to the level of willful misconduct. The defendant did not needto raise the issue of causation in orderto make any of these arguments, andin particular did not needto establish that the plaintiff was not injured in a head-on collision — a fact which is conclusively shown bytheplaintiff's own deposition testimony, a copy of which was including the defendant’s moving papers in support of its motion for summary judgment. It was theplaintiff who neededto raise the issue of head-on collisions in order to come up with a theory for reversing the summary judgmentthat had already been granted. The defendant, in pointing out that the plaintiff herself admitted that she was not injured in a head-on collision, was merely pointing out that the plaintiff’s argument did not provide a legitimate basis for reversing the summary judgment. The defendant was not arguing that the fact that the plaintiff was not injured in a head-on collision provided a separate and independent basis for granting summary judgment or for affirming that judgment. So there was no waiver ofthis issue by the defendant, and soit was properly raised on the appeal, andit is proper for the defendantto referto it in this brief. - Ag - But when this Court recognized the doctrine in Knight, it explained that it applies “where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury”. (Knight, supra, 3 Cal.4th at 314-315.) There is nothing in that description that would limit the applicability of the doctrine to active sports — or just to sports and recreationalactivities in general. As has been discussed above, and as was shownin great detail in the dissent of Justice Duffy to the majority’s opinion here, once you get past the argument that primary assumption ofrisk cannot apply to amusement park rides because they are not “sports”, there is no justification for refusing to apply the doctrine to such rides. The mere fact that a regulatory scheme applicable to amusement park rides exists does not bar application of the doctrine, nor do the actual provisions of those regulations preclude the application of primary assumption of risk to amusement park rides. Nor does the existence of any higher standard of care that may apply to the operators of amusementparks impose a special duty on those operatorsthatis beyond the limits otherwise imposedbythe doctrine ofprimary assumption of risk. - 49 - The simple reality here is that the plaintiff suffered injury here because of a risk inherent in the activity in which she choseto participate: she was bumped while riding in a bumper car. Thetrial court correctly concluded that the doctrine of primary assumption of risk applied. Accordingly, this Court should reverse the decision ofthe Court ofAppeal and reinstate the trial court’s order granting the defendant’s motion for summary judgment. DATED: December [4,2011 Respectfully submitted, MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP _flied)Ka “JEFFREYL.vt STEVENJ. antag PATRICK L. HURLEY Attorneys for Defendant and Respondent CEDARFAIR, L.P. - 50 - CERTIFICATE OF COMPLIANCE(CRC 8.520(c)(1)) The word count for the foregoing OPENING BRIEF ON THE MERITSis 12,018 words, based on the word count provided by the word processing system on whichthis brief was composed. DATED: December /f ,2011 MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP »Athos).Pech STEVENJ. RENbh Attorneys for DefeElian and Respondent CEDAR FAIR,L.P. -51- PROOF OF SERVICE BY OVERNIGHT DELIVERY (C.C.P. §1013(c)) I am employedin the County of Los Angeles, State of California. lam over the age of 18 and not a party to the within action; my business addressis 801 South Figueroa Street, 15th Floor, Los Angeles, California 90017. On December L4, 2011, I served by overnight delivery the foregoing document described as OPENING BRIEF ON THE MERITS on the parties herein in this action by placing true copies thereof enclosed in a sealed envelope designated by the express service carrier (Overnite Express) for overnight delivery with delivery fees paid or provided for, in a box or other facility at Los Angeles, California regularly maintained by the express service carrier, addressed as follows: Ardell Johnson, Esq. CHRISTI JO ELKIN,Esq. LAW OFFICES OF ARDELL JOHNSON 4667 Torrey Circle # 301 111 N. MarketStreet, Suite 300 San Diego, CA 92130 San Jose, CA 95113-1116 I declare under the penalty of perjury under the law of the State of California that the foregoing is true and correct. Executed on December ( Y , 2011 at Los Angeles, Califo ~52-
