NALWA v. CEDAR FAIR

Respondent’s Petition for Review

Cal.July 21, 2011

Case No. $195031 In the Supreme Courtof the State of California SMRITI NALWA, EME OCQUAT Plaintiffand Appellant, VS. CEDAR FAIR, L.P., Jv) 22 20m Cb tecte oS cguy Defendant and Respondent.Dei eee oo fobs oa Ph PETITION FOR REVIEW BY RESPONDENT 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: (213) 624-6900 Telephone: (213) 624-6900 Attorneysfor Defendant and Respondent, CEDARFAIR,L.P. Case No. In the Supreme Courtof the State of California SMRITI NALWA, Plaintiffand Appellant, VS. CEDARFAIR, L.P., Defendant and Respondent. PETITION FOR REVIEW BY RESPONDENT 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: (213) 624-6900 Telephone: (213) 624-6900 Attorneysfor Defendant and Respondent, CEDARFAIR,L.P. TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......... 00.0.0. cece ee eee iv PETITION FOR REVIEW ........... 0.0 cece ee ees 1 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ........ 2 INTRODUCTION 2.0.0...cecee eens 3 STATEMENT OF THE FACTS .. 2... 0.0.0... eens 5 STATEMENT OF THE CASE 2... 1...eees9 LEGAL ARGUMENT.......0.0.00. 11 1. THERE IS GREAT UNCERTAINTY IN THE CALIFORNIA COURTS AS TO WHETHER THE DOCTRINE OF PRIMARY ASSUMPTIONOF THE RISK IS LIMITED TO ACTIVE SPORTS ............ 0.2000 e eee 11 2. THE FACT THAT AMUSEMENT PARKS ARE SUBJECT TO REGULATION SHOULD NOT BE INTERPRETED TO MEAN THAT PUBLIC POLICY ENTIRELY BARS THE APPLICATION OF THE PRIMARY ASSUMPTION OF THE RISK DOCTRINE TO AMUSEMENT PARK RIDES .... 19 3. THE OWNERS OF AMUSEMENT PARKS AND OTHER PURVEYORS OF RECREATIONAL ACTIVITIES SHOULD NOT BE LIMITED TO A WATERED-DOWN VERSION OF THE PRIMARY ASSUMPTION OF THE RISK DOCTRINE ...... 0.00... cece eee ene 23 CONCLUSION ..... 20...ttenn enn ens 27 CERTIFICATE OF COMPLIANCE(CRC 8.504(d)(1)) «02... .0000-. 28 _ii- APPENDIX A) B) 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 Order denying respondent’s petition for rehearing, filed July 7, 2011 - lil - TABLE OF AUTHORITIES CASES Page Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App. 4th 1112 2...cceens 14 Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650 ........ 15 Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322 ......... 13 Childs v. County ofSanta Barbara (2004) 115 Cal.App.4th 64 ........ 13 Distefano v. Forester (2001) 85 Cal.App.4th 1249 .............0.0.. 14 Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248 .......... 14 Herrle v, Estate ofMarshall (1996) 45 Cal.App.4th 1761 ............ 14 Knight v. Jewett (1992) 3 Cal.4th 296 ... 00.0... eee eee 3, 4, 12, 24-26 McGarry v. Sax (2008) 158 Cal.App.4th 983 2.0... 0.2... 2 ee eee 15 Peart v. Ferro (2004) 119 Cal.App.4th 60 0.0.0... 0.2... e ee ee eee 14 Ratcliffv. San Diego Baseball Club (1938) 27 Cal.App.2d 733 ........ 25 Record v. Reason (1999) 73 Cal.App.4th 472 0.0.0... 0... cece eee 13 Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326 ............. 14 Saville v. Sierra College (2005) 133 Cal.App.4th 857 ............... 14 Shannon v. Rhodes (2001) 92 Cal.App.4th 792 2.0... 0.0... ee eee eee 13 Staten v. Superior Court (1996) 45 Cal.App.4th 1628 ............... 13 -iv- STATUTES, REGULATIONSAND RULES California Code of Regulations, Title 8, section 3195.9 .............. 21 California Rules of Court rule 3.1354... 0c. c cece cece eevee vee eees 10 California Rules of Court rules 8.500, et seq. ......... 6... eee eee 1 PETITION FOR REVIEW TO THE HONORABLECHIEF JUSTICE AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Pursuant to California Rules ofCourt rules 8.500,et seq., defendant and respondent CEDAR FAIR,L.P. herebypetitions the Court for review ofthe decision 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. DATED: July 27,2011 MANNING & KASS ELLROD, RAMIREZ, TRESTERLLP Aleacoh Attorneys ey.Fondant and Respondent CEDARFAIR,L.P. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW l. Is the primary assumption ofthe 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”(Slip Opinion, page 13; citation and internal quotation marks omitted)? 2. Doesthe fact that amusement parks are subject to regulation meanthat public policy entirely bars the application ofthe primary assumption of the risk doctrine to amusementpark rides? 3. Are the owners of amusement parks (and other purveyors of recreational activities) subject to a special version of the primary assumption of the risk doctrine that imposes a duty on those owners to take steps to eliminate or decrease any risks inherent in their rides? INTRODUCTION This case arises from an incidentin 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 of the risk doctrine. The Court of Appeal reversed, holding that the doctrine did not apply to amusementpark rides. The Court ofAppealheldthatthe doctrine ofprimary assumption ofthe risk could not be applied to bumpercar rides because the activity is not an active sport. In the years following the issuance of this Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296, two lines of appellate cases have developed, one limiting the application of the primary assumptionofthe risk doctrine to active sports, the other applying the doctrine to a variety of activities beyond just active sports which present inherent risks to the participants. This Court needsto resolve this conflict in the case law so that the citizens of this state will fully understand the nature and scope oftheir duties when they market activities which present inherent risks to the participants. In addition to holding that the primary assumptionofrisk doctrine was not applicable to bumpercarrides because the activity was not an active sport, the majority below also held that public policy bars the application of the -3- primary assumptionofriskin this situation, because amusementparkrides are subject to state regulation. This Court should grant review in orderto address the question of whether the mere existence of a protective regulatory scheme is sufficient to preclude the application of the primary assumptionofthe risk doctrine, or whether a court must evaluate, on a case-by-case basis, the nature and scope ofprotective regulatory scheme to determine whetherits existence precludes the application of the primary assumption of the risk doctrine in certain circumstances. Finally, the Court below held that, even if the bumper car ride was subject to the primary assumptionofthe risk doctrine, the defendant would be subject to a higher duty of care. Underthe version ofthe doctrine espoused by the Court below, owners of amusement parks would be obliged to minimize the risks inherentin their rides, notwithstanding this Court’s holding in Knight that the purveyorsofrecreational activities do not have a duty to eliminate or decreasethe risks inherent in those activity. This Court should grant review to determine whether the owners of amusement parks are subject to a special version of the primary assumptionofthe risk doctrine, which imposesa duty on those owners to take steps to eliminate or decrease any risks inherent in their rides. 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 andsix 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 bumpedbyother cars was what madetheride fun. (CT 80-81, 100-01.) After the ride started, plaintiffs son controlled the bumpercar in which he and plaintiff were riding. Plaintiff's son steered the car and bumpedinto several other cars during the ride. (CT 79, 81, 100.) Near the endofthe ride, plaintiffs bumper car was bumpedfrom the front and then from behind. When she was bumpedfrom behind,plaintiff put her left hand out to brace herself and fractured her wrist. (CT 85-86.)* The Rue Le Dodge bumpercar ride consisted of a number of small, car-like vehicles that moved around flat surface track poweredbyelectricity. (Declaration of Jessica Naderman in Support of Motion for Summary Judg- ment at {3 [Ex. A to Cedar Fair's Motion to Augment Record on Appeal] and Ex. A to Naderman Decl.) The cars were surrounded by a rubber bumper. (Naderman Decl. at q 3, Ex. A to Naderman Decl.) The driver ofeach bumper car controlled both the steering of the car as well as its speed. (CT 79, 87; Naderman Decl. at § 4.) Oncetheride started, Cedar Fair did not control the individual bumper cars. (Naderman Decl. at { 4.) Each bumper car had a padded seat, padded sides, a padded steering wheel and a padded dash board. The cars were also equipped with two seat belts to restrain the driver and passenger during the ride. (Naderman Decl. at § 5.) The ride lasted approximately two minutes. (Naderman Decl.at { 4.) * Theplaintiff 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-oncollision” and therefore claimed that the issue was “not properly before this Court.” The defendant discussedat length in its Petition for Rehearing (at pages 13-17) that the plaintiff was incorrect, and further pointed out that the plaintiff’s own deposition testimony (submitted with the defendant’s movingpapers on its motion for summaryjudgment) madeit clear that she was notinjured in a head-oncollision. -6- There were warning signs posted at the entrance ofthe bumpercarride in July 2005. One warning sign wasentitled “RIDE WARNING - PLEASE READ”and informed people waiting in 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 76.) Another posted sign informedguests that the bumpercar ride “is a medium speed ride whereriders 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 was reconfigured in 2006(i.e.after the incident at issue in the underlying lawsuit) to add an island in the middle of the track which encouraged riders to ride in the samedirection. (CT 158.) This change was madeto make the Rue Le Dodgetrack consistent with bumpercartracks 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 safety by the California Department of Industrial Relations, Division of Occupational Health and Safety (“DOSH”). DOSHinspected the bumpercar ride in 2004, 2005 and 2006 and found nosafety-related problems with the operation ofthe ride. (Naderman Decl. at J 8.) The ride was inspected every morning by both the maintenance andride operations departments of Cedar Fair. On the morning ofthe incident, the ride was inspected and was found to 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 contusions, fourteen abrasions, three lacerations, and four strains. In 2005 there were twenty-seven injuries reported (including plaintiff's 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 bumpercar ride in 2004, 2005, or 2006. (CT 108.) STATEMENT OF THE CASE On January 25, 2008, plaintiff filed a Second Amended Complaint against Cedar Fair containing causesofaction 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 response to the motion, plaintiff dismissed the two products liability causes of action. As to the remaining claims,the trial court granted summaryjudgment on April 3, 2009. (CT 238-40.) In granting the motion,the trial court foundthat “Plaintiff’s injury arose from being bumped during a bumper-carride, 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 and orientation ofthe individual bumpercars.” (CT 238-39.) 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 protect plaintiff from risks inherent in the activity. (CT 239.) The trial court rejected plaintiffs argument that Cedar Fair was negligent in failing to reconfigure the bumpercar track prior to the injury -9- because “any type of bumping — either head-on or from the rear — is inherent in the activity of riding bumpercars. 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 of the 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 Appealissued its opinion onthe plaintiffs appeal on June 10, 2011, reversing the judgment. Justice Wendy Clark Duffy dissented from the decision. (Copies of the majority and dissenting opinions are attached hereto as Appendix A.) The defendantfiled a petition for rehearing followingthefiling of the appellate court’s opinion. That petition was denied on July 7, 2011. Justice Duffy indicated that she would have granted the petition. (A copy of the Court’s order denying the rehearing petition is attached hereto as Appendix B.) -10- LEGAL ARGUMENT 1. THERE IS GREAT UNCERTAINTYIN THE CALIFORNIA COURTSAS TO WHETHER THE DOCTRINE OF PRIMARY ASSUMPTION OF THE RISK IS LIMITED TO ACTIVE SPORTS This case squarely presents an issue that has been troubling the California courts for years: whether the doctrine ofprimary assumption ofthe risk applies only to active sports, or whether it applies more broadly to a variety of activities which present inherent risks to the participants. In the present case, the majority concludedthat the doctrine could not be applied in the underlying action because riding in a bumper car at an amusement park wasnot an active sport. Thedissentingjustice disagreed, noting that numerous court decisions have applied the doctrine to situations not involving the active participation in a sporting activity. Appellate courts in this state have come down on both sides ofthis issue, and this Court needs to resolve this conflict in the law. Such a resolution is needed not simply to provide guidanceto the state’s appellate and trial courts. Such guidance is also needed by its citizens. The primary assumption ofthe risk doctrine defines the scope of the applicable duty owed whenrisks are inherent in various activities. It is essential that those who -ll- market such activities clearly understand what their duties are, so that they know whatsteps they are legally requiredto take in orderto protect themselves from liability and their customers from harm. The current doctrine ofprimary assumptionofthe risk derives from this Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296. The particular activity at issue in Knight was unquestionably a sport (touch football), and Justice Duffy in her dissent below pointed out that “[t]here are numerous instances in which the court in Knight uses language that might suggest that the doctrine applies only to sports”. (Slip Dissenting Opinion ofJustice Duffy, page 12, footnote 9.) However, as Justice Duffy also pointed out, “there are other times the [Knight] court suggests that primary assumption of risk may bar a plaintiff's injuries sustained in sports orother activities”. (Jbid.; emphasis added.) In particular, as Justice Duffy pointed out, this Court, “in enunciating the basis upon which courts decide whether primary assumption ofrisk may apply, used the broad language that courts are to look to ‘the nature of the 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 p. 309, italics added; ...)” (Slip Dissenting Opinion of Justice Duffy, page 12; italics in original.) In the years since Knight was decided, two lines of appellate cases have developed, oneline limiting the application of the doctrine of primary -12- assumptionofthe risk to active sports, and the other line applying the doctrine to a broad variety ofactivities. Casesthat have indicated that the application of the doctrineis limited to active sports include: --- Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 328 (refusing to apply the doctrine to “recreational dancing” becauseit is not “a potentially dangerous activity or sport”) --- Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632 (“participation in an active sport is governed by primary assumptionofrisk’) --- Record v. Reason (1999) 73 Cal.App.4th 472, 482 (“it appears that an activity falls within the meaning of‘sport’ if the activity is done for enjoymentorthrill, requires physical exertion as well as elementsofskill, and involves a challenge containing a potential risk of injury”) --- Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 796 (rejecting the argument that recreational boating is a “sport” within the meaning of Knight) --- Childs v. County ofSanta Barbara (2004) 115 Cal.App.4th 64, 70 (refusing to apply the doctrine where a child was injured riding a scooter on a public sidewalk) -13- --- Peart v. Ferro (2004) 119 Cal.App.4th 60, 71-72 (“the doctrine has been applied specifically to sports and sport-related activities involving physical skill and challenges posing significant risk of injury to participants in such activities”) Cases that have taken a more expansive view of the doctrine and applied the doctrine outside the typical sports context include: --- Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 251 (applying the doctrine to the injuries suffered by passenger on a “commercialraft trip on the Colorado River”) --- Herrle v. Estate ofMarshall (1996) 45 Cal.App.4th 1761, 1765 (applying the doctrine to injuries suffered by a nurse’s aide who wasassaulted by hospital patient with dementia) --- Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App. 4th 1112, 1115 (applying the doctrine to cheerleading) --- Distefano v. Forester (2001) 85 CalApp.4th 1249, 1254 (applying the doctrine to the “operation of ‘off-highway’ vehicles”) --- Saville v. Sierra College (2005) 133 Cal.App.4th 857, 861 (applying the doctrine to a peace officer training class) --- Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326, 329 (applying the doctrine to personal fitness training) -14- --- McGarry v. Sax (2008) 158 Cal.App.4th 983, 1000 (applying the doctrine wherethe plaintiffwas injured as spectators attempted to catch a skateboard deck thrown into the crowd) --- Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 653 (applying the doctrineto a plaintiffwho was “burned when hetripped and fell into the remnants of the Burning Maneffigy while participating in the festival’s commemorativeritual”) Atissue in the underlying case wasthe activity ofriding in bumpercars. The majority concluded that the trial court erred in applying the primary assumption ofthe risk doctrine to this activity. The majority held that riding in a bumpercar does not constitute a sport, thereby preventing the application of the doctrine. “TWle conclude... that riding as a passenger in a bumper car is too benign to be subject to Knight. On a common sense level, we simply cannot concludethatriding in a bumpercaras a passenger implicates a sport within any understanding ofthe word. Nothing within the common knowledge or the record before us suggests that this activity requires any amount of physical exertion, skill or physical prowess. Riding as a passengerin a bumpercar in a closed circuit may provide bumps andjolts and somelaughs,but that is where the adventure ends.” (Slip Opinion, page 13; italics in original, citation omitted.) -15- Justice Duffy, in her dissent, took the opposite position. “The integral conditions of the bumpercar activity at issue here are such that they render the possibility of injury obvious. The fundamental nature of Rue Le Dodgeis the bumpingofcars. Riders are continuallyjostled about during the ride. The purpose of the amusementpark ride is to provide thrills and entertainment to its riders from bumping fellow riders while attempting to avoid being bumpedby others. .... Given that the whole point of the Rue Le Dodgerideis bumping, imposing a duty of care for any injury resulting from a participant being bumped wouldclearly either require that an essential aspect of the [activity] be abandoned, or else discourage vigorous participation therein. ...” (Slip Dissenting Opinion of Justice Duffy, pages 15, 16; italics in original, citations and internal quotation marks omitted.) Thus Justice Duffy would allow the application of the primary assumptionofthe risk doctrine in this instance. The majority’s conclusion is consistent with the line of cases limiting the application of the doctrine to traditional active sports activities. Justice Duffy’s position is consistent with the line of cases allowing the doctrine to be applied to a variety of activities which present inherent risks to the participants. This Court should notallow this situation — where the existing case law permits judges to come to diametrically opposite legal conclusions from the identical set of facts — to persist. -16- This situation presents tremendous difficulties for persons and companies in California that market — for profit or otherwise — activities that present inherentrisks for the participants. If the primary assumption of the risk doctrine applies to their particular activity, their duty to the participants regarding those inherentrisks is limited to ensuring that they don’t increase those risks beyondthe level inherentin the activity. But if the doctrine does not apply, then they may have an obligation to take steps to reduce, and possibly eliminate, that risk. The majority below indicates that they believe that that would be an excellent idea whenif it were applied to amusementpark rides. “Amusementpark ownersliability for injuries on their rides will affect the ‘nature’ of rides. It will make them safer. However, given the regulatory requirementsto assure safety on amusement park rides, we concludethat any effect on the rides can only be a positive one consistent with public policy.” (Slip Opinion, page 14; see also pages 16-17.) Justice Duffy respondsthat such an attitude will result in a fundamental — and detrimental — change in the bumpercar ride experience. ‘Imposing liability would have the likely effect of the amusementpark either eliminating the ride altogetheroraltering its character to such a degree — by, for example, significantly decreasing the speed at which the minicars could operate — that the fun of bumping would be eliminated, thereby discouraging patrons from riding. Indeed, who would wantto ride a tapper -17- car at an amusementpark?” (Slip Dissenting Opinion ofJustice Duffy, page 17; footnote omitted.) Whatis the owner of an amusement park — or any other marketer of activities which present inherent risks to participants — to do under these circumstances? Do they modify the fundamentalnatureofthe activity in order to eliminate any possibility of injury to the participants — and thus liability to themselves — or do they leave the fundamental nature ofthe activity untouched and hopethat a future court does not conclude that the primary assumption of the risk doctrine cannot be applied to that particular activity? Guidanceis neededsothatthe citizens of this state can understand the scope of their legal duties and thereby conduct themselves in a manner consistent with their legal obligations. That is not possible with the split in the case law regarding the applicability of the primary assumption ofthe risk doctrine. Accordingly, this Court should grant this petition for review and resolve this conflict in the law. -18- 2. THE FACT THAT AMUSEMENT PARKS ARE SUBJECT TO REGULATION SHOULD NOT BE INTERPRETED TO MEAN THAT PUBLIC POLICY ENTIRELY BARS THE APPLICATION OF THE PRIMARY ASSUMPTION OF THE RISK DOCTRINE TO AMUSEMENT PARK RIDES In addition to holding that the primary assumption ofrisk doctrine was not applicable to bumpercar rides because the activity was not an active sport, the majority below also held that “public policy bars the application of the primary assumption of risk” in this situation. (Slip Opinion, page9.) Specifically, the majority held that because amusementparks are subject to a “protective regulatory scheme” administered by the California Department of Industrial Relations, Division of Occupational Health and Safety (“DOSH”) (Slip Opinion, page 10), it would be inappropriate to apply the primary assumption of the risk doctrine to amusementparkrides. 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 amusement rides... .” The Supreme Court itself has recognizedthat a statute, ordinance or regulation could, under the proper circumstances, ‘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 -19- protection ofpersons using such rides.’ This is exactly the type of regulation which imposes a duty on the operators of such rides irrespective ofKnight’s no-dutyrule.” (Slip Opinion, page 10; citations omitted.) The majority seemsto have concludedthat 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 assumption of risk 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.” (Slip Opinion, page 12.) The majority’s analysis does not take into accountthe actual regulatory schemethat the state has put in place regarding amusement park rides. The majority does not discuss the specific regulations that applied to the defendant’s bumpercarride, noris there any suggestion that the operation of the defendant’s bumpercar ride in any way breached the protective scheme actually created by these regulations. Andin fact a review ofthe regulations makesclear that the bumpercarride did not violate the “protective regulatory scheme”referenced by the majority, or any other duty ofcare arising from that scheme. Such a review proves just the opposite. - 20 - The majority asserts that “[a]s the regulatory schemebears out, the concern is not to excuse possible dangerous conditionsin orderto increase the thrill ofa ride. Instead, rider safety is ofparamount concern.” (Slip Opinion, page 11.) The majority further argues that the regulations impose on the owners of amusement parks a duty “to protect the public from the possible grave dangers of amusementparkrides.” (Slip Opinion, page 11.) Yet the majority acknowledges that “[t]he California Department of Industrial Relations, Division of Occupational Health and Safety (DOSH) inspected the ride annually and in 2004 and 2005 found no safety-related problems with the ride.” (Slip Opinion, page 2.) DOSH could not have come to that conclusion if the manner in which the ride was being maintained or operated created a safety hazard. The only reference to “bumpercars” found anywherein the California Code of Regulations is found in section 3195.9(a) of Title 8, which provides that: “Ride conveyance vehicles shall be provided with emergencybrakesorother equally effective emergency stopping controls, if upon failure of normal stopping controls, collision may reasonably be expected to occur and result in patron injury or equipment damage. Low speed vehicles designed for controlled collisions, such as bumper cars, do not require emergency stopping controls.” (emphasis added) -21- Thus,the “protective regulatory scheme”on which the majority based its conclusion that “public policy bars the application of the primary assumption of risk” actually explicitly permits bumper car collisions, i.e. public policy permits the maintenance and operation of bumpercarrides and their attendant collisions. And if it is public policy to explicitly permit amusementparksto offer bumpercarrides in which collisions will occur, then it seems inherent in that public policy that the public, in patronizing these rides, is assuming the risk of any injuries that might occuras a result of these expressly permitted collisions. Given that the majority itself has recognized the significance of there being a regulatory scheme governing bumpercarrides, its conclusion that public policy precludes the application of the primary assumption ofthe risk doctrine is thus inconsistent with, and indeed would undermine, the public policy inherent in the actual provisions of that regulatory scheme. The defendant would thus contend that that public policy not only does not bar the application of the primary assumption of the risk doctrine in these circumstances, it actually compels its application here. There are any numberofactivities that are subject to regulation and yet would also — at least in theory — be subject to the primary assumption ofthe risk doctrine. The defendant urges this Court to grant this petition for review -22- to address the question of whether the mere existence of a protective regulatory schemeis sufficient to preclude the application of the primary assumption ofthe risk doctrine, or whether a court must evaluate, on a case- by-case basis, the nature and scope of a protective regulatory scheme to determine whether its existence precludes the application of the primary assumption ofthe risk doctrine in certain circumstances. 3. THE OWNERS OF AMUSEMENT PARKS AND OTHER PURVEYORS OF RECREATIONAL ACTIVITIES SHOULD NOT BE LIMITED TO A WATERED-DOWN VERSION OF THE PRIMARY ASSUMPTION OF THE RISK DOCTRINE The majority in its opinion held that even if “an amusementpark ride is the type of sport 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 of risk doctrine.” (Slip Opinion, pages 14-15.) “With great power comes great 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 -23- risk. .... It is entirely consistent with both Knight and the prevailing commercial premises liability case law to impose reasonable duties to minimize risk on defendants whohold their premises opento the public for profit. .... Without question, [the respondent] is bestsituated to minimize anyrisks associated with its rides, both because of its control and because of the profits such parks make.” (Slip Opinion, pages 16, 17; citations - and footnote omitted.) With this the majority has created a whole new version of the primary assumption ofthe risk doctrine. It has essentially rejected this Court’s holding that a purveyorofrecreational activities does “not owe a dutyto [participants in those activities] to eliminate or decrease the risks inherentin the [activity]; it [is] only bound to do nothing to increase those risks. (Knight, supra, 3 Cal.4th at pp. 315-316.)” (Slip Dissenting Opinion of Justice Duffy, page 23.) The majority contendsthatit is merely following this Court’s holding in Knight “that proprietors should be obligated to take steps ‘in order to minimize the risk [to their patrons] without altering the nature of the sport.’ (Knight, supra, 3 Cal.4th at p. 317.)” (Slip Opinion, page 15.) The majority cites a host of cases that the majority contends “followedsuit, finding a duty to minimize risks based on the defendant’s control over the instrumentalities of the injury.” (Slip Opinion, page 15.) But the majority has misunderstood the holdings in these cases, starting with Knight. - 24 - Atthe portion of the Knight opinion cited 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 was hit by an accidentally thrown bat. (Knight, supra, 3 Cal.4th at 317.) What this Court explained was at issue in that case was not 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(butparticularly dangerous) hazard of a thrown bat.” (/bid.) In other words, what this Court was pointing out was that, while a purveyorofrecreationalactivities does not have a dutyto eliminate or decrease the risks inherentin an activity, it may have a duty to take reasonable steps to protect its customers from the consequencesofthose inherentrisks. So, in the case of the baseball stadium, while the ownerdid not have a duty to eliminate or decrease 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.’ (Ratcliffv. San Diego Baseball Club, supra, 27 Cal.App.2d at p. 736.)” (Knight, supra, 3 Cal.4th at 317.) This is the same rule followedin the various other cases cited by the majority on this issue. -25- But the majority is not applying that rule to the defendant in this case. It is not saying that the defendantfailed to take adequate steps to protect the plaintiff and its other patrons from the consequencesofthe 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. Rather, the majority held that the defendant had a duty to actually minimize the risk of its patrons being involved in a potentially injury causing collision in the first place. That is not what this Court held in Knight; in fact, it is directly contrary to that holding. Accordingly, this Court should grant this petition for review to address the question of whether the owners of amusementparks should be subject to a special version of the primary assumption ofthe risk doctrine that imposes a duty on those ownersto take steps to eliminate or decrease any risks inherent in their rides. - 26 - CONCLUSION Forall these reasons, defendant and respondent CEDAR FAIR,L.P. urges this Court to grantthis petition for review. DATED:July ZO 2011 Respectfully submitted, MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP Acadlak STEVENJ. RENIC- Attorneys for ENE ant and Respondent CEDAR FAIR,L. 27. CERTIFICATE OF COMPLIANCE(CRC 8.504(d)(1)) The word count for the foregoing PETITION FOR REVIEW BY RESPONDENTis 5,468 words, based on the word count provided by the word processing system on whichthis brief was composed. DATED:July LO 2011 MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP »Leten|| (roaiek “STEVEN J. REN Attorneys for Defsadant and Respondent CEDARFAIR,L.P. - 28 - APPENDIX A) Published Opinion ofthe Court of Appeal, B) 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 Order denying respondent's petition for rehearing,filed July 7, 2011 Filed 6/10/11 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT SMRITI NALWA, H034535 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. CV089189) V. CEDARFAIR, LP, Defendant and Respondent. After appellant, Smriti Nalwa, M.D., broke her wrist on a bumpercar ride at Great America amusementpark, she sued respondent ownerof the park, Cedar Fair L.P., for damages. She appeals from a judgmententered afterthe trial court granted respondent’s motion for summaryjudgment on the groundsthat the primary assumption ofrisk doctrine barred recovery. We will hold that primary assumption ofrisk is inapplicable to regulated amusementparks, that it does not apply to cases wherethe illusion of risk (as opposedto actual risk) is marketed and finally that in this case issues of fact predominate. Based on these holding wereverse the judgment. FACTUAL AND PROCEDURAL BACKGROUND On July 5, 2005, appellant, an OB/GYN physician and surgeon took her son, age 10 and daughter, age 7, for a day of fun at Great America Amusement Park, located in Santa Clara California. While there, the family decided to ride the two minute Rue Le Dodge bumpercar ride. The ride consisted of a number of small car-like vehicles that moved in any direction arounda flat surface track powered byelectricity. In addition to an exterior bumper, the cars were padded throughoutthe interior and had seatbelts. The driver of each bumpercar controlled both the steering of the car as well as its speed. Oncethe ride started, the respondent had no control over the individualcars. In addition to Great America, respondent owns and operates four amusement parks in the United States and Canada. Each of these parks has a bumpercar ride. In 2005, the four other parks configured their bumpercarrides so that the cars were morelikely to be driven in only one direction. Respondent knew that unidirectional travel helped to significantly reduce the numberof head-on collisions. However, in 2005, although head- on collisions were prohibited, the only precaution employed at Great America against such collisions was post-collision admonitions to riders from the ride operators. Atall times the two operators of the ride could turn off the electrical power and stop thecars. Although respondent maintained control over any design or design modification of the ride, the California Code of Regulations,title 8, section 35, which regulates the operational safety of all amusementpark rides, required respondent to conduct regular safety testing and report any accidents or injuries. (Cal. Code Regs., tit. 8, § 3900 et. seq.) The California Departmentof Industrial Relations, Division of Occupational Health and Safety (DOSH)inspected the ride annually and in 2004 and 2005 foundnosafety- related problems with the ride. On the morning of the incident, Great America staff inspected the ride and found it to be working within normal parameters. Prior to boarding the ride, appellant saw posted warnings about the possibility of bumping and sudden movementand direction changes. However, there was no warning regarding the prohibition against head-on bumping. Appellant choseto ride as a passenger in the bumpercar with her son while her daughter went in a bumper car by herself. During the ride, appellant’s bumper car was hit head-on and then immediately hit from behind. Feeling “pushed around,” and needing to “brace”herself, appellant put her hand on the dash and fractured her wrist. In 2004 and 2005, 55 people, including appellant, were injured on the bumpercar ride, however, appellant was the only one who suffered a fracture. In 2006, respondent finally modified the Rue Le Dodgeride at Great America to make it consistent with their other parks, by adding an island in the middle of the track so that riders all drive in the same direction. On January 25, 2008, appellant filed her second amended complaint for personal injuries sustained on the Rue Le Dodge ride. The complaint alleged causes of action for commoncarrier liability, willful misconduct, strict products liability and negligence. After respondent filed a motion for summary judgment, appellant dismissed the products liability causes of action. The trial court granted the motion as to the remaining claims. The court found that the doctrine of primary assumption ofrisk barred recovery both as to the regular negligence and the commoncarrier claims because appellant’s injuries arose from bumping,a risk inherentin the activity of riding bumpercars. Further, the court stated that, “Defendant did not have a duty to reduce risks that are inherent to bumpercarriding. [Citation.]” The court also found that there were no triable issues of material fact as to the willful misconduct cause of action because defendant established that “it did not act with the knowledge that injury waslikely to result or with wanton and reckless disregard of the possible consequences. [Citation.]” Thereafter the trial court entered judgmentin favor of defendant, and this appeal ensued. DISCUSSION This case is about a woman whotookher children on a ride at an amusementpark and broke her wrist: hardly an expected turn of events for a surgeon spending a family day of fun at Great America. She now seeksto recover from the park ownersfor this injury. Thetrial court found that the park owed her no duty under the primary assumption ofrisk doctrine, and thus, was notliable to her for the injury. The broad question before us is whether, and under what circumstances, an amusement park owner can be held liable for such a personal injury. The more specific question is whether the 3 primary assumptionofrisk exception applies to this case, barring recovery. That Mig a question of law which must be decided on a case-by case basis.” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, citing Isaacs v. Hunting Memorial Hospital (1985) 38 Cal.3d 112, 124.) Standard ofReview “A defendant moving for summary judgment must show either (1) that one or more elements of the plaintiff's cause of action cannotbe established, or (2) ‘that there is a complete defense to that cause of action.’ [Citation.] ‘[T]he defendant hastheinitial burden to show that undisputed facts support each element of the affirmative defense.’ [Citation.].” (Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 796 (Shannon).) “Once the defendant ... has met that burden, the burdenshifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or defense thereto. ...” (Code of Civ. Proc., § 437c, subd. (p)(2). Code of Civil Procedure section 437c, subdivision (c) provides, “The motion for summary judgmentshall be grantedifall the papers submitted showthatthere is no triable issue as to any material fact and that the movingparty is entitled to a judgment as a matter of law. In determining whether the papers showthatthere is notriable issue as to any material fact the court shall consider all of the evidenceset forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgmentshall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, whichraise a triable issue as to any material fact.” The papers are to be construedstrictly against the moving party andliberally in favor of the opposing party; any doubts regarding the propriety of summary judgmentareto be resolvedin favor of the opposing party. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189.) Here, respondent moved for summary judgmenton the ground that the doctrine of primary assumption of risk barred recovery on the negligence based causesof action and that 4 plaintiff could not establish the elements of her causes of action for commoncarrier liability or willful misconduct. On review from an order granting or denying summary judgment, we examine the facts presented to the trial court and determine their effect as a matter of law. (Parsonsv. Crown Disposal Co., supra, 15 Cal.4th at p. 464.) “The application of the affirmative defense of primary assumption ofrisk requires a legal conclusion that ‘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.’ [Citation.]” (Shannon v. Rhodes, supra, 92 Cal.App.4th at pp. 795 -796) Where,as here, a defendantasserts that “plaintiff's evidence failed to establish the ‘duty’ element of plaintiffs cause of action for negligence,”the trial court resolves the existence or nonexistence of a duty as a matter of law. (Parsons v. Crown Disposal Co., supra, 15 Cal.4th at pp. 464-465.) Issues of law are reviewed by this court de novo. (Shannon vy. Rhodes, supra, at pp. 795-796.) Accordingly, we independently analyze the nature of appellant’s activity at respondent’s amusement park and both appellant’s and respondent’s relationshipsto that activity in order to determine whether, “as a matter of public policy, the [respondent] should owe the [appellant] a duty of care.” (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 541.) Primary Assumption ofRisk Does Not Bar Recovery ‘As a general rule, persons have a duty to use due care to avoid injury to others, and may beheld liable if their careless conduct injures another person. (See Civ. Code, § 1714.) Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. [Citation.]” (Knight v. Jewett (1992) 3 Cal.4th 296, 315 (Knight), referencing Rowland v. Christian, supra, 69 Cal.2d 108.) According to respondent, however, a park owner cannot be held liable for such an injury. The risk of being bumped and breaking a bone, respondent contends,is inherent in the nature of a bumpercarride; therefore, recovery is barred by the primary 5 assumption ofrisk doctrine. Respondent’s position flies in the face of both California public policy and the law of torts. Therefore, we decline respondent’s invitation to extend the doctrine of primary assumption of risk to amusementparkrides. “The traditional doctrine of assumption of the risk was a potent defense that sheltered negligent defendants from liability to injured plaintiffs in a wide variety of settings ranging from injuries at sporting events to employees injured on the job prior to the enactment of workers’ compensation legislation.” (Ursin & Carter, Clarifying Duty: California’s No-Duty-For-Sports Regime (2008) 45 San Diego L.Rev. 383, 384,fn. omitted.) The pre-1986 liberal California Supreme Court had narrowed the assumption of risk doctrine to the “point of virtual extinction.” (/bid.) However, in 1992, a more conservative Supreme Court reinvented the doctrine in Knight v. Jewett, supra, 3 Cal.4th 296 and Ford v. Gouin (1992) 3 Cal.4th 339. Knight has since become the seminal case delineating the primary assumptionofrisk doctrine in light of the Supreme Court’s adoption of comparative fault principals in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804. The Knight court, in a plurality opinion, held that the primary assumption ofrisk doctrine bars liability between co-participants in a sport when oneis injured by rough play. To allow liability in such a context, the court held, would chill “vigorous participation in” the sport and could “alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity.” (Knight, supra, 3 Cal.4th at pp. 318-319.) In its subsequent decision in Kahn v, East Side Union High School District (2003) 31 Cal.4th 990 (Kahn), the court summarized the scope ofits holding in Knight. The court stated, “[W]e held that the plaintiff's claim should be barred entirely because of a legal determination that the defendant did not owe a duty to protect the plaintiff from the particular risk of harm involved in the claim. [Citation.] We observed that such cases frequently arise in the context of active sports, and warned that ‘the question whether the defendant oweda legal duty to protect the plaintiff from a particular risk of harm . . turn[s] on. . . the nature of the activity or sport in which the defendant is engaged and the 6 relationship of the defendant and the plaintiff to that activity or sport.’ [Citations.]” (Ud. at pp. 1003-1004.) Therefore, in the post-Knight world, the application of the primary assumption of risk doctrine depends on two factors: 1) the nature of the activity or sport, and 2) the relationship between the parties. The nature of the sport or activity is critical because Knight held that “defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself... .” (Knight, supra, 3 Cal.4th p. at 315.) Asa result, post-Knight courts have, on a case-by-case basis, grappled with whether a sport or activity is of the type subsumedbythe doctrine and, if so, what the inherent risks of such an activity are. In addition to the activity itself, courts must also look at the relationship ofthe parties to each other and to the sport. The Knight court hypothesized that sports injury cases could involve, “diverse categories of defendants whose alleged misconduct maybeat issue” and “the applicable duty or standard of care frequently varies with the role of the defendant whose conductis at issue.” (/d. at p. 318.) The court in Kahn echoedthe importance ofthe role played by the defendant. The court stated that, “Duties with respect to the same risk mayvary according to the role played by particular defendants involved in the sport.” (Kahn, supra, 31 Cal.4th at p. 1004.) The Knight/Kahn framework suggests that a court looking to apply the primary assumption ofrisk doctrine to non-participant defendants should first identify the category of defendant seeking the doctrine’s protection and the role they play. Then a court should examinethe policies applicable to that category of defendant, and in the commercial context, assess the policy impact of imposing a “no-duty” finding. (See Ursin & Carter, Clarifying Duty: California’s No-Duty-For-Sports Regime, supra, 45 San Diego L.Rev.at p. 406.) In suggesting that primary assumption ofrisk bars recovery, respondent contends that amusementpark rides are the type of sport or activity encompassed by the Knight doctrine. Respondent urges us to conclude that being bumped in a bumpercarride is an inherentrisk of the activity, and that, even though, respondentis the proprietor of the 7 park, it did not owe the appellant a duty of care to protect her from any injury resulting from being bumped. Respondent can point to no case, and we have found none, where a post-Knight California court has applied the primary assumption ofrisk doctrine to an amusement park owner.’ The dissent proposes to abandon the sport-based analysis set out by Knight entirely and to expandthe doctrine to any activity with an inherent risk. Such an expansion is unwarranted and unsupported by the case law. While any general analysis of risk surely begins with an idea that we all assumetherisks ofliving, the primary assumption of risk doctrine in its modern, post-Knight construction is considerably narrowerin its application. The dissent’s expansive reading of Knight is unwarranted and an inappropriate exercise ofjudicial authority. Knight, by its own terms, limited the primary assumption ofrisk doctrine to sporting-type activities. In fact, the Knight ' Respondentrelies on several out of state authorities which purportedly barred recovery against amusement parks because injuries sustained asa result of risks inherent in the ride. Respondentfails to explain how these cases are persuasive or even relevant under a post-Knight analysis. We do note that the most auspicious Judge Cardozo,in Murphy v. Steeplechase Amusement Co. (N.Y. 1929) 166 N.E. 173, a case where the plaintiff broke a kneecap on an amusementpark ride called the flopper, held that “Volenti nonfit injuria. One who takes part in such a sport accepts the dangers that inherein it so far as they are obvious and necessary ....” Judge Cardozo suggested that “The antics of the clownare not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. ... The timorous may stay at home.” (/d. at pp. 482-483.) While we certainly wouldn’t presume to question Judge Cardozo’s poetic alliteration, his reasoning does not apply here. First ofall, Cardozo was reviewing a case after a jury verdict, not on motion for summary judgment. Second, Cardozo’s discussion focuses on plaintiff's knowing acceptance ofthe risk, not on the absence of duty, as the doctrine is now crafted in California. (Knight, supra, 3 Cal.4th at pp. 309, 311-312, & fn. 5.) Finally, we cannot know,as the case does not reveal, what, if any, regulations New Yorkhadat the time regarding amusement park rides. Judge Cardozo’s opinion makes no mention of any such protective legislation or regulations. Respondent’s cases can be similarly distinguished. Our playing field is quite different. While amusement parks in 21st century California arestill not retreats for meditation for the timid, riders here and now do get assurances of safety from a stringent regulatory scheme. majority specified that primary assumption ofrisk, post-Zi, survives only in the limited context of sporting activities and the firefighter rule. (Knight, supra, 3 Cal.4th at p. 309, fn. 5.) Instead of beginning our analysis, as most courts do, with an analysis of the nature of the activity and its inherentrisks, we begin by lookingat the special relationship between the amusementpark ownerandits patrons, and the duties that flow therefrom. This analysis is dispositive. | A) Public Policy Bars the Application ofthe Primary Assumption ofRisk Wedo not go to amusementparks expecting to be injured. Commonsense dictates that, while amusement park rides present a possibility of harm, breaking a boneis not a natural or expected consequence of going on a ride; whetherthatride is a fast roller coaster, a stage coach,a train or a bumpercar ride of moderate speed which children are allowed to control. Respondents themselves admit that of the 600,000 people who rode the bumpercar in the years 2004 and 2005, only 55 people sustained injuries, most of those minor. If park goers did fear injury, Walt Disney Parks would surely not be grossing annual revenuesnearing 11 billion dollars.” The very reason we go on amusementpark rides is because we “seek the illusion ofdanger while being assured of[a ride’s] actual safety. The rider expects to be surprised and perhapseven frightened, but not hurt.” (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1136 (Gomez), emphasis added.) While some rides may have inherent dangers owning to speed or mechanical complexities, parks which operate for profit hold out their rides as being safe with the expectation that thousands of people, many of them children, will be riding. (U.S. Fidelity & Guaranty Co. v. Brian (5th Cir.1964) 337 F.2d 881, 883.) In California, this “thrilling-while-safe”illusion is maintained not only through complex ? (The Walt Disney Company Reports, Fourth Quarter Earnings, p. 2 (as of June 6, 2011.) design, but also by a protective regulatory scheme governing amusementparks, administered by the DOSH. (Cal. Code Regs., tit. 8, § 3900.) These regulations set standards for every aspect of amusementparkride safety, including “design, maintenance, construction, alteration, operation, repair, inspections, assembly, disassembly, and use of amusementrides... .” (/bid.; id. § 3907, subd. (b) [passenger carrying ... rides].) The Supreme Courtitself has recognized that a statute, ordinance or regulation could, underthe proper circumstances,“impose a duty of care on defendant that may otherwise be precluded underthe principals set forth in Knight.” (Cheongv. Antablin (1997) 16 Cal.4th 1063, 1071, citing Ford, supra, 3 cal.4th 339; see also Evid. Code, § 669; Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1399.) The elaborate regulatory scheme governing California amusementparks, was, by its own terms, established “for the protection of persons using such rides.” (Cal. Code Regs., tit. 8, § 3900.) This is exactly the type of regulation which imposes a duty on the operators of such rides irrespective of Knight’s no-duty rule We maydraw a parallel between one regulated industry and another. The Occupational Safety and Health Administration (OSHA) (29 U.S.C. § 651), for example, has as its aim to control safety and health in the workplace. Manyof the regulated activities are activities and conditions encountered within the normal scope of the work environment. The public policy behind assuring safety in the workplace is well settled. (29 U.S.C. § 651(b).) No one would argue that an employer could escape liability for a dangerous condition on its premises simply because the injury resulted from a job risk and that there was no specific OSHA regulation addressing it. Any determination regarding liability for work place injury begins with the overriding public policy requiring an employer to provide a safe workplace. So here, any determination regarding liability of an amusementpark owner must begin with the overriding public policy requiring the owners of amusement parks to makethe parks safe for their patrons. 10 In reinventing the primary assumptionofthe risk doctrine for sports injury cases, the Knight court was heavily influenced by policy considerations underlying the application of the doctrine to the sports setting. (Bright, Reconciling an Old Dog’s New Tricks: The California Supreme Court Remodels Assumption ofRisk in Knight and Ford (1993) 26 Beverly Hills Bar J. 149, 152.) The Court was primarily concerned with the “chilling effect” imposingliability may have on the “vigorous participation”in sport. (Knight, supra, 3 Cal.4th p. at 318.) Those policy considerations are reversed in the amusement park setting. As the regulatory scheme bears out, the concern is not to excuse possible dangerous conditionsin orderto increase the thrill of a ride. Instead, rider safety is of paramount concern. Public policy, under the facts here, supports the imposition of a duty on amusement park owners, to protect the public from the possible grave dangers of amusementpark rides. (Cal. Code Regs,tit. 8, § 3900.) Recognizing this public policy, California courts have held owners of recreational rides to the higher standard of care usually imposed on commoncarriers. “There is an unbroken line of authority in California classifying recreational rides as common carriers... .” (Gomez, supra, 35 Cal.4th 1125, 1132.) In Kohl v. Disneyland, Inc. (1962) 201 Cal.App.2d 780, the court of appeal held that the operators of a stagecoach ride at Disneyland were commoncarriers. In a subsequent case against Disneyland, the Federal District Court in California, held the park to the higher commoncarrier standard wherea plaintiff riding on the Pirates of the Caribbean ride was injured after a boat in which she wassitting was struck from behind by another boat. (Neubauer v. Disneyland, Inc. (C.D.Cal.1995) 875 F.Supp. 672, 673.) The court stated that “At the ‘Pirates of the Caribbean,’ defendant offered to the public to carry patrons. Underthese allegations, the duty of utmost care and diligence would apply to Disneyland.” (/bid.) Most recently,in Gomez, the California Supreme Court reaffirmed this duty of “utmost care” imposed on proprietors of amusementpark rides. (/bid.) The Court explained that the higher duty is “based on the recognition that ‘ “[t]o his diligence andfidelity are entrusted the lives and 11 safety of large numbers of humanbeings.” ’ [Citation.].” (Gomez, supra, 35 Cal.4th at p. 1136.) Despite this history of holding the owners and operators of amusementpark rides to a higher standard of care in our society, respondent nowcrafts its argument to suggest that not only does it not owe a duty ofcare, but that it owes no dutyat all to protect riders. The dissent dismisses these important public policy considerations, concluding only that respondent didn’t violate any regulations. These conclusions miss the point. It would be inconsistent with the duties imposed by regulation, as well as by the case law to find that respondent has no duty to protect the appellant who entrusted herlife to respondent from the risks associated with its rides. (Gomez, supra, 35 Cal.4th at p. 1136.) B. Knight is Inapposite 1. Amusement Park Rides are Not the Type of Sport or Activity Susceptible to the Primary Assumption of Risk Analysis. Even if the policy considerations were not dispositive in precluding the application of the primary assumption ofrisk, Knight directs us to look at the nature of the activity and its inherent risks before applying the doctrine. It is not the case that all activities with an inherent risk fall within the Knight no-duty for sports injuryrule. In Knight and its progeny “The court’s major focus . . . ha[d] been the development of no-duty rules applicable to sporting activities.” (Ursin & Carter Clarifying Duty: California’s No-Duty-For-Sports Regime, supra, 45 San Diego L.Rev. at p. 385.) Knight itself described the doctrine of primary assumption ofrisk as surviving in two limited contexts: In sporting events andthefirefighter rule. (Knight, supra, 3 Cal.4th at pp. 309, 311 -312 & fn. 5.) Although commentators have speculated how far the Knight doctrine would extend, some even speculating that amusement parks would attempt to bootstrap the doctrine to avoid liability, California courts have not hesitated to limit the application of the doctrine to its proper narrow focus, especially in the context of 12 ownersoffacilities. (Ursin & Carter Clarifying Duty: California's No-Duty-For-Sports Regime, supra, 45 San Diego L.Rev.at p. 397; see Shannon 92 Cal.App.4th 792 [recreational boating not the type of activity susceptible to primary assumption ofrisk]; Bush v. Parents without Partners (1993) 17 Cal.App.4th 322, 328 [recreational dancing not the type of activity susceptible to primary assumption ofrisk].) In Shannon, supra, 92 Cal.App.4th 792, the court considered whether the primary assumption of risk doctrine applied to a passengerin a recreational speed boat being used to ride around on a lake. After reviewing a variety of cases involving different types of activities and sports wherethe doctrine did and did not apply, the court analyzed whether boating fell within the definition of a sport as it has been developedin the context of the primary assumptionofrisk. (/d. at p. 797.) The court accepted the existing rule which defines a sport as an activity “ ‘done for enjoymentorthrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury,’ ” and addedthat to be considered a sport “as intended by the Knight court,” an activity mustentail “some pitting of physical prowess(beit strength based [i.e., weight lifting], or skill based,[i.e. golf]) against another competitor or against some venue.” (Jbid., citing Record v, Reason (1999) 73Cal.App.4th 472, 482.) The court concluded that being a passenger in a boat underthe circumstances of that case was “too benign to be subject to Knight.” (Shannon, supra, 92 Cal.App.4th at p. 798.) Applying these factors to the facts before us, we conclude,as did the court in Shannon,that riding as a passenger in a bumpercaris too benign to be subject to Knight. On a commonsenselevel, we simply cannot concludethat riding in a bumpercar as a passenger implicates a sport within any understanding of the word. (Shannon, supra, 92 Cal.App.4th at p. 800.) Nothing within the common knowledgeor the record before us suggests that this activity requires any amount of physical exertion, skill or physical prowess. Riding as a passenger in a bumpercar in a closed circuit may provide bumps and jolts and some laughs, but that is where the adventure ends. Given thesefacts,like | 13 riding as a passengerin a boat, riding as a passenger in a bumpercar is too benign an activity to be considered a sport in the Knight context. (/d. at p. 798.) There can be no other logical conclusion under Knight. 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 amusement park rides, we concludethat any effect on the rides can only be a positive one consistent with public policy. Weagree with the dissent in its characterization of the amusementas low risk. Indeed this point is emphasized in respondent’s brief as well it should be. For regulatory and policy based reasons, its rides must be safe else its visitors would not use them. The dissent’s proposition that bumpingis an inherentrisk of the ride is no substitute for a risk analysis. Such a pure “inherency” analysis could be used to bar liability for almost anylife activity. Many daily activities including doing laundry, cleaning gutters or taking out the garbage involve some“inherent” risk. To properly apply the primary assumption of risk, we must also look at the question of safety. For example ice climbing is so obviously risky no one would undertake it without rationally envisioning death. First, it is a sport. Primary assumption of risk would bar recovery not only becausefalling is an inherent risk, but because the chancesoffalling are so high, that one who undertakesthe activity should anticipate injury up to and including death. Assuch, both the risk and the probability of injury are relevant to the inquiry. It is, therefore, rationally inconsistent to claim the safety of an activity and to also suggest that primary assumption ofrisk doctrine bars recovery. If the purveyor of an activity is both legally bound to makeanactivity safe andsellsits activity, in large part based onits safety, he cannot escapeliability by raising primary assumptionofrisk. C. Respondent’s Position as Owner Imposes a Higher Duty Assuming for the sake of argument we were to find that an amusement park ride is the type of sport or activity contemplated by the Knight and its progeny, respondent’s 14 position as ownerofpark nonetheless would invoke a higher duty of care even under the current construction of the primary assumption ofrisk doctrine. Some commentators have suggested that “As a matter of policy, it is desirable to hold those whofinancially profit from participation in or attendance at an athletic event to a higher standard than mere contestants,” simply because ofthe nature of their position of control and authority. (Battersby, Running on Empty (2003) 1 DePaul J. Sports Law & Contemporary Problems 97,99.) Knightitself held that proprietors should be obligated to take steps “in order to minimizethe risk [to their patrons] without altering the nature of the sport.” (Knight, supra, 3 Cal.4th at p. 317.) Other courts have followed suit, finding a duty to minimize risks based on the defendant’s control over the instrumentalities of the injury. (See Kahn, supra, 31 Cal.4th at p. 1005; Luna v. Vela (2008) 169 Cal.App.4th 102, 112 [order granting motion for summary judgmentreversed, held: Primary assumption ofrisk did not bar recovery because organizer of volleyball game had a duty to minimize the risk of tripping over volleyball net tie-downs]; Giardino v. Brown (2002) 98 Cal.App.4th 820, 834 [order granting motion for summary judgmentreversed, held: Primary assumption of risk did not bar recovery because provider of horses had a duty to use due care in ~ selection of horse]; Vandyke v. S.KI. Ltd. (1998) 67 Cal.App.4th 1310, 1317 [order granting motion for summary judgmentreversed, held: Primary assumptionofrisk did not bar recovery because ski resort had a duty to properly post signs visible to skiers]; Branco v. Kearney Moto Park (1995) 37 Cal.App.4th 184,193 {order granting motion for summary judgmentreversed, held: Primary assumption ofrisk did not bar recovery because ownerof motorcrossfacility had a duty to design jumps in a mannerso as not to create an extremerisk of injury]; Morgan v. Fugi Country USA, Inc.(1995) 34 Cal.App.4th 127, 129, 134-135 [order granting motion for summary judgmentreversed, held: Primary assumptionofrisk did not bar recovery because golf course owner owed a duty to plaintiff to minimize dangers in design]; Solis v. Kirkwood Resort Co, (2001) 94 Cal.App.4th 354, 358, 364 [order granting motion for summary judgmentreversed, held: 15 Primary assumption of risk did not bar recovery because ski resort had a duty to warn a skier when it converted a normal ski area into a more dangerousracing area]; Eriksson v. Nunnick (2011) 191 Cal.App.4th 826, 847, 850, 853 [order granting motion for summary judgmentreversed, held: Primary assumption ofrisk did not bar recovery because one who hasauthority to make decisions regarding a horse’s participation in an event had the duty to assure the horse’s fitness. Triable issues remained regarding scope of duty, breach and causation.].) With great power comesgreat responsibility. Because oftheir 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 absorbingtherelatively small cost of doing so. (See Kahn, supra, 31 Cal.4th at p. 1004; Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 179.) Holding owners responsible for minimizing risk is just good policy. Failure to do so could expose the public to unnecessary risk. “Organizers looking to turn a greater profit could skimp on simple measures that would greatly minimizethe risks of their particular sport. . . [while in] 3 This age old truth and expression, most recently popularized by Stan Lee in the pop book and movie, Bat Man,finds it origins in antiquity. “[F]rom the one who has been entrusted with much, much morewill be asked” (Luke 12:48.); “With great power comes great responsibility” (Beuchot and Migeret. al., uvres de Voltaire, Volume 48. (Lefévre 1832), quoting Jean Adrien Voltaire); “Rule worthy of might” (Socrates). Additional more modern sources/usages include: “Today we have learned in the agony of war that great power involves great responsibility” (Zevin, Nothing to Fear, (1961) p. 464, quoting Franklin D. Roosevelt.); “In a democratic world, as in a democratic nation, power mustbe linked with responsibility. . . “’ (Commager, Living Ideas in America (1951) p. 703, quoting Franklin D. Roosevelt.); “. . . I believe in power; but I believe that responsibility should go with power... .” (Brands, T.R.: The Last Romantic (Basic Books 1997) pp. 628-9 quoting a 1908 letter from Theodore Roosevelt as cited in The Letters of Theodore Roosevelt, 8 volumes,(Harvard Press 1951-54). Other variations include: “Power without responsibility . . . the prerogative of the harlot throughout the ages.” (Rudyard Kipling); “To whom muchis given, muchis required.” (John F. Kennedy) (Evanier, With Great Quotes, There Must Also Come Many Letters (October 2005) Povonline” (as of Jun. 8, 2011).) 16 most cases, the costs of minimizing the risks inherent in an athletic event are minimal when balance with the dangerof the risk they diminish.” (Battersby, Running on Empty, supra, | DePaul J. Sports Law & Contemporary Problemsat p. 99.) It is entirely consistent with both Knight and the prevailing commercial premises liability case law to impose reasonable duties to minimize risk on defendants who hold their premises open to the public for profit. (See Ortega v. K-Mart Corp. (2001) 26 Cal.4th 1200, 1211.) The trial court erred in finding that respondent owedappellant no dutyatall. Here, respondentis the owner of an amusementpark. It holds the park open to the public with the promise of safe fun and excitement. Within the confines of state regulation, respondent maintains complete control over the design, maintenance and operation of the bumpercar ride. Without question, it is best situated to minimize any risks associated with its rides, both becauseof its control and because ofthe profits such parks make. Although bumpingis part of the experience of a bumpercarride, 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 awareofthe perils 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.) Respondent had taken stepsto eliminate or reduce the likelihood of head-on collisions at every other park prior to appellant’s injury. However at Great America, the only precaution in place wasforstaff to admonishriders after a head-on collision had occurred. Since respondent had done so at its other parks,it can hardly claim that taking additional steps to minimizethis risk of head-on collisions would havealtered the nature of the bumper car experience. Therefore, there remain triable issues of material fact which cannot be resolved as matter of law. It is for the trier of fact to determine, given the respondent’s exclusive control over the design and operation of the ride, and the obvious steps they could, and ultimately 17 did, take to minimizethe risks of head on collisions, whether respondent breachedits duty to appellant, and whetherthat failure caused appellant’s injury. Common Carrier Liability Because the negligence claimsare not barred by the primary assumptionofrisk, it will also be for the trier of fact to determine whether the nature of the bumpercar ride raised the respondentto the status of a commoncarrier as set forth in Gomez, supra, 35 Cal.4th 1125. In Gomez the Supreme Court, reviewing an order sustaining demurrer, decided that the park owner could be a commoncarrier for the purposes of amusement park roller coaster ride. However, the court was careful to specify that their holding did not address whether“other, dissimilar, amusementrides or attractions can be carriers of person for reward.” (/d. at p. 1136, fn. 5.) The similarity or dissimilarity of a bumpercar ride from a roller coaster ride is a question of fact which cannot be determined as a matter of law, therefore, we leave that question for the trier of fact. Willful Misconduct Finally, respondent contendsthat there is no triable issue of material fact as to the cause of action for willful misconduct. “Willful misconduct means something different from and more than negligence, howevergross.It involves ‘ “conduct of a quasi criminal nature, the intentional doing of something either with the knowledgethatit is likely to result in serious injury or with a wanton and reckless disregard of its possible consequences.’ ”[Citation.] ‘To constitute willful misconduct, ...more must be shown than the bare possibility of injury. Otherwise, there would belittle distinction between willful misconduct and negligence, since negligence is predicated upon a breach of duty which is imposed whenthere exists a foreseeable, or potential, risk of harm.’ [Citation.]” (Perez v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 462, 471-472. To show willful misconduct, a plaintiff must establish, that there is “‘actual or constructive knowledge of the peril to be apprehended . . . actual or constructive knowledge that injury is a probable, as opposed to possible, result of the danger, and . . . [a] consciousfailure to 18 act to avoid the peril.’ [Citation.]” (Baines v. Western Pacific R.Co. (1976) 56 Cal.App.3d 902, 905.) If respondent has simply failed to modify the ride to prohibit head-on collisions, we would agree with respondentthat the evidence would not suggest anything more than mere negligence. However, the evidence here showsthat respondent designed its bumper car ride to prevent head-on collisions at every other park it owned except Great America. It is undisputed that they knew the dangers of head-on collisions, and the failure to act in regards to the Great America ride could be characterized as intentional, because they had taken steps to prevent the risk everywhere except Great America. The only issue here is whether they knew or should have knownthat the injury was probable as opposed to possible. By its nature, that is a qualitative determination not easily susceptible to determination as a matter of law. The evidence presented at summary judgment showed that there were 55 injuries over a two year period on that ride among hundreds of thousandsof riders.* The question, however, is not whether theride itself produced a lot of injuries, but how many ofthose 55 injuries resulted from head-on collisions, or how many head-on collisions produced injuries. Only that information would beinstructive on whether injury was merely possible or rose to the level of probable from a head-on collision. Defendant has the burden on summary judgmentto showthat plaintiff cannot establish an element of her case. (Shannon v. Rhodes, supra, 92 Cal.App.4th at pp. 795- 796.) Defendant has failed to carry that burden as to this element. Wenote, however, that even if we had that information, we would be hard pressed to conclude,as a matter of law, that a particular rate of injury makes injury possible versus probable. This is a qualitative determination which should be left to the trier of fact. * Safer by far than driving or taking a shower. If head oncollisions were foreseeable by the operator before they occurred, then measures taken to reduce or eliminate them might be relevant on the issue of misconduct. Respondent’s brief attempts to demonstrate that the ride wassafe. 19 DISPOSITION The judgmentis reversed. Appellant to recover her costs on appeal. RUSHING,P.J. I CONCUR: PREMO,J. Nalwa y. Cedar Fair, LP H034535 20. Duffy, J., Dissenting. Under the primary assumptionofrisk doctrine, in certain limited instances— usually (but not exclusively) involving sports—there is no legal duty to use due care to eliminate or protect a participant against risks inherent in the sportor activity itself. (Knight v. Jewett (1992) 3 Cal.4th 296, 315 (Knight).) As recognized in 1996 and reiterated in 2005, “ ‘[t]he full scope of the defense of primary assumption ofrisk has yet to be established.’ [Citation.]” (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 870 (Saville), quoting Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 530.) Here, the defendant, an amusementpark, urges that the scope of the doctrine extends to its bumpercarride. In July 2005, Smirti Nalwa, a physician, was injured on the Rue Le Dodge bumper car ride at California’s Great America Amusement Park in Santa Clara (Great America). She was a passenger, and her nine-year-old son wasthe driver of the bumper car. Nalwa sued the park’s owner, Cedar Fair, L.P., alleging, inter alia, claims for negligence, commoncarrier liability, and willful misconduct. Cedar Fair moved successfully for summary judgment. The court, applying Knight, supra, 3 Cal.4th 296, concludedthat the primary assumption ofrisk doctrine barred the negligence claim. The court also found Nalwa’s claim for commoncarrier liability to be meritless, rejecting her contention that under Gomez v. Superior Court (2005) 35 Cal.4th 1125 (Gomez), Cedar Fair, as an amusement park operator, was a commoncarrier that owed a heightened duty of care to its patrons. Lastly, the court found that there was no triable issue of material fact as to Nalwa’s claim for willful misconduct. The majority holds that (1) the primary assumption ofrisk doctrine as enunciated in Knight does not apply here because Nalwa’s injuries resulted from her participation in a ride at a “regulated amusementpark[]” (maj.opn.at p. 1); (2) it is for the trier of fact to determine whether Cedar Fair, under Gomez, was a commoncarrier owing its bumpercar patrons a heightened duty of care (maj. opn. at p. 18); and (3) there are triable issues of fact that preclude summary adjudication of the willful misconduct claim (maj. opn.at p. 19). I respectfully disagree with each conclusion. Here, Nalwaparticipated in the Rue Le Dodge ride knowing thatshe would be jostled aboutin her car as a result of bumping into other cars. The sole purpose of a bumpercar ride is to enjoy the experience andthrill of minor-impact bumping. The name of the gameis to bumpandto attempt to avoid (often unsuccessfully) being bumped. My independent review of the record discloses no evidence that Cedar Fair increased the risk inherent in riding Rue Le Dodge. Accordingly, based upon the nature of, and the inherent risks associated with, the activity, along with the parties’ relationship to the activity, I would find that the primary assumptionofrisk doctrine bars Nalwa’s negligence claim. Further, under Gomez, supra, 35 Cal.4th at page 1141, the Supreme Court held that an operator of a “roller coaster or similar amusement park ride” owesits patrons a heightened duty of care as a commoncarrier. The Gomez court, however, “express[ed] no opinion regarding, whether other, dissimilar, amusementrides or attractions can be carriers of persons for reward.” (/d. at p. 1136, fn. 5.) Based uponthis caveat and the narrow holding in Gomez, because the bumpercarride here is not similar to a roller coaster ride, I would hold that Cedar Fair was not a commoncarrier. Lastly, I find no evidence that Cedar Fair either acted with knowledge that injury waslikely to result or with a wanton and reckless disregard of the possible consequences. Accordingly, I would conclude that summary adjudication of the willful misconduct claim was likewise proper. I. Negligence Claim Generally, a person owes a duty of due care to others, and he or she may be held liable if his or her careless conduct causes injury. (See Civ. Code, § 1714, subd. (a).)' In ' “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasionedto another by his or her want of ordinary care or skill in the 2 cases in which the doctrine of primary assumption ofrisk applies, however, the defendant is deemedto “owe[] no duty to protect the plaintiff from a particular risk of harm.” (Knight, supra, 3 Cal.4th at p. 309.) Cedar Fair argued successfully below that the doctrine of primary assumption of risk barred Nalwa’s negligence claim because herinjuries resulted from her being bumped while riding as a passenger in a bumper car. Because being bumped and the attendant (but low) risk of injury were inherentin the bumpercar activity itself, Cedar Fair (it argued) owed no duty to Nalwato protect her against such risk. An extended review of the primary assumption ofrisk doctrine is essential in order to determine whetherthe court properly applied it in this instance to bar Nalwa’s negligence claim. A. Primary Assumption ofRisk Doctrine 1. Knight v. Jewett In Knight, supra, 3 Cal.4th 296—aplurality opinion authored by then-Justice George—thehigh court addressed the doctrine of assumption of the risk in connection with a woman’s suit for personal injuries sustained during a coed touch football game amongfriends and acquaintances during a Super Bowlparty. The court” considered whether, in light of the court’s prior “adoption of comparative fault principles in Li v. managementofhis or her property or person, except so far as the latter has, willfully or by wantof ordinary care, brought the injury upon himself or herself. . ..”. (Civ. Code, § 1714, subd. (a).) All further statutory references are to the Civil Code unless otherwise specified. * Although Knight wasa plurality opinion signed by only threejustices, “Justice Mosk wrote a concurring opinion generally agreeing with its analysis. (Knight, supra, 3 Cal.4th at pp. 321-322 (conc. opn. of Mosk, J.).)” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067 (Cheong).) Andfive years after deciding Knight, the high court reaffirmedthat “the basic principles of Knight’s lead opinion [are] the controlling law.” (Cheongat p. 1067.) Therefore, while acknowledging that Knight wasa plurality opinion, I will refer to Knight’s basic precepts concerning primary assumption ofrisk as being established law of the high court. Yellow Cab Co, (1975) 13 Cal.3d 804” (id. at p. 300), the doctrine barredtheplaintiff’ s claims. It acknowledgedthat historically there had been confusion “because the phrase ‘assumptionofthe risk’ traditionally has been used in a numberofvery different factual settings involving analytically distinct legal concepts. [Citations.]” (/d. at p. 303.)° Knight identified the distinction between primary and secondary assumptionof therisk, explaining that the former “embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk,” and the latter involving “instances in which the defendant does owe a dutyofcare to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.” (Knight, at p. 308.) The court concluded that the category of cases involving primary assumption of the risk was not mergedinto the system of comparative negligence(ibid.), and its application was not inconsistent with comparative fault principles. (/d. at p. 310.) The court in Knight recognized that “whether the defendant oweda legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness ofthe plaintiff's conduct, but rather on the nature of the activity or sport in which the defendantis engaged and the relationship of the defendantandthe plaintiff to that activity or sport.” (Knight, supra, 3 Cal.4th at p. 309; see also Fordv. Gouin (1992) 3 Cal.4th 339, 342.) It explained that the doctrine has been applied in sports settings as an exception to the general rule that persons must use due care to avoid injuries to others because “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sportitself.... [Citation.] ... [T]he nature of > See also Knight, supra, 3 Cal.4th at page 322 (conc. and dis. opn. of Mosk, J) (assumption ofrisk term “now stands for so many different legal conceptsthatits utility has diminished”); 4 Harper, James and Gray on Torts (3d ed. 2007) Assumption of Risk, § 21.0, p. 231 (term “hasled to nolittle confusion becauseit is used to refer to at least two different concepts, which largely overlap, have a common cultural background, and often produce the samelegal result” (fn. omitted); 1 Dobbs, The Law of Torts (2001) § 211, p. 538: “ ‘[W]hen we are tempted to say “assumption ofrisk” we should say something else. (Fn. omitted.)’ ”) a sport is highly relevant in defining the duty of care owed by the particular defendant.” (Knight, at p. 315.) As a caveat to this no-liability exception, the court stated, “Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sportitself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above thoseinherentin the sport. Thus, although a ski resort has no duty to remove moguls from a ski run,it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant. [Citation.]” (/d. at pp. 315-316.) Justice George next observed in Knight that the primary assumption ofrisk cases have dealt with defendants having a variety of relationships with the sport at issue, including ownersoffacilities, manufacturers of equipment, sports coaches and instructors, and coparticipants. (Knight, supra, 3 Cal.4th at p. 318.) In the context of the case there, the defendant was a coparticipant. (/bid.) Agreeing with the vast majority of cases in California and throughout the country, the court held that “a participant in an active sport breachesa legal duty ofcare to other participants—1.e., engages in conduct that properly may subject him or herto financial liability—only if the participant intentionally injures another player or engages in conductthat is so reckless as to be totally outside the range of the ordinary activity involvedin the sport.” (d. at p. 320, fn. omitted.) Because it was undisputed that the defendant’s conduct— characterized by the plaintiff as “rough play” (ibid.)—-wasnot outside the range of ordinary activity for a touch football game, the court in Knight held that he owed no duty to the plaintiff. (Ud. at p. 321.) The doctrine, when applicable, operates as a “complete barto the plaintiff's recovery.” (Knight, supra, 3 Cal.4th at p. 315.) A court’s determination that the primary assumption of risk doctrine applies constitutes a legal conclusion that no duty is owed. 5 (/d. at p. 308.) Accordingly, the issue is often one that may be decided by summary judgment. (/d. at p. at 313.) A defendant claimingthat the doctrine is applicable bears the burden on summary judgmentofestablishing the absence of legal duty. (Freemanv. Hale (1994) 30 Cal.App.4th 1388, 1395.)* 2. Post-Knight cases A hostof cases following Knight have applied the primary assumption ofrisk doctrine in various contexts. In the interests of providing sufficient context to the application of the doctrine to this case, I discuss some of these appellate decisions. a. Supreme Court decisions In Ford vy. Gouin, supra, 3 Cal.4th 339 (Ford), the companion case to Knight, the court upheldthe trial court’s granting of summary judgmentin favor of the defendant, a ski boat operator/coparticipant who had been sued asa result of injuries sustained by a water-skier he was towing, who had been skiing backwards andbarefoot in the Sacramento River Delta. In holding,inter alia, that the primary assumption ofrisk doctrine barred the claim, the court, in the lead opinion of Justice Arabian, rejected the plaintiffs contention that Knight’s limitation of a coparticipant’s liability to intentional or reckless conduct applied only to competitive sports and not to a cooperative sport such as waterskiing. (Ford, at p. 345.) Justice Arabian wrote, “As noted in Knight, the decisions that have recognized the existence of only a limited duty of care in a sportssituation * Although appellate courts often erroneously refer to it as an affirmative defense (see, e.g., Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1543; Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 795), “the doctrine of primary assumptionofrisk is a limitation on the plaintiffs cause of action rather than an affirmative defense.” (Priebev. Nelson (2006) 39 Cal.4th 1112, 1135.) Since a defendant may move successfully for summary adjudication under Code of Civil Procedure section 437c, subdivision (f)(1), by establishing an affirmative defense to the claim, that the claim has no merit, or that the defendant owes no duty to the plaintiff, it is of little practical significance here whether appellate review is couched as a determination of whether Cedar Fair established under the doctrine of primary assumption ofrisk that it owed no duty to Nalwa,or, alternatively, that it established an affirmative defense to the negligence claim. 6 generally have reasonedthat vigorousparticipation in the sport likely would be chilled, and, as a result, the nature of the sport likely would bealtered, in the event legal liability were to be imposed on a sports participant for ordinary careless conduct. [Citation.] This reasoning applies to waterskiing. Even when a water-skier is not involved in a ‘competitive’ event, the skier has undertaken vigorous, athletic activity, and the ski boat driver operates the boat in a mannerthat is consistent with, and enhances, the excitement and challenge of the active conductof the sport. Imposition of legal liability on a ski boat driver for ordinary negligence in making too sharp a turn, for example, or in pulling the skier too rapidly or too slowly, likely would have the same kind of undesirable chilling effect on the driver’s conduct that the courts in other cases feared would inhibit ordinary conductin various sports. As a result, holding ski boat drivers liable for their ordinary negligence might well have a generally deleterious effect on the nature of the sport of waterskiing as a whole.” (bid.; see also Shin v. Ahn (2007) 42 Cal.4th 482, 497 [doctrine applied to claim of golfer injured by errant tee shot of partner; partner as coparticipant only liable for intentional misconduct or reckless conduct outside the range of ordinary activity involved in sport]; Cheong, supra, 16 Cal.4th at p. 1068 [claim of snow-skier injured by friend and fellow skier after collision on slopes was barred under doctrine because defendant, as coparticipant in active sport, was liable only for intentionally or recklessly caused injuries].)° In Kahn vy. East Side Union High School Dist. (2003) 31 Cal.4th 990 (Kahn), the court applied the primary assumption ofrisk doctrine to a sports instructor, 1.e. a > The recent, highly publicized, intentionaltripping of:a Miami Dolphin football player by a New York Jets strength-and-conditioning coach while the cornerback was running downthe sideline covering a punt return offers an example—assuming hypothetically that an injury and a lawsuit by the player had resulted—ofan instance in which a participant in a dangerous and violent sport suffered an injury as a result of intentional or reckless conduct completely outside the range of the sport’s ordinary activity. (See Jets’ Sal Alosi Sorryfor Tripping a Dolphin (Dec. 13, 2010) at http://www.cbsnews.com/stories/2010/12/13/sportsline/main7144350.shtml>.) 7 swimming coach. The high court acknowledged that the athlete-coach relationship differed from that of coparticipants, but concluded nonetheless that “because a significant part of an instructor’s or coach’s role is to challenge or ‘push’ a studentorathlete to advancein his or her skill level and to undertake more difficult tasks, and because the fulfillment of such a role could be improperly chilled by too stringent a standard of potential legal liability, .. . the same general standard [ofKnight] should applyin cases in which an instructor’s alleged liability rests primarily on a claim that he or she challenged the player to perform beyond his or her capacity or failed to provide adequate instruction or supervision before directing or permitting a student to perform a particular maneuver that has resulted in injury to the student.” (/d. at p. 996.) It therefore held that “[i]n order to support a cause of action in cases in whichit is alleged that a sports instructor has required a student to perform beyondthe student’s capacity or without providing adequate instruction, it must be alleged and proved that the instructor acted with intent to cause a student’s injury or that the instructor acted recklessly in the sense that the instructor’s conduct was‘totally outside the range of the ordinary activity’ [citation] involved in teachingor coachingthe sport.” (d. at p. 1011; see also id. at p. 996.)° The high court addressed a personal injury claim by a batter hit by a beanball (pitch intentionally thrown at batter by pitcher) during an intercollegiate baseball game in Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148 (Avila). The batter brought claims against the community college district that hosted the game. (/d. at p. 153.) Applying the primary assumptionofrisk doctrine, the court observedthat “the host school’s role is a mixed one: its players are coparticipants, its coaches and managers ° The court nonetheless held that there weretriable issues of fact that precluded summary judgmentin favor of the defendant concerning whether the conduct of the swimming coach in allegedly pressuring the plaintiff to perform a racing (shallow-water) dive in competition without proper training constituted recklessness in the sense that“it wastotally outside the range of the ordinary activity involved in teaching or coaching the sport of competitive swimming.” (Kahn, supra, 31 Cal.4th at p. 1013.) 8 have supervisorial authority over the conduct of the game, and other representatives of the school are responsible for the condition of the playing facility. We have previously established that coparticipants have a duty not to act recklessly, outside the bounds of the sport [citation], and coaches and instructors have a duty not to increase the risks inherent in sports participation [citation]; we also have noted in dicta that those responsible for maintaining athletic facilities have a similar duty not to increase the inherentrisks, albeit in the context of businessesselling recreational opportunities [citation].” (/d. at pp. 161- 162.) The court held that the doctrine barred the claim against the schooldistrict. (/d. at pp. 163-166.) b. Court ofAppeal decisions In the 19 years since the Supreme Court decided Knight, there have been numerous reported decisions in whichthis state’s courts of appeal have applied the primary assumption ofrisk doctrine to various factual settings, usually to various sports ranging from baseball to river rafting. (See Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1261 [courts have applied primary assumption ofrisk in over 100 published cases].)’ Courts have emphasized that the analysis is an objective one. ’ These sports have included volleyball (Zuna v. Vela (2008) 169 Cal.App.4th 102); snowboarding (Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577); jet skiing (Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566); an organized long-distance bicycle ride (Moser v. Ratinoff(2003) 105 Cal.App.4th 1211); collegiate baseball (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703); hockey, where spectator injured by stray puck flying off the ice during pregame warm- ups (Nemarnik v. Los Angeles Kings Hockey Club (2002) 103 Cal.App.4th 631 (Nemarnik); tae kwon do (Rodrigo v. Koryo Martial Arts (2002) 100 Cal.App.4th 946); off-road motorcycling (Distefano v. Forester (2001) 85 Cal.App.4th 1249); skateboarding (Calhoon v, Lewis (2000) 81 Cal.App.4th 108 (Calhoon); tubing behind a motorboat (Record v, Reason (1999) 73 Cal.App.4th 472 (Record); wrestling (Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939 (Lilley)); little league baseball (Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47); training and exercising racehorses (Shelly v. Stepp (1998) 62 Cal.App.4th 1288); participation in a cattle roundup (Domenghini v. Evans (1998) 61 Cal.App.4th 118); sport fishing (Mosca v. Lichtenwalter (1997) 58 Cal.App.4th 551); golf (Dilger v. Moyles (1997) 54 Cal.App.4th 1452); 9 (Saville, supra, 133 Cal.App.4th at p. 866, citing Knight, supra, 3 Cal.4th at p. 309.) Thus, the determination is not influenced bythe plaintiffs subjective knowledge or appreciation of the potential risk of the sport or activity (ibid.), or whetherthe plaintiff's conduct was reasonable or unreasonable (ibid.). Rather the court undertakes a two-step analysis in determining the applicability of the primary assumptionofrisk doctrine to a given case. It first inquires about “the objective nature of the subject sport activity, ... and [second, assesses] the parties’ general relationship to that activity. [Citations.]” (Distefano v. Forester, supra, 85 Cal.App.4th at p. 1262; see also Saville, at p. 866.) Courts viewing the nature of the sport or activity generally apply the doctrine when “conditions or conduct that otherwise might be viewed as dangerousoften are an integral part of the sport [or activity] itself.” (Knight, supra, 3 Cal.4th at p. 315.) Where the doctrine is found to apply,“the integral conditions of the sport [or activity] or the inherentrisks of careless conduct by others render the possibility of injury obvious, and negate the duty of care usually owed by the defendant for those particular risks of harm. [Citation.] A duty imposedin thosesituations would significantly change the very purposeor nature of the activity. ‘The overriding consideration in the application of primary assumption ofrisk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and therebyalter its fundamental nature.’ [Citations.]” (Saville, supra, 133 Cal.App.4th at p. 866, quoting Ferrari v. Grand participating in a touch football class (Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430); figure ice skating (Staten v. Superior Court (1996) 45 Cal.App.4th 1628 (Staten)); judo (Bushnell v. Japanese American Religious & Cultural Center, supra, 43 Cal.App.4th 525); rock climbing (Regents of University of Californiav. Superior Court (1996) 41 Cal.App.4th 1040); snow skiing (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 (Connelly)); motocross bicycle racing (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184 (Branco),); discus throwing (Yancey v. Superior Court (1994) 28 Cal.App.4th 558); horseback riding (Harrold v. Rolling JRanch (1993) 19 Cal.App.4th 578); and sailing (Stimson v. Carlson (1992) 11 Cal.App.4th 1201). 10 Canyon Dories (1995) 32 Cal.App.4th 248, 253 (Ferrari).) At the heart ofit, “[p]rimary assumption ofrisk is a policy-driven doctrine.” (Childs v. County ofSanta Barbara (2004) 115 Cal.App.4th 64, 73.) B. Application ofDoctrine to Activity in this Case Asnoted, the determination of whether the primary assumption ofrisk doctrine applies in a given case is made from an evaluation of the nature of the activity involved and the parties’ relationshipto that activity. (Distefano v. Forester, supra, 85 Cal.App.4th at p. 1262.) I adhere to this two-part analysis below in determining whether Nalwa’s negligence claim is barred by the doctrine. 1. Nature ofActivity a. classification as a sport Nalwaarguesthat “[t]ypically, the doctrine of primary assumptionofrisk applies to sports activity.” From this statement, she suggests that the doctrine should not apply to an activity clearly not a sport such as riding a bumper car. The majority agrees with this position. (See maj. opn.at p. 13: “On a commonsenselevel, we simply cannot conclude that riding in a bumpercar as a passenger implicates a sport within any understanding of the word.” (Originalitalics.) I would reject Nalwa’s contention that because the activity was clearly not a sport, the doctrine is inapplicable. It is true that the doctrine has been applied predominantly to activities which may be considered to be sports. (See fn. 7, ante.) And there has been some debate among appellate courts whether the doctrine of primary assumption of risk applies where the activity that resulted in the plaintiff’s injury cannotbe classified as a “sport.” Some appellate courts have taken the restrictive view that the doctrine applies simply to “active sports.” (Calhoon, supra, 81 Cal.App.4th at p. 115; Staten, supra, 45 Cal.App.4th at p. 1632; see also Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 328 [recreational dancing “not a sport, within the ambit of Knight’].) Indeed, one court’s oft- followed test for determining the application of the primary assumption ofrisk doctrine1s 11 “that an activity falls within the meaning of ‘sport’ if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” (Record, supra, 73 Cal.App.4th at p. 482,italics added.)® Others have applied the doctrine more expansively, concludingthat it may apply in a given case to “a recreational activity” (Distefano, supra, 85 Cal.App.4th at p. 1253, fn. 1), or “to other activities involving an inherent risk of injury to voluntary participants .. . where the risk cannot be eliminated without altering the fundamental nature of the activity. [Citation.]” (Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658 (Beninati), citing Knight, supra, 3 Cal.4th at pp. 314-316; see also Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326, 333 (Rostai).) Certainly there is language in Knight supporting both viewpoints.” I believe that the broader view of the doctrine’s application as expressed in Beninati, supra, 175 Cal.App.4th at page 658, is the correct one. In Knight, then-Justice George, enunciating the basis upon which courts decide whether primary assumption of risk may apply, used the broad language that courts are to look to “the nature of the activity or sport in which the defendant is engaged andthe relationship of the defendant and the plaintiff to that activity or sport.” (Knight, supra, 3 Cal.4th at p. 309, italics added; see Saville, supra, 133 Cal.App.4th at p. 870 [Knight held that doctrine “applied * A numberof courts have utilized the test enunciated in Record, supra, 73 Cal.App.4th at page 482. (See, e.g., Truong v. Nguyen (2007) 156 Cal.App.4th 865, 888; Peart v. Ferro (2004) 119 Cal.App.4th 60, 68, 71; Whelihan v. Espinoza, supra, 110 Cal.App.4th at p. 1572; Moser v. Ratinoff, supra, 105 Cal.App.4th at p. 1221.) ” There are numerousinstances in whichthe court in Knight uses language that might suggest that the doctrine applies only to sports (see, e.g., Knight, supra, 3 Cal.4th at p. 312 [“application of the assumption of risk doctrine in the sports setting”’]; id. at p. 315 [“nature of a sport is highly relevant in defining the duty of care owed”]), while there are other times the court suggests that primary assumption of risk may bar a plaintiffs injuries sustained in sports or other activities (see, e.g., id. at p. 309 [under the doctrine, a defendant owes no duty, regardless of “whether the plaintiff's conduct in undertaking the activity was reasonable or unreasonable’; ibid. [application of doctrine depends on “the nature of the activity or sport in which the defendant is engaged. ...”). 12 to activities or sports .. . [and did not] limit the scopeof activities subject to the defense only to sports”].)!° And the Supreme Court itself acknowledgedthat the primary assumption ofrisk doctrine applied in at least one class of nonsports cases, namely, cases “involving the ‘firefighter’s rule’ [citation] ... [citation] . . . [i.e., cases founded on the theory] that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. [Citations.]” (Knight, at pp. 309-310, fn. 5; see also Neighbargerv. Irwin Industries, Inc., supra, 8 Cal.4th at pp. 538-544; Walters v. Sloan (1977) 20 Cal.3d 199, 202.) Further, I believe that a determination of the existence of a legal duty to a plaintiff injured in connection with his or her voluntary participation in a particular activity should not be left to the vagaries of assessing whetherthe activity constitutes a “sport.” For example, although appellate courts have held differently, it is foreseeable that some courts might find the primary assumption ofrisk doctrine inapplicable to certain activities, such as fitness training (Rostai, supra, 138 Cal.App.4th 326), lifeguard training (Lupash v. City ofSeal Beach (1999) 75 Cal.App.4th 1428), cheerleading (Aaris v. Las Virgenes Unified SchoolDist. (1998) 64 Cal.App.4th 1112),'! tubing (Record, supra, 73 Cal.App.4th 472), and river rafting (Ferrari, supra, 32 Cal.App.4th 248), based simply upon the view that they are not true sports. '? Based upon myreview of Knight andits ' «The opinion [in Knight, supra, 3 Cal.4th at pp. 313, 314-315] concludedthat the doctrine of assumption of risk properly bars a plaintiff's claim only when it can be established that, because of the nature of the activity involved andtheparties’ relationship to the activity, the defendant owedthe plaintiff no duty of care. [Citation.]” (Neighbargerv. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538, italics added.) '! To illustrate the point made in the text, see Biediger v. Quinnipiac University (D.Conn. 2010) 728 F.Supp.2d 62, where a district court judge recently held that a competitive cheer team at a private university in Connecticut did not qualify as a Title [X varsity sport, The sport-not-a-sport debate is a common topic among jocks, weekend warriors, and armchair athletes. The debate is the subject of various, and often entertaining, articles, blogs, and websites. (See, e.g., Begel, Bowling: Sport or not? (Nov. 23, 2010) at ; Wetzel, 13 progeny, J concludethat in determining the potential applicability of the doctrine, rather than attempting to pigeonhole the activity as a sport, courts should make a more focused evaluation of whether (1) the integral conditions of the activity make obvious the possibility of injury, (2) imposing a duty would vastly alter the purposeor nature of the activity, and (3) imposing a duty would chill vigorous participation in the activity and thereby alter its fundamental character. (See Saville, supra, 133 Cal.App.4th at p. 867; Peart v. Ferro, supra, 119 Cal.App.4th at p. 72.) Moreover, appellate courts have applied the primary assumption ofrisk doctrine in instances in which the activities were undoubtedly not sports. (See, e.g., Beninati, supra, 175 Cal.App.4th 650 [ritual “Burning Man” event]),; McGarry v. Sax (2008) 158 Cal.App.4th 983 (McGarry) [product-toss following skateboarding exhibition]; (Saville, supra, 133 Cal.App.4th 857 [peace officer training class]; Hamilton v. Martinelli & Associates (2003) 110 Cal.App.4th 1012 [probation officer training course]; Herrle v. Estate ofMarshall (1996) 45 Cal.App.4th 1761 [caregiver assaulted by hospital patient with dementia]). In Beninati, the activity centered on the plaintiffs attendance at the Burning Manfestival in which large throngs congregate annually in the desert to witness the burning of a 60-foot combustible sculpture of a man, whichis held upright by wire cables. (Beninati, at pp. 658-659.) The plaintiff apparently tripped over the wire cables and was himself burned. (/d. at p. 655.) The court rejected the plaintiffs contention that because the activity was not a sport, the primary assumption ofthe risk doctrine was inapplicable to bar the claim. (/d. at pp. 658-659.) It held that “[t]he risk of injury to Why Figure Skating is not a Sport (Feb. 27, 2010) at ; Hollander, Js Golfa Sport? Seriously. (May 12, 2008)at ; Lovinger, Does Poker Qualify as a Sport? (June 11, 2004) at http://sports.espn.go.com/espn/page2/story?page=lovinger/040614; .) 14 those who voluntarily decide to partake in the commemorativeritual at Burning Man is self-evident. ... Once much ofthe material had burned, and the conflagration had subsided but wasstill actively burning,. . . the risk of stumbling on buriedfire debris, including the cables ... , was an obvious and inherent one. Thus,the risk offalling and being burned by the flames or hot ash was inherent, obvious, and necessaryto the event, and [the plaintiff] assumed such risk.” ([bid.) The court similarly applied the doctrine of primary assumption ofrisk in a nonsport setting in McGarry v. Sax, supra, 158 Cal.App.4th 983. There, the court held that the doctrine barred the plaintiff's claims for injuries that arose from trying to graba skateboard deck throwninto the crowd during a skateboard competition. It concluded that the risks of participating in the product toss were “self evident. The products were not distributed to customers who waited politely in line for their turn; a limited supply of products was throwninto a throng of competitors. ... That a competitor might fall and others land around and on him in an effort to secure the prize is an inherentrisk of the competition.” (/d. at p. 1000, fn. omitted.) I conclude therefore that the fact that Nalwa was injuredas a result of participating in an activity that was nota sportis not, of itself, an impedimentto the application of the primary assumption ofrisk doctrine. (See McGarry v. Sax, supra, 158 Cal.App.4th at p. 999 [doctrine’s application not limited to sports]; Rostai, supra, 138 Cal.App.4th at p. 333 [same].) b. qualitative view ofactivity The “integral conditions” of the bumpercar activity at issue here are such that they “render the possibility of injury obvious.” (Saville, supra, 133 Cal.App.4th at p. 867.) The fundamental nature of Rue Le Dodge is the bumping of cars. Riders are continually jostled about during the ride. The purpose of the amusementpark ride is to provide thrills and entertainmentto its riders from bumping fellow riders while attempting to avoid being bumpedby others. (Cf. Ferrari, supra, 32 Cal.App.4th at pp. 253-254 15 [inherent risk of injury from being jostled while passengerin raft during white water rafting].) In her deposition, Nalwa agreed that the fun in the ride was the bumping, and that “[y]ou pretty much can’t have a bumpercar unless you have bumps.” A sign posted at the ride’s entrance entitled “RIDE WARNING — PLEASE READ”informed guests: “Rue Le Dodge cars are independently controlled electric vehicles. The action of this ride subjects your car to bumping. To experiencethis ride, you must be in good health and free from physical limitations. Expectant mothers and children under four (4) years of age should ride. Children under 54 inches in height must accompanied by an adult.” (Original underscoring.) Another sign containing a description of the rideitself indicated that “riders may encounter unexpected changesin direction and or/speed[sic] . ... This ride requires rider body control.” Nalwaread these signs while waiting her turn with her children.’ An activity that subjects a person to abrupt changes in direction naturally involves a risk of injury. Injuries resulting from head-on, rear, or side bumps between the minicars are thus inherent and obviousrisks associated with the ride. As stated by Justice Cardozo in a classic case applying the maxim of volenti nonfit injuria (“ ‘to a willing person it is not a wrong’ ” (Black’s Law Dict. (9th ed. 2009) p. 1710, col. 2) as a bar-to a plaintiffs claim from injuries sustained from an amusementparkride, “[t]he timorous may stay at home.” (Murphy v. Steeplechase Amusement Co. (N.Y. 1929) 166 N.E. 173, 174.) Given that the whole point of the Rue Le Dodge ride is bumping, imposing a duty of care for any injury resulting from a participant being bumped would clearly “either require that an essential aspect of the [activity] be abandoned,or else discourage vigorous participation therein.” (Peart v. Ferro, supra, 119 Cal.App.4th at p. 72; cf. Rodrigo v. '? Of course, as previously stated, the fact that Nalwa was aware ofanyrisks associated with the activity is not germaneto our inquiry, since “the question of whether [the] plaintiffs action properly [is] barred under the assumption ofrisk doctrine does not depend on... whether [the] plaintiff subjectively knew of the specific risk of harm posed by [the] defendant’s [actions].” (Ford, supra, 3 Cal.4th at p. 344.) 16 Koryo Martial Arts, supra, 100 Cal.App.4th 946 [tae kwon do activity of kicking, punching, and being punched and kicked carried inherentrisk of injury] .)'* Imposing liability would havethelikely effect of the amusement park either eliminating the ride altogether or altering its character to such a degree—by, for example, significantly decreasing the speed at which the minicars could operate—that the fun of bumping would be eliminated, thereby discouraging patrons from riding. Indeed, who would wantto ride a tapper car at an amusement park?'° Therefore, based upon an evaluation of the integral conditions of Rue Le Dodge and the conclusion that imposing a duty would alter the fundamental nature ofthe ride (Saville, supra, 133 Cal.App.4th at p. 867), I would tentatively conclude that the primary assumption of risk doctrine applies to an activity such as a bumpercar ride. Before removing the “tentative” label to this conclusion, I examine two issues: (1) whether the 4 Obviously,if liability were imposed upon a coparticipant causing an injury to another from bumping—notthe issue presented here—it is likely that participation in the bumpercar ride would besignificantly chilled dueto the participant’s fear of being sued by the overly sensitive or litigious rider. 'S My colleaguesassert that “[w]e do not go to amusementparks expecting to be injured” (maj. opn. at p. 9), and that amusement“parks which operate for profit hold out their rides as being safe... .” (Maj. opn. at p. 9.) These assertions are no doubttrue. But a spectator attending a baseball or hockey gamelikewise does not expect to be injured. Nonetheless, there is no guarantee that he or she will not be struck by a baseball or a puck. Becausefoul balls and errant pucks are inherentrisks of baseball and hockey, respectively, the proprietor of the stadium or rink has no duty to eliminate thoserisks, and will not be held liable absent a showing that they did something to increase them, such as by designing the facility in a mannerthat exacerbated the risk of injury. (See Nemarnik, supra, 103 Cal.App.4th 631 [fan injured by errant hockey puck]; Neinsteinv. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176 [fan injured by foul baseball denied recovery in pre-Knight decision].) There is no allegation in this case that Cedar Fair negligently designed or maintained the Rue Le Dodge. Nalwatestified that she had no information that the ride was not functioning properly or that the minicars were operating at excessive speeds. Therefore, I respectfully disagree with the majority’s implication that because amusementpark patrons do not expect to be injured,if they are, the amusementparkis therefore liable for the injury regardless of whether it occurred at a properly maintained ride where the park did nothing to increase inherentrisks associated with it. 17 nature of the participant’s involvementin the activity here renders the doctrine inapplicable; and (2) whetherthe fact that the activity is an amusementpark ride suggests that the doctrine should not apply. Cc. nature ofparticipant's involvementin activity Nalwaarguesthat the doctrine is inapplicable because “[(1) nJo skill is required to take part and [(2)] the driving or riding in bumpercars is not supposedto presenta risk of injury to the participants.” I have addressed the second argument above: the fact that Rue Le Dodge minicarriders are subjected to the possibility of repeated jostling as a result of bumping and being bumped rendered the possibility of injury,albeit slight, an obvious one. Asto the claim that operating a bumpercar requireslittle or no skill—and the concomitant assertion that being a passenger in the minicar (such as wasthe case with Nalwa)requires no skill at all—I reject Nalwa’s contention that the doctrine should for these reasons not apply. Notall of the cases applying the primary assumption ofrisk doctrine involved an activity that required particular skill or athleticism. In Ferrari, supra, 32 Cal.App.4th 248, the plaintiff was simply a passenger in a rubber raft whose sole job was to hold onto the raft while it navigated the Colorado River rapids. In Truong v. Nguyen, supra, 156 Cal.App.4th 865, this court held that the primary assumption of risk doctrine barred the claims of a passengerriding on personal watercraft: “[Rl]iding a personal watercraft requires physical exertion and balance by the passengerto hold on to the operator or grips or handles on the vessel to avoid being thrownofforrolling off the craft.” (/d. at p. 889.) And this court observed further that “the thrill of riding the vessel is shared by both the operator and the passenger.” (/bid., italics added.)'® '© Compare with Shannon v. Rhodes, supra, 92 Cal.App.4th 792, wherethe court held the primary assumption ofrisk doctrine inapplicable to a child-passenger’s claim for injuries resulting from falling out of a ski boat. In so holding, the court concluded that the plaintiffs role as a mere passenger was“too benign to be subject to Knight”(id. at p. 798); nothing in the record supported the conclusionthat “the use of the boat... 18 Likewise, in Beninati, supra, 175 Cal.App.4th at page 655, the plaintiff’s activity involved no skill or athleticism—he wasinjured after he apparently tripped over cable used to secure the burning effigy while he was attempting to place the photograph of a recently deceased friend in the embers of the Burning Manfire. The court rejected his argument that the primary assumptionofrisk doctrine was inapplicable to “ ‘ “low impact”cultural activities of the sort found herein.’ ” (/d. at p. 656.) And in McGarry, supra, 158 Cal.App.4th at pages 988 to 989, the plaintiff was a spectator who participated in a product toss and was injured by others in the crowd after he caught the skateboard deck and fell to the ground—again, an activity that involved little skill or athleticism on the plaintiffs part."’ I therefore reject Nalwa’s assertion—and disagree with my colleagues (see maj. opn. at p. 14: [“riding as a passenger in a bumpercaris too benign an activity to be considered a sport in the Knight context”])—that the primary assumption ofrisk doctrine is inapplicable due the passive nature of her participation in Rue Le Dodge. Thefact that her participation as a passenger in the bumpercarride involvedlittle skill or reasonably implicate[d] a ‘sport’ within any understanding of the word”(id. at p. 800); and “the boat here was [nothing] more than a modeoftransportation” (ibid.). Apart from the court’s apparent conclusion that the primary assumptionofrisk doctrine applies only “to a sports setting” (id. at p. 796)—a proposition with which I disagree with my colleagues(see pt. I.B.1.a., ante)—the circumstancesof the plaintiff’s participation in the activity and the activity itself in Shannon differ from those here. In this instance, Rue Le Dodgeis not “simply a pleasurable means of transportation”(id. at p. 798); rather, it is an amusement park ride in which voluntary participants, including Nalwa, subject themselvesto the jostling associated with bumping and being bumpedthatis the entire point ofthe activity. '” One notable instance ofa producttoss, of sorts—a spectator’s catching a home run ball—demonstrates vividly the random nature and the apparent lack ofskill or athleticism involved in the activity. On May 28, 2006, a fan, while waiting in line at a concession stand to buy beer and peanuts, caught the historic 715th homerunball hit by the San Francisco Giants’ Barry Bonds that moved Bonds ahead of Babe Ruth to second place on Major League Baseball’s all-time homerunlist. (See Fan Snags No. 715—in Concessions Line (May 30, 2006) at .) 19 athleticism—-and, indeed consisted of her being able to react to bumpsinflicted by the minicar driven by her son or by other minicars—doesnotpreclude the application of the doctrine. d. amusementpark ride Nalwacorrectly points out that no California court has applied the primary assumption ofrisk doctrine to an injury claim arising out of participating in an amusement park ride. The absence of such authority, however, does not suggest that there should be an across-the-board rule precluding application of the doctrine to such activities. Indeed, several courts from other jurisdictions have denied recovery to plaintiffs injured on amusementpark rides. In Ramsey v. Fontaine Ferry Enterprises, Inc. (Ky. 1950) 234 S.W.2d 738, the plaintiff was injured in a bumper-car type ride involving motor scooters. Affirming the trial court’s directed verdict in favor of the defendant amusement park, the court applied volenti non fit injuria to concludethat “the plaintiff assented to the engagement which brought about her injury.” (/d. at p. 739.) In so holding, the court observed that the ride was “arranged to provide thrills for its users by bumping into or dodging each other. There is no other lure. The game hasits hazards, but one cannot be ignorant of them. [The p]laintiff entered the scooter for the purpose of engagingin the frolic. She deliberately exposed herself to the contingency which occurred. . . . Whilst the managementhad control of the electric current used by all of the scooters to propel their vehicles, [the plaintiff] had independent control of the motion of the scooter she was using.” (Ud. at pp. 738-739.) Similarly, in Gardner v. G. Howard Mitchell, Inc. (N.J. 1931) 153 A. 607, the plaintiff's claim for injuries resulting from being bumped during a Dodgem bumpercar ride were held to have been barred. The court, also applying the maxim of volenti nonfit injuria, held that “[i]t was for the thrill of bumping and ofthe escape from being bumped that [the] plaintiff entered the contrivance .... The chance of a collision was that which 20 gave zest to the game upon which[the] plaintiff had entered. She willingly exposed herself to the contingency of a collision.” (d. at p. 609; see also Jekyll Island State Park Authority v. Machurick (Ga.App. 2001) 552 S.E.2d 94 [rider on amusement park water slide assumedrisk]; Leslie v. Splish Splash Adverntureland, Inc. (N.Y. 2003) 1 A.D.3d 320 [same].) These out-of-state authorities are not binding precedent here. (See Gentisv. Safeguard Business Systems, Inc. (1998) 60 Cal.App.4th 1294, 1307.) They, however, provide support for the conclusion that the primary assumption of risk doctrine may be applied to an activity involving an amusement park ride such as Rue Le Dodge. The majority concludes, however, that public policy dictates that the primary assumption of risk doctrine not apply in this instance. (Maj. opn., p. 12.) My colleagues note that amusementparks are subject to a “protective regulatory scheme... administered by the DOSH”(maj. opn.at p. 10); “California courts have held owners of recreationalrides to the higher standard of care usually imposed on commoncarriers” (maj. opn. at p. 11); and public policy requires the imposition of a duty on amusement parks “to protect the public from the possible grave dangers of amusementparkrides.” (Maj. opn. at p. 11.)'* Amusement parks have an obligation to design and maintain their rides in theinterests of the safety of their patrons, and I acknowledge the importance of the regulatory scheme under whichthe state seeks to promote that safety. But there is no suggestion here that Cedar Fair failed to comply with any statute or regulation as a result of which Nalwa wasinjured. Further, I find no legal basis for exempting amusement '§ In noting decisions in which amusement parks have been found to be common carriers (including Gomez, supra, 35 Cal.4th 1125) to support its view that the doctrine of primary assumption ofthe risk does not apply here for public policy reasons, the majority seemingly concludes that Cedar Fair is a commoncarrier with respect to the Rue Le Dodge ride. But later on, the majority holds thatthe trier of fact should makethat determination on remand. (See maj. opn. at p. 18.) For the reasonsI discussin part II, post, Cedar Fair did not assume commoncarrierliability here. 21 parks from the potential application of the primary assumption ofrisk doctrine for any public policy reason. The majority asserts further that “[d]espite this history of holding owners and operators of amusementpark rides to a higher standard of care in our society, [Cedar Fair] now crafts its argumentto suggest that not only does it not owe a duty ofcare, but that it owes no duty at all to protect riders.” (Maj. opn.at p. 12, original italics.) I do not believe Cedar Fair is arguing it owed no dutyat all to its patrons; rather, it claims that under Knight, it was not liable for Nalwa’s injuries that were the result of knownrisks associated with being bumpedin the Rue Le Dodgeride, whereit “did nothing to increase that inherent risk... .” For the reasons discussed above, I would find that the doctrine is potentially applicable to the bumpercaractivity here, and I continue to the second part of the analysis, namely, the relationship of parties to the activity. 2. Relationship ofparties to activity Under the primary assumption of risk doctrine, duty is determined not only by the nature of the activity, but also from “the ‘role of the defendant whose conductis at issue in a given case.’ [Citation.]” (Kahn, supra, 31 Cal.4th at p. 1004, quoting Knight, supra, 3 Cal.4th at p. 318.) The duties may vary depending on the specific role played by the defendant with respect to the sport or activity. (Kahn, at p. 1004.) “For example, a purveyorofrecreational activities owes a duty to a patron not to increase the risks inherentin the activity in which the patron has paid to engage. [Citations.]” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 482 (Parsons).) Thus, as the court explained in Knight, although a ski resort owes no duty to eliminate risks such as moguls inherent in the sportitself, it may not increase the risks to participants by providing faulty equipment. (Knight, supra, 3 Cal.4th at pp. 315-316; see also Bjork v. Mason (2000) 77 Cal.App.4th 544, 555-556 [doctrine inapplicable where defendant supplied defective towropeto tubing participants]; Harrold v. Rolling JRanch, supra, 19 Cal.App.4that 22 pp. 586-587 [stable owed duty to patrons to provide horses that were not unduly dangerous].) Here, CedarFair, as “a purveyorof recreational activities” (Parsons, supra, 15 Cal.4th at p. 482)—the owner and operator of an amusement park—did not owea duty to Nalwato eliminate or decrease the risks inherent in the bumpercarride; it was only boundto do nothingto increase those risks. (Knight, supra, 3 Cal.4th at pp. 315-316.) Just as the risks in skiing posed by moguls(id. at p. 315) or unpadded lift towers (Connelly, supra, 39 Cal.App.4th at pp. 12-13) are part of the sportitself, the risks associated with contacts between bumpercars are an inherent part of a bumpercarride. Rue Le Dodge wasnot intended as a benign,jostle-free experience; its purpose was to provide its participants with the fun of bumping and being bumped. Bumpsat Rue Le Dodge—as Nalwarealized from her observationsofthe ride before entering the minicar with her son—could occur from any direction. The bumping subjected riders to sudden shifts in momentum,as indicated in the signs postedat the ride, thereby posing risk of injury. Underthe doctrine of primary assumption of risk, Cedar Fair had no legal duty to eliminate or protect Nalwaagainst the risk of injury associated with bumping. (Cf. _ Branco, supra, 37 Cal.App.4th at p. 193 [designer of motocross bicycle course required to refrain from designing jumps which created extremerisk of injury]; Galardiv. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 822-823 [notwithstanding inherent risks of horse jumping,riding club and instructor owed duty to studentrider not to design course with jumpsat unsafe heights or intervals that would create unreasonable risk of injury].) The undisputed evidence is that Cedar Fair complied with its duty not to increase the risks to its bumpercar riders, including Nalwa, over and above those inherent in the activity itself. A rubber bumper surroundedthe minicars, and they were equipped with padded seats, steering wheels, and dashboards, and with seatbelts for the driver and passenger. Warning signs were posted at the entranceof the ride, cautioning that the cars 23 were independently controlled electric vehicles subject to bumping and that guests with certain medical conditions should refrain from riding. In addition, the ride was inspected daily and weekly by the defendant’s maintenance and ride operations departments,as well as annually by DOSH. And onthe day of Nalwa’s injury, the ride was inspected and found to be working properly. Very few injuries from Rue Le Dodge were reported in 2004 and 2005, and all of them, except Nalwa’s, appear to have been minorones. (Cf. Lupash yv. City ofSeal Beach, supra, 75 Cal.App.4th at p. 1435 [emphasizing absence of prior accidents involving particular beach wherethe plaintiff was injured during lifeguard training].) Cedar Fair thus provided equipment in a “safe, working condition.” (Knight, supra, 3 Cal.4th at p. 316.) Nalwaasserts that the doctrine of primary assumption of the risk does not apply because Cedar Fair had a duty to protect her from the risk of injury from head-on bumps, a risk not inherentin the ride. In support of this argument, Nalwa points to Cedar Fair’s rule prohibiting head-on bumpsat Great America, andthe installation of center islands in the bumpercarrides at its four other amusement parks. My colleagues agree with Nalwa, asserting that “[a|Ithough bumpingis part of the experience of a bumpercar ride, head-on bumpingis not.” (Maj. opn.at p. 17.) I disagree.'” In Avila, supra, 38 Cal.4th at page 163, a baseball player struck by a pitch alleged that the schooldistrict breached its duty not to enhance the inherentrisks in baseball by '? Tn addition to other arguments that the primary assumptionofrisk doctrineis a bar to the negligence claim, Cedar Fair argues in its respondent’s brief that Nalwa was not injured as a result of a head-on bump;rather, she was injured when bracing herself after being bumped from behind. It contends that summary judgmentwastherefore proper because Nalwa cannot demonstrate the failure to install a center island to reduce head-on bumpshad anything to do with Nalwa’s injury. This argument was not presented by Cedar Fair below and I would thus deem it forfeited. “[I]t is fundamental that a reviewing court will ordinarily not consider claims madeforthe first time on appeal which could have been but were not presentedto the trial court. [Citation].” (Asbestos Claims Facility v. Berry & Berry (1990) 219 Cal.App.3d 9, 26; see also Perez v. Grajales (2008) 169 Cal.App.4th 580, 592.) 24 hosting a preseason gamedespite the rule prohibiting such preseason games. The high court rejected that claim, concluding that the district, in hosting the game, did nothing more than exposethe plaintiff to the inherent risks of the sport. (bid.) The court also rejected the plaintiff’s claim that the district breached its duty of care by failing to provide umpires underthe theory that doing so “would have made the gamesafer” (id. at p. 166), reasoning that “the argument overlook[ed] a key point. The District owed ‘a duty not to increase the risks inherent in the sport, not a duty to decreasetherisks.’ [Citations.]” (/bid., italics added.) Similarly, Cedar Fair had no duty to protect its patrons from the specific risk of head-on bumps. There is no evidence in the record that operation of Rue Le Dodge without a center island materially increased the risk of injury inherent in the ride. Nalwa and my colleagues point to the rule at Great America in 2005 prohibiting head-on bumps. Further, the majority asserts that the record showsthat Cedar Fair “was:aware of the perils of allowing head-on collisions ... .” (Maj. opn. at p. 17.) There is nothing in the record showingthat the possibility that Rue Le Dodge patrons might be subjected to head-on bumpspresented risk of injury (or “peril[]”) beyond the risk of injury from any other bumping. Nalwaalso emphasizes that Cedar Fair’s four other amusement parks operated with a center island to encourage unidirectional travel.” Theinstallation ofthese islands *° Nalwa argues that a CedarFair representative admitted in deposition that the company knew at the time of the accidentthat “operating bumpercars in one direction of travel only was an effective way to eliminate injuries from head-oncollisions.” Great America’s ride operations manager responded “Yes,” in response to the question at her deposition, “[W]as the one direction of operation for the bumpercar ride an effective means of reducing or eliminating head-on collisions on that ride?” (Italics added.) But before Nalwafiled her opposition to the motion, the deponent corrected the foregoing deposition testimony as follows: “The one direction of operation reduced, but did not eliminate, head-on collisions on the Rue Le Dodgeride.” Nalwa contendsthat this correction raises an issue of the witness’s credibility that precluded the granting of summary judgment. I disagree. The question wasin the disjunctive and therefore 25 at other parks notwithstanding, given that bumpssustained by a rider of a minicar on Rue Le Dodge from any direction—andthe attendantrisk of injury—were inherentin the activity itself, Cedar Fair had no duty to take measures to reduce or lessen head-on bumps. Further, the existence of Cedar Fair’s rule preventing head-on bumpsdid not create a duty on the park owner to prevent them from occurring. Risks of careless conduct by others—here, risks that included a rider bumping others head-on,either because he or she may not have heard ride operators announcing the rule, or may have heard the announcementand disregarded it—maybean inherent risk of the activityitself. (Lilley, supra, 68 Cal.App.4th at p. 943.) “Ifa risk is inherent in a sport, the fact that a defendant had a feasible means to remedythe danger does not impose a duty to do so. A duty is not created because safer materials are available to remedy the danger.” (American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 [golf course had no duty to protect golfers from inherent risk of injury from errant shots]; see also Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 270 [ski resort owed no duty to minimize risk to skier of colliding with plainly visible snowmaking hydrant]; Connelly, supra, 39 Cal.App.4th at pp. 12-13 [no duty of ski resort to pad skilift towers, where no evidenceit did anything to increase inherentrisk of skiers colliding with towers].) Therefore, given the nature of the bumpercar ride involved here and the relationship of Nalwa and Cedar Fair to that activity, I would hold that the primary assumption ofrisk doctrine applied. Since Cedar Fair (1) owed no duty to protectits patrons, including Nalwa, from the risk of injury from bumpsinherent in the activity, and ambiguous. The deponent’s affirmative answerto it thus could be construed asindicating that the rule against head-on bumpswaseffective to reduce head-on bumps, an answer that was entirely consistent with her corrected testimony. Further, whether unidirectional travel reduced or eliminated the head-oncollisions is irrelevant, because bumps, including head-on bumps, were an inherentrisk of the ride. Cedar Fair had no duty to eliminate risks inherent in the activity itself. (See Knight, supra, 3 Cal.4th at p. 315.) 26 (2) did nothing to increase those inherent risks, summary adjudication of Nalwa’s negligence cause ofaction was proper.” Il. CommonCarrier Liability Claim Nalwaalleged in the first cause of action of her complaint that Cedar Fair was a commoncarrier in its operation of Rue Le Dodge. Thetrial court concluded that under Gomez, supra, 35 Cal.4th 1125, the heightened duty of care of a commoncarrier did not apply to the bumpercar ride. The majority concludes that this was error and that the matter of whether the bumpercar ride wassimilar to a roller coaster ride—and thus whether commoncarrierliability under Gomez attaches here—must be resolved by the trier of fact. (Maj. opn. at p. 18.) I disagree. Based upon the undisputedfacts,I concludethat the ride in question is dissimilar to the roller coaster ride, and there is no sound basis for extending Gomez to find Cedar Fair to be a commoncarrier. There is thus no factual question that needs to be considered bythetrier of fact in resolving this issue. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 572,fn. 6 [“question of ‘duty’ is decided by the court, not the jury]; Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1506 [commoncarrierliability is matter of law when material facts are not in dispute].) *! The maj ority asserts that “[t]he trial court erred in finding that [Cedar Fair] owed [Nalwa] no dutyat all.” (Maj opn. at p. 17.) What the trial court in fact held was that the primary assumption of risk doctrine applied to the activity here; under that doctrine, “a defendant owes no duty to protect against the risks inherent in a sport, but generally owes a duty not to increase the risks of the activity beyondtherisks inherent in the sport”; Nalwa’s “injury arose from being bumped during a bumpercar ride, which is a risk inherent in the activity of riding bumper cars”; and Cedar Fair did not have a duty to reduce those inherent risks. My colleagues concludefurther that even if the “amusement park ride here is the type of sport or activity contemplated by [] Knight and its progeny, [Cedar Fair’s] position as ownerof [the] park nonetheless would invoke a higher duty of care even under the current construction of the primary assumption of risk doctrine.” (Maj. opn. at pp. 14-15.) They assert that amusementparksare in the position “to eliminate or minimize certain risks...” (Maj. opn. at p. 16.) To the extent that my colleagues suggest that amusementparks should be treated differently under Knight than other proprietors, such as sports stadium owners,I find no authority for that conclusion. 27 Carriers hired to transport passengers are generally subjected to a heightened standard of care in a majority ofjurisdictions in this country. (See 3 Harper, James and Gray on Torts (3d ed. 2007) The Nature of Negligence, § 16.14, p. 565.) “This heightened duty imposed upon carriers of persons for reward stems from the English common law rule that commoncarriers of goods were absolutely responsible for the loss of, or damageto, such goods. [Citation.]” (Gomez, supra, 35 Cal.4th at pp. 1128-1129.) In California, a commoncarrier “must use the utmost care and diligence for [the] safe carriage [of its passengers, and] must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (§ 2100; see also CACI No.902.) A commoncarrier, however, is not an insurer of its passengers’ safety. (Gomez, supra, 35 Cal.4th at p. 1130; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785 (Lopez).) “Rather, the degree of care and diligence which they must exercise is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and the practical operation of the business of the carrier. [Citations.]” (Lopez, at p. 785.) Section 2168 defines a commoncarrier as “[e]veryone whooffers to the public to carry persons, property, or messages, excepting only telegraphic messages... .” Under the statute, therefore, ““a commoncarrier... is any entity which holdsitself out to the public generally and indifferently to transport goods or persons from placeto place for profit. [Citations.]” (Squaw Valley Ski Corp. v. Superior Court, supra, 2 Cal.App.4th at p. 1508; see also Black’s Law Dict. (9th ed. 2009) p. 242, col. 1: “common carrier. A commercial enterprise that holdsitself out to the public as offering to transport freight or passengers for a fee.”) Some examples of commoncarriers include railways (Metz v. California Southern R. R. Co. (1890) 85 Cal. 329; Kerrigan v. Southern Pac. R. R. Co. (1889) 81 Cal. 248); buses (Lopez, supra, 40 Cal.3d 780, Prunty v. Allred (1946) 73 Cal.App.2d 67); stage coaches (Fairchild v. The California Stage Company (1859) 13 Cal. 599); guided tours provided by mule train (McIntyre v. Smoke Tree Ranch Stables 28 (1962) 205 Cal.App.2d 489 (McIntyre)); streetcars or cable cars (Kline v. Santa Barbara etc. Ry. Co. (1907) 150 Cal. 741; Finley v. City and County ofSan Francisco (1952) 115 Cal.App.2d 116); taxicabs (Larson v. Blue & White Cab Co. (1938) 24 Cal.App.2d 576, 578); elevators (Treadwell v. Whittier (1889) 80 Cal. 574; escalators (Vandagriffv. J. C. Penney Co. (1964) 228 Cal.App.2d 579); airplanes (Smith v O’Donnell (1932) 215 Cal. 714); and chair lifts at ski resorts (Squaw Valley Ski Corp. v. Superior Court, supra). Further, amusement parks have been held to be commoncarriers for purposes of operating a rollercoaster in the nature of miniature scenic railway (see Barr v. Venice Giant Dipper (1934) 138 Cal.App. 563 (Barr)), and a horse-drawn surrey (see Kohlv. Disneyland, Inc. (1962) 201 Cal.App.2d 780 (Kohl)). (See also Neubauer v. Disneyland, Ine. (C.D.Cal.1995) 875 F.Supp. 672 [amusementpark operating “Pirates of the Caribbean”ride involving boats held commoncarrier].) In Gomez, supra, 35 Cal.4th 1125, a woman’s estate and her heirs brought a wrongful death action against an amusement park ownerafter the decedent sustained a fatal brain injury while riding the Indiana Jonesattraction at Disneyland. Thetrial court sustained without leave to amend the defendant’s demurrer to claims based upon section 2100, rejecting the contention that the amusement park was a commoncarrier. (Gomez, at p. 1127.) The Court of Appeal granted the plaintiffs’ writ of mandate and directed that the court overrule the demurrer. (/d. at p. 1128.) The Supreme Courtaffirmed. The court’s four-member majority in Gomez observed that “commoncarrier” had been broadly defined by the Legislature (Gomez, supra, 35 Cal.4th at p. 1130) and that an “expansive definition”(id. at p. 1131) had been applied by California courts over a number of years. The high court’s majority noted further—citing McIntyre, supra, 205 Cal.App.2d 489, Squaw Valley Ski Corp. v. Superior Court, supra, 2 Cal.App.4th 1499, Barr, supra, 138 Cal.App. 563, and KoAl, supra, 201 Cal.App.2d 780—that “[t]here is an unbroken line of authority in California classifying recreational rides as common carriers... .” (Gomez, at p. 1132; cf. Simon v. Walt Disney World Co. (2004) 114 29 Cal.App.4th 1162 [rejecting contention that defendant, in its general operation of Disneyland as a whole, as opposedto its operation of any specific ride, was a common carrier with respectto all park patrons].) The high court further rejected the view that an amusement park could not be a common carrier because the purpose of the ride was to provide entertainment. It held: “A passenger’s purpose in purchasing transportation, whether it be to get from one place to another or to travel simply for pleasure or sightseeing, does not determine whether the provider of the transportation is a carrier for reward. The passenger’s purpose does not affect the duty of the carrier to exercise the highest degree of care for the safety of the passenger. [{]] Certainly there is no justification for imposing a lesser duty of care on the operators of roller coasters simply because the primary purposeofthe transportation provided is entertainment. As one federal court noted, ‘amusementrides have inherent dangers owing to speed or mechanical complexities. They are operated for profit and are held out to the public to be safe. They are operated in the expectation that thousands of patrons, many of them children, will occupy their seats.’ [Citation.] Riders ofroller coasters and other‘thrill’ rides seek the illusion of danger while being assuredoftheir actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt. Therule that carriers of passengersare heldto the highest degree of care is based on the recognitionthat ‘ “[t]o his diligence andfidelity are intrusted the lives and safety of large numbers of human beings.” ’ [Citation.] This applies equally to the rider of a roller coaster as it doesto the rider of a bus,airplane, ortrain.” (Gomez, supra, 35 Cal.4th at p. 1136, fn. omitted.) Accordingly, in finding that the court should have overruled the demurrer, the high court concluded that“the operatorof a roller coaster or similar amusementpark ride can be a carrier of persons for reward under sections 2100 and 2101.” (Gomez, supra, 35 30 Cal.4th at p. 1141.)” In so holding, however, the court expressed the following caveat, important to us here: “Wehold only that the operator of a roller coaster or similar amusementpark ride can be a carrier of persons for reward under[Civil Code] sections 2100 and 2101. We do not address, and express no opinion regarding, whether other, dissimilar, amusementrides or attractions can be carriers of persons for reward.” (dd.at p. 1136, fn. 5.) Therefore, the facially simple question confronting the court is this: Is a bumper car ride at an amusement park “similar” to a roller coaster? I would concludethatit is not. A bumpercarride is quite different from a roller coaster. A roller coasteris defined as “[a] steep, sharply curving elevated railway with small open passengercars that is operated at high speedsasa ride, especially in an amusementpark.” (American Heritage Dict. (4th ed. 2000) p. 1510.) A roller coaster is constrained to a track and subject to the exclusive control of the operator. Those choosingto ride a roller coaster “ ‘surrender[] themselves to the care and custody of the [operator]; they .. .give[] up their freedom of movementand actions....’ [Citation.]” (Gomez, supra, 35 Cal4th at p. 1137.) In addition,“[rJiders of roller coasters and other‘thrill’ rides seek the illusion Tn a lengthy dissent in which two members ofthe court joined, Justice Chin wrote that the majority, in holding that the defendant was a commoncarrier in connection with the roller coaster ride, (1) reached a conclusion contraryto the intent of the Legislature (Gomez, supra, 35 Cal.4th at pp. 1143-1149 (dis. opn. of Chin, J.)); (2) “ignore[d] a fundamental principle [in prior Supreme Court cases that] [b]ecause * “the law applicable to commoncarriers is peculiarly rigorous, . . . it ought not to be extended to persons whohavenot expressly assumedthat character, or by their conduct and from the nature of their business justified the belief on the part of the public that they intended to assumeit” ’ ” (id. at p. 1149); and (3) relied on California decisions not supportive of its ultimate conclusion (Gomez, at pp. 1150-1157 (dis. opn. of Chin,J.)). *3 Tn his dissent, Justice Chin criticized the majority’s holding further, indicating that by its caveat the majority opened the door to future cases holding that amusement park rides “similar to” roller coaster rides such as merry-go-rounds and mechanical bulls may be subject to the heightened commoncarrier standard ofliability. (See Gomez, supra, 35 Cal.4th at p. 1148 (dis. opn. of Chin, J.).) 31 of danger while being assured oftheir actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt.” (/d. at p. 1136.) In contrast, a bumpercar ride such as Rue Le Dodgeconsists of small electric cars that operate at medium speeds arounda flat surface track. The amusement park concededly exercises some degree of control over Rue Le Dodgeandis responsible for its overall safety. Cedar Fair and its employees maintain and inspectthe ride; set maximum speeds for the minicars; load and unloadriders; activate the ride; have control over an emergency switch disabling the electricity powering the minicars; and enforce various riding instructions and safety rules. But once the ride commences, patrons exercise independent control over the steering and acceleration of the cars. Unlikeroller coaster riders, they do not surrender their freedom of movement and actions. Rue Le Dodgeriders have control over the entertainment elementof the ride, the bumping,as they determine whento turn and accelerate. (Cf. Lewis v. Mammoth Mountain Ski Area 2009 U.S. Dist. Lexis 13050, 2009 WL 426595, *33 (E.D.Cal. Feb. 20, 2009) *33-36 [commoncarrierliability not applicable to resort operating guided snowmobile tour where rider had complete control over vehicle].) A rider of a roller coaster has no control over the elementsofthrill of the ride; the amusement park predetermines any ascents, drops, accelerations, decelerations, turns or twists of the ride. Moreover, although the allure of a roller coaster is the “the illusion of danger” (Gomez, supra, 35 Cal.4th at p. 1136), the appeal of a bumpercar is the entertainment promised by the generally harmless fun of bumping other cars (and avoiding being bumped) at modest speeds. BecauseI conclude that the bumpercarride here is not “‘a roller coaster or similar amusement park ride” (Gomez, supra, 35 Cal.4th at p. 1136), I would find Gomez distinguishable and that Cedar Fair was not a commoncarrier in connection with its operation of Rue Le Dodge. I would therefore hold that the court below properly held that Nalwa’s first cause of action was without merit. WI. Willful Misconduct Claim 32 Nalwaalleges in her second cause of action that Cedar Fair’s decision to operate Rue Le Dodgeat the time of the 2005 incident without a centerisland, despite allegedly knowing that its absence presented an unreasonablerisk of injury, constituted willful misconduct. She cites the portion of Cedar Fair’s operating manual!prohibiting head-on bumpsandthe fact that bumpercar ridesat its other amusement parks were unidirectional as evidence that it knew head-on bumpspresented a risk of injury. Nalwa argues that Cedar Fair consciously chose to expose Rue Le Dodgeridersto risk of injury from head- on bumpsbynotinstalling a center island. The majority holds that there wasa triable issue of fact that precluded the granting of summary judgmentin favor of Cedar Fair on this willful misconduct claim. (Maj. opn. at p. 19.) I disagree. coc 6Willful misconduct is “not a separate tort, but simply an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care’ [citations].” ’ [Citation.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.) A willful misconduct claim has pleading requirementsstricter than those of a negligence claim. (bid.; see also Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 361.) “Negligence is an unintentionaltort, a failure to exercise the degree of care in a given situation that a reasonable man under similar circumstances would exercise to protect others from harm. [Citations.] A negligent person has no desire to cause the harm that results from his carelessness. [Citation.]” (Donnelly v. Southern Pacific. Co. (1941) 18 Cal.2d 863, 869.) In contrast, willful misconduct cog Ceinvolves the defendant’s positive intent to harm anotheror action taken with a positive, active and absolute disregard of its consequences.” ’ ” (Cope v. Davison (1947) 30 Cal.2d 193, 201, quoting Meek v. Fowler (1935) 3 Cal.2d 420, 425; see also Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.) Stated otherwise, “[w]illful or wanton misconduct is intentional wrongful conduct, done either with a knowledgethat serious injury to another will probably result, or with a wanton and reckless disregard of the possible 33 results. [Citation.]” (O'Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903, 912 (O'Shea), superseded on another groundbystatute as stated in Hubbard v. Brown (1990) 50 Cal.3d 189, 194-195; see also Rest.2d Torts, § 500, com.g, p. 590.) Three elements mustbe present to elevate a potentially negligent act to one that may constitute willful misconduct. (Bains v. Western Pacific R. R. Co. (1976) 56 Cal.App.3d 902, 905 (Bains).) First, there must be “ ‘actual or constructive knowledge of the peril to be apprehended... .. [Second, the evidence must show]actual or constructive knowledgethat injury is a probable, as opposedto a possible, result of the danger... . [And third, there must be a] consciousfailure to act to avoid the peril.’ [Citation.]” (Ubid.; see also Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 859.) In determining the existence of willful misconduct, “constructive knowledge must be measured by an objective standard, since there is no other way to measureit... . [Citation.] ‘The... test... is whether a reasonable [person] under the sameor similar circumstances as those faced by the actor would be aware of the dangerous character of his conduct.’ [Citation.] ‘If conductis sufficiently lacking in consideration for the rights of others, reckless, heedless to an extreme, and indifferent to the consequences it may impose, then, regardless of the actual state of mind of the actor and his [or her] actual concern for the rights of others, we call it willful misconduct, and applyto it the consequences and legal rules which weusein the field of intendedtorts.’ ” (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 690.) Our high court has held that whether a case involves willful misconduct “presents questions of both fact and law. Insofar as the issues mayrelate to the credibility of witnesses, the persuasiveness or weight of the evidence andthe resolving of conflicting inferences, the questionsare of fact. But as to what minimum factual elements must be proven in order to constitute serious and wilful misconduct, and the sufficiency of the evidence to that end, the questions are of law.” (Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102, 115.) Therefore, summary judgment may be appropriate 34 wherethe plaintiff has failed to present sufficient facts to support a willful misconduct claim. (See Towns v. Davidson (2007) 147 Cal.App.4th 461, 470-473 [court properly granted summary judgment where facts were insufficient to show that defendant skier acted recklessly in colliding with fellow skier, plaintiff]; O’Shea, supra, 97 Cal.App.3d at p. 913 [plaintiff failed to present evidence tending to show defendant’s willful misconduct in maintaining dirt pile over which plaintiff rode motorcycle and sustained injuries; summary adjudication of willful misconduct issue proper].) From the evidence presented in connection with the motion,a trier of fact could not reasonably conclude that Cedar Fair’s conduct metall three elements required to support a willful misconduct claim. (See Bains, supra, 56 Cal.App.3d at p. 905.) Indeed, I conclude there was insufficient evidence to support a finding in favor of Nalwaas to any of the three elements. The first element is “ ‘actual or constructive knowledgeofthe peril to be 9°93apprehended... .’” (Bains, supra, 56 Cal.App.3d at p. 905.) A reasonable inference from the evidence is that Cedar Fair had actual or constructive knowledge ofthe possibility that some injury could result from head-on bumps while riding Rue Le Dodge. That evidence included the rule in Cedar Fair’s operations manualthat prohibited head- on bumps;the fact that operators were charged with enforcing the rule and were instructed to first reprimandpatrons who violated the rule and, if necessary, eject them from the ride; the fact that Cedar Fair employed a center island to promote unidirectional travel at bumpercar rides in its four other amusement parks; and Cedar Fair’s knowledge that a center island was effective in reducing head-on bumping. But knowledge of the mere possibility of injuryis insufficient to satisfy this first element. In Bains—acasearising out of the death of a person at a railroad crossing that had no automatic gate—the court rejected the plaintiffs’ assertion that because the railroad was aware that injuries at railroad crossings without automatic gates were more likely, this satisfied the “peril” aspect of the first element of a willful misconduct claim. 35 “(The plaintiffs] seem to contend that the ‘peril to be apprehended’is the potentiality of a collision between a vehicle and a train at an ungated crossing. To constitute willful misconduct, however, more must be shownthanthe bare possibility of injury. Otherwise, there would belittle distinction between willful misconduct and negligence, since negligence is predicated upon a breach of duty which is imposed whenthere exists a foreseeable, or potential, risk of harm. ... [§]] Almost every venture involves some risks, especially in the field of transportation. In the presentcase, [the plaintiffs] established that crossing accidents are reduced by 90 percent when automatic gates are installed at railroad crossings. All this demonstratesis that there is still the potentiality of a collision between a vehicle and a train even at gated crossings. Conceivably, if railroad bridges were constructed overall crossings, collisions would betotally eliminated. If such bridges were not constructed, under[the plaintiffs’] reasoning, a factual issue of willful misconduct would arise. The law does not impose such a burdensomeduty,let alone label such inaction as willful or wanton misconduct. While it can always be contended that a particular accident should have been anticipated,it is only in situations where a defendant’s conduct amounts to wantonness as opposed to a merefailure to perform a duty, that he [or she] will be held liable for willful misconduct[citation].” (Bains, supra, 56 Cal.App.3d at pp. 905-906; see also Perez v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 462, 471.) Thus, there was no evidence here to support the first element enunciated in Bains. Likewise, the evidence does not support a finding on the second element required for a willful misconduct claim. There must be a showingof“ ‘actual or constructive knowledge that injury is a probable, as opposedto a possible, result of the danger....”” (Bains, supra, 56 Cal.App.3d at p. 905.) As noted, there is no evidencehere that the risk | of injury from bumping—from anydirection in particular, including head-on bumping— was probable. Instead, the record reflects that the risk of minor injury from riding Rue Le Dodgewasa possible one. While approximately 600,000 guests in toto rode Rue Le 36 Dodge during the 2004 and 2005 operating seasons,only fifty-five injuries were reported; only one (Nalwa’s) was a fracture. Cedar Fair therefore had no notice or knowledgethat injuries, including fractures, were a probable consequence of bumps betweenriders of the bumpercar attraction. Finally, the evidence does not support a finding in favor of Nalwaasto the third element of willful misconduct, i.e., that Cedar Fair was guilty of a “ ‘consciousfailure to act to avoid the peril.’ [Citation.]” (Bains, supra, 56 Cal.App.3d at p. 905.) Because there was no evidence that serious injury was probable, as opposed to a mere possibility, there was no “peril,” and thus no conscious failure on Cedar Fair’s part to take action to avoid it. Cedar Fair’s operation of Rue Le Dodge in 2005 without a center island did not constitute willful misconduct. The operation of an amusement park and the rides within it involves somerisk to the park’s patrons. Rue Le Dodgeis no exception. Bumps between bumper cars—the wholepoint of the ride—naturally subject riders to sudden jarring and changesin direction. The fact that few, and—except for Nalwa’s—telatively minor injuries were reported from Rue Le Dodge overthe years is contrary to Nalwa’s contention that Cedar Fair operated a dangerousride with willful disregard for the likelihood ofprospective injuries to be suffered by its patrons. Further, there is no evidence that the potential for head-on bumps at Rue Le Dodge made injury to patrons a probable occurrence, or that Cedar Fair was on notice of the probability of injury. The installation of a center island to discourage head-on bumps may have reduced anyrisk of injury. But as discussed above(seept. I.B., ante), Cedar Fair had no legal duty to reduce risks inherent in the bumpercaractivity itself. Its decision to implement those safety features it employed, excluding a center island, did not present an issue of fact from whichit might be concluded that Cedar Fair intended to harm its patrons or acted in reckless disregard for their safety. 37 I agree with my colleagues that where sufficient facts are presented from whichit may be concluded that the defendant acted “ ‘ “with a positive intent actually to harm another or ... with a positive, active and absolute disregard of [the] consequences [of defendant’s actions]” ’ ” (Cope v. Davison, supra, 30 Cal.2dat p. 201), the inquiry “is a qualitative determination which should beleft to the trier of fact.” (Maj. opn.at p. 19.) Here, however, the facts presented were legally insufficient to support a claim of willful misconduct, and the court properly concluded that such claim was without merit. IV. Conclusion I would affirm the judgment entered on the order granting summary judgment. DUFFY,J. Nalwa v. Cedar Fair No. H034535 38 Trial Court: Trial Judge: Attorneys for Plaintiff and Appellant Smriti Nalwa: Attorneys for Defendant and Respondent Cedar Fair, LP: Nalwa v. Cedar Fair, LP H034535 39 Santa Clara County Superior Court Superior Court No.: CV089189 The Honorable James P. Kleinberg Manning & Marder Kass, Ellrod, Ramirez Patrick L. Hurley Manning & Kass, Ellrod, Ramirez, Trestor Jeffrey L. Lenkov Ardell Johnson IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA COp¥ SIXTH APPELLATE DISTRICT SMRITI NALWA, Plaintiff and Appellant, Vv. CEDARFAIR,LP, Defendant and Respondent. H034535 Santa Clara County No. CV089189 BY THE COURT*: Respondent's petition for rehearing is denied. Date: vb) QT 201% Court of Appeal - Sheth App. Dist. SUL 07 201 MICHAEL J. YEARLY, Clerk By DEPUTY PJ, *Rushing, P.J. and Premo,J. participated in this decision ( Duffy, J. would grantthe petition ) PROOF OF SERVICE BY OVERNIGHT DELIVERY (C.C.P. §1013(c)) I am employed in the County ofLos 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 July 20, 2011, I served the document described as PETITION FOR REVIEW BY RESPONDENTonthe interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: Ardell Johnson, Esq. CLERK, COURT OF APPEAL KORDA, JOHNSON & WALL Sixth Appellate District 111 N. Market Street, Suite 300 333 West Santa Clara Street, San Jose, CA 95113-1116 Suite 1060 San Jose, CA 95113 The Hon. James P. Kleinberg c/o CLERK Santa Clara County Superior Court 191 North First Street San Jose, CA 95113 I placed the above-referenced documentin envelopes designated by the express service carrier (Overnite Express) for overnight delivery, addressed as indicated above. I deposited those envelopes, with delivery fees providedfor, in a box regularly maintained by the express service carrier for overnight delivery. Executed on July 20, 2011 at Los Angeles, California. I declare under the penalty of perjury under the law of the State of California that the foregoingis true and correct. PROOFOF SERVICE BY OVERNIGHT DELIVERY (C.C.P. $1013(c)) Tam employed in the County of Los Angeles, State of California. I am 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 July 20, 2011, I served the document described as PETITION FOR REVIEW BYRESPONDENTonthe interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: Ardell Johnson, Esq. CLERK, COURT OF APPEAL KORDA, JOHNSON & WALL Sixth Appellate District 111 N. Market Street, Suite 300 333 West Santa Clara Street, San Jose, CA 95113-1116 Suite 1060 San Jose, CA 95113 The Hon. James P. Kleinberg c/o CLERK Santa Clara County Superior Court 191 North First Street San Jose, CA 95113 I placed the above-referenced document in envelopes designated by the express service carrier (Overnite Express) for overnight delivery, addressed as indicated above. I deposited those envelopes, with delivery fees providedfor, in a box regularly maintained by the express service carrier for overnight delivery. Executed on July 20, 2011 at Los Angeles, California. I declare under the penalty of perjury under the law ofthe State of California that the foregoingis true andcorrect. ) oaLeAKC?A JLLied, f