Jim Porter: Getting bumped on a bumper car ride. Duh.
Special to the Sun
TRUCKEE/TAHOE and#8212; Smriti Nalwa, an OB/GYN physician and surgeon, took her 10 year-old son and seven-year old daughter for a ride on the Rue Le Dodge bumper car ride at Great America in Santa Clara. Before going on the ride she read all of the posted warnings about the possibility of bumping and sudden movement and direction changes.
During the ride Nalwaand#8217;s bumper car was hit head-on, then immediately hit from behind. Feeling and#8220;pushed aroundand#8221; and needing to and#8220;brace herself,and#8221; she put her hand on the dash and fractured her wrist. Nawla is a lawyerand#8217;s dream plaintiff: a surgeon with a broken wrist.
Bumper car suit
I will give you one guess what Nalwa did. Right. She sued Great America. The trial court determined that Nalwa and#8220;assumed the riskand#8221; of injuries from bumping, a risk inherent in riding bumper cars. Nalwa appealed.
Bumper car injuries
The Court of Appeal looked at the record of injuries on the Rue Le Dodge bumper car ride. Of the 600,000 riders during the 2004 and 2005 operating seasons, only 55 injuries were reported, with only one fracture and#8212; Nalwa. Evidence also turned up, however, that Great America had converted its bumper car rides in four other amusement parks so the cars were driven in only one direction, minimizing the likelihood of head-on collisions.
Days of youth
I donand#8217;t mind reminiscing that when I was younger (some years ago) the only bump worth delivering in a bumper car was head-on with lots of body movement to really jolt your friends. Nothing was better than three brothers and#8220;head-oningand#8221; each other except maybe and#8220;creamingand#8221; mom and dad. But that was when a bumper car was a bumper car. Not the slow speed, one-way, mammby pammby bumper cars of today, where you have a padded interior, an extra protective bumper and a seatbelt, and I predict soon to come, wrist guards and helmets. And your own ride-along attorney.
The Court of Appeal quoted auspicious Judge Cardoza who showed his knack for denying recovery for a rider who broke a knee cap on an amusement park ride called and#8220;The Flopperand#8221;: and#8220;Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary and#8230; The antics of the clown are 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 (on and#8220;The Flopperand#8221;) was not seeking a retreat for meditation and#8230; The timorous may stay at home.and#8221;
I agree with Cardoza. I only wish I could write like that.
The Court of Appeal ultimately determined that the assumption of the risk doctrine and#8212; in which the injured party in a sporting or other activity known to have the possibility of injury assumes the risks inherent in the sport and may not recover damages unless the other party, like the proprietor of the park in this case, increased the risk of injury and#8212; did not apply.
The Court wrote, and#8220;The very reason we go on amusement park rides is because we and#8220;seek the illusion of danger while being assured of a rideand#8217;s actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt.and#8221; Assumption of the risk does not apply in amusement parks.
The Court of Appeal overturned the trial court and allowed Nalwa to take her case to a jury where she will have to prove her case to recover from Great America. The Court seemed to go out of its way to note that another amusement operator, Walt Disney Parks, grosses $11 billion a year. I.e., amusement park operators can afford to pay for these verdicts.
The Court ruled that operators of commercial premises open to the public for profit owe a duty to minimize risks to their patrons, quoting Voltaire, and#8220;With great power comes responsibility,and#8221; and Teddy Roosevelt, and#8220;I believe in power; but I believe responsibility should go with power.and#8221; The Court finally wrote, and#8220;Although bumping is part of the experience of a bumper car ride, head-on bumping is not.and#8221; I beg to disagree with the two justices that ruled for Nalwa.
Dissenting Justice Duffy wrote a 15-page opinion seemingly citing every assumption of the risk case rendered in the past few decades, including the Beninati case, finding assumption of the risk for the Burning Man participant who walked into the flames and and#8230; drum roll and#8230; burned himself.
Justice Duffy noted that in her deposition Nalwa agreed that the fun in the ride was the bumping, and#8220;you pretty much canand#8217;t have a bumper car unless you have bumps.and#8221;
Duffy pointed out that Nalwa was injured when bracing herself after being bumped from behind which perhaps had nothing to do with the head-on collision.
Two justices for Nalwa, one for Great America. You wonand#8217;t be seeing any more one-way bumper car rides in this country, which may or may not be a good thing. And you wonand#8217;t be seeing me in any bumper car. Iand#8217;d rather remember them as they used to be. With bumps.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firmand#8217;s website http://www.portersimon.com.