Jim Porter: I hate it when I’m right
Special to the Sun
TRUCKEE, Calif. – I’m a modest sort of fellow – as you know, so I don’t want to make a big deal out of this, but I hate being right – again.
A year ago we wrote about a lawsuit against Great America in Santa Clara (home of Shanley Porter) where a doctor sued for getting bumped in a bumper car and breaking her wrist. The trial court sided with Great America, the Court of Appeal overturned and ruled for the surgeon.
I had a fit, arguing bumper cars are for bumping and the risk of getting bumped is obvious. The California Supreme Court must have read the column. Last month it agreed.
Bumper Car Ride
Smriti Nalwa rode along with her 10-year old son on the Rue Le Dodge bumper car ride at Great America. Feeling “pushed around” and needing to “brace herself,” she put her hand on the dash and ended up fracturing her wrist.
Of the 600,000 bumper car riders during the 2004 and 2005 operating seasons, only 55 injuries were reported, with only one fracture – Nalwa’s. On the other hand, Great America had converted its bumper car rides in four other amusement parks so the cars were driven in only one direction, thereby minimizing the likelihood of head-on collisions. The Court of Appeal wrote, “Although bumping is part of the experience of a bumper car ride, head-on bumping is not.”
What? I can tell you from personal experience at Santa Cruz, when I was a kid, head-on bumping was the sport. There was nothing better than nailing your brothers in a bumper car, except maybe jarring your mom and dad.
The California Supreme Court took up the appeal because the case became quite the conversation in the legal world. I guess everyone reads the Law Review. In fact, dozens of Amicus Curia – friend of the court – briefs were filed by all sorts of recreation-related interests.
Assumption of the Risk
As you regular readers of the Law Review know, we’ve featured several assumption of the risk cases. Basically stated, if you are injured in a sports activity, you generally have assumed the risks inherent in the sport, thus are unable to successfully sue.
The original cases involved sports injuries, like snow skiing, baseball and flag football, but several Court of Appeal cases broadened the assumption of risk doctrine to more general “recreational activities” not considered “sports” per se.
Remember the Burning Man case we wrote about where the court ruled against the Burning Man guy who walked into, then fell into the fire. Duh. Recall the Harley-Davidson “Pursuit for Kids Toy Drive” case. That rider lost his suit to the assumption of risk doctrine.
The question in our bumper car case came down to whether the assumption of risk doctrine should be expanded to include amusement park rides, i.e. big stakes.
In a recent case, a Court of Appeal alarmed the amusement industry by finding the assumption of risk doctrine did not apply to a rollercoaster ride because a rollercoaster is a “common carrier” and owes a duty of “upmost care” to riders. Injured party wins.
The recreation and amusement industry was afraid that case allowing recovery would it be extended to bumper car and other amusement rides and to recreational activities not purely “sports.” That’s what drew all the Amicus briefs.
Supreme Court Ruling
At the risk of boring you even more than you are, let me quote the Supreme Court: “The point of the bumper car is to bump. You pretty much can’t have a bumper car unless you have bumps. While not highly dangerous, such collisions resulting in sudden changes in speed and direction, do carry an inherent risk of minor injuries, and this risk cannot be eliminated without changing the basic character of the activity. Imposing liability would have the likely 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 minicars (bumper cars) could operate – that the fun of bumping would be eliminated, thereby discouraging patrons from riding. Indeed, who would want to ride a tapper car at an amusement park?”
A tapper car!
The Supreme Court found a bumper car is different from a rollercoaster ride in that the driver of the bumper car controls its movement, so it is not a common carrier like a bus, train or rollercoaster. Judgment for Great America.
I like this decision. If you don’t like bumps, don’t ride the bumper car. You don’t need a judge to tell you that.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He was the Governor’s appointee to the California 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 firm’s website http://www.portersimon.com.
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