Bumper Cars and Primary Assumption of the Risk: Nalwa v. Cedar Fair, LP (Part II of II)
This is the second of two posts discussing a case that will be argued before the California Supreme Court next month, Nalwa v. Cedar Fair, LP. The Nalwa case presents the issue of whether the doctrine of primary implied assumption of the risk (PIAoR) applies to shield the operator of a bumper-car ride from liability for accidents associated with head-on “bumps.” In this post, I’ll describe the legal backdrop for the PIAoR issue before the Nalwa court, and then discuss how the court might perceive the case.
1. Assumption of the Risk Hits a Fork in the Road
All current and former Torts students know about the hoary doctrine of assumption of the risk; members of the lay public also intuit its basic contours. In the past, the basic notion behind assumption of the risk was that, notwithstanding the existence of a duty of care owed by a defendant to the plaintiff, if the plaintiff voluntarily confronted a known risk created by the defendant, that plaintiff could not complain later on, when that risk manifested itself in a rather unpleasant way. Volenti non fit injuria, as Cardozo wrote in the most famous of all assumption of the risk cases, Murphy v. Steeplechase Amusement Co.
The doctrine was moribund in California when, in 1992, when the California Supreme Court breathed new life into it—albeit in a somewhat different form than it previously had taken.
That year, the court decided Knight v. Jewett. The plaintiff in Knight received an injury during a touch-football game gone awry. (To help you visualize the situation, recall this scene from The Wedding Crashers.) She sued for negligence, claiming that the defendant had played too rough. In finding that the defendant owed the plaintiff no duty to protect her from risks inherent in the game, of which somewhat overzealous play was one, the Knight court explained that California’s recent (1975) substitution of comparative fault for contributory negligence had bifurcated the doctrine of assumption of the risk, as it formerly had existed. Henceforth, courts would distinguish between situations involving “secondary” assumption of the risk—more or less, “old” assumption of the risk, the existence of which would be folded into the comparative fault calculus—and “primary” assumption of the risk, which would function as a no-duty rule.
Primary assumption of the risk can take “express” (i.e., express liability waivers) or “implied” form; the Knight court saw the case before it as involving primary implied assumption of the risk. Where PIAoR applies, participants in an activity are presumed—regardless of their actual subjective knowledge—to have assumed the “inherent risks” of a sport or activity, thus barring any claim for negligence that sounds in these risks.
2. When Should Primary Assumption of the Risk Apply? One Model
Fair enough; but what sorts of situations call for application of the PIAoR no-duty rule? Here, the Knight court, speaking alternately and ambiguously in the language of “sports,” “sporting activity,” and “activities,” suggested that the required analysis looks to the nature of the activity, the parties’ relationship to the activity, and to two policy considerations: whether “vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct,” and whether “imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging.” The court stressed that even when primary assumption of the risk applies, liability still may adhere when the plaintiff’s harm results from the defendant’s creation of a risk not “inherent” in the sport, e.g., a co-participant’s conduct that “intentionally injures another player or [amounts to] reckless conduct that is totally outside the range of the ordinary activity involved in the sport.”
Since then, the California Supreme Court has applied PIAoR to bar or limit claims involving several other sports, including skiing, golf, and baseball. Though there’s been some grumbling about this accretion of PAIoR, I think its expansion in this direction makes sense, at least if you buy into what I believe to be the basic premises of the Knight decision. (Supplemental disclosure: I worked as a staff attorney for a justice on the California Supreme Court between 2004 and 2006. To the best of my recollection, however, I didn’t work on any PIAoR cases.) At the heart of the matter, I think, lies a fairly generic concern: the threat of overdeterring socially useful conduct.
To flesh out the particular utility of PIAoR and the relatively broad no-duty zones that it creates, let’s conjure up a simple (and, I am certain, incomplete) model to better pin down the acuteness, in any particular context, of the generic threat of over-deterrence of useful conduct due to the imposition of tort liability for mere negligence:
First, presumably we care more about overdeterring activities believed to have some social worth, as opposed to activities we regard as relatively worthless, or positively harmful.
Second, we likewise worry more about chilling optional yet salubrious activities, as opposed to essential acts; people will engage in the latter anyway, even with the attendant threat of tort liability. Of course, there can be a trade-off between these first two factors; we may worry more about the modest over-deterrence of extremely useful, somewhat essential conduct than we would about the extreme over-deterrence of only modestly useful, entirely optional conduct.
Third, we worry more about overdeterring activity as to which parties may appreciate the existence of legal liability, but have difficulty conforming with a particular standard of care because (1) there exists confusion or a lack of clarity regarding what that standard entails, either because such confusion in fact exists among decision-makers (judges and juries) or difficulties exist in accurately communicating these standards to the regulated parties; or (2) they simply cannot conform with even a known standard of care, at least without fundamentally compromising the activity. Somewhat similarly, to the extent that a characteristic of the potentially liable parties, activity, or likely rules will cause potential participants to exaggerate potential liability, that too will tend to result in over-deterrence.
Fourth, the gravity of our advance worries about overdeterrence may be indexed to our doubts regarding rule-makers’ and standard-setters’ institutional competence to accurately ascertain what “reasonable care” should entail in a particular context, i.e., fears that they might set the bar too high, or fundamentally alter the sport and therefore make it less attractive with clumsy standard-setting. In a related vein that’s not as closely tethered to over-deterrence, to the extent that judges harbor concerns about their decisions engaging in, or giving the appearance of, institutional overreaching, these concerns augur against interpreting common-law principles as requiring or encouraging the fundamental alteration of widespread, socially beneficial pastimes.
Fifth, if we want to affirmatively encourage an activity by creating a no-duty or a limited-duty rule, the contours of this immunity should be clear both in terms of its breadth (i.e., what sorts of “activities” [e.g., skiing, horseback riding, etc.] are covered by the rule) and its depth (within these activities, where does the boundary line lie between “inherent” and “non-inherent” risks).
If you map this model against most sports, you can see pretty quickly that they’re good candidates for the fairly broad no-duty or limited-duty rules generated by PIAoR, at least insofar as suits against participants are concerned. Sports are socially useful, for the most part; they’re optional; there are grave difficulties associated with settling upon and communicating rules of “reasonable care” to the very large numbers of participants; these participants may be either unable to conform with these rules, even if they’re clear and known—or unwilling to participate in the sport with the rules attached (or as modified by the taking of “reasonable” precautions); people may tend to exaggerate the liability associated with participation in a sport, if any such liability exists at all; information deficits and hindsight biases may limit the ability of judges and juries to identify and adopt “good” reasonable-care rules and recurring, specific standards that apply to sports, perhaps more so than in other contexts; and tethering a no-duty rule to a sport tends to make it pretty clear what sorts of activities are covered by the rule.
3. The Extension of Primary Implied Assumption of the Risk
Fair enough, again. But does PIAoR have to be limited to sports? Personally, I don’t think so, but I also think that the further you get from conduct that touches each base in the model above, the more problems start to appear with relying on PIAoR to reach a “no-duty” outcome, as opposed to invoking other, narrower, methods of limiting duties, or at least, of limiting liability.
In the years since Knight—and especially in the last couple of years–lower courts have started to apply PIAoR to activities where the risks and gravity of over-deterrence appear less acute, and as to which narrower no-liability or limited-liability approaches, if anything, may be more appropriate. Some of these cases involve what I will glibly describe as “open and obvious” dangers. (In tort law, “open and obvious” is a term of art that I’m not using 100 percent accurately here, but please bear with me.) One such case involved an injury associated with a “skateboard toss.” In applying PIAoR, the court described the risks associated with tossing a skateboard into a crowd as “self-evident.” Another, similar decision applying PIAoR involved someone who tripped into the hot embers of the titular effigy at the “Burning Man” festival. There, the court described the danger as “obvious and inherent” in the event.
More generally, surveying the caselaw, one gets the impression that at least some courts have been leaning on PIAoR of late to get rid of cases that (1) other jurisdictions might address under a more narrow “open and obvious” framework (as related above); (2) may, in the court’s opinion, involve a duty, but no negligence as a matter of law—but the court may be unwilling or unable to say as much; or (3) involve what I will call “1%-99%” situations, where maybe, possibly, perhaps the defendant was negligent, but the plaintiff’s negligence seems far more palpable and more responsible for his injury. The last category of case should go to a jury under this state’s “pure” comparative fault regime, but one might forgive judges for wondering if, in these cases, the game is worth the candle.
The problem with these decisions isn’t necessarily that they reached the wrong result. Instead, these decisions may be leveraging PIAoR to perform a task that it wasn’t intended to, and isn’t particularly well crafted to, perform. By design, PIAoR paints with a pretty broad brush, creating a generous “no-duty zone” for participants, event organizers, coaches, etc. It has to, if it’s to perform its assigned function. When courts apply the doctrine in situations that involve bland and generic “inherent risks” (like walking into fire) or oddball cases unlikely to recur very often (like getting a skateboard upside the head), they must do one of two things, each of which has its perils: if they characterize the “inherent risk” in an extremely fact-specific manner, the decision will fail to carve out a useful predictive “no-duty zone”; at the other extreme, if they define the risk and the risk-encountering conduct broadly, this approach threatens to swallow up areas of tort law where we want to find a duty, or at least, where it might be preferable to apply a more nuanced no-duty rule that accounts for, say, differences in plaintiffs’ age, experience, or knowledge of the particular risks involved.
Finally, I should point out that just last year, the California Supreme Court rejected a no-duty argument in a case that involved a peril that came somewhat close to “open and obvious” status. In Cabral v. Ralph’s Grocery Co., the decedent had fallen asleep and driven his pickup truck into the back of a tractor-trailer that had been parked on the shoulder of a highway for non-emergency reasons. The jury allocated 90 percent of the fault to the decedent and 10 percent to the driver of the tractor trailer. The Court of Appeal reversed, but the Supreme Court reinstated the lawsuit. The high court deployed the “classic” California test for determining the existence vel non of a duty—the so-called “Rowland factors”—and decided, unanimously, that as applied to the sort of case before it, these factors did not compel a departure from the “default” duty of reasonable care prescribed by statute.
4. Implications for Nalwa
With this rather exhaustive prologue, let me offer some brief thoughts specific to the Nalwa case. As I related in my prior post, I think the California Supreme Court may have granted review in Nalwa in order to better define the contours of PIAoR in the state. Specifically, it could see Nalwa as an opportunity to clarify when courts should engage in a PIAoR analysis (with its focus on “inherent” risks), and when courts should review the Rowland factors (of which the most important is the foreseeability of the general kind of harm involved in the case) to determine the existence, or not, of a duty. So long as California courts limited PIAoR to sporting contexts, there wasn’t much need to engage in this sort of line-drawing. But the extension of the doctrine to new areas means that PIAoR will, if it hasn’t already, encroach on territory formerly reserved for a Rowland analysis.
If I’m right, I think that the court’s mindset going into the case augurs well for the plaintiff, at least to the extent that she can place her case in the “open and obvious danger” bucket, instead of the “sport” bucket. I could be wrong here, of course. The court may see this case as an easy one-off. You go into a bumper car expecting to be bumped, after all; that might be that, as far as the court is concerned. I also am not endorsing all of the reasoning of the Court of Appeal below. And I am most definitely not saying that I think the plaintiff should win her case, or even get to a jury on the negligence issue; I express no opinion one way or the other on that subject. All I’m saying is that even though the amicus briefing that was filed (with tons of briefs filed in support of the defendant, and none for the plaintiff) suggests that the personal-injury bar seems to think that the plaintiff is a dead duck here, I doubt that the defense bar will get everything it wants out of this case, or even close to it.