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.