Assumption of the Risk Cannot Be Used in Defense of an Amusement Park Case

The California Court of Appeals has ruled that an amusement park operator cannot assert primary assumption of risk as a complete defense to a case arsing from an injury at the park.

In Nalwar v. Cedar Fair, L.P.   H03453  (Cal. Ct. App. 6th Dist. 6/10/11), held "that primary assumption of risk is inapplicable to regulated amusement parks, that it does not apply to cases where the illusion of risk (as opposed to actual risk) is marketed and finally that in this case issues of fact predominate."

As the Court explained, "the very reason we go on amusement park rides is because we ―seek the illusion of danger while being assured of [a ride‘s] actual safety. The rider expects to be surprised and perhaps even 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.)"

Read both the majority and the dissenting opinions for a fascinating review of the law.