Day on Torts

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.)"

In Goodyear Dunlap Tires Operations, S.A. v. Brown, No. 1076, 564 U.S. ____  (2011) the United States Supreme Court was confronted with the following question:  "Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on claims unrelated to any activity of the subsidiaries in the forum State?"   The answer:  "No."

Here are the facts as reported by the Court:

A bus accident outside Paris that took the lives of two 13-year-old boys from North Carolina gave rise to the litigation we here consider.  Attributing the accident to a defective tire manufactured in Turkey at  the plant of a foreign subsidiary of The Goodyear Tire and Rubber Company (Goodyear USA), the boys’  parents commenced an  action for damages in a North Carolina state court;  they named as defendants Goodyear USA, an Ohio corporation, and three of its subsidiaries, organized and operating,  respectively, in Turkey, France, and Luxembourg.  Goodyear USA, which had plants in North Carolina and regularly engaged in commercial activity there, did not contest the North Carolina court’s jurisdiction over  it; Goodyear USA’s foreign subsidiaries, however, maintained that North Carolina lacked adjudicatory authority over them.