NALWA V. CEDAR FAIR 4
Nalwav. Cedar Fair
Nalwav. Cedar Fair, 55 Cal. 4Th 1148
Theplaintiff, Dr. Smriti Nalwa is suing the owner of the amusement parkfor negligence, in failing to configure the bumper car ride thatcould have otherwise prevented the injury on her wrist. The defensethat may come up in this case may be based on the assumption of riskdoctrine (FinLaw, 2011). This particular defense holds groundsbecause operators or participants of certain activities are not heldresponsible for protection of other participants in risks inherent intheir particular activities. In this regard, there is a need ofholding the defense limited care or responsibility that is includedin the primary assumption of this particular case, under the riskdoctrine (FindLaw, 2011). This duty of care therefore does notunreasonably end up increasing the risks of such injuries above andover the existing inherent low speed collisions as seen in thisbumper car ride.
Itis important to note that further in defense, primary assumption onthe risk doctrine barred completely the recovery for negligence. Thisis because the plaintiff’s supposedly injury came as a result ofthe action of being bumped. This is an inherent risk that exists as aresult of engaging in that particular activity of riding bumpervehicles as seen from the plaintiff. In this regard, the heightenedduty that involves care to the common carriers did not apply in thedefense of this particular case (FindLaw, 2011). This is for theprimary reason that the defendant lacked any control over theplaintiff’s steering wheel as well as the orientation of the bumpercar used. In addition, the defendant was not seen acting with anyrecklessness or knowledge that could result to an injury.
Theplaintiff offered potential product liability issues as implicated inthis particular case that included some elements that constitutedproduct liabilities or claims. In this regard, the plaintiff pleadedthe causes of actions in regard to common carrier liabilities, strictproduct liability under two counts, willful misconduct of theamusement owner as well as negligence (FindLaw, 2011).
However,the court held that the primary assumption under the risk doctrinesis usually not limited to any activity that is regarded to be sports.Therefore the application of primary assumption in this particularamusement park activity fails to violate any public policy that isdiscernable. According to FindLaw (2011), this essentially means thatall risks of injuries that results from any kind of collision thatincludes this scenario’s head on bumper is seen to be inherent insuch activities such as riding bumper cars.
Thismeans that the defense should eventually be successful in theirapplication as he has been able to demonstrate to the court that acause of action carries no merit. This is because the plaintiffwithdrew product liabilities that were under two counts. This actiondemonstrated that the plaintiff failed to establish the cause ofaction to the court (FindLaw, 2011). Therefore, eventually the burdenof demonstrating the cause of action shifts to the plaintiff. Thismeans that the he will have the burden of showing that more than onematerial fact exists in regard to the cause of action (FindLaw,2011).
Eventuallythe defense should be successful as the plaintiff’s evidence thatshe presented to the court failed to establish her existing dutyelement cause of action that demonstrates the defense’s negligence.It is important to understand that legally duty is considered to be aquestion of law and is therefore amenable in the resolutions of thesummary judgment of the court.
FindLaw.(June10, 2011). SMRITINALWA v. CEDAR FAIR LP.Retrieved from,<http://caselaw.findlaw.com/ca-court-of-appeal/1570495.html>Date Accessed. June 7, 2016.