As many are aware, the California Supreme Court, in a plurality decision
in 1992, adopted the Primary Assumption of Risk Doctrine in the case of Knight
v. Jewett (1992) 3 Cal.4th 296 (a case involving a touch football game). By way of
the California Supreme Court's holding in Knight v. Jewett, the California
Supreme Court ruled that recreational activity operators, instructors and other
participants in a recreational activity owe other participants only the duty to act
so as not to increase the risk of injury over that inherent in the activity.
However, following the California Supreme Court's decision in Knight v. Jewett,
there has been a split in Court of Appeal decisions as to the application of the
Primary Assumption of Risk Doctrine.
In that regard, two Courts of Appeal applied the Primary Assumption of
Risk Doctrine to recreational activities not considered sports. [Amezcua v. Los
Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217 (organized,
noncompetitive group motorcycle ride) and Beninati v. Black Rock City, LLC
(2009) 175 Cal.App.4th 650, 661 (participation in fire ritual at the 2005 "Burning
Man" festival)]. However, in contrast, a few courts have ruled that, if the activity
in question is unrelated to sports activity, the Primary Assumption of Risk
Doctrine will not apply. [Kindrich v. Long Beach Yacht Club (2008) 167
Cal.App.4th 1252, 1258 (passenger who broke leg jumping from boat to dock was
not engaged in sports activity), Shannon v. Rhodes (2001) 92 Cal.App.4th 792,
800 (boat ride on lake not a "sport"), and Bush v. Parents Without Partners (1993)
17 Cal.App.4th 322, 328 (recreational dancing not a sport within the ambit of the
Knight v. Jewett holding).
However, the question of the applicability of the Primary Assumption of
Risk Doctrine has now been decided, at least in part. That is a result of the
California Supreme Court's decision in Nalwa v. Cedar Fair, LP (2012) 55 Cal.4th
1148 ("Nalwa Case"). The facts of the Nalwa Case are common enough. In that
case, Plaintiff Dr. Smriti Nalwa ("Nalwa") took her two children, a nine year old
son and six year old daughter, to the Great American amusement park, owned
and operated by Defendant Cedar Fair, LP ("Cedar Fair"), in Santa Clara,