Recently you may have heard or read about the horrific wrongful death of 10 year old Caleb Schwab. Caleb was enjoying himself at a water park in Kansas when he was allowed by the park to ride a raft down a very steep and high water slide. The slide had a 168-foot drop with speeds of up to 70 MPH.
The slide was meant was meant for children or adults 14 years or older but such warning had been removed from the water park’s website. None of the employees of the water park appeared to have attempted to enforce the 14 years and up requirement as Caleb was allowed to ride the slide which eventually led to his tragic death.
If you are injured in a California waterpark, trying to bring an injury claim against a water park or amusement park may have its obstacles as many insurance companies defending such actions will assert defenses that a skilled accident attorney will have to understand and fight in order to obtain the compensation that an injured person or their loved one’s deserve under state’s injury laws.
Often times one will see warning signs prior to getting on a ride in an amusement or water park. The warning signs may include language about using a ride when a person is pregnant or don’t get on a ride while intoxicated or overly tired. Despite these warnings rides often malfunction causing serious or even catastrophic injuries. Normally, if an amusement park was negligent in the operation or maintenance of a ride, an experienced personal injury lawyer can effectively sue or make a claim for personal injuries. However, in the California Supreme Court case of Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, the high court in California found that in some situations an amusement park can assert the defense of primary assumption of the risk.
The doctrine of primary assumption of the risk basically prevents an injured party from successfully making a claim for injuries suffered while engaged in an inherently dangerous sporting activity. These activities may range from skiing to skydiving. However, in Nalwa, the Plaintiff was not engaged in a traditional inherently dangerous sporting activity but rather fractured her wrist while riding a bumper car at an amusement park. The California Supreme Court in Nalwa found that the primary assumption of the risk defense or doctrine is not limited to sporting activities but also applies to other recreational activities that involve an inherent risk of injury to participants who are engaging in the act voluntarily. The court explained that the non-sporting recreational activities that involve an inherent risk include those activities where the risk of injury cannot be eliminated by the Defendant without altering or changing the fundamental make-up or nature of the activity.
The court explained that suffering an injury such as a broken bone or even whiplash while riding a bumper car at an amusement park is a risk a person takes while engaging in an activity or ride where there is an inherent risk of danger of injury. As such, if someone suffers a serious neck or back injury on a ride in an amusement park, they may be prevented from bringing a claim unless they can show that a park owner or operated increased the risk of harm as discussed below.
Although an amusement or water park may try to avoid liability for their negligence claiming a patron assumed the risk of a dangerous activity, California law still protects citizens from owners or operators of such parks who increase the inherent risk in participating in a certain type of amusement park ride.
The seminal California appellate court in Van Dyke v. S.K.I. Ltd 67 Cal. App.4th 1310 (1998) held as to persons engaging in inherently dangerous activities or sports that although a Defendant who promotes or owns such locations where the activities are taking place “generally have no legal duty to eliminate (or protect a participant or injured party against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport”.
Similarly, an amusement or water park owner can be held responsible under California Law for injuries suffered by a patron as a result of the owner increasing the risk over and above inherent when engaging in the ride or activity at a water or amusement park.
Thus, because the owners and their employees increased the risk of harm to 10-year-old Caleb by allowing him to ride a water slide meant for persons 14 and up, Caleb’s family will have a viable wrongful death claim for the loss of love, companionship, support, society and related damages for the loss of their son.
If you or a loved one are injured in an accident whether it occurs in an amusement park, water park or even a car accident in California, you should consult with an experienced personal injury lawyer who can help you obtain the justice and compensation you deserve pursuant to California injury laws.
Glotzer & Leib, LLP
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Los Angeles, California 90015
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