Metropolitan News-Enterprise


Thursday, May 28, 2020


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Operator of a Waterslide Is a Common Carrier, Owing Heightened Duty of Care, C.A. Holds


By a MetNews Staff Writer


The operator of a waterslide is a common carrier, which owes its patrons a heightened duty of care, the Sixth District Court of Appeal held yesterday.

Notwithstanding enhanced duty, Justice Adrienne Grover wrote, it does not amount to strict liability and, in an action for negligence brought by Sean Sharufa against Festival Fun Parks, LLC based on injuries he sustained at Raging Waters in San Jose, summary judgment was properly granted to the defendant.

Grover’s opinion reverses summary judgment, however, as it applied to a cause of action for products liability, saying the record was unclear as to whether patrons at Raging Waters were accorded use of a product or received a service.

Common carriers are defined by Civil Code §2168 which provides:

“Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.”

Unanticipated Application

Grover remarked:

“It is safe to say that the statute’s enacting Legislature in 1872 did not have recreational waterslides in mind. The definition has since been broadly construed, however, to include not only traditional modes of transport like buses, planes, and cars…, but also elevators, escalators, and ski resort chair lifts….The policy reason for holding common carriers to a higher standard of care is that one who profits from transporting the public should also bear responsibility for making the transportation safe.”

She noted that in 2005, in Gomez v. Superior Court, the California Supreme Court held that “the operator of a roller coaster or similar amusement park ride” is a common carrier, declaring:

“We acknowledge that riding a waterslide is more participatory than the purely passive activity of riding a roller coaster––on a waterslide one has at least some freedom of movement, even if no significant control over the speed and ultimate direction of travel. But we do not see that as enough to make a waterslide appreciably different from a roller coaster for purposes of the common carrier analysis. In the end, the rider relies on the operator of the attraction for safe passage. A rider having slight control over the transportation does not eliminate the common carrier relationship….A waterslide is an amusement ride similar to a roller coaster in that the rider surrenders control while being transported from one place to another. It follows that a waterslide operator owes riders the heightened duty of a common carrier.”

Assumption of Risk

The jurist said the defense of primary assumption of risk, invoked by the defendant was necessarily inapplicable.

“To conclude otherwise would be a logical impossibility: one cannot simultaneously owe both a higher duty (as a common carrier) and a lower duty (based on primary assumption of risk),” she remarked.

Nonetheless, Grover continued, adjudication of the negligence cause of action in favor of the defendant was appropriate, explaining that “a reasonable trier of fact could not find that Festival Fun Parks’ conduct departed from any standard of care potentially applicable to Sharufa’s general negligence claim.”

With respect to the cause of action for products liability, she wrote that “the record is insufficient to show the park provided primarily a service rather than use of a product,” requiring a remand to the Santa Clara Superior Court.

The case is Sharufa v. Festival Fun Parks, LLC, 2020 S.O.S. 2352.


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