Last week the California Court of Appeal decided a case involving injuries suffered in a hot air balloon crash. It was a case of first impression, meaning the Court never decided this issue in the past.
Erika Grotheer was visiting California from Germany. The 78 year old tourist did not speak English. Her son bought her tickets to participate in a hot air balloon ride offered by Escape Adventures in Riverside County.
The ride was uneventful until landing. That’s when the balloon crashed violently into a fence, was thrust onto its side, then dragged 40 yards, all while the occupants were thrashed around. Ms. Grotheer suffered a fractured leg in the crash.
Ms. Grotheer sued the hot air balloon company, the pilot, and the property owner who leased the landing site to the hot air balloon company. The lawsuit was dismissed on a motion for summary judgment because the Court ruled that participants who ride hot air balloons assume the risk of injuries associated with this inherently dangerous activity.
Ms. Grotheer, in turn, tried to overcome this argument by arguing that a hot air balloon is a “common carrier.” Common carriers owe heightened duties of care to participants, as discussed here. Usually, common carrier rules apply to busses, taxis, and any other transportation that is paid for and open to the public. Common carriers are not absolved of liability even when a participant engages in and assumes the risks of the dangerous activity.
The Court rejected Ms. Grotheer’s argument. “The key inquiry in the common carrier analysis is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury.” (Grotheer v. Escape Advertures, Inc. at 14.) For example, the Court in the past found that a rollercoaster ride is a common carrier because riders are under the control of the ride operator, engineers who designed the ride, and the architects who built it.
On the other hand, in the Grotheer case, experts testified that a hot air balloon is not really piloted like other aircraft. There is no steering involved, but rather the operator adds heat to the balloon envelope to cause the balloon to descend. Other than this, the balloon is at the mercy of the wind, and no human skill can alter this equation.
The case is interesting because it is the first time a California court has analyzed common carrier rules as they might apply to hot air balloon rides. Unfortunately for Ms. Grotheer, her case was barred under California law and the assumption of the risk doctrine.
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