Law Review: Hot air balloon crashes in vineyard

Jim Porter
Law Review

Seventy-eight year old Erika Grotheer, a German citizen visiting California, signed up for a hot air balloon tour with a company called Escape Adventures. The eight passengers were to land in a nearby vineyard owned by Wilson Creek in Temecula, Calif.

THE CRASH

The first part of the ride was spectacular and uneventful. The landing less so.

The balloon was being pushed "at a good clip by the wind" and was "going sideways" as one rider later described, when it crashed into a three-rail fence, hit the ground with a "hard bump and a bounce" and dragged down wind 30 or 40 yards, coming to rest "on its side, not its bottom."

Erika Grotheer suffered a broken leg and sued Escape, its operator Gallagher and Wilson Creek. Who sues over a broken leg, especially after signing a release?

CAUSE OF THE CRASH

Operator Gallagher claimed the balloon's descent was hastened by a "false lift," which he described as a condition where the wind travels faster over the top of the balloon than the rest of the balloon. He tried adding heat to the balloon's envelope, but it was too late.

Erika Grotheer's balloon pilot expert disagreed testifying that the balloon had simply experienced a wind sheer, and Gallagher negligently failed to add sufficient heat before the balloon crashed.

ARE HOT AIR BALLOONS 'COMMON CARRIERS?'

A common carrier is "a person or company that transports goods or passengers on regular routes at set rates." Like planes and trains. Common carriers "must use the utmost care and diligence for passengers' safe carriage," a higher duty of care to their customers. Common carriers status emerged in California in the mid-1900s involving stagecoaches, later expanded by the courts to scenic airplane and railway tours, ski lifts and rollercoasters — plus planes and trains, of course.

Faithful readers recall our column where the Supreme Court declined to extend common carrier "utmost care" status to bumper cars, a court opinion I wrote of approvingly.

As the court concluded in our hot air balloon case, operators of rollercoasters, ski lifts, airplanes, and trains can take steps to make their passengers safer, while with hot air ballooning safety measures and pilot training can only go so far in mitigating landings because of a hot air balloon's limited steerability.

Escape was found not to be a common carrier held to a higher duty to protect its passengers.

ASSUMPTION OF RISK

You faithful readers, same group as above, know that the "Law Review" has discussed the assumption of the risk doctrine where given the inherent risks associated with certain sports and activities, the participants "assume the risk" of injury and have limited rights to sue.

These cases include, water skiing, flag football, man walking into the Burning Man effigy, white water rafting, snow skiing and boarding, golf, errant foul balls at a baseball game, auto racing, motocross, cross country horseback riding, and on and on.

I always liked this quote: "The primary assumption of risk doctrine helps ensure that the threat of litigation and liability does not cause [certain] recreational activities to be abandoned or fundamentally altered in an effort to eliminate or minimize inherent risks of injury."

INJURED BALLOON PASSENGERS

The Fourth District Court of Appeal ruled against our broken leg passenger concluding that hot air balloons are not common carriers, a huge win for those companies; and Erika Grotheer had assumed the risk of her injuries when she signed up for a hot air balloon ride — even though the operator was negligent.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, and Reno. His practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at http://www.portersimon.com.

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