In a recent California case, Grotheer v. Escape Adventures, Cal. Ct. App. 4D, Case no. E0634449, the court found that those engaging in high-risk activities are responsible for their own safety and cannot hold an operator liable unless gross negligence is proven.

Grotheer, a 78-year-old German woman, who participated in a Hot Air Balloon ride her son had organized, signed a liability waiver prior to embarking on her trip, despite the fact that she was unable to understand English.

When the Balloon crashed into a fence upon landing, Grotheer was thrust to the bottom of the basket, breaking her leg. She sued the operator, the balloon company and the vineyard that had organized the flight, alleging negligence. The defendants requested a summary judgment stating that risk is always implied in a Hot Air balloon flight.

In the end, the court decided that hot air balloon operators are not common carriers under the law since they do not transport passengers from one location to another. The definition of carriers includes ski lifts and roller coasters, but not hot air balloons, given that they are not steered by the pilot. Only their altitude can be controlled by increasing or decreasing heat. Therefore, neither the balloon company nor the operator was responsible for providing Grotheer with a heightened duty of care.

In California Supreme Court’s 2005 decision in Gomez v. Superior Court, Judge Justice Carlos Moreno stated that “Riders of roller coasters and other ‘thrill’ rides seek the illusion of danger while being assured of their actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt.”

Yet in this case, Judge Marsha G. Slough wrote that “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.”

She added that “[W]e find a hot air balloon differs from those recreational vehicles held to a common carrier’s heightened duty of care. Unlike operators of roller coasters, ski lifts, airplanes, and trains, balloon pilots do not maintain direct and precise control over the speed and direction of the balloon. A pilot directly controls only the balloon’s altitude, by monitoring the amount of heat added to the balloon’s envelope. A pilot has no direct control over the balloon’s latitude, which is determined by the wind’s speed and direction. A balloon’s lack of power and steering poses risks of mid-air collisions and crash landings, making ballooning a risky activity.”

The court also found that riding in a hot air balloon is inherently a risky activity since balloons are subject to wind currents, which can result in collisions or crashes. Therefore, passengers assume the risk of injury when they sign up for a balloon ride.

The court decided that even though the operator may have exhibited ordinary negligence, he did not exhibit gross negligence since he did not willingly contribute to the inherent risk of the balloon ride.

Slough concluded that “…Grotheer’s claim of pilot error falls under the primary assumption of risk doctrine because the claim goes to the core of what makes balloon landings inherently risky—the challenge of adjusting the balloon’s vertical movement to compensate for the unexpected changes in horizontal movement. As a result, Escape had no legal duty to protect Grotheer from crash landings caused by its pilot’s failure to safely manage the balloon’s descent.”

Adding that the vineyard “incorrectly applied the primary assumption of risk doctrine to absolve Escape of a duty to provide safe landing procedures,” but that “any failure to instruct on Escape’s part was not a proximate cause of Grotheer’s injury.”

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