Issue By: Charles S. Redfield
Erika Grotheer v. Escape Adventures, Inc., et al.
Court of Appeal, Fourth Appellate District, 14 Cal.App.5th 1283 (August 31, 2017)
Plaintiff Erika Grotheer (hereafter “Plaintiff”) was injured when her hot air balloon ride ended in a crash landing. She sued the balloon tour company, the balloon pilot and the vineyard providing the balloon tour (hereafter “Defendants”) for her personal injuries. Defendants successfully filed a motion for summary judgment in the trial court, contending that defendants did not owe a duty of care to plaintiff due to the primary assumption of risk doctrine, among other grounds. The trial court granted the motion for summary judgment, finding that plaintiff’s negligence claim failed as a matter of law through the primary assumption of risk doctrine. Plaintiff appealed.
The Appellate Court affirmed the judgment. In its reported decision, the Appellate Court held that a hot air balloon operator could not be considered a common carrier and did not have a heightened duty to protect the safety of passengers. The Appellate Court held that the primary assumption of risk doctrine applied, and defendants did not owe a duty of care to plaintiff. The Appellate Court found that any lack of safety instructions by defendants was not a substantial factor in causing plaintiff’s injury.
Before deciding whether the primary assumption of risk doctrine applied, the Appellate Court analyzed whether the balloon operator should be considered a common carrier who would owe his passengers a heightened duty of care to ensure their safety during a balloon tour. The Appellate Court performed an extensive analysis of the trend broadening the common carrier definition and application. Yet, the Court held that a hot air balloon differed from other types of recreational passenger carriers who are held to a common carrier’s heightened duty of care, e.g., roller coasters, ski lifts and trains. The Appellate Court found that a hot air balloon could not be considered a common carrier due to the inability of a balloon pilot to maintain direct and precise control over the speed and direction of the balloon. A balloon pilot directly controls only the balloon’s altitude. While engineering design and operators’ skill can significantly reduce the danger of riding a roller coaster, a ski lift, an airplane or a train, these risks cannot be mitigated with a hot air balloon without altering the fundamental nature of a balloon.
The Appellate Court next determined that defendants did not owe a duty of care to plaintiff by relying upon the primary assumption of risk doctrine. The primary assumption of risk doctrine is merely another way of saying that defendants do not owe a duty of care to a plaintiff as a result of the risks inherent in a given sport or activity. Some activities are inherently dangerous, such that imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. The primary assumption of risk doctrine has been developed to avoid such a chilling effect. If the primary assumption of risk doctrine were to be applied to hot air ballooning, defendants would not be obligated to protect its customers from the inherent risk of the activity.
Plaintiff was injured when the hot air balloon pilot could not control the speed of the descent, which caused the basket containing passengers to crash and bounce. This crash landing caused the passengers to be tossed about the basket which injured plaintiff. The Appellate Court found that a balloon’s limited steerability created a risk of crash landings, which could not be mitigated except by fundamentally altering the free-floating nature of a balloon ride. Therefore, the Appellate Court found that the primary assumption of risk doctrine applied to bar plaintiff’s claim against defendants.
Plaintiff attempted to avoid the bar of the primary assumption of risk doctrine by claiming that the balloon pilot was grossly negligent, thereby increasing the inherent risk of a crash landing. If the balloon pilot is considered grossly negligent, the primary assumption of risk doctrine would not apply. The Appellate Court found that the pilot was not grossly negligent because his actions did not constitute a want of even scant care or an extreme departure from the ordinary standard of conduct.
Another exception to the bar of the primary assumption of risk doctrine is when the defendants fail to comply with their duty to take reasonable steps to minimize the inherent risks in the inherently risky activity, if providing the reasonable steps to minimize the risks would not fundamentally alter the activity. Plaintiff complained that defendants failed to properly instruct passengers on safe landing procedures, which would have minimized the risk of passenger injury in the event of a rough landing. Plaintiff submitted evidence in opposition to defendants’ motion for summary judgment that defendants failed to provide any instructions concerning landing procedures. The Appellate Court held that any lack of safety instructions was not a substantial factor in causing plaintiff’s injury. The witnesses’ accounts of the landing indicated that this was a forceful and violent crash landing, which caused the passengers to be thrown about the basket. Plaintiff failed to show that any instructions concerning proper body positioning during landing would have created a different result.
This case provides a thorough analysis of when a defendant should not be considered a common carrier and when a lack of reasonable steps to minimize inherent risks in an activity will not provide an exception to the bar provided by the primary assumption of risk doctrine. This case is valuable for defendants claiming that they are not common carriers and/or that even if there was a lack of reasonable steps to minimize inherent risks, the primary assumption of risk doctrine still applies.
For a copy of the complete decision, see: Grotheer v. Escape Adventures