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Metropolitan News-Enterprise Tuesday, September 5, 2017 Page 1 Hot Air Balloon Operator Isn’t a ‘Common Carrier’—C.A. Justice Slough Says a Conveyance—Including a Roller Coaster and Ski Lift—Meets the Definition If There Is An Expectation by Passengers of Safety and an Ability to Adjust the Equipment to Make It Safer By a MetNews Staff Writer A company that takes paying customers on hot-air balloon tours is not a common-carrier, owing passengers a heightened duty of care, the Fourth District Court of Appeal has held, in a case of first impression. The opinion, filed Thursday, affirms a summary judgment in favor of Escape Adventures, Inc.—which provides balloon tours over Riverside County’s Temecula Valley—and two other defendants. The action was brought by Erika Grotheer for personal injuries she suffered when a balloon in which she was a passenger made a crash landing, first hitting a fence, then the ground, skidding, and landing on its side. Justice Marsha G. Slough of Div. Two wrote the opinion, which explains why a company conducting balloon flights is not a common carrier, why the operator of a roller coaster is, and why an outfit selling rides on bumper cars isn’t. She said 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.” A salient factor, she went on to say, is whether the proprietors of the conveyance have the ability to take steps to render the journey safer. Development of Rule Slough reviewed the development of the rule in California, borrowed from English common law, that a common carrier has a heightened duty of care. That rule was relied upon by the plaintiff in contending that the doctrine of assumption of the risk did not apply. The jurist said the precept was first recognized in this state in the stage coach days. An 1859 California Supreme Court opinion says: “While it is true that the proprietors of a stage-coach do not warrant the safety of passengers in the same sense that they warrant the safe carriage of goods, yet they do warrant that safety so far as to covenant for the exercise of extraordinary diligence and care to insure it; and they do this as common carriers.” Slough recited: “Over time…, the concept expanded to include a wide array of recreational transport like scenic airplane and railway tours, ski lifts, and roller coasters….This expansion reflects the policy determination that a passenger’s purpose, be it recreation, thrill-seeking, or simply conveyance from point A to B, should not control whether the operator should bear a higher duty to protect the passenger.” Under Civil Code §2100, she noted, “[a] carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” Roller Coaster Injury She pointed to the California Supreme Court’s 2005 decision in Gomez v. Superior Court. There, the high court affirmed an award against the Walt Disney Company and others in favor of the estate of a woman who died after sustaining brain injuries from violent shaking on the Indiana Jones roller coaster ride at Disneyland. Writing for the 4-3 majority, then-Justice Carlos Moreno (since retired) said: “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.” Moreno quoted a Fifth U.S. Circuit Court of Appeals opinion as saying that amusement rides are “held out to the public to be safe.” Bumper Cars Slough noted that “[d]espite the consistent trend toward broadening the common carrier definition to include recreational vehicles, almost a decade after Gomez the California Supreme Court refused to apply the heightened duty of care to operators of bumper cars.” That ruling came in 2012 in Nalwa v. Cedar Fair, L.P. The distinction drawn there, by then-Justice Kathryn Werdegar (who retired Thursday), was that persons in bumper cars “exercise independent control over the steering and acceleration,” while those on roller coasters have “no control over the elements of thrill of the ride; the amusement park predetermines any ascents, drops, accelerations, decelerations, turns or twists of the ride.” Werdegar said the “rationale for holding the operator of a roller coaster to the duties of a common carrier for reward—that riders, having delivered themselves into the control of the operator, are owed the highest degree of care for their safety—simply does not apply to bumper car riders’ safety from the risks inherent in bumping.” Slough declared: “[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.” Rendering Equipment Safer The jurist added another factor: “Operators of roller coasters, ski lifts, airplanes, and trains can take steps to make their conveyances safer for passengers without significantly altering the transportation experience. For example, roller coaster operators can invest in state of the art construction materials and control devices or task engineers with designing a ride that provides optimal thrills without sacrificing passenger safety. With a balloon, on the other hand, safety measures and pilot training go only so far toward mitigating the risk of mid-air collisions and crash landings. The only way to truly eliminate those risks is by adding power and steering to the balloon, thereby rendering vestigial the very aspect of the aircraft that makes it unique and desirable to passengers. “Because no amount of pilot skill can completely counterbalance a hot air balloon’s limited steerability, ratcheting up the degree of care a tour company must exercise to keep its passengers safe would require significant changes to the aircraft and have a severe negative impact on the ballooning industry. For that reason, we conclude Escape is not a common carrier as a matter of law.” Existence of Duty Summary judgment was granted to the defendants by Riverside Superior Court Judge John W. Vineyard, who found no duty to the plaintiff. That went too far, Slough found. There is a duty, she said, but, under the primary assumption of risk doctrine, the duty does not extend to risks inherent in the activity. A crash landing of a balloon, she said, is an inherent risk, adding: “…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.” She agreed with Grotheer that a doctrine is not protected by the doctrine where there has been gross negligence, but said the evidence fell short of establishing that the pilot was guilty of that. Slough went on to say that 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.” The case is Grotheer v. Escape Adventures, Inc., 17 S.O.S. 4510. Copyright 2017, Metropolitan News Company