When people in California decide to participate in inherently risky activities, they assume the risk that they will be injured unless the operators of the activities engaged in conduct that was grossly negligent. In Grotheer v. Escape Adventures, Cal. Ct. App. 4D, Case no. E0634449, the court examined the concept in the context of a hot-air balloon ride in which a female passenger was injured after signing an express waiver of liability.

Issue: Is a balloon company a common carrier, and was the express waiver of liability sufficient to preclude a finding of liability?

Grotheer, a 78-year-old German woman, was a passenger on a hot-air balloon ride that had been purchased for her by her son while she was visiting California. Grotheer could not speak English. Prior to the ride, her son explained that she could not speak or understand English to the balloon operator but was apparently waved off. Grotheer signed an express waiver of liability prior to the balloon’s takeoff. The trip was apparently uneventful until the landing. The balloon descended too rapidly and crashed through a fence before crashing forcefully to the ground. The force of the landing caused the balloon’s basket to skip across the ground before it came to rest on its side. Grotheer landed at the bottom, and her leg was broken in the crash-landing. She filed a lawsuit against the balloon’s operator, the balloon company and the vineyard from where the balloon launched, alleging negligence. The defendants filed a motion for summary judgment, arguing that Grotheer assumed the risk when she chose to go on the hot-air balloon ride, that the company was not negligent or that if it was, it was not grossly negligent to the extent that the assumption of the risk standard would not apply.

Rules: 1) People who participate in inherently dangerous activities assume the risks of injury. 2) The assumption of the risk does not apply if the activity involves a common carrier. 3) Gross negligence can overcome an express waiver of liability.

In California, people who engage in sports or activities that are inherently dangerous will normally be deemed to have assumed the risk of being injured from their participation. Because of this assumption of the risk, recovering damages may be barred. In cases involving common carriers, the carriers are deemed to owe higher duties of care to their passengers. The assumption of the risk analysis does not apply to common carriers. When there is an express waiver in place, California normally requires a showing that gross negligence occurred in order to overcome the waiver of liability.

Analysis

In Grotheer’s case, the court found that hot-air balloon operators are not common carriers under the law. Common carriers are transport companies that are responsible for transporting passengers for hire from one location to another. While this has been expanded to include ski lifts and roller coasters, the court found that it did not apply to hot-air balloons. It distinguished hot-air balloons because the operators are unable to steer them, meaning that they do not control the direction of travel like operators of ski lifts or designers of roller coasters do. Instead, hot-air balloon operators only control the elevation of balloons by applying heat. This meant that the balloon company and its operator did not owe Grotheer a heightened duty of care.

After finding that hot-air balloons are not common carriers, the court then examined whether or not Grotheer assumed the risk of injury by going on the hot-air balloon ride. It found that riding in hot-air balloons is an inherently dangerous activity because the balloons are subject to wind currents, can have mid-air and ground collisions and can land anywhere with little ability to control their movements. People assume the risk of injury when they choose to participate in activities that are so dangerous that the dangers cannot be avoided without causing fundamental changes to the activity itself.

The court also found that Grotheer did not meet her burden to show that negligence sufficient to overcome the express waiver of liability happened. Because the pilot’s alleged error in not applying enough heat was ordinary negligence, it was not enough to overcome Grotheer’s assumption of the risk of participating in the hot-air balloon ride. In order to overcome the doctrine of the primary assumption of the risk in California, the negligence must have been gross rather than ordinary. In order to demonstrate gross negligence, the operator’s actions must have been so negligent that they increased the inherent dangerousness of the activity. The court reasoned that this would require a showing that the balloon operator’s actions were so outrageous that they were beyond the limits of reason. Merely failing to apply enough heat to the balloon envelope was not enough to overcome the application of the assumption of the risk analysis.

The court did not review whether or not the company was vicariously liable since it found that Grotheer failed to meet her burden to show negligence. It also did not rule on whether or not the express waiver of liability was sufficient. Grotheer had argued that she didn’t understand it because she was a non-English speaker.

Conclusion

The court affirmed the Superior Court’s findings. It ruled against the plaintiff and affirmed the granting of the motion for summary judgment and the dismissal of the claim.

When people choose to participate in dangerous activities and are injured, they may be unable to recover damages in subsequent lawsuits. In order to overcome the assumption of the risk presumption, they must be able to show that the operators’ activities were grossly negligent. Gross negligence will also be required to overcome an express waiver of liability in California.