There is a certain romanticism involved in a hot air balloon ride. The view from the air can be peaceful, thrilling and awe-inspiring. It can also be quite dangerous, especially if the operators are not properly trained or fail to abide by basic safety rules.
In these situations, when hot air balloon operators are facing litigation for personal injury or wrongful death, operators will often fall back on liability waivers. It’s almost guaranteed that participants will be required to sign one.
But these agreements are not bullet-proof, as the recent case of Roberts v. T.H.E. Insurance reveals. Neither is it a safe argument that operators offering free hot air balloon rides to the public for charity are somehow immune from liability.
In this case, defendant was a hot air balloon operator who agreed to offer free tethered hot air balloon rides as part of a charity fundraising event. The land on which the fundraiser was held was privately-owned, but was open to the public for the event.
It was a windy day, though the operator conceded he hadn’t read the weather report. He tethered one rope of the balloon to a pickup truck and another to a tree. This violated basic standards FAA standards, particularly for a windy day.
Plaintiff was waiting in line for one of those rides, and she’d been given a waiver of liability, indicating she would not hold the operator responsible if she was injured by the negligence of the balloon operator. She filled out that waiver, but she hadn’t yet turned it in as she waited.
Suddenly, the wind picked up. One of the ropes snapped. The basket to which the balloon was attached flew through the air and sailed straight for plaintiff. It struck her, and she was knocked to the ground, suffering injuries.
She later filed a personal injury lawsuit against the hot air balloon operator, alleging negligence.
The balloon operator countered with two defenses:
- Recreational Immunity Statute
- Waiver of Liability
Let’s talk first about the recreational immunity statute. Every state has one, including Florida, and the essence of it is that the government will all but eliminate the potential liability faced by a private land owner for dangerous conditions on the property if the land owner makes that land available for public use. It is supposed to encourage private landowners to share their property with the public.
The second, a waiver of liability, is recognized in most states as a binding contract in which a person accepts there is a certain degree of risk in an activity and frees the person or entity operating that activity from liability.
Trial court granted summary judgment to defendant and the appeals court affirmed. Plaintiff appealed and the Wisconsin Supreme Court (where the events of this case unfolded) reversed.
With regard to the recreational immunity statute, the court noted first of all that defendant was not a property owner. Yes, the members of the public got into the site for free and no, the hot air balloon operator wasn’t deriving a profit from his services. However, whether he did so or not had no bearing on whether the land was made available to the public because he didn’t own the property.
Because he was not the property owner, recreational immunity could not be extended to him.
Now with regard to waiver of liability for personal injury, this would have been a tougher argument. Ultimately, the court found that it was against the public interest. It would written so broadly as to absolve the hot air balloon operator for “any activity for any reason, known or unknown.”
The court stated that not only is the language of the waiver overly-broad, it’s not clear that waiting in line for the ride would have been something plaintiff would have considered as being covered by the waiver – especially because she wasn’t required to turn the waiver in until she prepared to board the ride. In fact, officials didn’t even discover the waiver until after the accident, when they found it crumpled on the ground near where she’d been knocked over.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Roberts v. T.H.E. Insurance, March 30, 2016, Wisconsin Supreme Court
More Blog Entries:
Florida’s Dram Shop Law and the Undertaker’s Doctrine, April 4, 2016, Miami Injury Attorney Blog