No, the balloon company is not responsible for her injury. The court said that hot air balloons are naturally risky because you can't really steer them—you're at the mercy of the wind. A rough landing is a known danger that people accept when they go for a ride. Because of this 'assumption of risk,' the company isn't liable for the pilot's struggle to land smoothly. However, the court also said the company absolutely had a duty to give simple safety instructions, like 'bend your knees' and 'hold on.' That's a reasonable safety step that doesn't ruin the fun. The problem for Ms. Grotheer was that the crash was incredibly violent. The evidence showed everyone was thrown around, even people who were holding on tight. The court decided that because the crash was so bad, safety instructions probably wouldn't have saved her from breaking her leg anyway. Therefore, the company's failure to give instructions didn't legally *cause* her injury.

The court said a hot air balloon company doesn't have the same duty as a bus or train to keep passengers extra safe, because the pilot can't completely control the balloon's speed and direction. The court said that crash landings are a normal risk of hot air ballooning that can't be avoided without changing the basic nature of the activity. However, the court also said balloon companies do have to take reasonable steps to make the ride safer, like telling passengers how to position themselves for landing, because that wouldn't change the basic nature of ballooning. But the court decided that even if Escape Adventures didn't tell passengers how to position themselves, that wasn't the main cause of Grotheer getting hurt, because the crash landing was so violent that she probably would have gotten hurt anyway. So the court said Escape Adventures wasn't liable.

—risk doctrine balances these competing concerns by absolving operators of activities with inherent risks from an obligation to protect their customers from those risks.[¶] What the primary assumption of risk doctrine does not do, however, is absolve operators of any obligation to protect the safety of their customers.[Citation.] As a general rule, where an operator can take a …

—bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law.'[Citation.] We review the trial court's ruling on a summary judgment motion de novo, liberally construing the evidence in favor of the party opposing the motion and resolving all doubts about the evidence in favor of the opponent …

From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law

Rather, "the key inquiry [under California law and for a control analysis] is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury."

And more recently, the California Court of Appeals held that a hot air balloon was not a "carrier of persons for reward" under the Civil Code sections 2100 and 2168, because hot air balloon operators have minimal control over a hot air balloon and thereby the safety of its occupants.

"To be considered a proximate cause of an injury, the acts of the defendant must have been a `substantial factor'in contributing to the injury

The Grotheer court erred in holding that Escape, a hot air balloon operator, was not a common carrier

This narrowing of the common carrier doctrine prevents plaintiffs, like Grotheer, from obtaining relief when faced with the primary assumption of risk defense

—the court held, under the primary assumption of risk doctrine, a hot air balloon company had no duty to protect its customers from crash landings caused by its pilot's failure to safely manage the balloon's descent (

No, the operator is not liable. A commercial hot air balloon operator is not a common carrier subject to a heightened duty of care. While the primary assumption of risk doctrine bars claims arising from inherent risks like negligent piloting, it does not absolve the operator of the duty to provide reasonable safety instructions. However, in this case, the undisputed violence of the crash landing demonstrates that the failure to provide instructions was not the proximate cause of the passenger's injury. First, the court determined that hot air balloon operators are not common carriers because pilots lack direct and precise control over the balloon's speed and direction, which are subject to the wind. The risks from this lack of steerability are fundamental to ballooning and cannot be eliminated without changing the activity's nature. Second, applying the primary assumption of risk doctrine, the court distinguished between two duties. The claim of negligent piloting (failing to properly manage the balloon's descent) is barred because imperfectly managing a balloon's landing is an inherent risk of the activity. However, the court found operators do have a duty to take reasonable steps to minimize inherent risks without altering the activity, and providing pre-flight safety instructions is such a reasonable step. Thus, Escape had a duty to provide landing instructions. Finally, the court concluded that even though Escape breached this duty, Grotheer failed to show causation. The undisputed evidence portrayed a crash of such violence that passengers holding on were still tossed about. Grotheer provided no evidence to suggest that following standard instructions would have prevented her injury in such a severe crash, meaning the lack of instructions was not a substantial factor in causing her harm.

The court held that a hot air balloon operator is not a common carrier and does not owe a heightened duty of care to its passengers because operators cannot completely control the balloon's speed and direction to ensure passenger safety, as required of common carriers. The primary assumption of risk doctrine applies to crash landings in hot air ballooning because crash landings are an inherent risk of the activity that cannot be mitigated without altering the fundamental nature of ballooning. However, the court held balloon operators do have a duty to take reasonable steps to minimize inherent risks, such as providing safe landing instructions, because this would not alter the fundamental nature of the activity. The court found that Escape Adventures' failure to provide safe landing instructions was not a substantial factor in causing Grotheer's injury because the crash landing was a violent event that would have likely injured Grotheer even if she had followed proper landing positioning. Therefore, summary judgment for Escape Adventures was proper.

Grotheer v. Escape Adventures, Inc.

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