In a case of first impression, Grotheer vs. Escape Adventures, Inc., the California Court of Appeal held that a hot air balloon tour operator is not a common carrier under California law and thus does not owe its passengers a heightened duty of care. The appellate court opinion, issued on August 31, 2017, upheld summary judgment entered by the trial court in favor of the tour operator respecting a negligence claim asserted by a plaintiff injured during a crash landing.
As noted in Grotheer, the common carrier doctrine traces its origin to stagecoaches used in the 1800s but has evolved to encompass roller coasters, ski lifts, airplanes, and trains. By contrast, the California Supreme Court refused to extend common carrier status to bumper car operators because the bumper car riders “exercise independent control” over steering and acceleration.
In reviewing the applicable precedent, the Grotheer court concluded that the key inquiry is whether “the operator is reasonably capable of controlling the risk of injury.” The court stated that balloon pilots do not maintain direct and precise control over the speed and direction of the balloon–which are determined by the wind. As such, per the Grotheer court, while the risks attendant to roller coasters, ski lifts, airplanes, and trains can be “virtually eliminated through engineering design and operator skill,” the inherent risks of hot air ballooning cannot be so mitigated without altering the fundamental nature of the balloon.