The National Transportation Safety Board (NTSB) recorded 775 hot air balloon accidents between 1964 and 2014, with 70 of those involving fatalities. Of those who died, 16 occurred between 2002 and 2012. Although the agency stresses that hot air ballooning is relatively safe, there have been a number of deadly incidents in recent years that raise concern. Consider, for example, the hot air balloon that caught fire mid-air over Egypt, killing 19 of the 21 people on board.
The recent case of Roberts v. T.H.E. Insurance Co. was, thankfully, not a fatal hot air balloon accident case. In fact, the plaintiff wasn’t even in the balloon at the time of the accident. However, she did reportedly suffer injuries when the operator, taking his chances with tethered rides on a windy day, didn’t properly affix the tethers, according to court records. When the wind kicked up, the basket came barreling toward plaintiff, knocking her over and causing her to suffer injury.
When she filed a personal injury lawsuit against the hot air balloon company seeking damages, the defense rested on two arguments:
- The company was protected by the state’s recreational use statute;
- The plaintiff had signed a waiver of liability while she was waiting in line for the ride.
The trial court and the court of appeals agreed. The Wisconsin Supreme Court, however, did not agree on either count, reversed the grant of summary judgment to defendant and remanded the case for trial.
Let’s start with what actually happened. Court records show this was a charity event sponsored by a third party and held on private property that was made available free to the public. Defendant was donating tethered hot air balloon rides for charity. Patrons didn’t pay anything to get into the event, but various attractions did help raise money for the charity.
It was a windy day, and defendant tethered the hot air balloon to a pickup truck and a tree. He would later say he should have reviewed the weather report that day, but did not. If he had, he would have seen it was going to be extremely windy. Had he seen that, he said, he likely would have suspended the rides. But he did not. He also did not tether the balloon according to Federal Aviation Administration (FAA) guidelines, and admitted he was not very experienced with tethered rides and he failed to push the line of people far enough back from the balloon and tethers to ensure safety.
Plaintiff did sign a liability waiver while waiting in line to take a ride, but she never turned it into the defendant before the accident occurred. When a strong wind kicked up, the basket came flying toward plaintiff and knocked her to the ground.
Defendant argued he was entitled to immunity under the state’s recreational use statute. Florida has one too, codified in F.S. 375.251. It provides protection for land owners that open their property to the public for free for recreational use. But as the state supreme court noted, defendant was not the land owner. Providing immunity to him would not have affected whether or not the land was open to the public.
Further, with regard to the waiver of liability, the court ruled it was overly-broad and therefore against public policy.
The court remanded the case for trial.
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Roberts v. T.H.E. Insurance Co., March 30, 2016, Wisconsin Supreme Court
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Pedestrian Accident Deaths a Growing Problem Nationally, March 23, 2016, Orlando Personal Injury Attorney Blog