Grotheer v. Escape Adventures
E063449
| Cal. Ct. App. | Aug 31, 2017Background
- Plaintiff Erika Grotheer (non-English-speaking German tourist) rode a commercial hot air balloon operated by Escape Adventures; the basket crash-landed into a fence and then the ground, fracturing her leg.
- Grotheer sued Escape, pilot Peter Gallagher, and vineyard owner Wilson Creek for negligence (alleging pilot error and failure to give safety/landing instructions) and asserted Escape was a common carrier.
- Defendants moved for summary judgment, arguing primary assumption of risk barred liability and alternatively asserting an express liability waiver; the trial court granted summary judgment based on primary assumption of risk but denied summary adjudication on the waiver.
- On appeal, the court addressed (1) whether a hot air balloon operator is a common carrier, (2) applicability of primary assumption of risk to pilot-error claims, (3) whether an operator has a duty to provide landing instructions, and (4) causation from any lack of instructions.
- Evidence: pilot and some passengers offered conflicting testimony about whether safety instructions were given; crash descriptions were undisputedly violent (hit fence, hit ground, basket dragged ~40 yards), and plaintiff offered expert opinion that pilot could/should have added heat to avoid the crash.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Escape is a common carrier subject to a heightened duty of care | Grotheer: Escape held out to the public to carry passengers for reward and so owes utmost care under Civ. Code §2100 | Escape: a balloon operator should not be treated as a common carrier | Held: Not a common carrier as a matter of law — balloonists lack the level of controllability present in carriers traditionally held to the heightened duty (roller coasters, planes, trains) |
| Whether primary assumption of risk bars negligence claims for pilot error (failure to control descent) | Grotheer: Pilot was negligent or grossly negligent; primary assumption of risk shouldn't bar liability for reckless or extreme conduct | Defendants: Crash landings are inherent risks of ballooning; primary assumption of risk eliminates duty regarding inherent risks | Held: Primary assumption of risk applies to pilot-error claims about controlling descent; absent evidence of gross negligence, Escape and Gallagher owed no duty to protect from that inherent risk |
| Whether Escape owed a duty to provide safety/landing instructions | Grotheer: Operator has duty to instruct passengers (industry custom; plaintiff non-English speaking) | Defendants: Primary assumption of risk eliminates duty; burden would be unreasonable | Held: Operator does owe a duty to give brief safe-landing instructions (reasonable, customary, would not alter activity) |
| Whether lack of safety instructions was a proximate cause of plaintiff's injury | Grotheer: Failure to instruct contributed to injury and would have reduced harm | Defendants: The crash’s violence — not lack of instructions — was the decisive cause; plaintiff produced no evidence instructions would have prevented injury | Held: On undisputed facts, any failure to instruct was not a substantial factor; summary judgment affirmed on causation ground |
Key Cases Cited
- Knight v. Jewett, 3 Cal.4th 296 (1992) (primary assumption of risk: no duty as to inherent risks but duty remains to avoid reckless conduct)
- Nalwa v. Cedar Fair, L.P., 55 Cal.4th 1148 (2012) (application and limits of primary assumption of risk in recreational settings)
- Gomez v. Superior Court, 35 Cal.4th 1125 (2005) (expansion of common-carrier analysis to some recreational conveyances)
- Morgan v. Fuji Country USA, Inc., 34 Cal.App.4th 127 (1995) (operator’s duty to minimize inherent risks when reasonable and not altering the activity)
- Bockrath v. Aldrich Chemical Co., 21 Cal.4th 71 (1999) (substantial-factor causation standard)
- Mammoth Mountain Ski Area v. Graham, 135 Cal.App.4th 1367 (2006) (distinguishing ordinary sport risks from conduct so outside the ordinary as to create triable issue on assumption-of-risk exception for gross negligence)