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The doctrine of primary assumption of risk does not eliminate an operator's duty to refrain from engaging in reckless conduct that unreasonably increases the risks of injury beyond those inherent in the activity. Gross negligence is a want of even scant care or an extreme departure from the ordinary standard of conduct. In the context of a hot air balloon, such extreme conduct might be, for example, launching without sufficient fuel, in bad weather, or near electrical towers; using unsafe or broken equipment; or overloading the passenger basket. In the absence of evidence of such conduct, the primary assumption of risk doctrine bars a grossly negligent piloting claim.
Plaintiff and appellant Erika Grotheer is a non-English speaking German citizen who took a hot air balloon ride in the Temecula wine country and suffered a fractured leg when the basket carrying her and seven or eight others crash-landed into a fence. Grotheer sued three defendants for her injuries: the balloon tour company, Escape Adventures, Inc. (Escape), the pilot and Escape's agent, Peter Gallagher (Gallagher), and Wilson Creek Vineyards, Inc. (Wilson Creek) (collectively, defendants or respondents). Grotheer alleged Escape and Gallagher negligently or recklessly operated the balloon by (1) failing to properly slow its descent during landing and (2) failing to give the passengers safe landing instructions before the launch. Grotheer alleged the hot air balloon company is a common carrier, and as such, owed its passengers a heightened duty of care. Grotheer also alleged Wilson Creek was vicariously liable for Escape and Gallagher's conduct because the vineyard shared a special relationship with the balloon company. Defendants moved for summary judgment, arguing Grotheer could not satisfy the elements of a negligence claim and, even if she could, she had waived the right to assert such a claim by signing Escape's liability waiver before the flight. The trial court agreed Grotheer could not establish the element of duty, finding Grotheer had assumed the risk of her injury under the primary assumption of risk doctrine and, as a result, Escape and Gallagher owed her no duty of care whatsoever. The trial court entered judgment in favor of defendants, and Grotheer appealed. Grotheer contended that the trial court erred in concluding her claim was barred by primary assumption of risk and reasserts on appeal that Escape is a common carrier.
Did the doctrine of primary assumption of risk apply to a failure to safely steer a hot air balloon and bar a claim of grossly negligent piloting, absent an extreme departure from the ordinary standard of conduct?
The court held that a hot air balloon operator was not a common carrier and thus had only a duty to exercise reasonable care under Civ. Code, §§ 1714, subd. (a), 2100, 2168, as a matter of law. The doctrine of primary assumption of risk applied to a failure to safely steer a hot air balloon and barred a claim of grossly negligent piloting, absent an extreme departure from the ordinary standard of conduct. The balloon operator had a duty to instruct the passengers on safe landing procedures because doing so would reduce the risk of injury without altering the nature of the activity and would not have a negative impact on the ballooning industry. Any failure to instruct was not a proximate cause of a passenger's injury because the operator's evidence showed that a crash landing would have caused injury regardless of instructions and the passenger presented no controverting evidence.