Numerous Florida companies offer hot air balloon rides to residents and tourists alike. But when operators are not properly trained or fail to exercise due caution, accidents can occur.
You may recall in the spring of 2013, when pro football player Donte Stallworth was one of two seriously injured in a Florida hot air balloon accident in Miami after their balloon plunged to the ground after running into power lines.
More recently – and far less high-profile – was a hot air balloon injury case in Wisconsin, where a woman was injured when a company offering tethered hot air balloon rides failed to properly secure the balloon on a windy day. In Roberts v. T.H.E. Insurance Co., plaintiff alleged she suffered compensable injuries when she was knocked to the ground by the rogue balloon basket while waiting in line for a ride.
The two primary defenses raised by the company in this case were:
- Recreational Immunity
- Waiver of Liability
Both fell flat, as far as the Wisconsin Supreme Court was concerned.
According to court records, the operator was offering free tethered rides to members of the public, who were invited onto the privately-owned site free-of-charge to benefit a third-party charity. It was a windy day, and operator would later admit he had not reviewed the weather report. Further, while he was FAA-certified and often provided hot air balloon rides for profit, he was not experienced in tethered rides – which are also regulated by the FAA.
Plaintiff, who had entered the property for free and had paid nothing for the ride she anticipated taking, signed a waiver of liability provided by the balloon ride operator. However, she had not yet handed that waiver to defendant. She was still holding it when one of the tether ropes snapped. The balloon basket went careening toward the crowd waiting nearby, and plaintiff was forcefully knocked to the ground.
Defendant would later concede the line was not far enough away from the balloon, as safety guidelines would dictate.
Injured plaintiff filed a lawsuit against the operator, alleging negligence. Defendant countered that he was protected by the state’s Recreational Immunity law (Florida has one too), and also by that waiver of liability.
Recreational immunity is extended to owners of property who open their land free to the public for recreational purposes. Waivers of liability allow those offering certain goods or services to shield themselves from legal action against injuries stemming from specific, stated risks.
Trial court granted summary judgment to defendant, finding merit in his arguments.
The state supreme court, however, reversed.
First, defendant wasn’t entitled to recreational immunity because he was not the land owner. His decision to offer free rides did not affect whether the land would be open to the public, and thus, he was not protected under that provision of law.
Further, with regard to the waiver of liability, the court determined it was in violation of public policy and was therefore unenforceable as a matter of law. The reason had to do with the fact that it essentially absolved defendant of any liability for any acts of negligence in connection with the rides – language the court rule was overly-broad. Further, plaintiff had no reason to believe the waiver covered the activity of waiting in line – especially because she wasn’t expected to even turn the waiver in until she was preparing to board the basket.
The court’s decision frees the plaintiff to continue pursuit of her complaint at trial.
If you have suffered an injury in a hot air balloon or other recreational activity, we can help you recover damages.
Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.
Roberts v. T.H.E. Insurance Co., March 30, 2016, Wisconsin Supreme Court
More Blog Entries:
PJ Scheiner Speaks at 2016 Anatomy of a Personal Injury Lawsuit Seminar, March 15, 2016, Fort Myers Injury Attorney Blog