Filed 8/31/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
ERIKA GROTHEER,
Plaintiff and Appellant, E063449
v. (Super.Ct.No. RIC1216581)
ESCAPE ADVENTURES, INC., et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge.
Affirmed.
The Law Office of Robert J. Pecora and Robert J. Pecora for Plaintiff and
Appellant.
Agajanian, McFall, Weiss, Tetreault & Crist and Paul L. Tetreault for Defendants
and Respondents.
1 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. (Civ. Code, § 2100.) 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.
The 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. (Knight v. Jewett (1992) 3
Cal.4th 296 (Knight).) The trial court entered judgment in favor of defendants, and
Grotheer appealed.
2 Grotheer contends 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. We
affirm the judgment, but on a different ground than relied on by the trial court. We hold:
(1) a balloon tour company like Escape is not a common carrier subject to a heightened
duty of care; (2) the primary assumption of risk doctrine bars Grotheer’s claim that
Gallagher negligently failed to slow the balloon’s descent to avoid a crash landing; and
(3) Escape does have a duty to provide safe landing instructions to its passengers, but the
undisputed evidence regarding the crash demonstrates that any failure on Escape’s part to
provide such instructions was not the cause of Grotheer’s injury.
I
FACTUAL BACKGROUND
A. Preflight
Grotheer’s son, Thorsten, purchased his mother a ticket for a hot air balloon tour
with Escape during her visit to California, as a present for her 78th birthday. On the
morning of the tour, Grotheer and Thorsten met with the Escape crew and the other
passengers in the parking lot of the vineyard owned by Wilson Creek, near the field
where Escape launched its balloons. Thorsten later testified at his deposition that when
they arrived to check in, he tried to explain his mother’s language barrier to the flight
crew so Escape could ensure she understood any safety instructions. Thorsten said
Gallagher, the pilot, responded by waiving him away and saying, “Everything is going to
be fine.” Thorsten tried telling two more Escape employees his mother could not
understand English, but they appeared to be in a rush and told him he could not be in the
3 immediate launch vicinity if he had not purchased a ticket. At some point during this
check-in activity, Grotheer signed Escape’s liability waiver, which purported to release
the company and its agents from claims based on “ordinary negligence.”
Gallagher then drove the passengers to the nearby launch site. Grotheer drove
over separately, with Thorsten. In his declaration, Gallagher said he gave the passengers
safety instructions during the drive, as is his custom. He said the instructions covered
what to do during landing: “I described to my passengers what to expect in terms of
lifting off . . . and landing . . . I told them to bend their knees and hold on upon landing,
and not to exit the basket until told to do so.”
According to passengers Boyd and Kristi Roberts, however, neither Escape nor
Gallagher provided safety instructions. Boyd declared he sat in the front passenger seat
next to Gallagher during the drive, which lasted a little over a minute and during which
Gallagher described his credentials and years of experience. Boyd remembered receiving
“a very general informational talk . . . about what to expect on [the] flight,” but said
“[t]here was no mention of safety issues or proper techniques for take-off and landing.”
Boyd’s wife, Kristi, also rode to the launch site with Gallagher and said she never heard
him give instructions, “other than to hold on as we took off.”
4 B. The Crash
The tour proceeded without incident until the landing. According to the four
accounts in the record, as the balloon descended at a high rate of speed, the basket
crashed into a fence then crashed into the ground and bounced and skidded for about 40
yards before finally coming to a stop, on its side. By all accounts, the event was forceful
and caused the passengers to be tossed about the basket.
Boyd Roberts described the crash landing as follows: “The balloon was being
pushed at a good clip by the wind and we were travelling in a horizontal direction as we
were also descending. We were going sideways, and . . . [b]efore we landed, we actually
crashed into and took out several sections of [a] 3 rail fence.” After the basket collided
with the fence, it hit the ground “with a hard bump and a bounce.” The passengers were
“taken for a wild ride as [the basket] was getting dragged downwind [by the balloon].”
The basket “became more and more horizontal” as it was being dragged. “We easily
skipped 30 or 40 yards, with a couple of hard impacts along the way.” When the basket
finally came to rest, it was “on its side, not its bottom,” with Grotheer’s section on the
bottom and Boyd’s on top. He recalled that Grotheer was below him “lying on what was
the side of the [basket] which was now the floor.”
Kristi Roberts’ account of the crash landing matches Boyd’s. She said, “we were
going pretty fast towards the ground and it looked like we might hit the fence. We did hit
the fence, as the [basket] crashed in the top of the three rails, and knocked it right apart.”
After that, the basket “hit the ground hard.” Kristi recalled, “I was holding on as tight as
5 I could to the [b]asket, but we were all standing up and it was hard to keep from falling
over when we crashed into the ground.”
Gallagher described the landing similarly, though not in as much detail. He said
the balloon had been “descending more quickly than anticipated” and the “passenger
compartment of the balloon made a hard landing, first on a fence, then on the ground.”
He believed the balloon’s descent had been hastened by a “false lift,” which he described
as a condition where the wind travels faster over the top of the balloon than the rest of the
balloon. The faster wind creates lift, but when the wind slows the aircraft can quickly
lose altitude unless the pilot adds more heat to the balloon’s envelope. In his declaration,
Gallagher said he “applied as much heat as possible to the envelope to add buoyancy,”
but the additional heat was not sufficient to arrest the descent before the balloon hit the
fence.
In her deposition, Grotheer said the balloon basket experienced two forceful
impacts, first with the fence, then with the ground. She recalled she had been holding on
to the metal rod in the basket when it hit the fence, but despite holding on, she was “still
sliding.” She believed her leg broke upon the second impact—when the balloon hit the
ground after the collision with the fence. She described her injury as follows: “The
people in the balloon, they were all holding. It was hard. It hit the ground hard. And one
woman just came like this (indicating).” Grotheer added, “[a]nd the lady is innocent
because even her, she was pushed. She was pushed around by the other people in the
basket.” Grotheer did not think anyone collided with her after that initial impact with the
6 ground. She explained, “I just got myself real quick together. [The injury] was just at the
beginning.”
James Kitchel, Grotheer’s expert who has piloted balloons for over 25 years,
concluded the cause of the crash landing was Gallagher’s “failure to maintain safe control
over the ‘delta’ temperature[,] anticipate changing pressure differentials[,] and
counterbalance the effects on the rate of descent.” He disagreed with Gallagher’s false
lift theory, opining instead the balloon had likely simply experienced a wind shear. He
believed all Gallagher had to do “to avoid this crash entirely” was add “sufficient heat” to
the envelope “before the Balloon was already about to crash.”
Kitchel explained that many people perceive ballooning as a gentle, peaceful
experience, but in reality, balloon rides “can be violent, high speed events with tragic
results.” What makes a balloon a risky conveyance is the pilot’s inability to directly
control the balloon’s movement. A pilot can directly control only the balloon’s altitude,
which is done by managing the amount of heat added to the balloon’s envelope. The
direction and speed of the wind determines lateral movement. Kitchel stated, “There is
no way of steering a Balloon, such as by having a rudder. . . . [A] Balloon pilot never
truly knows where the Balloon is going to land. He is at the mercy of the wind speed and
direction.”
7 Kitchel also opined that the industry standard of care requires a commercial
balloon operator to give “at the very least, one detailed safety presentation.” According
to Kitchel, the Federal Aviation Administration’s Balloon Flying Handbook (FAA
Handbook) suggests the following safety instructions to prepare passengers for a “firm
impact” upon landing: (1) “Stand in the appropriate area of the basket”; (2) “Face the
direction of travel”; (3) “Place feet and knees together, with knees bent”; (4) “‘Hold on
tight’ in two places”; and (5) “Stay in the basket.” Kitchel did not believe any one
particular set of instructions was required and he described the FAA Handbook’s safe
landing procedures as a “good minimum standard.”
C. The Complaint
Grotheer’s complaint against defendants alleged she was injured when the balloon
“crash land[ed] into a fence located on WILSON CREEK property.” She alleged her
injury was a result of negligent piloting and failure to provide safety instructions. She
also alleged Escape is a common carrier and has a duty to ensure the safety of its
passengers.
D. The Summary Judgment Motion
Defendants filed a motion for summary judgment, arguing Grotheer’s negligence
claim failed as a matter of law because she had assumed the risk of her injury under the
primary assumption of risk doctrine. Defendants also sought summary judgment on their
liability waiver affirmative defense, claiming Grotheer had expressly waived her right to
assert a negligence claim. In opposition, Grotheer argued: (1) the primary assumption of
risk doctrine does not apply to common carriers like Escape; (2) the doctrine did not
8 relieve Escape and Gallagher of a duty to avoid the crash landing and to provide safety
instructions; and (3) the liability waiver was invalid because Escape knew she did not
speak English and could not understand it. Grotheer also argued Wilson Creek was
vicariously liable for Escape’s breach because the two companies were in a “symbiotic
business relationship.”
After a hearing, the court concluded it was undisputed hot air ballooning is a risky
activity that can involve crash landings, Grotheer assumed the risk of injury from a crash
landing by voluntarily riding in the balloon, and defendants owed no duty whatsoever to
protect her from her injury. The court also concluded Wilson Creek was not vicariously
liable for Escape and Gallagher’s conduct. However, the court denied the motion for
summary judgment on the liability waiver defense, stating, “there is at least an arguable
duress in being separated from her son who was her translator at the time and not
understanding the circumstances based on the language. I think that’s a triable issue of
fact.” Based on its finding of no duty, the court concluded Grotheer’s negligence claim
failed as a matter of law, and it entered judgment in favor of defendants.
II
DISCUSSION
A. Standard of Review
A trial court properly grants summary judgment when there are no triable issues of
material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide
courts with a mechanism to cut through the parties’ pleadings in order to determine
9 whether, despite their allegations, trial is in fact necessary to resolve their dispute.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
A defendant who moves for summary judgment bears the initial burden to show
the action has no merit—that is, “one or more elements of the cause of action, even if not
separately pleaded, cannot be established, or that there is a complete defense to that cause
of action.” (Code Civ. Proc., § 437c, subds. (a), (p)(2).) Once the defendant meets this
initial burden of production, the burden shifts to the plaintiff to demonstrate the existence
of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) “From
commencement to conclusion, the moving party defendant bears the burden of persuasion
that there is no triable issue of material fact and that the defendant is entitled to judgment
as a matter of law.” (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th
1260, 1268-1269.) We review the trial court’s ruling on a summary judgment motion de
novo, liberally construing the evidence in favor of the party opposing the motion and
resolving all doubts about the evidence in favor of the opponent. (Miller v. Department
of Corrections (2005) 36 Cal.4th 446, 460.) We consider all of the evidence the parties
offered in connection with the motion, except that which the court properly excluded.1
(Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
1 Without supporting argument, Grotheer claims the trial court abused its discretion in refusing to consider her objections to defendants’ evidence, and her responses to defendants’ objections to her evidence, on the ground they were untimely filed on the day of the hearing. We will not consider this claim, however, because Grotheer has not explained why any of her objections or responses had merit, or how she was prejudiced by the court’s failure to consider them. (City of Santa Maria v. Adam
10 B. Escape Is Not a Common Carrier and Did Not Owe Grotheer a Heightened
Duty to Ensure Her Safe Carriage
Grotheer claims Escape is a common carrier and therefore owed its passengers a
heightened duty of care to ensure their safe carriage during the balloon tour. We
conclude a hot air balloon operator like Escape is not a common carrier as a matter of
law.
In general, every person owes a duty to exercise “reasonable care for the safety of
others,” however, California law imposes a heightened duty of care on operators of
transportation who qualify as “common carriers” to be as diligent as possible to protect
the safety of their passengers. (Civ. Code, §§ 1714, subd. (a), 2100, 2168.) “A carrier of
persons for reward must use the utmost care and diligence for their safe carriage, must
provide everything necessary for that purpose, and must exercise to that end a reasonable
degree of skill.” (Civ. Code, § 2100.) Contrary to Escape’s contention, it is necessary to
resolve whether Escape is a common carrier because the heightened duty of care in Civil
Code section 2100 precludes the application of the primary assumption of risk doctrine.
(Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1161 (Nalwa).)
Whether a hot air balloon operator is a common carrier is an issue of first
impression in California.2 It is also a question of law, as the material facts regarding
(2012) 211 Cal.App.4th 266, 287 [“we may disregard conclusory arguments that . . . fail to disclose [appellant’s] reasoning”].) 2 The only published case addressing the issue is Balloons Over the Rainbow, Inc. v. Dir. of Revenue (Mo. 2014) 427 S.W.3d 815, where a hot air balloon operator argued it was a common carrier under Missouri law for tax purposes. The Supreme Court of
11 Escape’s operations are not in dispute.3 (Huang v. Bicycle Casino, Inc. (2016) 4
Cal.App.5th 329, 339 (Huang).)
A common carrier of persons is anyone “who offers to the public to carry
persons.” (Civ. Code, § 2168.) The Civil Code treats common carriers differently
depending on whether they act gratuitously or for reward. (Gomez v. Superior Court
(2005) 35 Cal.4th 1125, 1130 (Gomez).) “A carrier of persons without reward must use
ordinary care and diligence for their safe carriage.” (Civ. Code, § 2096.) But “[c]arriers
of persons for reward have long been subject to a heightened duty of care.” (Gomez, at
p. 1128.) Such carriers “must use the utmost care and diligence for [passengers’] safe
carriage, must provide everything necessary for that purpose, and must exercise to that
end a reasonable degree of skill.” (Civ. Code, § 2100; accord, Gomez, at p. 1130.) While
common carriers are not insurers of their passengers’ safety, they are required “‘to do all
that human care, vigilance, and foresight reasonably can do under the circumstances.’”
(Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1507.) This duty
originated in English common law and is “based on a recognition that the privilege of
Missouri upheld the administrative hearing commissioner’s determination the operator was not a common carrier because it exercised discretion regarding which passengers to fly and therefore did not “carry all people indifferently,” as the statutory definition required. (Id. at pp. 825-827.) 3 Escape claims it stipulated to being a common carrier in its motion for summary judgment. Actually, Escape stated was it was not “controvert[ing] at [that] time the assertion that it is a common carrier.” But even if it had so stipulated, we are not bound by agreements that amount to conclusions of law. (E.g., People v. Singh (1932) 121 Cal.App. 107, 111.)
12 serving the public as a common carrier necessarily entails great responsibility, requiring
common carriers to exercise a high duty of care towards their customers.” (Ibid.)
Common carrier status emerged in California in the mid-nineteenth century as a
narrow concept involving stagecoaches hired purely for transportation. (Gomez, supra,
35 Cal.4th at p. 1131.) Over time, however, the concept expanded to include a wide
array of recreational transport like scenic airplane and railway tours, ski lifts, and roller
coasters. (Id. at pp. 1131-1136.) This expansion reflects the policy determination that a
passenger’s purpose, be it recreation, thrill-seeking, or simply conveyance from point A
to B, should not control whether the operator should bear a higher duty to protect the
passenger. (Id. at p. 1136.)
In Gomez, the California Supreme Court concluded roller coasters are common
carriers, despite their purely recreational purpose, because they are “operated in the
expectation that thousands of patrons, many of them children, will occupy their seats”
and are “held out to the public to be safe.” (Gomez, supra, 35 Cal.4th at p. 1136.) As
with other recreational transportation like ski lifts, airplanes, and trains, “the lives and
safety of large numbers of human beings” are entrusted to the roller coaster operator’s
“diligence and fidelity.” (Ibid., quoting Treadwell v. Whittier (1889) 80 Cal. 574, 591.)
Despite the consistent trend toward broadening the common carrier definition to
include recreational vehicles, almost a decade after Gomez the California Supreme Court
refused to apply the heightened duty of care to operators of bumper cars, finding them
“dissimilar to roller coasters in ways that disqualify their operators as common carriers.”
(Nalwa, supra, 55 Cal.4th at p. 1161.) Crucial to the analysis in Nalwa was that bumper
13 car riders “exercise independent control over the steering and acceleration,” whereas
roller coaster riders “ha[ve] no control over the elements of thrill of the ride; the
amusement park predetermines any ascents, drops, accelerations, decelerations, turns or
twists of the ride.” (Ibid.) This difference in control convinced the court that “[t]he
rationale for holding the operator of a roller coaster to the duties of a common carrier for
reward—that riders, having delivered themselves into the control of the operator, are
owed the highest degree of care for their safety—simply does not apply to bumper car
riders’ safety from the risks inherent in bumping.” (Ibid., italics added.)
This precedent teaches that the key inquiry in the common carrier analysis is
whether passengers expect the transportation to be safe because the operator is reasonably
capable of controlling the risk of injury. (Gomez, supra, 35 Cal.4th at p. 1136; Nalwa,
supra, 55 Cal.4th at p. 1161.) While a bumper car rider maintains a large degree of
control over the car’s speed and direction, a roller coaster rider recognizes the thrills and
unpredictability of the ride are manufactured for his amusement by an operator who in
reality maintains direct control over the coaster’s speed and direction at all times.
(Gomez, at p. 1136.) As our high court explained, the roller coaster rider “‘expects to be
surprised and perhaps even frightened, but not hurt.’” (Ibid.)
It is in this critical regard we find a hot air balloon differs from those recreational
vehicles held to a common carrier’s heightened duty of care. Unlike operators of roller
coasters, ski lifts, airplanes, and trains, balloon pilots do not maintain direct and precise
control over the speed and direction of the balloon. A pilot directly controls only the
balloon’s altitude, by monitoring the amount of heat added to the balloon’s envelope. A
14 pilot has no direct control over the balloon’s latitude, which is determined by the wind’s
speed and direction. A balloon’s lack of power and steering poses risks of mid-air
collisions and crash landings, making ballooning a risky activity. (See Hulsey v. Elsinore
Parachute Center (1985) 168 Cal.App.3d 333, 345-346 [hot air ballooning “involve[s] a
risk of harm to persons or property” because pilots cannot “direct their paths of travel . . .
[or] land in small, targeted areas”]; Dylan P. Kletter, Negligence in the (Thin) Air:
Understanding the Legal Relationship Between Outfitters and Participants in High Risk
Expeditions Through Analysis of the 1996 Mount Everest Tragedy (2008) 40 Conn.
L.Rev. 769, 772 [“hot air ballooning” is a “high-risk activity”].) As Kitchel, Grotheer’s
expert, put it, a balloon pilot “is at the mercy of the wind speed and direction.” (See Holt,
On a Wind and a Prayer (1997) 83 A.B.A.J. 94, 95 [“winds . . . can transform a
wondrous journey into a life-or-death struggle”].)
The mere existence of risk is not sufficient to disqualify a vehicle as a common
carrier, however. Roller coasters, ski lifts, airplanes, and trains all pose “inherent dangers
owing to speed or mechanical complexities.” (Gomez, supra, 35 Cal.4th at p. 1136.) But
there is a significant difference between the dangers of riding those conveyances and the
dangers involved in ballooning. The former can be virtually eliminated through
engineering design and operator skill, whereas the latter cannot be mitigated without
altering the fundamental nature of a balloon.
Operators of roller coasters, ski lifts, airplanes, and trains can take steps to make
their conveyances safer for passengers without significantly altering the transportation
experience. For example, roller coaster operators can invest in state of the art
15 construction materials and control devices or task engineers with designing a ride that
provides optimal thrills without sacrificing passenger safety. With a balloon, on the other
hand, safety measures and pilot training go only so far toward mitigating the risk of mid-
air collisions and crash landings. The only way to truly eliminate those risks is by adding
power and steering to the balloon, thereby rendering vestigial the very aspect of the
aircraft that makes it unique and desirable to passengers.
Because no amount of pilot skill can completely counterbalance a hot air balloon’s
limited steerability, ratcheting up the degree of care a tour company must exercise to
keep its passengers safe would require significant changes to the aircraft and have a
severe negative impact on the ballooning industry. For that reason, we conclude Escape
is not a common carrier as a matter of law.
C. The Trial Court Incorrectly Determined Escape Owed Grotheer No Duty of
Care
Having concluded a hot air balloon company does not owe its passengers a
heightened duty of care, we must decide whether Escape owed Grotheer any duty of care
to protect her from her injury. Grotheer claims Escape and Gallagher had a duty to safely
pilot the balloon and to provide safety instructions. Escape contends it owed neither duty
under the primary assumption of risk doctrine. We analyze each separately.
1. Balloon piloting and primary assumption of risk
Grotheer alleges her injury was caused in part by Gallagher’s subpar piloting. Her
expert opined the cause of the crash was Gallagher’s failure to control the speed and
16 direction of the balloon’s descent by anticipating changing pressure differentials and
maintaining the proper amount of heat in the balloon’s envelope. According to Kitchel,
Gallagher could have avoided the crash entirely by “adding sufficient heat . . . in a timely
manner.”
“‘Although persons generally owe a duty of due care not to cause an unreasonable
risk of harm to others . . . , some activities . . . are inherently dangerous,” such that
“[i]mposing a duty to mitigate those inherent dangers could alter the nature of the activity
or inhibit vigorous participation.’” (Nalwa, supra, 55 Cal.4th at p. 1154.) Primary
assumption of risk is a doctrine of limited duty “developed to avoid such a chilling
effect.” (Ibid.) If it applies, the operator is not obligated to protect its customers from the
“inherent risks” of the activity. (Id. at p. 1162.)
“‘Primary assumption of risk is merely another way of saying no duty of care is
owed as to risks inherent in a given sport or activity. The overriding consideration in the
application of this principle is to avoid imposing a duty which might chill vigorous
participation in the sport and thereby alter its fundamental nature.’” (Jimenez v. Roseville
City School Dist. (2016) 247 Cal.App.4th 594, 601.) “Although the doctrine is often
applied as between sports coparticipants, it defines the duty owed as between persons
engaged in any activity involving inherent risks.” (Ibid.) The doctrine applies to any
activity “done for enjoyment or thrill . . . [that] involves a challenge containing a
potential risk of injury.” (Record v. Reason (1999) 73 Cal.App.4th 472, 482; see
Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658 [by attending Burning
17 Man festival plaintiff assumed risk of being burned during ritual burning of eponymous
effigy].)
The test is whether the activity “‘involv[es] an inherent risk of injury to voluntary
participants . . . where the risk cannot be eliminated without altering the fundamental
nature of the activity.’” (Nalwa, supra, 55 Cal.4th at p. 1156.) As we concluded above
in the section on common carriers, a balloon’s limited steerability creates risks of mid-air
collisions and crash landings. Moreover, those risks cannot be mitigated except by
adding power and steering, which would fundamentally alter the free-floating nature of a
balloon, turning it into a dirigible.4 “[T]he excitement of [ballooning] is that you never
know exactly where you’re going to land . . . It’s taking something that is unsteerable
and trying to steer it. That’s the challenge.” (Holt, On a Wind and a Prayer, supra, 83
A.B.A.J. at pp. 94-95; cf. Nalwa, supra, 55 Cal.4th at pp. 1157-1158 [refusing to impose
liability on bumper car operators for injuries caused in collisions as doing so would have
the effect of “decreasing the speed—and ultimately the fun—of the ride”].)
We therefore hold the doctrine applies to crash landings caused by the failure to
safely steer a hot air balloon. We further hold Grotheer’s claim of pilot error falls under
the primary assumption of risk doctrine because the claim goes to the core of what makes
balloon landings inherently risky—the challenge of adjusting the balloon’s vertical
movement to compensate for the unexpected changes in horizontal movement. As a
4 The term “dirigible” literally means “steerable.” It comes from the Latin verb dirigere, meaning “to direct,” and refers to lighter-than-air aircraft capable of being steered, like blimps and zeppelins. (Webster’s 3d New Internat. Dict. (1993) p. 642.)
18 result, Escape had no legal duty to protect Grotheer from crash landings caused by its
pilot’s failure to safely manage the balloon’s descent.
To avoid this outcome, Grotheer alleged Gallagher’s piloting was not only
negligent, but grossly negligent, thereby increasing the inherent risk of crash landing.
Grotheer is correct the primary assumption of risk does not eliminate an operator’s duty
to refrain from engaging in reckless conduct that “unreasonably increase[s] the risks of
injury beyond those inherent in the activity.” (Nalwa, supra, 55 Cal.4th at p. 1162.)
However, she has provided no evidence Gallagher’s piloting fell so outside the range of
ordinary it unreasonably increased the inherent risk of crash landing.
Gross negligence is a want of even scant care or an extreme departure from the
ordinary standard of conduct. (City of Santa Barbara v. Superior Court (2007) 41
Cal.4th 747, 754.) In this context, 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, we hold the primary assumption of risk doctrine bars Grotheer’s piloting
claim.
Grotheer compares Gallagher’s piloting to the conduct of the skier defendant in
Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367 (Mammoth
Mountain), but the analogy is inapt. In Mammoth Mountain, a snowboarding instructor
was injured when he collided with a skier who had stopped mid-slope to throw snowballs
at his brother. The court reversed summary judgment granted on the basis of primary
assumption of risk, concluding there was a factual issue as to whether the skier’s
19 behavior was so “outside the range of ordinary activity involved in the sport of
snowboarding” that it increased the inherent risk of colliding with others on the slope.
(Id. at pp. 1373-1374.) Gallagher’s alleged failure to control the balloon’s descent is
nothing like the skier’s conduct in Mammoth Mountain. Skiing does not entail throwing
snowballs, whereas managing speed and direction in the face of changing wind
conditions is the principal challenge in ballooning. As a result, the failure to surmount
that challenge falls squarely within the range of ordinary activity for ballooning.
2. Safety instructions and the duty to take reasonable steps to minimize
inherent risks
Grotheer also claims her injury was caused, at least in part, by Escape’s failure to
give safety instructions. The trial court rejected this theory of liability when it concluded
ballooning was an inherently risky activity and, as a result, Escape owed Grotheer no
duty at all to protect her from injury. We conclude that ruling was too broad. Under
Knight, even an operator of an inherently risky activity owes a duty to take reasonable
steps to minimize those inherent risks, if doing so would not fundamentally alter the
activity. (Knight, supra, 3 Cal.4th at p. 317.) As we explain, instructing passengers on
safe landing procedures takes little time and effort, and can minimize the risk of
passenger injury in the event of a rough landing.
The primary assumption of risk doctrine is limited to those steps or safety
measures that would have a deleterious effect on recreational activities that are, by
nature, inherently dangerous. (Record v. Reason, supra, 73 Cal.App.4th at pp. 484-485;
20 Nalwa, supra, 55 Cal.4th at p. 1162 [“The primary assumption of risk doctrine helps
ensure that the threat of litigation and liability does not cause such recreational activities
to be abandoned or fundamentally altered in an effort to eliminate or minimize inherent
risks of injury”].) For example, an obligation to reduce a bumper car’s speed or the
rider’s steering autonomy would impede the most appealing aspect of the ride—the
ability to collide with others. (Id. at pp. 1157-1158.) “Indeed, who would want to ride a
tapper car at an amusement park?” (Id. at p. 1158.) Similarly, in the context of white
water rafting, an obligation to design the rafts to minimize the “risk of striking objects
both inside and outside the raft,” would transform the activity into “a trip down the giant
slide at Waterworld.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248,
256.) Safety is important, but so is the freedom to engage in recreation and challenge
one’s limits. The primary assumption of risk doctrine balances these competing concerns
by absolving operators of activities with inherent risks from an obligation to protect their
customers from those risks.
What the primary assumption of risk doctrine does not do, however, is absolve
operators of any obligation to protect the safety of their customers. (Knight, supra, 3
Cal.4th at pp. 317-318.) As a general rule, where an operator can take a measure that
would increase safety and minimize the risks of the activity without also altering the
nature of the activity, the operator is required to do so. As the court explained in Knight,
“in the sports setting, as elsewhere, the nature of the applicable duty or standard of care
frequently varies with the role of the defendant whose conduct is at issue in a given
case.” (Knight, at p. 318.) When the defendant is the operator of an inherently risky
21 sport or activity (as opposed to a coparticipant), there are “steps the sponsoring business
entity reasonably should be obligated to take in order to minimize the risks without
altering the nature of the sport [or activity].” (Id. at p. 317.)
Even before Knight, tort law imposed on operators a duty to take reasonable steps
to minimize the inherent risks of their activity. (See Knight, supra, 3 Cal.4th at p. 317,
citing Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 728-729; Shurman v. Fresno
Ice Rink (1949) 91 Cal.App.2d 469, 474-477.) Within our own appellate district we find
precedent for imposing on hot air balloon operators and their pilots a duty of care to
instruct passengers on how to position themselves for landing.
In Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 (Morgan),
Division One of our appellate district held a golf course owner had a duty to design its
course to minimize the risk of being hit by a golf ball, despite the fact such a risk is
inherent to golfing, because doing so was possible “‘without altering the nature of
[golf].’” (Id. at p. 134.) Our colleagues explained this duty stemmed from the fact the
defendant was the golf course owner. If, on the other hand, the plaintiff had sued the
golfer who had hit the errant ball, the action would have been barred by the primary
assumption of risk doctrine. (Id. at pp. 133-134.)
Nearly a decade after Morgan, the same court held a race organizer had a duty to
minimize the risks of dehydration and hyponatremia5—risks inherent to marathons—by
5 A condition which occurs as a result of decreased sodium concentration in the blood.
22 “providing adequate water and electrolyte fluids along the 26-mile course” because
“[s]uch steps are reasonable and do not alter the nature of the sport [of marathon
running].” (Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 179.) Faced with a
similar situation in Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, this
court held an owner of a motocross track had a duty to provide a system for signaling
when riders have fallen in order to minimize the risk of collisions. (Id. at p. 1084.) Track
owners could satisfy this duty by employing “caution flaggers,” or some similar device,
which would be relatively easy to implement and would not alter the nature of motocross.
(Ibid.) As these cases demonstrate, the primary assumption of risk doctrine has never
relieved an operator of its duty to take reasonable steps to minimize inherent risks
without altering the nature of the activity.
Having determined the primary assumption of risk doctrine does not absolve
Escape of a duty to exercise reasonable care in all aspects of its operations, we turn to the
existence and scope of the duty at issue here—safety instructions. (Castaneda v. Olsher
(2007) 41 Cal.4th 1205, 1213 [the existence and scope of a duty of care are questions of
law for the trial court to determine in the first instance and the appellate court to
independently review].) Courts consider several factors in determining the existence and
scope of a duty of care, including the foreseeability of harm to the plaintiff, the policy of
preventing future harm, and the burden to the defendant and consequences to the
community of imposing the duty. (See, e.g., Ann M. v. Pacific Plaza Shopping Center
(1993) 6 Cal.4th 666, 675, fn. 5.)
23 Foreseeability is the primary factor in the duty analysis. (Pedeferri v. Seidner
Enterprises (2013) 216 Cal.App.4th 359, 366.) Our task in evaluating foreseeability “‘is
not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of
a particular defendant’s conduct, but rather to evaluate more generally whether the
category of negligent conduct at issue is sufficiently likely to result in the kind of harm
experienced that liability may appropriately be imposed.’” (Cabral v. Ralphs Grocery
Co. (2011) 51 Cal.4th 764, 772.) The existence and scope of a duty of care “is to be
made on a more general basis suitable to the formulation of a legal rule” to be applied in
a broad category of cases. (Id. at p. 773; Huang, supra, 4 Cal.App.5th at pp. 342-343.)
In this case, the evidence is undisputed that giving passengers a brief presentation
on safe landing procedures (such as the instructions Grotheer’s expert cites from the FAA
Handbook) is a customary and standard practice in the ballooning industry. To
paraphrase Grotheer’s expert, these safe landing procedures are: (1) stand in the
appropriate area of the basket; (2) face toward or away from the direction of travel, but
not sideways (to minimize the risk of a side-impact injury to the hips or knees); (3) place
the feet and knees together, and bend the knees; (4) hold on tightly to the rope, handles,
or other stabilizing device, and (5) stay inside the basket. Gallagher himself agreed
safety instructions are crucial. He said he always explains what passengers can expect
during launch and landing. In preparation for landing, he tells them to hold on to the
handles, bend their knees, and not to exit the basket until told to do so.
As to foreseeability, undisputed evidence in the record tells us that rough landings
are a risk of ballooning and instructing passengers on proper landing positioning can
24 reduce, though not eliminate, the likelihood of injury in the event the landing does not go
smoothly. Additionally, we see no public policy reason why balloon operators should not
be required to give safe landing instructions. (Huang, supra, 4 Cal.App.5th at p. 342.)
As Kitchel, an experienced balloon pilot, owner, and operator, explained, “[a] detailed
safety briefing takes no more than 5 minutes and is time well spent.” While “[m]any
balloon landings are gentle, stand-up landings . . . the pilot should always prepare
passengers for the possibility of a firm impact,” as rough landings can result in severe
injuries.
Escape contends the duty to provide safe landing instructions will be overly
burdensome to balloon operators, citing the complexity of the preflight instructions
operators of passenger-carrying airplanes are required to give under federal regulation.
(See 14 C.F.R. § 121.571.) We find the concern misplaced. The duty we recognize here
does not compel anything so lengthy or complex as commercial airlines’ preflight
instructions. It requires only that a commercial balloon operator provide a brief set of
safe landing procedures, which Escape’s pilot said is already his custom. Safety
instructions are a common practice among operators of recreational activities, and we do
not believe requiring balloon operators to set aside a few moments before launch to
advise passengers how to position themselves in the basket and what to do in the event of
a rough landing will have a negative impact on the ballooning industry. (Cf. Nalwa,
supra, 55 Cal.4th at p. 1161 [noting bumper car operator “enforce[d] various riding
instructions and safety rules” before giving control of the car’s speed and steering to
riders]; Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th at p. 251 [operator of
25 white water rafting tour gave plaintiff “safety instructions,” such as “where to sit, that it
was necessary to hold onto the raft while navigating rapids and where to hold on, and
how to react if thrown out of the raft into the water”].) Because the evidence supports
Grotheer’s allegation Escape failed to give safety instructions of any kind to any of its
passengers, we need not go into precisely what warnings are required, including whether
a commercial balloon operator must ensure passengers with known language barriers
understand the safety instructions.
We therefore conclude the court incorrectly applied the primary assumption of risk
doctrine to absolve Escape of a duty to provide safe landing procedures. However, this
conclusion does not end our analysis. We must also consider whether Grotheer’s
negligence claim fails as a matter of law because she has not demonstrated the existence
of a triable issue of fact on causation. (Coral Construction, Inc. v. City and County of
San Francisco (2010) 50 Cal.4th 315, 336 [“‘[i]t is axiomatic that we review the trial
court’s rulings and not its reasoning’” and “[t]hus, a reviewing court may affirm a trial
court’s decision granting summary judgment for an erroneous reason”].)
D. Any Lack of Safety Instructions Was Not a Substantial Factor in Causing
Grotheer’s Injury
“The elements of actionable negligence, in addition to a duty to use due care, [are]
breach of that duty and a proximate or legal causal connection between the breach and
plaintiff’s injuries.” (Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d
385, 394 (Onciano).) To be considered a proximate cause of an injury, the acts of the
26 defendant must have been a “substantial factor” in contributing to the injury. (Rutherford
v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969.) Generally, a defendant’s conduct is a
substantial factor if the injury would not have occurred but for the defendant’s conduct.
(Ibid.) If the injury “‘would have happened anyway, whether the defendant was
negligent or not, then his or her negligence was not a cause in fact, and of course cannot
be the legal or responsible cause.’” (Toste v. CalPortland Construction (2016) 245
Cal.App.4th 362, 370, citing 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts,
§ 1185, p. 552.) As our high court has explained, “‘a force which plays only an
“infinitesimal” or “theoretical” part in bringing about injury, damage, or loss is not a
substantial factor.’” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.)
While proximate cause ordinarily is a question of fact, it may be decided as a
question of law if “‘under the undisputed facts, there is no room for a reasonable
difference of opinion.’” (Onciano, supra, 219 Cal.App.3d at p. 395.) As noted, once a
defendant claiming the plaintiff cannot satisfy an element of his or her claim meets the
initial burden of production, the burden shifts to the plaintiff to demonstrate a triable
issue of fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) When the evidence supports
only one reasonable inference as to the cause of the plaintiff’s injury, courts should not
engage in “unreasonable speculation that other contradictory evidence exists but was not
adduced in the summary judgment proceedings.” (Constance B. v. State of California
(1986) 178 Cal.App.3d 200, 211 [dismissal of negligence claim was proper because no
reasonable fact-finder could find a causal nexus between defendant store owner’s
27 improper lighting and the assault on plaintiff based on the evidence presented during the
summary judgment proceedings].)
As explained in the previous section, the purpose of the safety instructions is to
reduce injury in the event of rough landings. Here, however, the undisputed descriptions
of the landing establish it was not merely rough, but rather was a forceful and violent
event—a crash. According to Boyd and Kristi Roberts, whose uncontested descriptions
are the most detailed, the basket was descending “pretty fast” when it hit the fence with
such force it “knocked it right apart,” taking out several fence sections. The basket then
hit the ground “hard” and skidded for about 40 yards, becoming more and more
horizontal as it was dragged, before coming to a stop on its side with Grotheer’s section
on the bottom. Gallagher, the pilot, said the balloon had been descending more quickly
than he had anticipated when the basket made a “hard landing, first on the fence and then
on the ground.” Grotheer too described both impacts as “hard.” Both Grotheer and
Kristi said they had been holding on to the handles (Kristi as tightly as she could) but
were unable to keep from slipping or falling.
From these descriptions, we gather the crash landing was a jarring and violent
experience, a “wild ride” so forceful that several passengers fell—even one who had tried
desperately not to fall by gripping the basket handle as tightly as possible. (See Endicott
v. Nissan Motor Corp. (1977) 73 Cal.App.3d 917, 926 [“If the violence of a crash is the
effective efficient cause of plaintiff’s injuries to the extent that it supersedes other factors
. . . and makes them immaterial, plaintiff cannot recover”].) The accounts of the crash
satisfied defendants’ burden of demonstrating the violence of the crash, not any lack of
28 instructions, was the proximate cause of Grotheer’s injury. The burden then shifted to
Grotheer to explain how things may have played out differently had everyone been
instructed on proper body positioning during landing. She produced no such evidence.
Instead, she said at her deposition she believed everyone had in fact been holding on to
the basket handle during the descent. While one could speculate that Kristi had been the
only passenger holding the handle correctly and the woman who fell into Grotheer had
employed an improper grip (say, using only one hand or not holding “tight,” as the FAA
Handbook instructs), Grotheer presented no evidence to support such a theory. As a
result, she did not meet her burden of demonstrating an evidentiary dispute about whether
the provision of instructions would have produced a different outcome.
We conclude any failure to instruct on Escape’s part was not a proximate cause of
Grotheer’s injury, and we affirm the grant of summary judgment on that ground. Given
our holding that defendants are not liable for negligence, it is unnecessary to review the
trial court’s ruling on Wilson Creek’s vicarious liability or its ruling on defendants’
liability waiver defense.6
6 Defendants asked us to review the ruling on their affirmative defense in the event we reversed the trial court’s grant of summary judgment, citing California Code of Civil Procedure section 906, which allows a respondent, without appealing from a judgment, to seek appellate review (at the court’s discretion) of any ruling that “substantially affects the rights of a party,” for “the purpose of determining whether or not the appellant was prejudiced by the error . . . upon which he relies for reversal.” Because we do not reverse the grant of summary judgment, we need not reach the issue of defendants’ affirmative defense.
29 III
DISPOSITION
We affirm the judgment. The parties shall bear their costs on appeal.
SLOUGH
J.
We concur:
RAMIREZ
P. J.
CODRINGTON