## Facts

- Erika Grotheer, a German citizen who did not understand English, purchased and took a sunrise hot-air-balloon ride operated by Escape Adventures, Inc., piloted by Peter Gallagher.
- During the flight, winds increased and the pilot attempted multiple landings.
- On the final attempt, the balloon made a hard landing; the basket collided with a fence, and Grotheer suffered a fractured leg.
- Before the ride, Grotheer signed an English-language liability waiver.
- Grotheer sued Escape, Gallagher, and Wilson Creek Vineyards, Inc. alleging negligent piloting, inadequate safety/landing instructions, and that Escape owed heightened duties as a common carrier.
- Defendants sought summary judgment based on primary assumption of risk, the written release, and lack of negligence; the trial court granted summary judgment for all defendants on a no-duty rationale under primary assumption of risk.

## Issues

1. Whether a hot-air-balloon tour operator is a “common carrier” under California law owing passengers a heightened duty of utmost care.
2. Whether primary assumption of risk applies to hot-air-ballooning to bar a negligent-piloting claim premised on failure to slow descent and avoid a crash landing.
3. Whether the operator owed a duty to provide reasonable landing/safety instructions and, if so, whether any failure was a substantial factor in causing the injury.

## Decision

- The Court of Appeal affirmed summary judgment for all defendants.
- The operator was not a common carrier and did not owe a common carrier’s heightened duty.
- Primary assumption of risk barred the negligent-piloting claim because hard or crash landings are an inherent risk of recreational hot-air-ballooning.
- The operator owed a limited duty to provide reasonable landing/safety instructions, but the claim failed because undisputed evidence showed any instructional deficiency was not a substantial factor in causing Grotheer’s fracture given the violent nature of the impact.
- The court did not need to decide enforceability of the written waiver because duty and causation disposed of the claims.

## Legal Principles

- Common carrier status depends in part on the operator’s ability to exercise continuous, precise control over the conveyance; limited control over direction and landing conditions weighs against common carrier classification.
- Under primary assumption of risk for recreational activities, defendants generally owe no duty to eliminate risks inherent in the activity, and liability arises only for conduct that increases risks beyond those inherent risks.
- Even where primary assumption of risk applies, operators may retain a limited duty to take reasonable precautions that can reduce injury risk without altering the fundamental nature of the activity (e.g., providing basic safety instructions).
- Negligence requires causation; summary judgment is proper when undisputed evidence shows the alleged breach was not a substantial factor in producing the injury.

## Conclusion

The court upheld summary judgment because hot-air-balloon tours are not treated as common carriage, crash landings are an inherent risk barring claims based on piloting to prevent them, and the only potentially viable theory—failure to provide reasonable landing instructions—failed as a matter of law for lack of causation.


Grotheer v. Escape Adventures, Inc., 14 Cal. App. 5th 1283 (Cal. Ct. App. 2017)