Hot air balloon operators are not “common carriers” subject to the statutory requirement of operating with the utmost care under Civ. Code 2168 because the operators cannot, without fundamentally altering the nature of hot air ballooning, control anything more that the balloon’s elevation. The balloon’s horizontal drift is governed by the wind, not the operator, no matter how safely the balloon is operated. Because hot air balloon operators are not common carriers, they can take advantage of the primary assumption of the risk doctrine and thus owe no duty of care as to risks inherent in the sport or activity of hot air ballooning. A balloon’s limited steerability creates risks of mid-air collisions and crash landings, and 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. Injury from a crash landing of a hot air balloon thus falls within the primary assumption of the risk immunity even if due to pilot error in failing to adjust altitude properly to account for cross-winds. However, primary assumption of the risk does not prevent the operator from incurring liability for failure to instruct passengers on how to protect themselves against inherent risks such as crash landings, since those warnings would not fundamentally alter the sport or activity. But in this case, the failure to instruct did not cause plaintiff’s injury since the landing was so violent that reasonable precautions would not have prevented the injury she suffered.
California Court of Appeal, Fourth District, Division 2 (Slough, J.); August 31, 2017; 2017 WL 3772580