A hot air balloon injury resulted in a lawsuit against the operator of the tethered rides, but the litigation almost didn’t get off the ground. Recently, the Wisconsin Supreme Court reversed a lower court ruling and granted plaintiffs the right to continue with their case, finding the defendant wasn’t shielded by the state’s recreational use statute.
Florida has a recreational use statute as well, codified in F.S. 375.251. The law provides protection from liability for land owners who offer up their property for free to be used by the public for recreational purposes. It’s an incentive to get private property owners to open up their lands for public enjoyment. However, if someone is injured on that site, they may have a tough time recovering damages.
But in Roberts v. T.H.E. Ins. Co., there was one major snag in the defense’s case: Defendant wasn’t the owner of the property.
According to court records, the accident happened at a charity event at a shooting land that was owned by a group of conservationists. Defendant owned and operated a hot air balloon and was offering tethered rides at the event. They were offering these rides for free and were donating their time to promote the charity.
The hot air balloon in question was tethered to a pickup truck and two trees. It would take passengers up for a few minutes and then bring them back down.
While plaintiff was waiting in line to take a hot air balloon ride, defendant handed her a waiver of liability to sign. She did so, but never returned it to the owner. (It was later discovered signed on the ground after plaintiff was injured.)
After waiting in line about a half hour, high winds started to pick up. This caused the balloon tether lines to snap. The balloon went loose and plaintiff was knocked to the ground by the rogue basket.
Evidence would later reveal defendant, the operator, did not have much experience with tethered ballooning. He would later testify he should have looked up the weather reports that day and that if he had known it would be so windy, he would have stopped the rides.
Hot air ballooning is governed by the Federal Aviation Administration, which requires operators to plan for failure of one or more tethered lines. The agency also requires organizers to keep participants far enough back from the tether lines – precisely so something like this doesn’t happen. Defendant agreed at deposition that if he had moved the sign-up table and line farther back, plaintiff would not have suffered injury.
Plaintiff filed a personal injury lawsuit seeking damages, but defense argued he was protected by the recreational use statute. While it was true plaintiff was engaging in a recreational activity and defendant was offering a free service on donated land, defendnat was not the owner of that land. Therefore, the state supreme court found, he was not entitled to protection under the statute.
Defendant further argued he was protected from liability because plaintiff had signed a waiver of liability. However, the state supreme court ruled the waiver was against public policy. It should be noted that Wisconsin does not favor exculpatory agreements, and will find them invalid if there are misrepresentations, if they are too broad or if they are ambiguous.
Here, the court found the waiver was overly-broad and all-inclusive. The waiver here would have absolved the defendant of any activity for any reason, known or unknown. That, the court ruled, goes against public policy. What that means is the case may now move forward.
If you have been injured in an accident, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Roberts v. T.H.E. Ins. Co., March 30, 2016, Wisconsin Supreme Court
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