he Wisconsin Supreme Court held a hot air balloon operator is not immune from a negligence action filed by a woman injured by a runaway hot air balloon, even though the plaintiff signed a liability waiver.
Sundog Ballooning, one of three defendants, argued it was entitled to recreational immunity under a Wisconsin statute. However, the court held that the operator did not fit the definition of an owner or occupier as required by statute.
Sundog also argued that the injured plaintiff Patti Robert was barred from filing because she signed a liability waiver prior to participating in the balloon activities.
Robert appealed the district courts' summary judgment ruling. On appeal she argued that the operator was not entitled to immunity because:
Patti Roberts attended a charity event where Sundog Ballooning was the owner and operator of the tethered hot air balloon rides. The balloons, also owned by Sundog, were attached to two trees and a pick-up truck. Patti and her family watched the tethering for a few turns and joined the line to ride the hot air balloon.
The issue arose when strong winds caused one of the tethered lines to snap. According to the opinion, Roberts was “struck by the balloon’s basket and knocked to the ground.”
During a deposition, the balloon operator Kerry Hanson stated she had limited experience with tethering balloons and did not check weather reports prior to the rides for the charity event.
FAA regulations require operators to make sure patrons were far away from balloons and prepare for failure of tethered lines.
[sws_pullquote_right]See: $51.5 Million Jury Award for Woman Severely Injured by Tractor Trailer [/sws_pullquote_right]
Wisconsin recreational immunity statute provides that an owner owes:
By statute an owner is someone who owns, leases, or occupies the property. Sundog adamantly argued it was a landowner because previous cases found in favor of activity providers. However, the court stated in other cases the plaintiff had filed suit against the event host or owner of the property.
Roberts only filed suit against Sundog, its owner, and Sundog’s insurance company. Sundog was a third party, and was not responsible for allowing public access to the charity event. Thus, Sundog was not entitled to immunity because it was not an occupier or owner and there was no case law to support granting immunity to a third party.
Wisconsin courts do not define the meaning of structures. In its plain meaning, a structure is an item that is constructed, or put together, or made up of multiple parts joined together. Sundog presented a creative argument based on a previous case involving a tree stand which was affixed to the property.
The court rejected the argument because of the balloon's ability to move to multiple places. When a hot air balloon is erected it is not intended to remain in the same spot forever.
In addressing the liability waiver, the court stated that as a matter of public policy the liability waiver should not bar the plaintiff’s claims. The waiver at issue was never returned to Sundog; the waiver was found on the event grounds after the accident.
Additionally, the court held the liability waiver was overbroad and all-inclusive. The waiver did not specify whether a person waiting to participate would expect to be injured while waiting to participate. The waiver was found void as a matter of law.
This case is Roberts v. Sundog Ballooning, et al. Case no 2014AP1508
