By Doyice Cotten
The issue as to whether an activity or mode of transportation is a common carrier can determine the duty owed to passengers. A recent California case (Grotheer v. Escape Adventures, Inc., 2017), addressed the issue of whether a hot air balloon is a common carrier. The court defined a common carrier of persons as anyone “who offers to the public to carry persons.” (Civ. Code, § 2168.)
The duty that a common carrier owes to its clientele depends upon whether the ride is gratuitous or if there is a fee charged. Carriers that receive no reward or fee have a duty to exercise “ordinary care and diligence for their safe carriage.” In contrast, carriers receiving a reward are subject to a heightened duty of care. They “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.” Further, common carriers are not insurers of their passengers’ safety, but they must “do all that human care, vigilance, and foresight reasonably can do under the circumstances.” The court noted that this duty originated in English common law and is based on the concept that the privilege of serving the public as a common carrier entails a great responsibility and subsequently mandates the exercise of a high duty of care towards their customers.
The stagecoach was the first carrier to receive common carrier status in California in the mid-19th century. Since that time, the concept has expanded to include a number of types of recreational transport: some of these are scenic airplane and railway tours, ski lifts, and roller coasters. This expansion is based on the concept that a passenger’s purpose – whether recreation, thrill-seeking, or simply conveyance from point A to B – should not be the determining factor as to whether the operator should have a higher duty to protect the passenger. The California Supreme Court has ruled that roller coasters are common carriers because they are operated in the expectation that thousands of patrons, many of them children, will use them fully expecting them to be safe. The lives and safety of users of roller coasters, tour airplanes and trains, and ski lifts are entrusted to the operator’s “diligence and fidelity.”
The California Supreme Court pointed out that bumper cars were not deemed to be common carriers because the rider has some control over the elements of the ride and the rider’s safety is not totally dependent upon the ride operator.
The court stated that based on these precedents, “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.” Where the bumper car rider has a large degree of control over the car’s speed and direction, the roller coaster rider has no control over the ride. He or she expects surprises and fright, but does not expect to be hurt.
The Hot Air Balloon
The court stated that hot air balloons were unlike roller coasters in that a balloon pilot does not maintain direct and precise control over the speed and direction of the balloon; he can only control altitude. The balloon has no source of power and results in the risks of midair collisions and crash landings. Based upon this lack of pilot control, the court found that a hot air balloon differs from those recreational vehicles (such as roller coasters) held to a common carrier’s heightened duty of care.
The court pointed out that operators of roller coasters, ski lifts, airplanes, and trains can take steps to make their conveyances safer for passengers by investing in state-of-the-art construction materials or by having engineers design a ride that provides optimal thrills without sacrificing passenger safety. Balloon operators, however, must rely on safety measures and pilot training, but these can only do so much.
The California court held that a hot air balloon did not constitute a common carrier under California law – thus Escape did not owe a higher duty of care.
Photo Credit: Thanks to Eric BC Lim via Flickr.