The Colorado Gazette reported that a hot-air balloon ride with 17 passengers was forced into a crash landing in a retention pond near Orlando. An unexpected shift in the wind forced the pilot to land in the water to avoid power lines. The pond is known to be a home to several alligators. According to Orlando Balloon Rides, the pilot, who had over 2,000 hours of balloon flying experience, was able to navigate a landing safely and there were no injuries. Both the FAA and National Safety & Transportation Board have conducted inquiries in response to the incident.
This occurrence raises a question regarding potential civil liability in accidents where injury or death occurs in a hot-air balloon excursion. Operators offering hot-air balloon rides will usually have their passengers sign an agreement commonly referred to as a “release of liability” or “indemnity agreement”. Generally, these agreements contain provisions explaining that the activity has an inherent risk for injury and that the passengers are choosing to participate with knowledge of the risks. These agreements explain that the passengers are releasing the owner or operator from potential civil liability in the case of an accident.
The enforceability of agreements that waive liability has been challenged many times in U.S courts and Colorado has had many such cases. These matters often surface involving participation in activities such as skiing, swimming, amusement park rides and other recreation-based happenings. Colorado laws usually recognize written waivers of liability; however, they are subject to scrutiny and the outcome varies based on the circumstances and review on a case-by-case basis. Traditionally, Colorado courts do not favor agreements that are drafted specifically in an attempt to shield a party from liability that is based on their own negligent action. In years past, those allowing or operating recreational activity were protected under the common law doctrine of assumed risk. Colorado statute addresses this by explaining that a trier of fact shall evaluate the assumption of risk when allocating negligence.
Colorado considers public policy and other factors when determining the enforceability of liability waivers and may consider the following:
- Waivers may be barred if they involve minors, willful conduct or other bars according to statute
- How the agreement relates to several factors addressed in the Jones v. Dressel case:
- Does the party owe a duty to the public?
- Is the activity essential or nonessential?
- Did all parties fairly enter into the agreement?
- Are the terms of the agreement clear (unambiguous)?
- If the agreement contains the necessary elements according to contract law.
Have the negligent actions of a party caused you to suffer severe injuries? You may be eligible for significant financial compensation according to Colorado law. Contact The Law Firm of Jeremy Rosenthal at (303) 825-2223 for a complimentary case evaluation today.