Grotheer v. Escape AdventuresAnnotate this Case
Plaintiff-appellant Erika Grotheer was a non-English speaking German citizen who took a hot air balloon ride in the Temecula wine country and suffered a fractured leg when the basket carrying her and seven or eight others crash landed into a fence. Grotheer sued three defendants for her injuries: the balloon tour company, Escape Adventures, Inc. (Escape), the pilot and Escape’s agent, Peter Gallagher (Gallagher), and Wilson Creek Vineyards, Inc. (Wilson Creek). The defendants moved for summary judgment, arguing Grotheer could not satisfy the elements of a negligence claim and, even if she could, she had waived the right to assert such a claim by signing Escape’s liability waiver before the flight. The trial court agreed Grotheer could not establish the element of duty, finding Grotheer had assumed the risk of her injury under the primary assumption of risk doctrine and, as a result, Escape and Gallagher owed her no duty of care whatsoever. The trial court entered judgment in favor of defendants, and Grotheer appealed. Grotheer argued the trial court erred in concluding her claim was barred by primary assumption of risk and reasserted on appeal that Escape was a common carrier. The Court of Appeal affirmed the judgment, but on a different ground than relied on by the trial court: (1) a balloon tour company like Escape was not a common carrier subject to a heightened duty of care; (2) the primary assumption of risk doctrine bars Grotheer’s claim that Gallagher negligently failed to slow the balloon’s descent to avoid a crash landing; and (3) Escape does have a duty to provide safe landing instructions to its passengers, but the undisputed evidence regarding the crash demonstrates that any failure on Escape’s part to provide such instructions was not the cause of Grotheer’s injury.