Hundreds of thousands of Americans own their own small aircraft that they use for pleasure flying, attending fly-ins with airplane clubs, and taking vacations. Suppose your friend owns a small plane and asks you if you’d like to go for a ride. You enthusiastically agree, but while in mid-flight, there is a problem with the engine and its stops the propeller from turning, and you crash land. Can you sue your friend for injuries you suffered in the crash? Or in the case of fatal injuries, can your loved ones sue your friend’s estate for your “wrongful death“?
A privately-owned owned non-commercial plane owner who does not regularly charge a fee for transporting persons—whether the flight is just for a couple of hours of sightseeing or your friend taking you from one place to another—is considered a “private carrier.” As such, your friend has the legal obligation (“owes you a duty”) to use ordinary and due care in making sure the plane is airworthy and that he or she is qualified and fit to be at the controls and not make any careless errors that result in the passenger’s harm or death. In legalese, the “standard of care” applicable to private pilots flying pleasure craft is one of “ordinary negligence” for the safe transportation of their passengers. Ordinary care is that degree of care that an ordinarily prudent person would use under like circumstances when charged with a like duty. Ordinary negligence is a lack of due care; and due care means commensurate care, under the circumstances, tested by the standard of reasonable prudence and foresight.
Suppose a newlywed couple takes a paid hot-air balloon ride over the Napa Valley wine country during harvesting, but because of some defect in the balloon or gondola or a mistake on the balloon’s pilot, the hot air balloon crashes, seriously injuring or even killing the couple. The person or company that provides the hot-bar balloon rides is considered a common carrier and as such owes its passengers the highest degree of care for their safety so far as is consistent with the practical operation and conduct of its business.
A private carrier (sometimes called a “contract carrier”) is one who makes an individual contract in a particular instance for the carriage of passengers to a certain destination. The private carrier does not hold himself out to the public as ready to accept and carry as passengers everyone who offers to pay the fare. Each act of transportation is a separate and individual act. It is not for the public convenience and necessity, but is a private transaction. The private carrier may refuse to carry the prospective passengers. The chief test applied to determine whether a mode of transportation (that is, a “carrier”) is a common carrier is whether or not the operator of the carrier, either by express written or oral statements, or by his course of conduct, holds himself out to the public as willing to carry at a fixed rate all persons applying for transportation so long as his vehicle (airplane, helicopter, hot air balloon, etc.) will carry them. The standard of care to which the private carrier is held is the duty to exercise ordinary care for its passengers’ safe transportation.
A common carrier is one who holds himself out to the public as engaged in the public business of transporting persons for compensation from place to place, offering his services to such of the public generally as choose to employ him and pay his charges. The distinctive characteristic of a common carrier is that he undertakes as a business to carry for hire on a uniform tariff all persons wanting transportation, so long as he has the room to accommodate them. Whether one is a common carrier is determined by looking at whether he holds himself out as such, either expressly or by a course of conduct, the he will carry for hire on a uniform tariff all persons applying, so long as he has the room.
A common carrier owes its passengers the highest degree of care for their safety so far as is consistent with the practical operation and conduct of its business. The rule of “utmost care” does not merely require the degree of care usual among ordinarily prudent and competent carriers. It requires the degree of care to be expected of an unusually prudent and competent carrier. It is then something more stringent than the rule of “ordinary care” under all circumstances.
“Holding oneself out to the pubic” means that the carrier in some way makes it known to its prospective patrons the fact that its services are available. This may be done in various ways, as by advertising, solicitation, or the establishment in a community of a known place of business where requests for service will be received. However the result may be accomplished, the essential thing is that there must be a public offering of the service, or, in other words, a communication of the fact that service is available to those who may wish to use it.
For a transporter of passengers such as an airplane to be a common carrier, it is not necessary that it have a regular schedule of flights, a fixed route, or a relatively unlimited carrying capacity. For example, a carrier that provides air transportation may limit its operations solely to charter flights and still be legally considered to be a common carrier. Important factors used to determine whether an operation is a common carrier include an established place of business, engaging in the operation as a regular business and not merely as a casual or occasional undertaking, and a regular schedule of charges.
To be a common carrier, it is not necessary for the carrier to leave one place and transport its passengers to another place. A sightseeing tour that embarks from and returns to the same point can be considered a common carrier. Hence, an airplane pilot who offered sightseeing flights to the ocean and back was held to be a common carrier, even though the flights took off and landed at the same airport. Similarly, a company that provides sightseeing helicopter rides for a fee is a common carrier, even though it takes off and lands at the same helipad. Commercial hot air balloons that advertise or otherwise promote their business of sightseeing trips from point A to point B are common carriers.
California law has an expansive definition of carriers of persons for reward, i.e., common carriers. A “common carrier” is broadly defined as everyone who offers to the public to carry persons, property, or messages, except only telegraphic messages. Operating railroad cars upon a scenic railway, where the train starts from and ends at the same point of origin, is subject to the higher duty of care applicable to a common carrier. Like passengers in an airplane who go for sightseeing trips, the passengers on a scenic railroad tour are subject to great risk to life and limb. The steep inclines, sharp curves, and great speed necessarily are sources of peril.
Carriers of persons are treated differently depending upon whether they act gratuitously or are paid. A carrier of persons “without reward” is subject only to a duty to use ordinary care and diligence for their safe carriage, while a carrier of persons “for reward” is subject to a heightened duty.
California law requires that a common carrier (a “carrier for reward”) use the utmost care and diligence for its passengers’ safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill. Common carriers are not, however, insurers of their passengers’ safety, giving them an absolute guarantee that nothing will go wrong and they will not be injured or killed in any way whatsoever. Rather, the degree of care and diligence which they must exercise is only such as can reasonably be exercised consistent with the character and mode of transportation adopted and the practical operation of the carrier’s business.
The common carrier is also legally required to provide vehicles that are safe and fit for the purpose to which they are put, and is not excused for default in this respect by any degree of care. Also, the passenger’s motive for seeking transportation is not relevant in determining the carrier’s liability. The common carrier owes the same high duty of utmost care whether the passenger rode for pleasure or business. A passenger’s purpose in purchasing transportation, whether it be to get from one place to another or to travel simply for pleasure or sightseeing, does not determine whether the provider of the transportation is a carrier for reward. Undisclosed purposes on the passengers’ part does not affect the duty of the common carrier to exercise the highest degree of care for the safety of the passenger. The fact that a passenger begins and ends a journey in the same place does not mean he or she has not been transported. A tourist in San Francisco who takes a round-trip ride on a cable car solely for entertainment has been transported and is no less entitled to a safe ride than another passenger on the same cable car who disembarks earlier to visit a store or restaurant.
A carrier, even a common carrier, that carries passengers on sightseeing tours often requires its prospective passengers to sign a release and waiver of liability (also called a “hold harmless” clause) before the tour. In such a release, the prospective passenger agrees not to sue the carrier for injuries or death even if such injuries or death were caused by the action, inaction, carelessness, or negligence of the carrier or its employees. The law generally looks with disapproval on attempts to avoid liability or to obtain exemption for a person’s future negligence. Accordingly, these so-called “exculpatory clauses” are strictly construed against the person relying upon them. Nevertheless, courts will enforce releases and waivers of liability of common carriers if they meet certain criteria.
To be valid and enforceable, a release from negligence must be in clear, explicit, and understandable language, clearly conveying to the prospective releaser, as an ordinary person untrained in the law, that he or she is releasing the other party from liability for the releasor’s personal injury or death caused by the negligence of the releasee. The agreement, when read as a whole, must clearly notify the prospective releasor of the effect of signing the agreement. The fact that the person failed to read the release or waiver of liability before signing it is no defense. If, however, the person is given the release to sign at the door of the airplane or helicopter, or immediately before the hot air balloon takes off, a good argument can be made that the carrier did not give the person a sufficient amount of time to read the release or waiver. Generally speaking, the provision containing the release ordinarily must be set in large and perhaps bolder type than the rest of the agreement that compels notice and must be distinguished from other sections of the document, that is, it must be conspicuous and obvious. An exculpatory clause is not binding if it is printed in small type and is not readable, clear, and comprehensible.
Releases and waivers of liability are enforceable against the person signing them so long as they do not conflict with the public interest. For instance, an air transportation company that provides sightseeing trips can require prospective riders to sign releases and waivers of liability for ordinary negligence because the subject of the contract—a sightseeing or pleasure trip—does not involve an important pubic policy. A commercial airline such as United or American, on the other hand, cannot avoid its duty of utmost care to its passengers by having its prospective passengers sign as release. The reason for this is that the commercial airliner performs a service of great importance to the public, which is often a matter of practical necessity for some members of the public.
An aerial sightseeing tour is not an essential service or necessity affecting the public. Accordingly, a common carrier that provides sightseeing trips, whether by plane, helicopter, hot air balloon, train, or other means of transportation, can require that its potential passengers sign a release or waiver of liability or its ordinary negligence. The carrier cannot, however, limit its liability for more serious conduct than simple “ordinary” negligence, such as gross negligence or intentional misconduct. “Gross negligence” is either a lack of even scant care or an extreme departure from the ordinary standard of conduct. In layman terms, ordinary negligence may be defined as general carelessness, while gross negligence may be defined as recklessness, a higher level of misconduct.
If you have been injured or a loved one killed in an accident involving a recreational or sightseeing carrier, such as a plane, helicopter, train, or hot air balloon, you should contact an experienced personal injury law firm as soon as possible. It is also important to promptly, as the law firm may want to send its own investigator to the scene of the accident to inspect and take pictures of the accident site and any dangerous condition that caused or contributed to the accident, especially before there is a change in the condition of the area or vehicle. The attorney or his or her investigator will also want to talk to any witnesses to the accident as soon as possible while the facts are still fresh in their minds.
An experienced personal injury law firm can also help with seeing to it that you obtain appropriate and thorough medical care for your physical, emotional, and psychological injuries suffered as a result of the accident. The attorneys in the firm can also do everything possible to ensure that you obtain full compensation for your medical expenses, pain and suffering, mental anguish, property damage, lost wages, and all of your other injuries and damages.
Call now and talk to a lawyer for free about your case. 888.845.9696