To release or not to release, thats the question |

To release or not to release, thats the question

Heres an idea. Lets take a biplane sight-seeing tour over Lake Tahoe or the Grand Canyon or maybe Santa Barbara. I mean, what could go wrong?

Blue Booth love the name and his daughter, Cassey, decided to take an aerial sight-seeing tour over Santa Barbara on Santa Barbara Biplane Tours. About 30 minutes before boarding the plane they were asked to sign a release and waiver of liability, one of those standard releases. So thats just what they did. No big deal. Blue and Cassey boarded the Waco biplane, then cruised over Santa Barbara. Suddenly the plane lost power and made an emergency landing injuring them both. The pilot had made several flights earlier in the day, all without incident. Blue and Cassey sued Santa Barbara Biplane Tours, LLC alleging negligence and breach of the implied warranty of airworthiness of the aircraft (planes arent supposed to crash). They also alleged that the tour company was a common carrier and thus they were entitled to the utmost duty of care a higher standard than simple negligence.I suspect they also claimed they were essentially forced to sign the high-risk activity release and didnt understand it was a release of any claims they might have if there was an incident.

Under the Civil Code, if a company offers to the public to carry persons or property, it is a common carrier, like amusement rides, ski lifts, planes, trains, buses, taxis and even a guided-tour mule ride. Generally a common carrier may limit its liability by special contract (read Release), but not for gross negligence, recklessness or fraud actions or inactions worse than negligence worse than merely screwing up, as I like to say.

So the issue in Blue Booths case was 1) whether the biplane sight-seeing company was a common carrier, and 2) if so, could it ask its passengers to sign releases that would be upheld in court. The Court of Appeal wrote that releases that affect the public interest are void as a matter of public policy. For example, hospitals may not ask patients to sign releases because hospitals provide a service of great importance to the public. Same for common carriers like commercial airlines, trains and buses.On the other hand, as the court discussed, snow skiing and parachute jumping are not essential services or necessities affecting the public, so well written releases can be effective. The court ultimately ruled that providing aerial sight-seeing tours of Santa Barbara isnt a necessary public function like taking a United flight to San Francisco. The release that the Booths signed was very clearly worded and was upheld. No liability for the biplane company. Lucky them. Not sure I agree with this case. Interestingly, the court wrote that had the Booths sued for gross negligence or recklessness, the release would not have been effective. Theres your take-home lesson. Jim Porter is an attorney with Porter andamp; Simon, with offices in Truckee, South Lake Tahoe and Reno. He may be reached at or at the firms web site 2008

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