(CNN)A hot air balloon believed to be carrying 16 people crashed in Texas after catching fire midflight on Saturday morning. According to the Federal Aviation Administration, there were no survivors.
The crash is under investigation and officials believe the balloon may have struck power lines. If 16 were killed, it would be the deadliest balloon accident in U.S. history.
We"re accustomed to hearing about plane crashes and there is an established body of law that determines who can be held liable and what kind of compensation survivors can receive in such cases. With balloon accidents, that isn"t as clear.
While hot air balloons are technically considered "aircraft," they really aren"t a part of mainstream American life in the way other aircraft are. Developed in the 1700s, balloons were the first successful technology to carry a human in flight. Yet, most of us only see them in screensavers, or stock photos that come with our laptop computers. No one uses them to commute or to fly home for the holidays. For the most part, when a group of people get into a balloon, it"s for a recreational tour.
Among 43 balloons that hit fixed objects during crashes, the second-most struck object was power lines (11), with trees coming in first (15). But even stranger, avoiding power lines also contributed to eight crashes, which is an argument for power lines being considered in the first place.
Among crashes of paid balloon rides, collisions with objects contributed to all five fatalities. Collisions specifically with power lines accounted for seven percent of the crashes, two fatalities and 10% of all injuries.
Driving a car is fraught with potential collisions. Crossing deer, pedestrians and other cars are just a few of the many dangerous moving items on the road. By contrast, the objects that pose a threat to an airborne balloon are limited, and most of them are fixed, like trees, buildings and the Earth itself. The fixed object that causes the greatest risk for catastrophe appears to be power lines. In addition to the impact, there"s the added risk of electrocution.
Generally, electric utilities may be liable for failing to insulate, warn about, properly maintain, de-energize, or place their wires.
That"s not to say that these are easy cases to win. There are many kinds of tragic encounters with power lines. Some are the fault of the utility. Some are not. While power lines are a common risk to balloons, court cases involving power lines and balloons are not a common occurrence. One Illinois case pops up again and again: Coleman v. Windy City Balloon Port.
That case suggests that power line companies have no duty to warn balloonists of a known danger of electricity when the presence of the power lines was an open and obvious danger.
In addition, if a balloonist chooses to take a balloon up in bad weather and then misguides it into the lines, that"s not foreseeable by the utility company.
It seems utilities cannot be obligated to always make electric wires perfectly safe, either. To the court, requiring a utility to warn balloonists, insulate the power line and provide circuit breakers at all points on the line would impose an unreasonable, unachievable duty upon the entire system.
Balloon collisions with power lines are rare in the world of catastrophic litigation. That"s why there"s a dearth of cases on the topic. A single state court case from the late "80s is hardly mandatory authority on the issue of liability. By contrast though, there are plenty of cases about the liability of electric and other companies when someone is injured by a power line, on the ground or in the air. These will provide guidance, but then again, ballooning is an unusual hobby that is controlled in part by humans, in part by Mother Nature, and not at all by passengers.
Whoever owned, operated and piloted the balloon will likely be the subject of a lawsuit, but then again, we don"t know what kind of waivers the passengers signed. Also, the operator may try to defend the case based upon some unforeseeable, unavoidable weather incident or equipment failure. In that event there could also be a potential products liability claim against the manufacturer of the balloon.
Ultimately, are balloon tours worth the risk? We tolerate a lot of highway fatalities due to motor vehicle accidents. This is because cars are essential to our way of life. The great danger of the automobile is outweighed by its even greater utility. Balloons are hardly essential; they"re barely a means of transportation.
If a recreational activity"s low utility is outweighed by the danger, that activity is eventually prohibited. Or, we say to those engaging in the activity: Balloon at your own risk. That"s fine for the balloonist who can appreciate the risk of a transoceanic solo flight to the island of Krakatoa. But the passengers who paid a lot of money for a tour may not really have an opportunity to appreciate that risk.
Read more: http://www.cnn.com/2016/07/31/opinions/balloon-accident-texas-cevallos/index.html
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