The California Court of Appeals has affirmed a trial court’s dismissal of a personal injury claim against an aerial sightseeing tour operator. In Booth v. Santa Barbara Biplane Tours, LLC, the Plaintiffs asserted claims against the operator arising from an emergency landing after the Waco biplane in which the Plaintiffs were riding suffered a power loss. The Plaintiffs sued for common law negligence and breach of implied warranty. In its defense, the operator argued that the Plaintiffs’ claims were barred by the release and waiver of liability agreement signed by the Plaintiffs 30 minutes before the flight. The release stated:
“High Risk Activity Release, Waiver and Assumption of Risk Agreement” before riding in the plane. The release stated in pertinent part that “I UNDERSTAND THAT PARTICIPATION IN BIPLANE OR OTHER AIRCRAFT TOURS IS A HIGH RISK ACTIVITY AND THAT SERIOUS INJURY OR DEATH MAY OCCUR. [¶] 8. I VOLUNTARILY ASSUME ALL RISK, KNOWN AND UNKNOWN, OF INJURIES, HOWEVER CAUSED, EVEN IF CAUSED IN WHOLE OR IN PART BY THE ACTION, INACTION, OR NEGLIGENCE OF THE RELEASED PARTIES TO THE FULLEST EXTENT ALLOWED BY LAW.”
The trial court determined that the release agreement barred the Plaintiffs’ claims. The trial court observed that the release was very clearly worded, and was not ambiguous in conveying its purpose and intent and was not pre-empted by the Federal Aviation Act. The court also concluded that operator did not provide an essential service that would prevent enforcement of the release. As a result, the trial court granted the operator’s summary judgment motion and dismissed the case.
On appeal, the Court of Appeals concurred with the trial court and noted that the Plaintiffs had not cited any authority that a recreational airplane ride is an essential service affecting the public interest. In response to the Plaintiffs ‘argument that the Federal Aviation Act pre-empted the operator’s reliance upon the release agreement, the Court noted that the Plaintiffs could not create a “strict liability” standard of care based upon FAR 91.13(a) (careless and reckless) because that regulation “is reserved for serious misconduct where the potential for harm is incontestably high” and “should be reserved only for serious, more flagrant pilot misconduct.”
The Court observed that state law causes of action for personal injury resulting from negligence in aviation are not pre-empted and, accordingly, state law defenses thereto may also be invoked. Thus, the operator could assert the release agreement as an affirmative defense. However, the Court also noted that the release would not have been a bar to recovery if the Plaintiffs had included claims for gross negligence or recklessness.