In these situations, when hot air balloon operators are facing litigation for personal injury or wrongful death, operators will often fall back on liability waivers. It’s almost guaranteed that participants will be required to sign one.

But these agreements are not bullet-proof, as the recent case of Roberts v. T.H.E. Insurance reveals. Neither is it a safe argument that operators offering free hot air balloon rides to the public for charity are somehow immune from liability.

In this case, defendant was a hot air balloon operator who agreed to offer free tethered hot air balloon rides as part of a charity fundraising event. The land on which the fundraiser was held was privately-owned, but was open to the public for the event.

It was a windy day, though the operator conceded he hadn’t read the weather report. He tethered one rope of the balloon to a pickup truck and another to a tree. This violated basic standards FAA standards, particularly for a windy day.

Plaintiff was waiting in line for one of those rides, and she’d been given a waiver of liability, indicating she would not hold the operator responsible if she was injured by the negligence of the balloon operator. She filled out that waiver, but she hadn’t yet turned it in as she waited.

Suddenly, the wind picked up. One of the ropes snapped. The basket to which the balloon was attached flew through the air and sailed straight for plaintiff. It struck her, and she was knocked to the ground, suffering injuries.

She later filed a personal injury lawsuit against the hot air balloon operator, alleging negligence.

The balloon operator countered with two defenses:

1. Recreational Immunity Statute
2. Waiver of Liability

Let’s talk first about the recreational immunity statute. Every state has one, including Florida, and the essence of it is that the government will all but eliminate the potential liability faced by a private land owner for dangerous conditions on the property if the land owner makes that land available for public use. It is supposed to encourage private landowners to share their property with the public.

The second, a waiver of liability, is recognized in most states as a binding contract in which a person accepts there is a certain degree of risk in an activity and frees the person or entity operating that activity from liability.

Trial court granted summary judgment to defendant and the appeals court affirmed. Plaintiff appealed and the Wisconsin Supreme Court (where the events of this case unfolded) reversed.

With regard to the recreational immunity statute, the court noted first of all that defendant was not a property owner. Yes, the members of the public got into the site for free and no, the hot air balloon operator wasn’t deriving a profit from his services. However, whether he did so or not had no bearing on whether the land was made available to the public because he didn’t own the property.

Because he was not the property owner, recreational immunity could not be extended to him.

Now with regard to waiver of liability for personal injury, this would have been a tougher argument. Ultimately, the court found that it was against the public interest. It would written so broadly as to absolve the hot air balloon operator for “any activity for any reason, known or unknown.”

The court stated that not only is the language of the waiver overly-broad, it’s not clear that waiting in line for the ride would have been something plaintiff would have considered as being covered by the waiver – especially because she wasn’t required to turn the waiver in until she prepared to board the ride. In fact, officials didn’t even discover the waiver until after the accident, when they found it crumpled on the ground near where she’d been knocked over.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Roberts v. T.H.E. Insurance, March 30, 2016, Wisconsin Supreme Court

More Blog Entries:

Florida’s Dram Shop Law and the Undertaker’s Doctrine, April 4, 2016, Miami Injury Attorney Blog

Applicable Hazardous Materials Regulations are complex and require the proper marking, labeling, and packing of hazardous materials in addition to proper training of employees that ship hazardous materials and recordkeeping.

Violations and civil penalties are common, largely due to the fact that many companies are unaware that they are improperly shipping hazardous materials and are subject to the FAA’s jurisdiction for doing so. To make matters worse, because many of these companies do not understand the FAA enforcement process, they unwittingly aid the FAA in making its case against them.

Typically, a company finds out that it has violated HMR by receiving a telephone call or letter from the FAA seeking information about the shipment. At this point, unaware that the information they provide will likely be used against them in the FAA’s subsequent enforcement action, the company provides an explanation or written statement that often indicates that they have likely violated additional regulations. Believing that their cooperation in the matter has resolved the issue and absolved them of any wrongdoing, the company is often shocked to later receive a Notice of Proposed Civil Penalty (NPCP) for its violations of HMR. Given that penalties for violations of HMR may range from $10,000 – $50,000 per violation, just one improper shipment could lead to a penalty in excess of $100,000.

Very often, companies often do not appreciate the adversarial nature of this process, which is why they seldom benefit from admitting to violations of HMR or dealing directly with the FAA. Instead, it is advisable to discuss the issue with counsel experienced with enforcement proceedings relating to HMR prior to submitting any response to the FAA’s request for information.

One trap to be wary of is that if there is a pending request for a number change, the FAA will not process a transfer (or bill of sale) for the aircraft.  So, the request needs to be withdrawn.  This is why we suggest that requests for number changes in connection with a purchase/sale only be made at closing.  So, don’t be anxious to make that request until you’ve spoken with an aviation professional, or you will be sorely disappointed at closing.

Let’s take an example.  In this example, Buyer owns an aircraft and is buying a second aircraft (we’ll call it New Aircraft even though it is pre-owned).  Eventually, the old aircraft will be sold.  Buyer likes the number on Old Aircraft (N12OA) and wants to put it on New Aircraft (N56NA).  Here’s the process:

1.  Reserve a number for assignment to Old Aircraft.  We’ll use N12OB.  Usually, you like it to be a number that will not require too much painting over the old number.  Here, only 1 letter would need to be painted over.  It takes about 1 to 2 weeks for the reservation to appear in the system.

2. Request that the FAA assign Special Registration Number N12OB to Old Aircraft to replace N12OA.

3.  As number changes are not a priority item for FAA, approximately 4 to 6 weeks after the request, the FAA will issue FAA Form 8050-64 authorizing that the number on Old Aircraft can be changed to N12OB.  This authorization is valid for a year.

4.  Once the new number has been ‘placed’ on Old Aircraft (usually a sticker or painted), Form 8050-64 should be signed and the original filed with FAA.  The copy of the signed and dated form is stapled to the existing registration card and then you can legally operate under the new number N12OB.  There are some other things to do as well, like re-strap the transponders and obtain a replacement CofA with the new number, and change numbers on documentation, but that’s beyond the scope of this explanation.

5.  When the 8050-64 form is filed with FAA, you’ll want to be sure that the aviation professional that files the form reserves the old number N12OA back to the owner of Old Aircraft (which we are assuming here will be the owner of New Aircraft).  The reservation of the old number back to the owner of Old Aircraft will be reflected in the FAA system in about 2 weeks. Yes, 2 weeks.

6.  When the FAA system shows that N12OA has been reserved back to the owner, it’s time to make the second request.  Either at the closing on the acquisition of New Aircraft or thereafter (it depends upon whether the reservation of N12OA has been completed before or after acquisition of New Aircraft), have your aviation professional submit a request to FAA to change the number on New Aircraft from N56NA to N12OA.

7.    Approximately 4 to 6 weeks after the request, the FAA will issue FAA Form 8050-64 authorizing that the number on New Aircraft can be changed from N56NA to N12OA.  This authorization is valid for a year.

8.  Once the new number has been ‘placed’ on New Aircraft (usually a sticker or painted), Form 8050-64 should be signed and the original filed with FAA.  The copy of the signed and dated form is stapled to the existing registration card and then you can legally operate under the new number N12OA.  Of course, if you want to keep N56NA, you’ll need to request that the FAA reserve it back to owner.

How many weeks did you count before the final number was able to be placed on New Aircraft?  If we were ambitious, 1 week to reserve a number for Old Aircraft, 4 weeks for the 8050-64 form authorizing change from N12OA to N12 OB to be issued, 1 week for N12OA to be reserved back to owner, 4 weeks for the 8050-64 form authorizing change from N56NA to N12OA.  Total:  10 weeks.

So when you hear “let’s change the number,” it’s a little more complicated than that.

Regards. SHL.

Stewart Lapayowker, an aviation transaction attorney, will speak about aircraft transactions and how drafting and negotiating letters of intent are critical to the aircraft purchase process. “Year-end trends are pointing to an increase in business aircraft acquisition activity, although there is still inventory as a result of loan defaults and repossessions,” said Lapayowker, who also hosts a bi-weekly Internet radio talk show, “Plane Talk Radio” on www.planetalkradio.com. “This conference is a must for anyone involved in business aviation. You’ll come away with insight that will help you throughout the year.” Lapayowker’s firm is also a sponsor of the conference.

The conference is organized by the National Business Aviation Association and will bring together an esteemed group of professionals. The FAA’s Manager of Aircraft Registration, Walter Binkley, will discuss the FAA’s new controversial re-registration rule. And the FAA’s Aeronautical Center Counsel, Joseph Standell, will speak about the status of foreign trusts, re-registration and enforcement actions.

An all-star panel will separately focus on loan and lease defaults, remedies, and repossessions. Day one will conclude with the presidents of the National Business Aviation Association, National Air Transportation Association and the General Aviation Manufacturers Association discussing the latest and most important regulatory and legislative developments.

With many international transactions increasing, the second day of panels will cover importing and exporting, customs, ITAR and EAR considerations, closings and orchestrating deals in South and Latin America. And rounding out the list of notables will be Gulfstream’s President, the Managing Director of Bank of America Leasing, and representatives of PNC Bank, the Royal Bank of Scotland, Citibank, and Jet Aviation.

To attend the conference, go to www.nbaa.org/events/arc/2011 and for a list of panels and speakers, click on www.mcafeetaft.com/Repository/Files/Aircraft-Registration-Conference-2011-Brochure.pdf

The Law Offices of Stewart H. Lapayowker regularly assists clients with a variety of issues related to aviation, including the sale, purchase, regulatory analyses, and financing of corporate aircraft. For more information, visit Businessaviationcounsel.com.

About Stewart H. Lapayowker, P.A.:

Based in Fort Lauderdale, Fla., the law firm of Stewart H. Lapayowker, P.A. focuses its practice on private and corporate aviation transactions worldwide, including throughout the United States, South America, the European Union, Asia and the Middle East. He also hosts a bi-weekly radio show, “Plane Talk Radio”, with archived shows available at www.blogtalkradio.com/planetalkradio.

MEDIA CONTACT

Don Silver

Boardroom Communications

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Stewart H. Lapayowker, P.A.

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Suite 205

Ft. Lauderdale, Florida 33309

Banyan Terminal at Ft. Lauderdale Executive Airport

Call: 954.202.9600