Tuesday, January 15, 2008
Release Bars Claim for Aerial Sightseeing Tour Injuries—C.A.
By KENNETH OFGANG, Staff Writer
The operator of an aerial sightseeing tour is entitled to enforce a release of liability for injuries caused by its own negligence, even if federal air safety standards are violated, the Court of Appeal for this district ruled yesterday.
Div. Six affirmed a summary judgment in favor of Santa Barbara Biplanes, LLC. Two passengers on one of the company’s sightseeing tours of Santa Barbara sued after a May 2005 accident, which occurred when a replica Waco biplane lost power and made an emergency landing near Santa Barbara Municipal Airport.
Plaintiffs Blue Booth and his daughter Cassey Booth charged the company with negligence and breach of the implied warranty of airworthiness, but Santa Barbara Superior Court Judge Thomas Anderle ruled that a release and waiver of liability that they signed 30 minutes before boarding gave the company a complete defense.
The release described biplane touring as a “High Risk Activity” and declared:
“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.”
Justice Kenneth Yegan, writing for the Court of Appeal, agreed that the release was enforceable.
Yegan cited Civil Code Sec. 2174, which allows a common carrier to exculpate itself from liability for simple negligence by “special contract,” contrary to the common law rule that common carriers could not require passengers to sign releases of liability “for any kind of negligence.”
Since it was undisputed that neither the company nor the pilot were cited for safety violations and that the company had no reason to believe the plane was not airworthy, and since the plaintiffs made no allegation of gross negligence or violation of any law or regulation, the release was enforceable under Sec. 2174, Yegan said.
The jurist rejected the plaintiffs’ argument that the release was contrary to public policy, distinguishing Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, in which the court rejected a general release that would have barred patients from suing a hospital for negligent treatment.
Tunkl, he noted, has been limited to essential public services. While some common carriers—such as airlines—have been held to provide such services, “not all common carriers are the same,” Yegan explained.
“Appellant cites no authority that a recreational airplane ride is an essential service affecting the public interest that comes within the purview of Tunkl.,” he wrote.
The justice also rejected the contention that the statute was preempted by the Federal Aviation Act of 1958, which grants the Federal Aviation Administration the exclusive authority to set safety standards for all aircraft.
Yegan explained that while the statute precludes a state from adopting its own standard of care with respect to airworthiness, states are free to enact their own laws with regard to the remedies for breach of federal standards.
The case is Booth v. Santa Barbara Biplanes, LLC, 08 S.O.S. 224.
Copyright 2008, Metropolitan News Company