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Notable hot air balloon crashes
01:29 - Source: CNN

Editor’s Note: Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. The opinions expressed in this commentary are his.

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Danny Cevallos: Balloon accidents not strictly comparable to other aircraft disasters and law is less settled

A study found that over 12 years, there were 78 balloon crashes and five deaths in the United States

CNN  — 

When testifying, police will deny they start an investigation with a preordained conclusion and then curate the evidence accordingly. Instead, police will tell you they take an investigation where the facts and evidence lead them, objectively, and resisting the temptations of confirmation bias. This is what defense attorneys and the rest of us should hope they do; we don’t want police ignoring exculpatory evidence and only seeing the evidence that will help convict. Mosby’s comments today don’t acknowledge that as a possibility; instead, she intimated some blue wall of apathy somehow undermined her cases. Isn’t it possible the facts undermined the cases, and not the police?

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.

Though balloon accidents are rare, they raise a host of legal issues. To the extent it can be said humans “operate” them, they are governed by U.S. Federal Aviation Regulations.

Legally, a balloon ride is also like an act of God: Sometimes it is controlled by the violence of nature, and not human intervention.

The pilot can ascend by using burners to send hot air up into the balloon. They can descend by pulling a rip cord, which opens a vent to release hot air from the balloon. Beyond that, the wind largely dictates the flight path and landing site.

Can you imagine booking a flight on a commercial airline without knowing where it’s going to land? Balloon tours, on the other hand, have one certainty: The destination is uncertain.

There are many legal issues with power lines, too. They are coursing with deadly electricity, yet, they must be placed everywhere, so that we all can power our air conditioners and charge our phones. Bad things happen when people accidentally come into contact with them; and balloons are no exception.

Are hot air balloons too dangerous? And, when they do crash, who is liable?

Fortunately, in the United States, no matter how esoteric or narrow the topic is, there is usually a devoted scholar or institution that has devoted considerable resources to exhaustively researching that issue. In this case, a research paper published in the peer-reviewed Aviation, Space, and Environmental Medicine journal entitled “Hot-Air Balloon Tours: Crash Epidemiology in the United States, 2000-2011” analyzed National Transportation Safety Board reports of hot-air balloon tour crashes in the United States from 2000 through 2011. That leaves out the last five years, but the data are still compelling.

According to the study, 78 hot-air balloon tours crashed in that 12-year period. Five people died and 91 were seriously injured.

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.

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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.