December 2000
soyou’re livingyourdreamand
I’mnot. You’ve gotyour owncommer-
cial hot air balloon operation, and all I’ve
gotisthiscrummypinstripesuitthat’s
beentocou rtmoretimesthanO.J.
Simpson. You are your own boss; you’re
doingwhatyoulovetodo;yougetto
travel;and,you’remanagingtomake
somemoney. Evenyour motherandfa-
ther are starting to make peace with your
profession. At leastyoudidn’t goto law
school!
So then, why do you have that dream
every night? You know the one: it causes
youtowakeupattwoo’clockinthe
morning, soaked with sweat. Talk about a
nightmare—every passenger you’ve ever
taken up is suing you, bad tempered guys
with teeth like sharks are waving subpoe-
nas in yourface, and even your friends are
calling you“the defendant.”
You need a good night’s rest. Dream-
ingaboutlawyersisalmostasbadrear-
ending one. So what do you do? You don’t
have a lot of money tospend, buton the
otherhand,youcertainlydon’twantto
loseeverythingyou’veworkedforand
dreamed of.
Fortunately, the answers are simple,
inexpensive and,as you may haveguessed,
right here inthisarticle. Following these
few simple, common-senserules will pro-
vide you a significant degreeof protection
fromtheworsteffectsoftheultimate
nightmare, the American tort system. (Of
course, when the need arises, you should
stillbitethebulletandconsultwithan
attorney.)
Thelawmeasuresnegligencebya
mythical“reasonableman”standard.If
you can picture a reasonable commercial
balloon operator who wouldn’t fly under
th ep rev aili ngcircu ms tan ces ,y o u
shouldn’t either.
As lawyers sometimes like to say, “if
it isn’t written, it didn’t happen.” Doctors
andnurses have beenlivingbythisrule
foryears;documentationisoneofthe
primetools the medical profession uses to
avoid malpractice claims.
Routinesafetyinspections,repairs,
weath ercheck sandthelikecanbe
“checklisted” by use of simple forms that
you can create yourself. Even if the form
only calls for a checkmark indicating that
an act has been done, it may turn out to be
theonethingthatconvincesajurythat
you actedproperly
occasion.
Wheredidyougetthatreleaseof
liabilityformyou’re presentlyrequiring
your passengers tosign? Does itcomply
withcurrentlaw?Doesitcoverevery-
thingyouneeditto? Is itvalid inall the
states where youoperate? Each state has
its own laws bearing on such releaseforms,
andthey all change fromtime to time.
A liability release is your first line of
defense,andyourlawyerorinsurance
carrierwillinitiallylooktoittoprotect
youfromclaims.Ifthereleaseisn’tin
compliance with current requirements, it
literally isn’t worth the paper it’s written
on. At that point, the lawsuit againstyou
becomes much more complicated,drawn-
out andyes, dangerous.
All releases should contain language
thatspecificallyabsolvesyoufromthe
consequencesofyourownnegligence.
Your release shouldbe clear, unambigu-
ous andprintedinlarge,easilyreadable
print. It should spell out the specific risks
ofhot airballooning in plain English.You
shouldmake sure yourpassengershave
plenty of time toreadit before theysign
the bottom line.
hasbeen completed.
Believeitornot,mostcompanies
thattake paymentwhentheir customers
return from their flights are rarely stiffed,
anditcan besmart toimplement apost-
flightpaymentpolicy.Thisisbecause,
sometimes,injuredpassengerstryingto
nullifytheir signed releases will say they
felt“pressured”tofly—since,although
they started to have misgivings, they had
alreadypaidfortheflightandtherefore
felt obligated to go.
This is an importantcorollary to the
“document what you aredoing” rule.Vid-
eotape the pre-flight instructions. You’d
be amazed at how many passengers who
suecan’trecallhavingbeengivenany
suchinstructions.If youhave itontape,
it’s no longer amatterof pitting your word
against theirs.
Tell the passengers what the surface
level winds are, and release the “pi” balls
on film. Take a panoramic shot that shows
the launch area. A picture truly is worth a
thousand words, and can be an invaluable
toolinprovidingconcreteevidenceof
yourskill,dedicationandprofessional-
ismwhenyou’refacingallegationsof
negligence.
Robert Donohue is a partner in the
law firm of Leipold, Donohue & Shipe,
located in Santa Ana, California. He is
licensed to practice law in California and
Arizona. Mr. Donohue has successfully
defended hot air balloon businesses in
lawsuits ranging from basket rollovers to
trip and falls. He also handles personal
injury and business litigation. For a copy
of a sample liability release, please con-
tact Mr. Donohue at 714-796-1555.
Avoid Being a Defendant
