Saturday, July 30 marked the most fatal recorded hot-air balloon crash in U.S. history.
Honestly that's not something I thought I'd write in 2016 (or ever) but it has already been quite a year, so why not? A craft owned by Heart of Texas Hot Air Balloon Rides recently crashed mid-flight in the Lone Star State, killing the pilot and its 15 passengers.
Falling just short of being the worst fatal balloon accident in recent world history (that dubious honor falls to Egypt in 2013 with 19 deaths), this was nevertheless a horrific event.
What We Know
The balloon started its voyage near the small town of Lockhart, TX, shortly after dawn on Saturday. Sporting a large smiley face with sunglasses, it had been airborne for 26 minutes' worth of the hour-long ride when it went down. Officials with the Texas Department of Public Safety have stated their belief that the balloon flew too low and collided with high-tension power lines, sparking a fire in the balloon's basket, called the gondola.
According to a witness, the flames rose high in the air as the balloon rapidly fell to earth in the nearby community of Maxwell. Responding personnel from the National Transportation Safety Board (NTSB) found no survivors at the scene, and said in a statement that there had been "significant loss of life."
While some passengers have yet to be named, relatives and friends have identified some of the fatally-injured parties:
- Skip Nichols, the pilot,
- Paige Brabson and her mother Lorilee,
- Newlyweds Matt and Sunday Rowan,
- Married couple Joe and Tresa Owens and their friend Holly Huckabee,
- Brian and Tressie Neill,
- Laura and Scott Douglas,
- Sandra and Ross Chalk,
- John and Stacee Gore.
Identifying some of the victims was fairly slow work, as the company reportedly took "walk-up" clients who had $399 to spend on the ride, and doesn't appear to have kept a formal passenger log.
It has been noted that the balloon's takeoff was delayed for 20 minutes past its expected departure time; authorities will look into the delay while investigating the crash. They will also examine the craft itself and the business that operates it.
Balloon Crashes in History
It's been many years since balloons were considered a viable form of transportation, but they survived as a tourist and leisure attraction. No doubt the huge majority of these trips go off without a hitch, but this most recent crash, while one of the worst on record, is not alone.
- As previously noted, the deadliest ballooning accident in aviation history occurred in Luxor, Egypt in February 2013. A leaking fuel line caused the balloon to catch fire, killing 19 passengers.
- The year before that, a balloon became entangled in power lines in Carterton, New Zealand, causing a fire that killed 11 people.
- 27 other balloon accidents occurred all over the world between 1968 and 2012, causing anywhere from one to 13 deaths per accident. A 2012 crash in Slovenia killed six and injured 26 others.
- Records of hot air balloon deaths go back to 1785, when a hydrogen-filled balloon exploded in France. Two were killed in that explosion, but no lessons were learned; it would be over 150 years later that highly-flammable hydrogen gas would stop seeing use in dirigibles.
Heart of Texas Hot Air Balloon Rides: Past Troubles
The balloon's pilot and listed owner of Heart of Texas HABR has been identified as 49-year-old Alfred "Skip" Nichols.
Praised by passengers and fellow balloon operators as a friendly and capable pilot, Nichols had a long record of balloon flights. His personal history shows a few run-ins with the law, including a couple of license suspensions and possession charges, but overall people's impressions of him seem quite positive.
Heart of Texas itself has a troubled relationship with the Better Business Bureau, who rated it a D+ after receiving six complaints over the last few years. It also has a score of 1.5 stars on Yelp, a website that allows customers to review and rate businesses. Much of that carries over from its time in Missouri, where people had been warned by the BBB not to use the business' services after several complaints went unanswered.
To be fair, many of the negative reviews on Yelp seem to be about cancelled or delayed flights rather than any specific safety or staffing concerns. Hot-air balloons are largely at the mercy of the weather; another pilot stated that if winds are blowing even at just a few miles an hour, a balloon may have to remain grounded.
With so many complaints of cancellations, it's possible that the scheduled flights weren't filling enough slots with paying customers to make it worth running them. That stinks for the people who got rescheduled, but if operating costs exceed incoming payments then a business with a slim budget has to run a tighter ship. It's why you see small restaurants keeping odd hours, or even closing on days when they generally have slow traffic.
None of this is meant to say that Nichols' record or HOT's reviews have any specific bearing on Saturday's flight, nor do I have any interest in gossiping or mudslinging. People's enthusiastic endorsements of Nichols and his ability as a pilot shouldn't be underestimated, and authorities have not drawn any conclusions as the investigation continues. I just believe it's important to have as much context as possible, which means taking the bad with the good.
Professional Ballooning Doesn't Get Much Regulation
Manned balloon flight is technically overseen by the Federal Aviation Administration (FAA). People mostly associate that agency with airplanes, which is fair since its seems to spend only a fraction of its resources on monitoring balloons.
The NTSB has requested further regulation and monitoring of ballooning from the FAA but hasn't gotten much of a response. Citing examples of injurious/fatal crashes in 2007, 2008, and 2013, NTSB board members petitioned for oversight similar to that on helicopter and private-airplane tours. The FAA hasn't even acknowledged the petition, leaving the majority of ballooning safety to the discretion of tour operators.
Grounds for Seeking Damages?
When the mourning subsides, questions may begin to arise about the specific obligations Heart of Texas has to the families of the deceased parties. Depending on what is revealed by the ongoing investigation, people may claim the balloon operator, and the company behind him, were negligent.
The plaintiffs' attorneys would need to be able to prove the following:
- The defendant had a duty not to harm the plaintiffs.
A transaction between a company and its customers is a contract, and inherent to that contract is the idea that no foreseeable harm will come to the clients. However, the balloon crashed and people died, and some ways that could have happened involve operator failure.
The more specialized your activity, the more the liability falls on you to perform it correctly. That's called standard of care. Consider it like this:- If you're a normal person doing a normal thing (let's say driving a car), you are held to the standards of care that a reasonable person will be: don't drive drunk, don't run stop signs, don't hit people, etc. You'll be judged on how well you can conform to those basic rules, but there's some accommodation made for external circumstances like a bush hiding a stop sign or unexpected brake failure.
- Now change that up a bit: You're a normal person doing an abnormal thing. I would say ballooning fits this category pretty well, so at this stage you're a person who flies solo in a hot air balloon, enjoying the view. You now have an elevated standard of care because you are performing an unusual task, and it is presumed you understand better than a normal person how to do it. You'll be judged more strictly than you were for driving your car.
- You're tired of flying alone and you start taking friends in the balloon with you. Now you're a knowledgeable person doing an abnormal thing, so you are responsible for the safety of your untrained passengers. The expectation of your practiced standard of care has risen accordingly, and if something goes wrong you'll be under closer scrutiny.
- In our final example, word of mouth has spread and ballooning ain't cheap, so you start accepting money for balloon rides. You're a businessman now—a professional, engaging in your area of expertise, responsible for groups of normal people who paid you money. Your standard of care jumps a couple of notches, and you will be heavily scrutinized if anyone gets hurt. In these instances, the reasonable care standard for amateurs is far behind you; your duty as a professional is much higher.
I want to be clear that I'm not personally attacking anyone, just exploring the legalities. Negligence could be argued based on the more rigorous standards of care Mr. Nichols would be expected to exercise as a professional balloonist, especially with paying passengers. If equipment failure was responsible for the fire, HOT might be liable for failing to maintain it. If the power lines caused the fire, it could be argued that Nichols's practice and training as a pilot should have kept the balloon from colliding with them.
- The defendant breached their duty not to harm the plaintiffs.
Given that this incident involves fatal injury, that duty certainly appears to be breached. If negligence were proven to a jury, Heart Of Texas would owe damages to the plaintiffs. - The defendant can be shown at least in part to be the cause of the plaintiffs' injuries.
If Skip Nichols is posthumously found to have been negligent, his actions (or lack thereof) will have had a significant role in the tragic turn of events. Causation is determined by looking at the facts of the case and deciding whether the defendant was the proximate (direct) cause of injury and actions were contributory to the damages.
There are two elements to determining causation: The first, cause in fact, can be addressed by performing the "but for" test:
But for the balloon hitting the power lines, the involved parties would not have lost their lives.
Without knowing what specifically caused the crash, that's a little shaky, but it could be altered to better fit once more details are available.
The second element, foreseeability, deals with preparations enacted by the defendant. Could it have been predicted that the balloon could fall? That will depend on the investigators' findings about the condition of the balloon equipment, and/or any evidence they can obtain about Nichols' condition during the flight.
In the state of Texas, fault and liability are governed by the Modified Comparative Fault model, which suggests that if plaintiffs can be proven 51% or more responsible for the circumstances, they are barred from recovery. It's unlikely that in this instance the balloon's passengers will be determined to have the majority of the blame, as they were not the trained professionals in the situation and literally they were just along for the ride. - Demonstrable damages are present.
Damages are self-evident in fatality cases. The loss of life is of course regrettable, but there can be very little debate about whether anyone was hurt by the crash.
Deconstructing the Defense
If claims of negligence are leveled at Heart of Texas, the company's legal defense will try to invalidate the plaintiff's claim. Let's discuss a couple of their possible strategies to do that.
- Assumption of Risk
By entering the gondola on the balloon, passengers implicitly acknowledge that certain actions will increase the likelihood of their injury. Examples are moving suddenly or violently around in the basket, or leaning over the side. Situational awareness, particularly that of being half a mile in the air, is key to avoiding injuries.
The problem with trying to argue assumption of risk here is that it only applies to risks that could be assessed or predicted once again using the reasonable person standard, in which one is expected to apply critical thinking like an average logical person without training or expertise. No one could have predicted that the balloon would catch fire, or nobody would have gotten on board in the first place. Assumption of risk doesn't apply well here, since death can't reasonably be assumed as a hazard of a standard hot air balloon ride. - Act of God
Act of God might be suggested in this situation because of a balloon's susceptibility to adverse weather conditions. Early reports suggest Saturday morning may have been foggy in the area, and it doesn't take much wind to throw a balloon off-course.
The inherent difficulty of pleading Act of God is that it requires as its basis a sudden, completely unpredictable, severe adverse event. In legal parlance, it's 1) a violence occurring in nature that 2) has nothing to do with human action and 3) could have never been reasonably foreseen.
Breezes happen all the time, especially in a place as flat as Lockhart. By virtue of practice and training, a veteran balloonist like Nichols should have been able to adjust to these minimal winds, and can't pretend not to have known they were coming. If a tornado had funneled down from a clear blue sky in front of the balloon, with no prior indication of bad weather, Act of God might be a plausible defense. Otherwise, it's probably unsound.
Closing Thoughts
If negligence is discovered, it is unclear if Heart of Texas will be around to sue when the time comes. With its owner gone and its business suspended indefinitely, the tour company may not have the fiscal solvency for any attorneys to consider taking it to court.
Part of that relates to the lack of regulation we mentioned before. Professional aircraft operations would usually be required by the FAA to have significant insurance in the event of crashes or injuries; however, the FAA's generally-lax ballooning oversight may restrict the justice that can be distributed.
Neither the FAA nor Texas insurance code currently mandates a specific amount of aviation insurance. Around 95 percent of registered balloon operators, Heart of Texas included, carry the same insurance policy: In the event of an accident, the policy provides for $100,000 per injured party with a cap of $1 million per incident. Even factoring in Nichols' posthumous assets and those of Heart of Texas as additional compensation, a figure just north of a million dollars split sixteen ways is not much recompense for the grieving families of the victims.
Ultimately, the truth will be discovered through investigation. While agents from the NTSB, the FAA, and the FBI have been tasked with uncovering the details of the crash, official investigations—especially those involving cross-cooperation between agencies—can take years to resolve, and often are close-mouthed about their findings. Bereaved families are entitled to enlist the aid of private investigators for their own peace of mind.
It is my sincere hope and belief that Skip Nichols did everything he could to keep the balloon on course, and that whatever happened to that tour group is determined to have been an unavoidable accident. Only time may tell.