Hot Air BalloonsThe annual Albuquerque Balloon Fiesta is undoubtedly one of the most colorful events in the country and one of New Mexico’s signature adventures. Like with almost any recreational activity, there can be dangers, and where you have balloons, power lines, and wind together, the potential for injury exists.

If you book a balloon ride you may be asked to sign a release waiving any claim for negligence by the balloon owner or operator.   How enforceable is such a release?  If a passenger in a hot air balloon is injured, whether during the fiesta, or any other time during the year, who is responsible for the expense of treatment or permanent injury?

New Mexico does not have a statute specifically applicable to the Balloon Fiesta or to commercial balloon ride operators.  The New Mexico Supreme Court has, however, created guidelines for similar activities that have inherent risks, such as horseback riding and skiing, and those guidelines would almost certainly apply to balloon accidents as well.

The conclusion of the NM Supreme court, (although preceded by a lengthy analysis,) was a common sense one that most of us would feel comfortable with.  First, the release must be written with such clarity that a person without legal training can understand the agreement he or she has made.  If it is, then liability may be waived for situations that were unreasonably unpredictable and avoidable, but not for injuries that were caused by the negligence of a balloon owner or pilot.  The difficulty, of course, sometimes lies in distinguishing between the two.

Piloting a balloon is not like driving a car.  The pilot has limited control over the speed and height the balloon can attain.  When people disagree as to whether the pilot could have reasonably avoided an accident, it is still up to experts, judges, and juries to decide who bears the risk of any injury.