Booth v. Santa Barbara Biplanes, LLC
Filed: January 14, 2008, Second District, Div. Six,
Cite as 2008 SOS 224

Signed Waiver Absolves Tour Company from Strict Liability Claim

Blue and Cassey Booth (father and daughter) went for an aerial sightseeing tour provided by Santa Barbara Biplanes, LLC (SBB).

Half an hour before the tour departed, SBB presented the Booths with a waiver and release to sign. The waiver and release contained the following pertinent information, set in capitalized and boldface type, for passenger’s understanding:

• that “participation in biplane or other aircraft tours is a high risk activity and that serious injury or death may occur”


• the passenger’s assumption of “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.”

During the tour, the plane lost power, necessitating an emergency landing. Both father and daughter sustained injuries in the incident.

As a result, the Booths sued SBB and its owners and operators for simple negligence and breach of implied warranty.

After hearing, the trial court granted summary judgment in favor of SBB, finding that SBB was a common carrier (pursuant to California Civil Code §2168) and, for that reason, the company was entitled to limit its liability “by special contract” for other than gross negligence (pursuant to §2174). Thus the release executed by the Booths was a “special contract” within the meaning of §2174.

The Booths elevated the case for review.

On appeal, the Second District, Division Six, court of appeals affirmed the decision, holding that the waiver and release executed by the Booths relieved SBB of any liability for the claims asserted against it.

At the outset, the court rejected two issues raised by the Booths, namely:

• that SBB violated federal law by operating an unsafe plane


• that the release was hurriedly signed, hence there was a procedural issue

In rejecting these claims, the appeals court argued that:

• Because the Booths’ complaint alleged only simple negligence and breach of implied warranty, they were barred from raising on appeal the additional allegation of a violation of federal law.


• that the waiver or release was presented to them 30 minutes before their flight and they were given the option of receiving a refund if they decided not to sign it.

The Booths contended that the waiver or release in question affected the public interest, and was thus void as a matter of public policy ( Tunkl v. Regents of University of California (1963) 60 Cal.2d 92).

The court disagreed on the basis that aerial sightseeing tours, like recreational activities such as snow skiing and parachute jumping were not essential services or necessities affecting the public within the meaning of Tunkl.

Further, the appeals court explained that SBB had the ability, pursuant to §2174, to enter into a special contract limiting its liability. Thus, the waiver and release signed by the Booths was enforceable.

However, the court declined to reinterpret FAA regulations for the reason that the regulation relied on by the Booths is reserved for serious misconduct where the potential for harm is undisputedly high, and was therefore, inapplicable to the case. (Federal Aviation Act of 1958 preempts states from adopting air safety standards but not from establishing or limiting remedies for violation of federal standards.)

The Second Appellate District therefore affirmed the judgment of the trial which held that an aerial sightseeing tour was not an essential service or necessity affecting the public interest so as to preclude enforcement of the operator’s waiver of liability.