Liability for Dangerous Activities: A Comparative Analysis

Abstract

Hot air ballooning is a dangerous activity, and not only for the balloonist. In Guille v. Swan, 1 a balloonist crash-landed in a New York vegetable garden. When a crowd rushed to his assistance damage was caused to the vegetables. He was held to be strictly liable for the damage caused. Across the Atlantic balloonists were more glamorous although not more successful. In Scott's Trs. v. Moss, 2 the defender, an Edinburgh impresario, arranged a balloon flight by the “world-renowned scientific aeronaut”, Professor Baldwin. The advertisement promised that the Professor would descend by parachute, landing on ground rented by the defender. In the event, he missed and landed in a turnip field owned by the pursuers. Fences and a large number of turnips were trampled by the crowd rushing to the scene. The Court of Session decided that the defender could be liable only on the basis of fault. Foreseeability was of the essence: the pursuer was entitled to damages if and only if the crowd's actions were the “natural and probable consequence” of the defender's activities. Counsel's research had uncovered Guille v. Swan, but the Court of Session declined to follow it into strict liability.