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Fiesta Lawyer: Man Wasn’t Holding on Right

ALBUQUERQUE, N.M. — Making his final argument to the jury Tuesday, an attorney for the Albuquerque International Balloon Fiesta contended that a hot-air balloon passenger fell during the 2009 fiesta because he was not holding on properly.

An attorney for the passenger, Thomas Hurd, responded that the fiesta was negligent in enforcing safety standards and the balloon’s pilot acted recklessly.

The statements were part of closing arguments in a personal injury trial. Hurd sued pilot Timmerly Eklund and the Balloon Fiesta organization after he fell at least 15 feet during the 2009 fiesta, suffering a crushed pelvis, broken back and hip socket, a crushed heel and other injuries that required multiple surgeries.

The jury began its deliberations Tuesday afternoon and will continue today. It must consider the cases against Eklund and the fiesta organization separately.

Eklund was participating in a flying competition called “Hold ‘Em” on Oct. 5, 2009, when she hit a tent, dislodging Hurd from the basket. Eklund has admitted to flying below a required 75 feet, dropping to about 15 feet above the ground.

Hurd’s attorneys argued Tuesday that Eklund acted recklessly — a legal term that would mean she acted “intentionally with utter indifference to the consequences.” They also argued that the fiesta was negligent, alleging that it has not done enough to deter pilots from violating the rule that requires a height of 75 feet above the ground.

“We’re asking you to make a finding that will affect not only Mr. Hurd, but the next Mr. Hurd,” said one of Hurd’s attorneys, Terry Guebert, to the jury.

The fiesta’s attorneys argued that it has strong record on safety education and enforcement, but the pilot in command is responsible for flying his or her balloon.

“We do all we can do, but you have to let the balloons go,” said the fiesta’s attorney, Paul Yarbrough. He also argued that Hurd was “not holding on the way he should have been.”

During Hurd’s testimony earlier in the trial, he said he had been holding onto a bolster with both hands but let go of one to alert the pilot to the approaching tent.

Hurd is seeking damages, which includes medical expenses, disfigurement and pain and suffering. Because he signed an acknowledgment of risk before taking the balloon flight, he released any negligence claims against Eklund, although she can still be found reckless. It does not waive negligent or reckless claims against the Balloon Fiesta.

Eklund’s attorney, Ned Shepherd, said in his closing arguments that “she accepted full responsibility” for the accident but does not accept that she was reckless.
— This article appeared on page C1 of the Albuquerque Journal