Opinion stakes out a modern paradigm for analysis. Legal analysis modernized to match the present-day realities of skiing and snowboarding.

Bagley v. Mt. Bachelor, Inc., 258 Or.App. 390, 310 P.3d 692, reversed by Bagley & Bagley v. Mt. Bachelor, http://www.publications.ojd.state.or.us/docs/A148231.pdf, 2014 WL 7202552, ___ Or. ___, ___ P.3d ___ (Or. Sup. Ct. Dec 18 2014 SC S061821)

In 2005 Myles Bagley who was then a 17-year old snowboarder and his father, signed a waiver and release in favor of Mt. Bagley when they bought a season pass. After riding at the area for 26 days in the 2005-2006 season, on February 16, 2006 Myles was critically injured when jumping in a terrain park. He landed on his back, breaking two vertebrae resulting in permanent paralysis from the waist down.

In 2008 Myles filed suit against Mt. Bachelor. Oregon has adopted the Oregon Ski Safety Act. ORS 30.980. The Act however allows some general negligence claims for dangerous conditions under traditional inherent danger exceptions relating to conditions neither “open or obvious” to skiers/riders. Bagley alleged negligence in the design, construction and maintenance of the terrain park jump.

At the trial level, Mt. Bachelor contended that skiers and snowboarders are taking part in a voluntary activity with knowledge of the inherent risks of the sport. The ski area also argued that skiers and snowboarders agree to an unambiguous liability release printed on the back of season passes and lift tickets and posted on signs at the bottom of every lift, and its attorneys moved for summary judgment against Bagley. In a pretrial hearing in 2010, the Deschutes County Circuit Court judge agreed with the ski resort and threw out the lawsuit before it could be heard by a jury.

In 2013, the Oregon Court of Appeals upheld the Deschutes County judge’s decision.

The case concerns the enforcement of the season pass release which has become ubiquitous at American ski areas, as well as in almost every aspect of recreational life in the United States. Old-school doctrines of waiver enforcement cannot be applied to the present day economics, reality, and consumer experience and market forces of the modern ski-area operation.

The majority of jurisdictions have upheld these releases in the recreational context in cases which have been previously briefed and cited by the author. Recently however, courts are beginning to throw off the constraint of private contract and have been looking to the broader safety and policy implications of such releases. Dalury v. S–K–I, Ltd., 164 Vt. 329, 670 A.2d 795 (1995).

Importantly, the Oregon Supreme Court recognized the tension created by the Oregon ski statute and the release which attempted to reach beyond the statute and decrease to zero the liability of the ski area notwithstanding the Court’s previous holdings regarding the effect of the statute on the liability of the ski areas.

However, the Skier Responsibility Law did not abrogate the common-law principle that skiers do not assume responsibility for unreasonable conditions created by a ski area operator insofar as those conditions are not inherent to the activity. See Nolan v. Mt. Bachelor, Inc., 317 Or. 328, 336, 856 P.2d 305 (1993) (Skier Responsibility Law provides that “[t]o the extent an injury is caused by an inherent risk of skiing, a skier will not recover against a ski area operator; to the extent an injury is a result of [ski area operator] negligence, comparative negligence applies”). It follows that the public policy underlying the common-law duty of a ski area operator to exercise reasonable care to avoid creating risks of harm to its business invitees remains applicable in this case.
Bagley v. Mt. Bachelor, p. 11.

 

The Court held that the release was unconscionable, unenforceable and did not bar Bagley’s claims. This notwithstanding Mt. Bachelor’s time-worn arguments that the terms of the release were conspicuous and unambiguous and that Mt. Bachelor did not provide an essential public service. To the contrary, the court held that the over-riding policy interests of “admonition to the wrongdoer” and “preventing future harm” outweighed any private contract issues. The Court held that it would be inequitable if Mt. Bagley was immunized from its own negligence liability. In its holding the Oregon Supreme Court noted that the safety of skiers and riders was a matter of broad societal concern, that the immunity sought under the release was absolute, and without potential exposure to liability for their own negligence, ski area operators would lack legal incentive to avoid creating unreasonable risks of harm to their business invitees.

This is a precedential case. The Oregon Supreme Court directly confronted the policy issues presented by recreational waivers and releases. “Skiers and snowboarders have important legal inducements to exercise reasonable care for their own safety by virtue of their statutory assumption of the inherent risks of skiing. By contrast, without potential exposure to liability for their own negligence, ski area operators would lack a commensurate legal incentive to avoid creating unreasonable risks of harm to their business invitees.” Bagley at p. 16. In fewer words: liability breeds responsibility, and immunity breeds impunity. For more detail, see Ski Safety Blog.


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