It is such a common story – a horrific accident caused by corporate negligence is allowed to proceed by the courts, so the industry immediately begins lobbying the state legislature for even greater protection from such lawsuits arising from their own negligence. And this exactly what is happening in Oregon after the State Supreme Court ruled to allow a suit against Mt. Bachelor to proceed.
In 2006, 18-year-old snowboarder Myles Bagley crashed while jumping in a Mt. Bachelor terrain park, breaking two vertebrae and becoming paralyzed from the waist down. Bagley filed suit in Deschutes County Circuit Court seeking $21.5 million from the resort, but the local court, and later the Oregon Court of Appeals, ruled that by signing a liability release when he purchased his season pass, Bagley had waived his right to sue.
But in mid-December, the Oregon Supreme Court overturned the court of appeals, allowing the case to continue in Deschutes County Circuit Court. No date has been set for a trial.
Now representatives of the ski industry have been working with members of the Oregon Legislature to develop legislation that would at least partially close the door opened by the ruling in December.
And at least one member is listening – State Sen. Tim Knopp, R-Bend, said he’s in the early stages of drafting a bill he hopes to introduce in February. Knopp argues that the Bagley ruling could have a damaging effect on the recreation and outdoor industries.
The ski industry asserts that failure to change the laws would put Oregon ski areas at a competitive disadvantage going forward. Dave Byrd, director of risk and regulatory affairs for the National Ski Areas Association, said most states draw a distinction between gross negligence and negligence in their laws concerning ski areas’ liability. Byrd said an instance where an intoxicated employee driving a snowmobile strikes a skier or snowboarder would be an example of gross negligence, and waivers do not release a resort from liability under such circumstances.
Byrd said skiing and snowboarding are potentially dangerous in a way most other recreational activities are not, and without some protection from liability, areas will struggle to stay open.
But when a ski area builds a terrain park feature with no analysis as to the safety of the design, and the physics of resulting jump make it inherently dangerous for speed and angle of launch – why should the ski area be allowed to hide behind a release?