The Oregon Supreme Court in December ruled that Myles Bagley could pursue his $21.5 million lawsuit against Mt. Bachelor after he was paralyzed in a terrain park accident, despite signing a liability waiver. This past Monday a proposed amendment to the state’s 1979 Skier Responsibility Law was debated in the Senate Judiciary Committee.
Senate Bill 849 adds terrain parks, avalanches and falling into tree wells as risks that are inherent to skiing and would make ski resorts immune from lawsuits stemming from those injuries. The bill would define a skier as someone who uses skis, a snowboard or any other sliding device. It also bars skiers from stopping on the hill in an area that creates a hazard or where they’re not visible from above. Skiers would be required to inspect freestyle terrain, including terrain parks, before entering the area.
In a unanimous decision in December, the Supreme Court decided the Bagleys could pursue a $21.5 million lawsuit against Mt. Bachelor because the resort’s liability waiver was unenforceable. The Supreme Court said it was the “common-law duty” for Mt. Bachelor to inspect its terrain park features to avoid what it called unreasonable risks to its skiers and sent the case back to the Deschutes County Circuit Court. See Oregon Sup. Ct. Invalidates Waiver on Grounds of Unconscionability.
Kathryn Clarke, an attorney representing Myles Bagley in the lawsuit, said the proposed bill would make resorts immune from claims for potentially hazardous conditions created by the resort and its employees, such as terrain park features.
Andy Balyeat, an attorney representing Mt. Bachelor in the Bagley case, said it’s reasonable to expect the Supreme Court decision in that case will lead to more lawsuits from injured skiers. Balyeat claims “We’re in uncharted territory.”
It is difficult to see how the Oregon Supreme Court ruling will result in a greater number of lawsuits since the ruling only clarifies current law, it does not create a new right or claim. Nonetheless, the Oregon legislature is being heavily lobbied by the ski industry which wishes to allow only claims for gross negligence – the highest bar to a negligence claim.