The “Skiing Activities law,” Or. Rev. Stat. §§ 30.970 to 30.990, provides that skiers and passengers assume the “inherent risks of skiing” insofar as they are “reasonably obvious, expected, and necessary” parts of the sort, including skier/skier collisions and failure to ski within one’s ability. Skiers must notify operators of injuries within 180 days and bring suit within 2 years. Id. at §§ 30.980(1), 30.980(3). Skiers assume without condition the inherent risks associated with skiing outside a designated area. Id. at § 30.985(1)(a). Lifts are regulated as amusement devices pursuant to Or. Rev. Stat. §§ 460.310 to 460.370, with operators expressly not common carriers, but nonetheless required to exercise the “highest degree of care for the safety of users.”
Bagley v. Mt. Bachelor, Inc., 310 P.3d 692, Court of Appeals (2013)
Snowboarder Myles Bagley was 18 when he was injured at Mount Bachelor ski resort in 2006 on a jump. Bagley sought $21.5 million in Deschutes County Circuit Court in 2008 for the accident which has left him paralyzed from the waist down. The trial judge entered summary judgment in favor of Mt. Bachelor, ruling that the waiver signed by Bagley prohibited the lawsuit.
The court of appeals affirmed, holding that the release agreement disclaiming liability for negligence was not void as contrary to public policy as applied to operator’s alleged negligence in design, construction, maintenance, or inspection of ski jump on which snowboarder was injured, nor was it procedurally unconscionable on basis that circumstances of contract formation with snowboarder were impermissibly oppressive. The agreement clearly and unequivocally expressed operator’s intent to disclaim liability for negligence, snowboarder understood that he was engaged in inherently dangerous activity that release disclaimed, and operator primarily offered recreational activities and did not provide essential public service. Furthermore, even though parties had unequal bargaining power, snowboarder was free to choose not to snowboard at ski area, he was experienced snowboarder who had previously signed release agreements, and he was accompanied by his father, who signed nearly identical agreement disclaiming liability for negligence.
Plaintiffs appealed and the Oregon Supreme Court heard oral arguments by the parties on May 7, 2014.
Prior to 2006
Operators are not immunized for their own negligence. Pierce v. Mt. Hood Meadows Oregon, Ltd., 847 P.2d 909 (Or. Ct. App. 1993), reviewed denied (involving negligent instruction claim and rejecting waiver as ambiguous that did not expressly refer to ski school activities). Operators remain liable for their employees’ negligence, even if that negligence takes place in the form of skiing. Nolan v. Mt. Bachelor, Inc., 856 P.2d 305 Or. (Ct. App. 1993) (operator remains potentially liable for skier/skier collision where negligent skier was a ski instructor employed by the resort). While injuries sustained solely from an inherent risk work as a bar to recovery, if injury is caused by combination of inherent risk and operator negligence, comparative fault applies.Jessup v. Mt. Bachelor, Inc., 792 P.2d 1232 (Or. Ct. App. 1990), review denied (plaintiff injured when she ran into crowd of skiers at ski lift off-ramp). In Steele v. Mt. Hood Meadows Oregon, Ltd., 974 P.2d 794 (Or. Ct. App. 1999), review denied, the court allowed a suit in negligence to proceed, holding that a ski ticket that recited the inherent risk statute that allows claims in negligence, could be understood by skier to release claims for inherent risks only, not negligence, and did not bar plaintiff’s claim. In Stiles v. Freemotion, Inc., 59 P.3d 548 (Or. Ct. App. 2003), review denied, the court reversed a lower court ruling that allowed jury instructions crafted from the Skiing Activities law in a case brought against a snowboard manufacturer and dealer, saying that the Act applied only to defendants who were ski area operators.