Broad Liability Waivers Are Bull – Resorts Can Be Sued for Negligence

At just 17 years old, Myles Bagely was an expert snowboarder taking on the most advanced terrain in the Cascades. In 2006, he purchased a season pass to Mt. Bachelor, for which his father had to sign a liability waiver that stated the resort could not be sued for injury or death, even if it was caused by negligence.

“I/ we agree to release and indemnify Mt. Bachelor, Inc., its officers and directors, owners, agents, landowners, affiliated companies, and employees (hereinafter “Mt. Bachelor, Inc.”) from any and all claims for property damage, injury, or death which I/ we may suffer or for which I/ we may be liable to others, in any way connected with skiing, snowboarding, or snowriding. This release and indemnity agreement shall apply to any claim even if caused by negligence.”

That is a pretty hefty fine-print statement to sign, yet thousands of Oregon skiers and snowboarders sign it each year because otherwise, they could not pursue their love of winter sports. The gist of such a claim is spread throughout the state of Oregon, with each resort pursuing the same tactics to guard themselves against lawsuits brought upon by ski accident attorneys. Avid skiers and snowboarders don’t get much of a choice; they either sign the daunting waiver or they don’t get a pass.

Bagely’s Story

Day after day, the young snowboarder would walk past signs in Mt. Bachelor’s ski resort that read “YOUR TICKET IS A RELEASE: THE BACK OF YOUR TICKET CONTAINS A RELEASE OF ALL CLAIMS AGAINST MT. BACHELOR, INC.” After enjoying the pass for nearly a month, Bagely injured himself off a manmade jump in Bachelor’s Air Chamber Terrain Park in such a way that he became permanently paralyzed from the waist down at just eighteen years of age.

Despite the clear language used in the release, Bagley’s family sued the resort in Deschutes County Circuit Court in 2008 arguing that Bagely would not have injured himself if Mt. Bachelor had used “reasonable care” when designing and maintaining the jump. The family sought $21.5 million. Their attorneys argued that the broad nature of the liability waiver went against public policy, and that the resort created a dangerous condition in the manner the jump was set up.

On the other side, the resort’s attorneys contended that those who come to participate in skiing and snowboarding voluntarily take part in

By |February 16th, 2017|Ski Injury|

Top Ski Injuries and How to Avoid Them

skiing-lens-flareIf anyone is thrilled about the wild winter the Portland metro area is experiencing it’s ski resorts and avid skiers. Throughout the Cascades the snowpack is at record levels — more than they have received in over a decade. As exciting as it can be to hit the slopes, skiing comes with many risks. Perhaps the biggest risk is the possibility of hitting other skiers or trees, which make up the majority of ski accidents. Hitting objects, falling, and even not dressing warmly enough can lead to a bad time. Consider the top most common injuries and learn how to avoid them for a safe and enjoyable ski season.

Suffocation

Before you even break any bones, being immersed in snow leads to Snow Immersion Suffocation, or SIS. This can happen when you fall into a tree well, which is usually not immediately visible. As you fall into the well, the snow can bury and suffocate you in a matter of minutes. Although this doesn’t occur often, it occurs more frequently than avalanches. You should always ski with a friend who can react to a life-threatening situation. You cannot expect a passing skier will notice you or rescue you in your time of need.

Frostbite

Frostbite can occur when a skier is not properly covered for the slopes. Even if the sun is shining bright, skiers should wear all the essential equipment in low temperatures and high wind chill. Dress in layers and be sure to keep your fingers and toes extra-warm, as these are the extremities most prone to frostbite. You will notice signs of frostbite appearing as white and red patches on the face. To prevent frostbite, cover up with insulating clothing, take breaks indoors and avoid staying in wet clothes or taking your boots off.

Hypothermia

Like frostbite, hypothermia can creep up on you from being exposed to the elements for too long without adequate coverage or warm enough clothing. When a person’s’ internal body temperature drops below 95 degrees Fahrenheit, hypothermia can start. The first symptoms include shivering, clumsiness, slurred speech, drowsiness and mild confusion.

To avoid hypothermia, every inch of your body should be covered if you’re spending a day on the slopes. Find shelter immediately and have a friend call for help if you notice symptoms.

Acute Mountain Sickness (ACM)

Acute mountain sickness affects skiers above 2500 meters. The high elevation depletes your oxygen

By |January 24th, 2017|Ski Injury|

Oregon Ski Resorts Seek “Special Snowflake” Status

 

In December 2014 the Oregon Supreme Court found the “liability release” printed on the back side of a lift ticket unenforceable. Bagley v. Mt. Hood Bachelor 356 Or 543 (December, 2014). Keep in mind, prior to Bagley ski resorts were already immune from injury claims caused by the “inherent risk of skiing” that are “reasonably obvious, expected or necessary”. In other words, a skier who hurt after hitting a tree or slipping on an icy snow accepts those risks and has no claim against the ski resort. Skiing is a dangerous sport and those who participate in it accept the sport’s inherent risks under Oregon law. See, ORS 30.975.

But in Bagley, Mt. Bachelor Ski resort sought even more protection than offered under ORS 20.975. In that case, Mr. Bagley was seriously and permanently injured while snowboarding on in a terrain park designed and maintained by Mt. Bachelor. Mr. Bagley claimed the ski resort was negligent in doing so. Mt. Bachelor responded claiming absolute immunity from any suit (regardless of negligence) because of an allegedly valid release printed in on the back of the ski ticket Mr. Bagley purchased. The release read in relevant part:

“RELEASE AND INDEMNITY AGREEMENT “IN CONSIDERATION OF THE USE OF A MT. BACHELOR PASS AND/OR MT. BACHELOR’S PREMISES, I/WE AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES (HEREINAFTER ‘MT. BACHELOR, INC.’) FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH I/WE MAY SUFFER OR FOR WHICH I/WE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT. “* **** “THE UNDERSIGNED(S) HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS ON BOTH SIDES OF THIS DOCUMENT. THIS INCLUDES, BUT IS NOT LIMITED TO, THE DUTIES OF SKIERS, SNOWBOARDERS, OR SNOWRIDERS. THE UNDERSIGNED(S) UNDERSTAND THAT THIS DOCUMENT IS AN AGREEMENT OF RELEASE AND INDEMNITY WHICH WILL PREVENT THE UNDERSIGNED(S) OR THE UNDERSIGNEDS’ ESTATE FROM RECOVERING DAMAGES FROM MT. BACHELOR, INC. IN THE EVENT OF DEATH OR INJURY TO PERSON OR PROPERTY. THE UNDERSIGNED(S), NEVERTHELESS, ENTER INTO THIS AGREEMENT FREELY AND VOLUNTARILY AND AGREE IT IS BINDING ON THE UNDERSIGNED(S) AND THE UNDERSIGNEDS’ HEIRS AND LEGAL REPRESENTATIVES. “BY MY/OUR SIGNATURE(S)