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) BELOW, I/WE AGREE THAT THIS RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH I/WE RENEW THIS SEASON PASS. “SEE REVERSE SIDE OF THIS SHEET * ** FOR DUTIES OF SKIERS, SNOWBOARDERS, OR SNOW RIDERS WHICH YOU MUST OBSERVE.”
The Oregon Supreme Court ruled that allowing Mt. Bachelor to avoid liability because of the release would be “unconscionable”. It pointed out the release was not negotiated but forced on Mr. Bagley on a take it or leave it basis. The Court also recognized the harsh and inequitable result of immunizing Mt. Bachelor from liability, regardless of whether it was negligent in designing, maintaining or inspecting the terrain park. Also, the court observed that Mt. Bachelor was open to the general public, thus exposing large numbers of people to potential harm created by the ski resort.
Apparently upset by the ruling, Oregon ski resorts have approached the Oregon legislature seeking to pass legislation to overrule Bagley. So far its efforts have failed. Oregon ski resorts are no special snow flake and should be subject to the same standard of negligence as every other Oregon business and citizen. Though over reaching Oregon Ski resorts unwittingly reveal their selfish interest at the expense of the Oregon public good.