Ski Waivers and Releases in Oregon

In exchange for your ski pass, you will almost certainly be required to sign a release that excludes the resort from liability to some extent for any injuries you suffer in the ski area. Through the years, injured skiers have challenged the validity of such releases, claiming they are invalid as a matter of public policy. See, e.g., Harmon v. Mt. Hood Meadows, Ltd., 932 P.2d 92 (Or. App. 1997). That argument has consistently failed up to the Oregon Court of Appeals, which has upheld the validity of such contracts. However, the Oregon Supreme Court has accepted a case on review to resolve whether these releases are in fact valid or contrary to law.

Ski area operators have wised up to the reality they probably cannot exonerate themselves from any and all liability. See, e.g., Dalury v. S-K-I, Ltd., 670 A.2d 795 (Vt. 1995) (holding an exculpatory agreement releasing defendants from all liability resulting from negligence void as contrary to public policy). In the Dalury case, the ski area operator’s standard agreement released the operator from “any and all liability for personal injury or property damage resulting from negligence, conditions of the premises, operations of the ski area, actions or omissions of employees or agents of the ski area or from . . . participation in skiing at the area.” That went too far according to the Vermont Supreme Court. The workaround by resorts to avoid that result has been to leave open a thin layer of liability.

In the case that will soon be before the Oregon Supreme Court, Bagley v. Mt. Bachelor, Inc., __ P.3d __ (Or. App. 2013), Bagley, a young but skilled snowboarder, suffered injuries after using a jump in Mt. Bachelor’s terrain park. Bagley had been a minor when he initially signed his release, which exculpated Mt. Bachelor from liability for its negligence, but explicitly did not excuse intentional misconduct by the ski area operator. Bagley, relying on contract law, claimed that he was required to ratify the agreement upon turning eighteen for it to remain valid. The court rejected that argument, holding the ratification was clearly implied by the fact Bagley used his ski pass dozens more times after turning eighteen.

Bagley also argued that he didn’t realize the contract released Mt. Bachelor from liability for negligence. The court of appeals rebuffed that argument by pointing out that Oregon has an objective theory of contracts, which relies on how a “reasonable person” would interpret a contract. The court reasoned that Bagley’s beliefs were subjective, and that a reasonable person would have realized that the contract exonerated for negligence because of how conspicuous that language was in the contract.

Next, the court rejected Bagley’s arguments that the contract was against the public interest. The court noted that contracting out of liability for negligence must be expressed in the contract “clearly and unequivocally.” In the court’s opinion, the release was unequivocal in this case. The court’s reasoning: It believed that Bagley understood the inherent dangers in skiing, and the contract expressly disclaimed liability for negligence while expressly allowing liability for intentional misconduct.

Finally, the court rejected the claim that the release from liability was unconscionable. It failed to see that the terms were oppressive or surprising or unreasonably favorable to the side with the greater bargaining power, Mt. Bachelor. The court reasoned the agreement was not oppressive because Bagley had signed many similar agreements at other resorts, and also could choose to ski elsewhere if he didn’t like the terms. The agreement was not surprising, because as discussed in regards to public policy, the negligence disclaimer was unambiguous and unequivocal in the court’s opinion. Addressing the last issue, the court explained that an exculpatory provision is only unreasonably favorable to the drafter if it releases the drafter from “any and all liability.” Here, Mt. Bachelor was released from negligence liability, but left itself open to liability for intentional misconduct. That was enough to pass the court’s test. Summary judgment for the defendants was affirmed.

There will soon be a major ruling in Oregon ski law. What is most interesting about the Bagley case is that the Oregon Supreme Court will finally issue a ruling on the validity of these releases in terms of whether they are invalid as being against the public interest, and whether they are unconscionable (meaning a contract is unreasonably favorable to one party, and the other party had no meaningful choice in entering the bargain). A ruling by Oregon’s highest court that these releases are invalid could be great news for injured skiers hoping to recover damages for resorts’ negligence.

Make Sure to Take Precaution When Skiing

Know your rights. Call Richard Rizk, Attorney at Law at (503) 245-5677 for a free consultation.

If you would like learn more about Oregon Ski accidents, please read our page on Skier rescue in Oregon.

Learn More About Oregon Ski Accidents