Winter and Skiiing Personal Injury Update

By Logan Quirk

As at many recreation facilities, admission tickets for customers of Mt. Bachelor ski resort, near Bend, Oregon, state the resort will not be responsible for injuries they suffer there, including “property damage, injury or death,” unless caused by intentional misconduct by the resort, its employees or agents.


In 2006, while going over a man-made jump in Mt. Bachelor’s expert terrain park, 18-year-old snowboarder Myles Bagley suffered a devastating spinal injury which left him a paraplegic. In 2008, Bagley and his parents sued for over $21 million in damages. The lawsuit claimed the resort had been negligent in designing, building, maintaining or inspecting the jump on which he was injured.


The resort defended by pointing to disclaimers of liability disclaimer on the season pass and lift tickets the youngster had carried, repeated on signs by ski lifts. It also noted that in buying a season pass for his then 17-year-old son, Bagley’s father had signed a release acknowledging the resort’s disavowal of liability for negligence, and indemnifying it for any wrongful acts by the youngster.


Myles Bagley argued he should not be bound by the disclaimer, because after his injury, he followed procedures set out in Oregon law allowing those turning 18 to repudiate contracts their parents had made for them while they were minors. Myles and his parents also argued it would be unconscionable to let the resort escape all responsibility if it operated unsafely.


Like most states with a skiing or snowboarding industry, Oregon has enacted a statute dealing with the liability of facility operators. Under the state’s Skiing Activities Law (which includes snowboarding), a skier assumes the sport’s inherent risks if they are “reasonably obvious, expected or necessary.” If a skier is harmed by a negligent act, however, the question becomes whether and to what extent the skier’s own acts contributed to the injury. The state had earlier legislated an end to unstated assumptions of risk.


Before the case could be heard by a jury, the trial judge threw it out, ruling the liability disclaimer exonerated the resort. A reviewing intermediate appeals court agreed in 2013, upholding dismissal of lawsuit. The Oregon Court of Appeals rejected each argument the Bagleys raised.


First, it ruled, despite Myles’ post-injury attempt to repudiate the liability release his father had signed, by his conduct the youth, who had used seasons passes for the past three years and identified himself as having “advanced expert” skills, had in fact accepted the release (by using without protest the resort’s season pass about 120 times in the weeks after he turned 18).


Further, the Court of Appeals held, the advance release from negligence liability was neither unconscionable nor unenforceable. It gave customers the clearly stated option to participate or not in inherently risky sports, on the condition the facility would only be responsible for its own intentional misconduct. The business was not essential to public well-being, so such a take-it-or-leave-it policy was acceptable.


But on December 18, 2014, the state’s highest court reversed. In its ruling, the Oregon Supreme Court decided blanket disclaimers of liability for negligence are unconscionable and unenforceable, since competing public policy concerns outweigh arguments for allowing them.


Even though Oregon makes customers engaged in inherently risky sports responsible for known hazards, the high court observed, facility operators are better positioned than customers to monitor and prevent safety risks. Immunity from lawsuits would remove resorts’ incentive to keeping their facilities safe, the decision added, citing chairlifts and “artificial constructs” like snowboard jumps as areas for which ski resorts should not be allowed to adopt blanket disclaimers of responsibility for negligence.


The widely-noted decision, which sends the case back for trial, is expected to raise legal risks not only for ski resorts, but also for other purveyors of inherently dangerous activities, such as rock climbing or ice skating.

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