Broad Liability Waivers Are Bull – Resorts Can Be Sued for Negligence
Posted on behalf of Rizk Law on Feb 16, 2017 in Personal Injury
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.
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 a high risk activity, and yet they agree to the liability releases printed on season passes and tickets. They asserted that the waivers were conspicuous and unambiguous, and that the resort cannot be expected to control the behavior of individuals. Despite all the care Bagely may have exercised when approaching the jump, an accident was still possible.
The Deschutes County Circuit Court judge agreed with the resort in a 2010 pretrial hearing, and the case was not heard by a jury. In 2013, the Oregon Court of Appeals upheld the judge’s decision.
Each and every day that ski resorts are open to the public, thousands of winter sports enthusiasts sign away their rights to use the resort’s facilities. Even if a chair detaches from the lift and lands on a small child, that child’s parents would have no case under this decision…until now.
Oregon Supreme Court Hears Myles A. Bagely and Al Bagley v. Mt. Bachelor, Inc.
On December 18, 2014 the Oregon Supreme Court made a decision that carries many implications for ski resorts and other businesses involved in recreational activities, as well as the retailers and manufacturers in the industry. The Court ruled that the lower courts were mistaken and that liability waivers violate the public interest. The Court painted broad liability waivers as “unconscionable” and therefore, invalid.
The term “unconscionable” presents a concept that is meant to address several issues with contracts, including deception, refusal to bargain, and the imbalance of power; it does not imply that the waiver itself is deceptive. The Court recognized that the waivers greatly favor the commercial entity (Mt. Bachelor), and therefore waivers are not agreements between equal parties.
In addition, the Court recognized that liability releases are not covered or guaranteed by the Oregon Ski Safety Act of 1981, which was a response to another incident between an injured skier and Mt. Hood Meadows. The Act is noteworthy for its definition of the inherent risks of skiing. When an injury occurs due to those “inherent risks,” a skier or snowboarder may not sue a ski area operator. If the injury is a result of negligence, however, skiers and snowboarders retain the right to sue under this statute.
The High Court’s ruling in Bagley v. Mt. Bachelor, Inc. prevents the abuse of power previously endured by ski and snowboarding enthusiasts forced to sign away their legal right to sue for negligence. If you or someone you know has been injured skiing or snowboarding in Portland, call RizkLaw at (503) 245-5677 to schedule a confidential appointment to discuss your case with an experienced personal injury attorney.