Mt. Bachelor Oregonian staff photos
An Oregon Supreme Court ruling Thursday paved the way for a paralyzed snowboarder to sue Mt. Bachelor near Bend.
(Terry Richard/The Oregonian/file photo)
An 18-year-old paralyzed from the waist down at Mt. Bachelor in 2006 didn’t lose his rights to sue the ski resort by signing a blanket liability waiver, the Oregon Supreme Court said Thursday.
Such disclaimers are "unconscionable," the high court ruled.
The decision likely will have widespread implications beyond Oregon's ski resorts.
It could affect a broad range of recreational businesses -- including ice skating rinks, rock climbing gyms and parachuting companies -- that have stood steadfast behind negligence liability waivers to protect themselves from paying out millions for people who get hurt or die.
The high court's ruling came in the case of Myles Bagley -- a Bend teenager who became permanently paralyzed when he broke his spine on Feb. 16, 2006, after he launched off a jump at Mt. Bachelor terrain park.
His season pass stated that by using it at the ski resort, he agreed not to sue the resort for injury or death “even if caused by negligence,” but Bagley’s attorneys argued that such a release was contrary to public policy.
The attorneys contended that the resort created a dangerous condition at the terrain park by the way it set up the jump and that Bagley's $21.5 million lawsuit should be allowed to go forward.
But the resort’s attorneys contended that skiers and snowboarders are taking part in a voluntary -- and potentially dangerous -- activity. They also said skiers and snowboarders agree to an unambiguous liability release printed on the back of season passes and lift tickets and posted on signs at the bottom of every lift.
Bagley had considered himself an “advanced expert” and had used his season pass to ride the lifts at least 119 times that winter.
In a pretrial hearing in 2010, a Deschutes County Circuit Court judge agreed with the ski resort and threw out the lawsuit before it could be heard by a jury.
In 2013, the Oregon Court of Appeals upheld the Deschutes County judge's decision.
But Thursday, in ruling in favor of Bagley to go forward with his lawsuit, the Supreme Court said not all of the responsibility of safety should fall on skiers, snowboarders and members of the public who engage in inherently risky activities. The high court said business owners should also bear some of that responsibility.
The Supreme Court used the example of a chairlift, explaining that a ski resort is in a much better position to ensure that it's safe to operate than the members of the public who are riding it. The court said that the same holds true for the "artificial constructs" -- including the jump Bagley used before injuring himself -- that Mt. Bachelor created.
Bagley is now 27.
Bend attorney Andrew Balyeat, who is representing Mt. Bachelor, said this is the first time the state Supreme Court has taken on the issue. The ruling could have the effect of more lawsuits filed against ski resorts, he said.
"It's going to affect the entire ski industry," Balyeat said, adding that resorts will have to shell out more money to defend themselves.
But Balyeat is confident that when Bagley's case goes before a jury, Mt. Bachelor will prevail.
A lot of ski accidents are just that, he said: accidents that weren't the fault of the ski resort or even sometimes the skiers or snowboarders.
"It's an inherently risky sport," Balyeat said. "The best skiers in the world catch an edge and crash."
Kathryn Clarke, a Portland attorney who represented Bagley in his appeal, said broad liability releases are "prevalent" but "dead wrong" -- especially when a commercial enterprise is profiting.
Sometimes the injured person hasn't even signed a release. Rather, the liability release is simply posted on a sign somewhere or handed to them on the back of a lift ticket.
Clarke said the latter was the case for Tabitha Becker, whose husband bought her a day pass at Hoodoo ski area west of Sisters on the day in 2009 she claims a lift operator failed to lower a seat before she sat down. She got caught and was dragged before she fell to the ground and broke her arm, Clarke said.
She hadn't seen the waiver on the back of the pass, Clarke said. "It's little tiny language, (roughly) 2 ½ inches square, and it has about 200 words on it," Clarke said. "Of course nobody reads it."
A Linn County Circuit Court judge dismissed that lawsuit, but it's under review by the Oregon Court of Appeals.
Thursday's Supreme Court ruling is creating quite a buzz in legal circles, said Mark Ginsberg, a Portland civil attorney who isn't involved in the Bagley case.
“There’s definitely a lot of chatter about how it will affect other cases,” Ginsberg said.
The ruling will make ski resorts and other public venues safer, Ginsberg said. And businesses won’t be able to say “if anything under God’s good sun happens, we are not responsible,” he said.
-- Aimee Green