From the desk of Jeffrey D. Eberhard: : Earlier this year, we provided a case update regarding the Oregon Supreme Court’s review of anticipatory releases (releasing a party for harm that has yet to occur) at ski resorts in Bagley v. Mt. Bachelor. Providers of recreation, especially outdoor recreation, often use releases in order to diminish their exposure to liability by requiring patrons to release the providers from liability for harm caused by the use of their facilities or equipment. In this follow-up case, read on to see how the Court of Appeals applied the Supreme Court’s analysis to a case involving a skier injured by a chair lift.
Claims Pointer: In determining whether a release violates public policy or is unconscionable, courts look at the following factors: (1) whether the release is conspicuous and ambiguous; (2) whether there is substantial disparity in bargaining power; (3) whether the release is offered on a take-it-or-leave-it basis; and (4) whether the release involved a consumer transaction. Furthermore, a court will consider substantive issues such as whether enforcement of the release would cause a harsh or equitable result, whether the release serves a public interest, and whether the release attempts to disclaim liability for anything more than negligence (i.e. intentional conduct). Here, the Court of Appeals held that a ski resort could enforce its release against a patron when its negligent operation of a chair lift caused the patron serious injuries. While this case is instructive in showing how the courts will address these ski resort releases, it remains to be seen whether other recreational releases (i.e. rafting, climbing, gear rental, etc.) will hold up under the Oregon Supreme Court’s analysis in Bagley.
Becker v. Hoodoo Ski Bowl Developers, Inc., 269 Or App 877 (March 18, 2015)
Tabitha Becker was a patron of Hoodoo Ski Bowl, an Oregon ski resort located a few hours southeast of Portland. Becker’s husband had purchased her a lift ticket, which included the following release:
“‘The purchaser or user of this ticket understands that skiing can be hazardous and accepts and assumes the inherent risks of skiing including but not limited to changing weather conditions, variations or steepness in terrain, snow or ice conditions, surface or subsurface conditions, bare sports [sic], creeks and gullies, forest growth, rocks, stumps, lift towers and other structures and their components, collisions with chairlifts, snow grooming equipment and other skiers, and a skier’s failure to ski within the skier[’]s own ability. Always ski in control.’
“‘THE USER OF THIS TICKET HEREBY RELEASES HOODOO SKI BOWL DEVELOPERS, INC., d.b.a. HOODOO SKI AREA AND ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS TICKET INCLUDING BUT NOT LIMITED TO SKIING ACTIVITIES AND LOADING AND UNLOADING FROM LIFTS. THIS RELEASE INCLUDES CLAIMS BASED UPON NEGLIGENCE.”
“The holder of this ticket as condition of being permitted to use the facilities of the area agrees to assume all risk of personal injury or loss of or damage to property and that the management is not responsible for ticket if lost or stolen. This ticket may be revoked without refund at any time for misconduct of or nuisance caused by the holder[.]”
Becker testified that she never noticed or read the release. A sign was also posted at the resort indicating that Hoodoo must be notified of any injury for a person to have a personal injury claim against it and that the notice requirement was in addition to any specific release, such as the ticket.
Becker skied and used a chairlift without incident. While Becker was again waiting to use the chairlift, a chair swung around with the seat up. Before Becker could get out of the way, it struck her and dragged her along the ground, causing her several injuries. Becker sued Hoodoo for its negligent operation of the chairlift. In its defense, Hoodoo filed a summary judgment motion, arguing that its anticipatory release prevented Becker from suing it for its own negligence. Becker filed her own motion for summary judgment, arguing that the release violated public policy and was unconscionable. The trial court ruled in favor of Hoodoo, dismissing Becker’s claims. Becker appealed.
The Oregon Court of Appeals first explained that Becker and Hoodoo’s briefs were written and submitted prior to the Oregon Supreme Court’s decision in Bagley, which had a similar release provision. The Court of Appeals explained that the following factors determine whether a release is enforceable:
“[the] relevant procedural factors in the determination of whether enforcement of an anticipatory release would violate public policy or be unconscionable include whether the release was conspicuous and unambiguous; whether there was a substantial disparity in the parties’ bargaining power; whether the contract was offered on a take-it-or-leave-it basis; and whether the contract involved a consumer transaction. Relevant substantive considerations include whether enforcement of the release would cause a harsh or inequitable result to befall the releasing party; whether the release serves an important public interest or function; and whether the release purported to disclaim liability for more serious misconduct than ordinary negligence.”
The Court then applied these factors to Becker’s case. The Court stated that the release in Bagley was “indistinguishable” from Hoodoo’s release. The Court then explained that the release language was conspicuous and unambiguous, even though Becker claimed that she never noticed or read it. However, as to all other factors, the Court held that the factors weighed in favor of Becker because the contract was not “an agreement between equals,” that Hoodoo was the only commercial entity to the contract, and that the release was offered only on a take-it-or-leave-it basis. The Court commented that the release did not provide the opportunity for a patron to negotiate other terms, such as the option to pay an additional fee to allow them to bring a suit for Hoodoo’s own negligence. The Court further reasoned that enforcement of the release would lead to a harsh and inequitable result, and that the business was “sufficiently tied to the public interest” to warrant enforcement.
The Court of Appeals reversed the trial court’s grant of summary judgment in favor of Hoodoo and remanded the case for further proceedings. The Court of Appeals failed to explain, as did the Oregon Supreme Court in Bagley, why a commercial ski resort’s business is “tied to the public interest.” Also, this case did not clarify whether a court will apply Bagley to other businesses that engage in activities such as horseback riding, rafting, rock climbing, and similar activities that carry similar risks as skiing. We will watch this issue closely as it develops in the courts.
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.