What happens when the trial judge rules correctly under the law but between the trial motions and the appeal the State Supreme Court Changes things? Things change

Oregon law allowed the language of the lift ticket on the back of the release to be a release. However, once releases where void as against public policy releases and lift tickets are invalid in Oregon.

Becker v. Hoodoo Ski Bowl Developers, Inc., 269 Ore. App. 877; 346 P.3d 620; 2015 Ore. App. LEXIS 319

State: Oregon, Court of Appeals of Oregon

Plaintiff: Tabitha Becker

Defendant: Hoodoo Ski Bowl Developers, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2015

The plaintiff was skiing at the defendant’s ski area. The plaintiff’s husband purchased the plaintiff a lift ticket. There was also a signed posted that said the ski area had to be notified within 180 days of any injury pursuant to the Oregon Ski Safety Act. The plaintiff did not notice or read the lift ticket. The plaintiff used the lift at issue several times. She was loading the lift when she noticed the seat was up and tried to get out of the way. The lift hit here causing her injuries.

She sued, and the trial court dismissed her case because of the release printed at the back of her lift ticket. Oregon was one of the few (two) states that allowed a lift ticket to serve as a release. (See Lift tickets are not contracts and rarely work as a release in most states.) The plaintiff appealed the trial court’s decision.

Between the time of the dismissal of the plaintiff’s lawsuit and the issuance of a ruling by the Oregon Appellate court the Oregon Supreme Court voided all releases. (See Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.)

Analysis: making sense of the law based upon these facts.

This decision is based on timing. If the accident had occurred a year earlier the decision might have stood. However, as the court pointed out, the Supreme Court changed the law in Oregon between the time the trial court ruled and the appellate court ruled.

However, after the parties to this case briefed and argued this case to us, the Oregon Supreme Court reversed our decision in Bagley I. See Bagley II, 356 Ore. at 543. In so doing, the court explained that it would, “for the sake of convenience–if not doctrinal convergence–* * * address the parties’ public policy arguments in the context of [its] analysis of whether, in the particular circumstances of [that] case, enforcement of the release would be unconscionable.”

For a complete review of the Oregon Supreme Court decision see Oregon Supreme Court finds release signed at ski area is void as a violation of public policy. However, the appellate court in this case, summed up that decision as:

When analyzing the substantive considerations, the court stated that “the enforcement of the release would cause a harsh and inequitable result” to befall the plaintiff; that the “defendant’s business operation [was] sufficiently tied to the public interest as to require the performance of its private duties to its patrons[;]” and that “the fact that plaintiff’s claim [was] based on negligence rather than on more egregious conduct carries less weight than the other substantive factors[.]

Consequently, the appellate court did not have much it could do except reverse the trial court dismissal and send it back to the trial court for trial.

The release here is materially indistinguishable from the release at issue in Bagley, and, therefore, under the analysis set forth by the Oregon Supreme Court in Bagley II, we conclude that enforcement of the release in this case would likewise be unconscionable. Accordingly, Hoodoo is not entitled to prevail on its affirmative defense of release, and the trial court erred in granting Hoodoo’s motion for summary judgment, denying Becker’s cross-motion for partial summary judgment, and entering a judgment in favor of Hoodoo.

So Now What?

This is one of those rare (and frustrating) litigations where a win turns into a loss not because the trial court did not rule correctly, but because the law of the state changed.

Supposedly, the recreation providers throughout the state are moving to get a bill through the Oregon Legislature to reverse the effects of the Supreme Court Decision. See Recreation liability the focus for a new advocacy group.

However, if changing the law is possible it will take at least a year, maybe more. In the meantime, anyone injured in Oregon by an outdoor recreation provider who relied upon a release as a defense to claims and lawsuits is going to be relying on assumption of the risk.

Outdoor recreation businesses and programs should create videos warning their guests of the hazards, have their guest’s sign assumption of risk documents that list the risks, have the guest state they know and understand the risks, and state they have seen the videos of the risks. For the time being, there is not much else you can do in Oregon.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law           Rec-law@recreation-law.com     James H. Moss



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