Myles A. Bagley, individually, Petitioner on Review, and Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs, v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, Respondent on Review, and John DOES 1-10, Defendants.
SUPREME COURT OF OREGON
2014 Ore. LEXIS 994
May 7, 2014, Argued and Submitted
December 18, 2014, Filed
PRIOR HISTORY: CC 08CV0118SF; CA A148231. On review from the Court of Appeals. [*1] *
* Appeal from Deschutes County Circuit Court, Stephen P. Forte, Judge. 258Or App 390, 310 P3d 692 (2013).
COUNSEL: Kathryn H. Clarke, Portland, argued the cause and filed the briefs for petitioner on review. With her on the briefs was Arthur C. Johnson.
Andrew C. Balyeat, Balyeat & Eager, LLP, Bend, argued the cause and filed the brief for respondent on review.
Michael J. Estok, Lindsay Hart, LLP, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.
Kristian Roggendorf, Roggendorf Law LLC, Lake Oswego, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.
JUDGES: BREWER, J.
OPINION BY: BREWER
The issue on review in this case is whether an anticipatory release1 of a ski area operator’s liability for its own negligence in a ski pass agreement is enforceable in the face of an assertion that the release violates public policy and is unconscionable. Plaintiff suffered serious injuries while snowboarding over a jump in defendant ski area operator’s “terrain [*2] park,” and brought this action alleging that defendant was negligent in the design, construction, maintenance, and inspection of the jump. Defendant moved for summary judgment based on an affirmative defense of release; plaintiff filed a cross-motion for partial summary judgment on the ground that the release was unenforceable as a matter of law. The trial court granted defendant’s summary judgment motion and denied plaintiff’s cross-motion. Plaintiff appealed, asserting, among other arguments, that the trial court erred in concluding that the release did not violate public policy and that it was neither substantively nor procedurally unconscionable. The Court of Appeals affirmed. Bagley v. Mt. Bachelor, Inc., 258 Or App 390, 310 P3d 692 (2013). Because we conclude that enforcement of the release would be unconscionable, we reverse and remand.
1 By “anticipatory release,” we refer to an exculpatory agreement that purports to immunize–before an injury occurs–the released party from liability for its own tortious conduct.
FACTS AND PROCEDURAL BACKGROUND
We review the trial court’s rulings on summary judgment to determine whether “there is no genuine issue as to any material fact” and whether “the moving party is entitled to prevail as a matter of law.” [*3] ORCP 47 C. We view the historical facts set out in the summary judgment record, along with all reasonable inferences that may be drawn from them, in the light most favorable to the nonmoving party–plaintiff on defendant’s motion for summary judgment, and defendant on plaintiff’s cross-motion. Id.; Vaughn v. First Transit, Inc., 346 Or 128, 132, 206 P3d 181 (2009). The historical facts in the record largely relate to the enforceability of the release at issue. Defendant’s summary judgment motion did not address the issues of negligence, causation, or damages. Therefore, insofar as those issues are relevant to the enforceability of the release, we accept as true the allegations in plaintiff’s complaint. ORCP 47 C (adverse party on summary judgment has burden of producing evidence only “on any issue raised in the motion as to which adverse party would have burden of persuasion at trial”).
On September 29, 2005, plaintiff purchased a season pass from defendant for use at defendant’s ski area. Plaintiff was a skilled and experienced snowboarder, having purchased season passes from defendant for each of the preceding three years and having classified his skill level as of early 2006, before being injured, as an “advanced expert.” Upon purchasing the season pass, plaintiff [*4] executed a written “release and indemnity agreement” that defendant required of all its patrons. That document provided, in pertinent part:
“In consideration of the use of a Mt. Bachelor pass and/or Mt. Bachelor’s premises, 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. The only claims not released are those based upon intentional misconduct.
“* * * * *
“The undersigned(s) have carefully read and understand this agreement and all of its terms on both sides of this document. This includes, but is not limited to, the duties of skiers, snowboarders, or snowriders. The undersigned(s) understand that this document is an agreement of release and indemnity which will prevent the undersigned(s) or the undersigneds’ estate from recovering damages from Mt. Bachelor, Inc. in the event [*5] of death or injury to person or property. The undersigned(s), nevertheless, enter into this agreement freely and voluntarily and agree it is binding on the undersigned(s) and the undersigneds’ heirs and legal representatives.
“By my/our signature(s) below, I/we agree that this release and indemnity agreement will remain in full force and effect and I will be bound by its terms throughout this season and all subsequent seasons for which I/we renew this season pass.
“See reverse side of this sheet * * * for duties of skiers, snowboarders, or snow riders which you must observe.”
(Capitalization omitted.)2 The reverse side of the document detailed the “Duties of Skiers” under ORS 30.985 and ORS 30.990 and also included a printed notification that “Skiers/Snowboarders/Snowriders Assume Certain Risks” under ORS 30.975–the “inherent risks of skiing.”3
2 Although defendant relies on several documents that, it asserts, separately and collectively released it from liability for plaintiff’s injuries, for convenience we refer to those documents in the singular throughout this opinion as “the release.” In addition to the releases discussed in the text, plaintiff’s father also executed a “minor release and indemnity agreement” on plaintiff’s [*6] behalf, containing essentially the same terms as the other releases, because plaintiff was not yet eighteen years old when he bought the season pass. Plaintiff asserted before the trial court and the Court of Appeals that he was entitled to–and effectively did–disavow the release after he reached majority. For reasons explained in its opinion, the Court of Appeals affirmed the trial court’s rejection of that argument. Plaintiff did not seek review of that holding in this court and we do not address it here.
3 As elaborated below, Oregon has enacted statutes specifically pertaining to skiing and ski areas. See ORS 30.970 – 30.990. Those statutes, among other provisions, set out the “duties” of skiers, require that ski area operators inform skiers of those duties, establish notice requirements and a statute of limitations pertaining specifically to injury or death while skiing, and provide that those who engage in the sport of skiing accept and assume the risks inherent in that activity.
On November 18, 2005, plaintiff began using the pass, which stated, in part:
“Read this release agreement
“In consideration for each lift ride, the ticket user releases and agrees to hold harmless and indemnify Mt. Bachelor, [*7] Inc., and its employees and agents from all claims for property damage, injury or death even if caused by negligence. The only claims not released are those based upon intentional misconduct.”
(Capitalization omitted.) Further, the following sign was posted at each of defendant’s ski lift terminals:
“YOUR TICKET IS A RELEASE
“The back of your ticket contains a release of all claims against Mt. Bachelor, Inc. and its employees or agents. Read the back of your ticket before you ride any lifts or use any of the facilities of Mt. Bachelor, Inc. If you purchase a ticket from someone else, you must provide this ticket release information to that person or persons.
“Skiers and lift passengers who use tickets at this resort release and agree to hold harmless and indemnify Mt. Bachelor, Inc., its employees and agents from all claims for property damage, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor’s premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.
“If you do not agree to be bound by the terms and conditions of the sale of your ticket, please do not purchase [*8] the ticket or use the facilities at Mt. Bachelor.
“Presentation of this ticket to gain access to the premises and facilities of this area is an acknowledgment of your agreement to the terms and conditions outlined above.”
(Capitalization in original.)
Beginning on November 18, 2005, plaintiff used his season pass to ride defendant’s lifts at least 119 times over the course of 26 days that he spent snowboarding at the ski area. On February 16, 2006, while snowboarding over a human-made jump in defendant’s “air chamber” terrain park, plaintiff sustained serious injuries resulting in his permanent paralysis. Approximately four months later, plaintiff provided defendant with notice of his injuries under ORS 30.980(1), which requires that “[a] ski area operator shall be notified of any injury to a skier * * * within 180 days after the injury[.]” Within two years after he was injured, plaintiff brought this action; his complaint alleged negligence on defendant’s part in designing, constructing, maintaining, and inspecting the jump on which plaintiff was injured. Defendant answered, in part, by invoking the affirmative defense of release, pointing to the above-quoted documents.
In its summary judgment motion, [*9] defendant asserted that plaintiff “admittedly understood that he [had] entered into a release agreement and was snowboarding under its terms on the date of [the] accident.” Defendant argued that the release conspicuously and unambiguously disclaimed its future liability for negligence, and that the release was neither unconscionable nor contrary to public policy under Oregon law, because “skiers and snowboarders voluntarily choose to ski and snowboard and ski resorts do not provide essential public services.” Thus, defendant reasoned, there was no material issue of fact as to whether the release barred plaintiff’s action, and defendant was entitled to judgment as a matter of law.
In his cross-motion for partial summary judgment, plaintiff asserted that the release was unenforceable because it was contrary to public policy and was “both substantively and procedurally unconscionable.” The trial court rejected plaintiff’s public policy and unconscionability arguments, reasoning that “[s]now riding is not such an essential service which requires someone such as [p]laintiff to be forced to sign a release in order to obtain the service.” Accordingly, the trial court granted summary judgment in defendant’s [*10] favor and denied plaintiff’s cross-motion for partial summary judgment.
As noted, the Court of Appeals affirmed. The court initially observed that the line between the public policy and unconscionability doctrines on which plaintiff relied was not clearly delineated:
“We assume without deciding that the ‘void as contrary to public policy’ doctrine pertaining to this type of case has not been superseded by later-evolved principles concerning substantive unconscionability. See Restatement[(Second) of Contracts], § 208 comment a [(1981)] (unconscionability analysis generally ‘overlaps’ with public-policy analysis).”
Bagley, 258 Or App at 403 n 7. The court then proceeded separately to analyze plaintiff’s arguments. It first concluded that the release did not violate public policy. In particular, the court understood plaintiff to rely on an uncodified Oregon public policy that gives primacy to the tort duties of landowners and business operators to provide safe premises for invitees. In rejecting plaintiff’s argument, the Court of Appeals relied on several factors. First, the court observed that the release “clearly and unequivocally” expressed defendant’s intent to disclaim liability for negligence. Id. at 405 (“[W]e are hard-pressed to envision [*11] a more unambiguous expression of ‘the expectations under the contract'[.]”). Second, the court noted that anticipatory releases that disclaim liability only for ordinary negligence do not necessarily offend public policy where they pertain exclusively to recreational activities and, most importantly, where the party seeking to relieve itself from liability does not provide an essential public service. Id. The court noted that a ski resort primarily offers recreational activities that, with possible exceptions that do not apply in this case, such as training for search-and-rescue personnel, do not constitute essential public services. Id. at 406. Third, the court stated that plaintiff’s claims were based on ordinary negligence and did not implicate a violation of any heightened duty of care. Id.
The court then rejected plaintiff’s unconscionability argument for essentially the same reasons. First, the court concluded, the release was not procedurally unconscionable in that it did not surprise plaintiff (that is, it was conspicuous and unambiguous) and it was not impermissibly oppressive, because, even though offered on a “take it or leave it basis,” plaintiff always could choose not to engage [*12] in the non-essential recreational activity that defendant offered. Id. at 407-08. The court also concluded that the release was not essentially unfair and, therefore, was not substantively unconscionable. Id. at 409. Although “favorable” to defendant, the release was not impermissibly so, the court stated, because a person does not need to ski or snowboard, but rather merely desires to do so. That is, the patron is free to walk away rather than accept unjust terms. Id. at 409-10. For those reasons, the court affirmed the trial court’s summary judgment rulings and its dismissal of plaintiff’s action.
The parties’ dispute in this case involves a topic–the validity of exculpatory agreements–that this court has not comprehensively addressed in decades. Although the specific issue on review–the validity of an anticipatory release of a ski area operator’s liability for negligence–is finite and particular, it has broader implications insofar as it lies at the intersection of two traditional common law domains–contract and tort–where, at least in part, the legislature has established statutory rights and duties that affect the reach of otherwise governing common law principles.
It is a truism that a contract validly [*13] made between competent parties is not to be set aside lightly. Bliss v. Southern Pacific Co. et al, 212 Or 634, 646, 321 P2d 324 (1958) (“When two or more persons competent for that purpose, upon a sufficient consideration, voluntarily agree to do or not to do a particular thing which may be lawfully done or omitted, they should be held to the consequences of their bargain.”). The right to contract privately is part of the liberty of citizenship, and an important office of the courts is to enforce contractual rights and obligations. W. J. Seufert Land Co. v. Greenfield, 262 Or 83, 90-91, 496 P2d 197 (1972) (so stating). As this court has stated, however, “contract rights are [not] absolute; * * * [e]qually fundamental with the private right is that of the public to regulate it in the common interest.” Christian v. La Forge, 194 Or 450, 469, 242 P2d 797 (1952) (internal quotation marks omitted).
That “common,” or public, interest is embodied, in part, in the principles of tort law. As a leading treatise explains:
“It is sometimes said that compensation for losses is the primary function of tort law * * * [but it] is perhaps more accurate to describe the primary function as one of determining when compensation is to be required.
“* * * * *
“[Additionally, t]he ‘prophylactic’ factor of preventing future harm has been quite important in the field of torts. The courts are concerned not only with compensation [*14] of the victim, but with admonition of the wrongdoer.”
W. Page Keeton, Prosser and Keeton on the Law of Torts § 4, 20-25 (5th ed 1984). See also Dan B. Dobbs, The Law of Torts, § 8, 12 (2000) (most commonly mentioned aims of tort law are compensation of injured persons and deterrence of undesirable behavior). A related function of the tort system is to distribute the risk of injury to or among responsible parties. Prosser and Keeton, § 4, 24-25.4
4 See also Rizutto v. Davidson Ladders, Inc., 280 Conn 225, 235, 905 A2d 1165 (2006) (fundamental purposes of the tort system are “compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct.”).
One way in which courts have placed limits on the freedom of contract is by refusing to enforce agreements that are illegal. Uhlmann v. Kin Daw, 97 Or 681, 688, 193 P 435 (1920) (an illegal agreement is void and unenforceable). According to Uhlmann:
“An agreement is illegal if it is contrary to law, morality or public policy. Plain examples of illegality are found in agreements made in violation of some statute; and, stating the rule broadly, an agreement is illegal if it violates a statute or cannot be performed without violating a statute.”
Id. at 689 (internal citation omitted); see also Eldridge et al. v. Johnston, 195 Or 379, 405, 245 P2d 239 (1952) (“It is elementary that [*15] public policy requires that * * * contracts [between competent parties], when entered into freely and voluntarily, shall be held sacred and shall be enforced by the courts of justice, and it is only when some other overpowering rule of public policy * * * intervenes, rendering such agreement illegal, that it will not be enforced.”).
In determining whether an agreement is illegal because it is contrary to public policy, “[t]he test is the evil tendency of the contract and not its actual injury to the public in a particular instance.” Pyle v. Kernan, 148 Or 666, 673-74, 36 P2d 580 (1934). The fact that the effect of a contract provision may be harsh as applied to one of the contracting parties does not mean that the agreement is, for that reason alone, contrary to public policy, particularly where “the contract in question was freely entered into between parties in equal bargaining positions and did not involve a contract of adhesion, such as some retail installment contracts and insurance policies.” Seufert, 262 Or at 92.
As we discuss in more detail below, courts determine whether a contract is illegal by determining whether it violates public policy as expressed in relevant constitutional and statutory provisions and in case law, see, e.g., Delaney v. Taco Time Int’l, Inc., 297 Or 10, 681 P2d 114 (1984) (looking to those [*16] sources to determine whether discharge of at-will employee violated public policy), and by considering whether it is unconscionable. With respect to the doctrine of unconscionability, one commentator has explained:
“The concept of unconscionability was meant to counteract two generic forms of abuses: the first of which relates to procedural deficiencies in the contract formation process, such as deception or a refusal to bargain over contract terms, today often analyzed in terms of whether the imposedupon party had meaningful choice about whether and how to enter the transaction; and the second of which relates to the substantive contract terms themselves and whether those terms are unreasonably favorable to the more powerful party, such as terms that impair the integrity of the bargaining process or otherwise contravene the public interest or public policy; terms (usually of an adhesion or boilerplate nature) that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law, fine-print terms, or provisions that seek to negate the reasonable expectations of the nondrafting party, or unreasonably and unexpectedly harsh terms having nothing to do with price [*17] or other central aspects of the transaction.”
Richard A. Lord, 8 Williston on Contracts § 18.10, 91 (4th ed 2010). As that passage suggests, the doctrine of unconscionability reflects concerns related specifically to the parties and their formation of the contract, but it also has a broader dimension that converges with an analysis of whether a contract or contract term is illegal because it violates public policy.5
5 This court has not distinguished between contracts that are illegal because they violate public policy and contracts that are unenforceable because they are unconscionable. However, a difference in focus between the two concepts has been described in this way:
“[O]ur public policy analysis asks whether the contract provision at issue threatens harm to the public as a whole, including by contravening the constitution, statutes, or judicial decisions of [this state]. In contrast, an unconscionability analysis asks whether the agreement, by its formation or by its terms, is so unfair that the court cannot enforce it consistent with the interests of justice.”
Phoenix Ins. Co. v. Rosen, 242 Ill 2d 48, 61, 949 NE2d 639 (2011). As that passage suggests, the two doctrines are aimed at similar concerns: unfairness or oppression in contract formation or terms that [*18] are sufficiently serious as to justify the conclusion that the contract contravenes the interests of justice.
Recognizing that convergence, this court often has relied on public policy considerations to determine whether a contract or contract term is sufficiently unfair or oppressive to be deemed unconscionable. See, e.g., William C. Cornitius, Inc. v. Wheeler, 276 Or 747, 754-55, 556 P2d 666 (1976) (treating lessee’s unconscionability defense as grounded in public policy); Cone v. Gilmore, 79 Or 349, 352-54, 155 P 192 (1916) (analyzing unconscionability challenge to contract enforcement based on public policy considerations); Balfour v. Davis 14 Or 47, 53, 12 P 89 (1886) (referring to unconscionability interchangeably with public policy considerations). Other authorities also have described the two doctrines in functionally the same terms, see, e.g., E. Allen Farnsworth, 1 Farnsworth on Contracts, § 4.28, 577 (3d ed 2004) (comparing unconscionability to violation of public policy), or as involving substantially overlapping considerations, see Restatement (Second) of Contracts § 208 comment a (1981) (policy against unconscionable contracts or contract terms “overlaps with rules which render particular bargains or terms unenforceable on grounds of public policy”).
As discussed, the Court of Appeals concluded that the release at issue here did not violate public policy and was not [*19] unconscionable for essentially the same reasons: it was conspicuous and unambiguous, and it related to a recreational activity, not an essential public service. Likewise, neither party has suggested that different legal standards apply in determining whether the release at issue in this case violates public policy or is unconscionable. Thus, for the sake of convenience–if not doctrinal convergence–we address the parties’ public policy arguments in the context of our analysis of whether, in the particular circumstances of this case, enforcement of the release would be unconscionable.6
6 We emphasize that it is not necessary to decide in this case whether the doctrines always are identical in practical effect or whether they may vary in their application depending on the particular circumstances of a given case. It suffices to say that we discern no difference in their practical application in this case and, therefore, for the sake of convenience, we consider plaintiff’s violation of public policy theory in the context of his unconscionability arguments.
Oregon courts have recognized their authority to refuse to enforce unconscionable contracts since the nineteenth century. See Balfour, 14 Or 47 (refusing [*20] to award attorney fees because amount specified in contract was unconscionable); see also Caples v. Steel, 7 Or 491 (1879) (court may refuse specific performance if bargain is unconscionable). Unconscionability is “assessed as of the time of contract formation,” and the doctrine “applies to contract terms rather than to contract performance.” Best v. U.S. National Bank, 303 Or 557, 560, 739 P2d 554 (1987) (“Unconscionability is a legal issue that must be assessed as of the time of contract formation.”); Tolbert v. First National Bank, 312 Or 485, 492 n 4, 823 P2d 965 (1991) (same).
Unconscionability may be procedural or substantive. Procedural unconscionability refers to the conditions of contract formation and focuses on two factors: oppression and surprise. See, e.g., John Edward Murray, Jr., Murray on Contracts § 96(b), 555-56 (4th ed 2001) (describing components of procedural unconscionability). Oppression exists when there is inequality in bargaining power between the parties, resulting in no real opportunity to negotiate the terms of the contract and the absence of meaningful choice. Vasquez-Lopez v. Beneficial Oregon, Inc., 210 Or App 553, 566-567, 152 P3d 940, 948 (2007); Acorn v. Household Intern. Inc., 211 F Supp 2d 1160, 1168 (ND Cal. 2002). Surprise involves whether terms were hidden or obscure from the vantage of the party seeking to avoid them. Id. Generally speaking, factors such as ambiguous contract wording and fine print are the hallmarks of surprise. In contrast, the existence of gross inequality of [*21] bargaining power, a takeit- or-leave-it bargaining stance, and the fact that a contract involves a consumer transaction, rather than a commercial bargain, can be evidence of oppression.
Substantive unconscionability, on the other hand, generally refers to the terms of the contract, rather than the circumstances of formation, and focuses on whether the substantive terms contravene the public interest or public policy.7 See Restatement § 208 comment a; Williston on Contracts § 18.10 at 91. Both procedural and substantive deficiencies–frequently in combination–can preclude enforcement of a contract or contract term on unconscionability grounds. Restatement § 208 comment a.8
7 It sometimes can be difficult to categorize the factors on which a determination of unconscionability may be based as distinctly procedural or substantive, and even factors usually considered in assessing procedural unconscionability can help establish a violation of public policy. For example, the passage quoted above from Williston on Contracts § 18.10, 356 Or at suggests that adhesive and fine-print terms may be substantively unconscionable. Indeed, the author goes on to say that “[t]he distinction between procedural and substantive abuses * * * may become quite blurred.” [*22] Williston on Contracts § 18.10 at 108-111.
8 In some jurisdictions, courts require both procedural and substantive unconscionability before they will invalidate a contract. See, e.g., Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal 4th 83, 114, 99 Cal Rptr 2d 745, 6 P3d 669, 690 (2000) (procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability); Blue Cross Blue Shield of Ala. v. Rigas, 923 So 2d 1077, 1087 (Ala 2005) (“To avoid an arbitration provision on the ground of unconscionability, the party objecting to arbitration must show both procedural and substantive unconscionability.”). This court has not addressed that issue, and because, as explained below, we conclude that both procedural and substantive considerations support the conclusion that the release here is unconscionable, we do not decide that issue in this case.
Identifying whether a contract is procedurally unconscionable requires consideration of evidence related to the specific circumstances surrounding the formation of the contract at issue. By contrast, the inquiry into substantive unconscionability can be more complicated. To discern whether, in the context of a particular transaction, substantive concerns relating to unfairness or oppression are sufficiently [*23] important to warrant interference with the parties’ freedom to contract as they see fit, courts frequently look to legislation for relevant indicia of public policy. When relevant public policy is expressed in a statute, the issue is one of legislative intent. See Uhlmann, 97 Or at 689-90 (so stating). In that situation, the court must examine the statutory text and context to determine whether the legislature intended to invalidate the contract term at issue.9 Id.
9 Many jurisdictions that limit or prohibit the use of anticipatory releases from negligence liability on public policy grounds do so as a matter of statutory enactment, rather than common law. For example, Great Britain and the States of Louisiana and Montana have statutory provisions that forbid contracts exculpating one party from liability for negligence that results in personal injury. Unfair Contract Terms Act of 1977, ch 50, § 2(1) (Eng) (“A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.”); La Civ Code Ann art 2004 (“Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury [*24] to the other party.”); Mont Code Ann § 28-2-702 (“All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility * * * for violation of law, whether willful or negligent, are against the policy of the law.”); see also Miller v. Fallon County, 222 Mont 214, 221, 721 P2d 342 (1986) (under statute, prospective release from liability for negligence is against the policy of the law and illegal, despite being a private contract between two persons without significant public implications).
Some states use statutes to make anticipatory releases from liability for negligence void as against public policy as to businesses providing recreational activities to the public. NY Gen Oblig Law § 5-326 (every contract between recreational business owner and user of facility, pursuant to which owner receives payment for use of facilities, that exempts owner from liability for damages resulting from owner’s negligence “shall be deemed void as against public policy and wholly unenforceable”); Haw Rev Stat § 663-1.54(a) (“Any person who owns or operates a business providing recreational activities to the public * * * shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.”).
Other states have enacted more narrowly crafted statutes that deal with specific [*25] recreational activities, including skiing. For example, an Alaska statute specifically prohibits ski area operators from requiring skiers to enter into agreements releasing them from liability in exchange for the use of the facilities. Alaska Stat Ann § 05.45.120. In North Carolina, a statute imposes a duty on ski area operators “[n]ot to engage willfully or negligently in any type of conduct that contributes to or causes injury to another person or his properties.” NC Gen Stat § 99C-2(c)(7); NC Gen Statute § 9C-3 (violation of duties of ski area operator that causes injury or damage shall constitute negligence); see also Strawbridge v. Sugar Mountain Resort, Inc., 320 F Supp 2d 425, 433 (WD NC 2004) (in light of statutory duty imposed on ski area operators not to negligently engage in conduct that causes injury, exculpatory clause on back of lift ticket was unenforceable).
Still other states have statutes that pertain specifically to skiing and, although not addressing releases, prescribe ski area operator duties and provide that operators will be liable for a violation of those duties. Colo Rev Stat § 33-44-104(1) (violation of duties of ski area operator constitutes negligence to extent such violation causes injury to any person or damage to property); see also Anderson v. Vail Corp., 251 P3d 1125, 1129-30 (Colo App 2010) (if ski area operator violated statutory duties, exculpatory agreement would not release operator from [*26] liability); Idaho Code § 6-1107 (“Any ski area operator shall be liable for loss or damages caused by its failure to follow the duties set forth in [other sections of the Idaho Code pertaining to duties of ski area operators], where the violation of duty is causally related to the loss or damage suffered.”); NM Stat Ann § 24-15-11 (to same effect); ND Cent Code § 53-09-07 (same); W Va Code § 20-3A-6 (same); Utah Code Ann § 78B-4-401(public policy of Utah Inherent Risks of Skiing Act is to make ski area operators better able to insure themselves against the risk of loss occasioned by their negligence); see also Rothstein v. Snowbird Corp., 175 P3d 560, 564 (Utah 2007) (by extracting a pre-injury release from plaintiff for liability due to ski resort’s negligent acts, resort breached public policy underlying Utah Inherent Risks of Skiing Act).
Frequently, however, the argument that a contract term is sufficiently unfair or oppressive as to be unenforceable is grounded in one or more factors that are not expressly codified; in such circumstances, the common law has a significant role to play. As the commentary to the Restatement (Second) of Contracts explains:
“Only infrequently does legislation, on grounds of public policy, provide that a term is unenforceable. When a court reaches that conclusion, it usually does so on the basis of a public policy [*27] derived either from its own perception of the need to protect some aspect of the public welfare or from legislation that is relevant to the policy although it says nothing explicitly about enforceability.”
Restatement § 178 comment b.
This court has considered whether enforcement of an anticipatory release would violate an uncodified public policy in only a few cases. Although, in those cases, this court has not expressly analyzed the issue through the lens of unconscionability, it has followed an approach that is generally consistent with the application of that doctrine. That is, the court has not declared such releases to be per se invalid, but neither has it concluded that they are always enforceable. Instead, the court has followed a multi-factor approach:
“Agreements to exonerate a party from liability or to limit the extent of the party’s liability for tortious conduct are not favorites of the courts but neither are they automatically voided. The treatment courts accord such agreements depends upon the subject and terms of the agreement and the relationship of the parties.”
K-Lines v. Roberts Motor Co., 273 Or 242, 248, 541 P2d 1378 (1975).
In K-Lines, this court upheld a limitation of liability contained in a commercial sales agreement. The court held that the [*28] fact
“[t]hat one party may possess greater financial resources than the other is not proof that such a disparity of bargaining power exists that a limitation of liability provisions should be voided.
“When the parties are business concerns dealing in a commercial setting and entering into an unambiguous agreement with terms commonly used in commercial transactions, the contract will not be deemed a contract of adhesion in the absence of evidence of unusual circumstances.”
Id. at 252-53. The court also noted that, in an earlier decision, it had stated: Cite as 356 Or 543 (2014) 559
“‘There is nothing inherently bad about a contract provision which exempts one of the parties from liability. The parties are free to contract as they please, unless to permit them to do so would contravene the public interest.'”
Id. at 248 (quoting Irish & Swartz Stores v. First Nat’l Bk., 220 Or 362, 375, 349 P2d 814 (1960), overruled on other grounds by Real Good Food v First National Bank, 276 Or 1057, 557 P2d 654 (1976)).10
10 In K-Lines, which, as noted, involved a commercial transaction, the court distinguished between releases from liability for ordinary negligence and releases involving more serious misconduct, concluding that the latter violate public policy, but that the former are not necessarily unenforceable. K-Lines, 273 Or at 249.
Soon after deciding K-Lines, this court, in Real Good Food, held that a bank-serving [*29] as a bailee for depositors-could not limit its liability for the negligence of its employees. Relying on the Restatement (Second) of Torts, the court held:
“Where the defendant is a common carrier, an innkeeper, a public warehouseman, a public utility, or is otherwise charged with a duty of public service, and the agreement to assume the risk relates to the defendant’s performance of any part of that duty, it is well settled that it will not be given effect. Having undertaken the duty to the public, which includes the obligation of reasonable care, such defendants are not free to rid themselves of their public obligation by contract, or by any other agreement.”
Id. at 1061 (quoting Restatement (Second) of Torts § 496B comment g (1965)).11 The court in Real Good Food concluded that “[b]anks, like common carriers and utility companies, perform an important public service,” and the release therefore violated public policy and was unenforceable. 276 Or at 1061.
11 Restatement (Second)of Torts § 496B provides:
“A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.”
According [*30] to the comments to that section, an exculpatory agreement should be upheld if it is freely and fairly made, if it is between parties who are in an equal bargaining position, and if there is no societal interest with which it interferes. Restatement (Second) of Torts § 496B comment b. Comments e-j set out a non-exclusive list of situations in which releases may interfere with societal interests, insofar as they are contrary to public policy. Among other things, in addition to situations like those described in the passage quoted above, the Restatement refuses to give effect to express liability releases where there is a substantial disparity in bargaining power. Restatement (Second) of Torts § 496B comment j.
Finally, this court has held that another factor for determining whether an anticipatory release may be unenforceable is the possibility of a harsh or inequitable result for the releasing party. Commerce & Industry Ins. v. Orth, 254 Or 226, 231-32, 458 P2d 926 (1969) (so stating); Estey v. MacKenzie Engineering Inc., 324 Or 372, 376-77, 927 P2d 86 (1996) (court’s inquiry into intent of parties to immunize against negligence “focuse[s] not only on the language of the contract, but also on the possibility of a harsh or inequitable result that would fall on one party by immunizing the other party from the consequences of his or her own negligence”).
We glean from those [*31] decisions that 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 releasee serves an important public interest or function; and whether the release purported to disclaim liability for more serious misconduct than ordinary negligence. Nothing in our previous decisions suggests that any single factor takes precedence over the others or that the listed factors are exclusive. Rather, they indicate that a determination whether enforcement of an anticipatory release would violate public policy or be unconscionable must be based on the totality of the circumstances of a particular transaction. The analysis in that regard is guided, but not limited, by the factors that this court [*32] previously has identified; it is also informed by any other considerations that may be relevant, including societal expectations.12
12 Justice Peterson eloquently described the role of societal expectations in informing the development of both the common law and legislation:
“The beauty and strength of the common-law system is its infinite adaptability to societal change. Recent decisions of this court are illustrative. In Heino v. Harper, 306 Or 347, 349-50, 759 P2d 253 (1988), the court abolished interspousal immunity, holding ‘that the common-law rule of interspousal immunity is no longer available in this state to bar negligence actions between spouses.’ In Winn v. Gilroy, 296 Or 718, 734, 681 P2d 776 (1984), the court abolished parental tort immunity for negligent injury to minor children. Nineteen years earlier, in Wights v. Staff Jennings, 241 Or 301, 310, 405 P2d 624 (1965), stating that ‘it is the function of the judiciary to modify the law of torts to fit the changing needs of society,’ the court held that a seller of a product may be held strictly liable for injuries to a plaintiff not in privity with the seller.
“The development of the common law occurs in an environment in which tensions abound. On occasion, the Legislative Assembly passes laws in response to decisions of this court. Products liability decisions of this court led to the enactment [*33] of a series of products liability statutes now found in ORS 30.900 to 30.927. A decision of this court involving an injury to a skier, Blair v. Mt. Hood Meadows Development Corp., 291 Or 293, 630 P2d 827, modified, 291 Or 703, 634 P2d 241 (1981), led to the enactment of statutes concerning skiing activities, ORS 30.970 to 30.990.
“On the other hand, this court, in deciding common-law issues presented to it, has ascertained public policy by looking to legislative enactments. The legislature is incapable of passing laws that govern every conceivable situation that might arise, however. The common-law court is the institution charged with the formulation and application of rules of governing law in situations not covered by constitution, legislation, or rules.”
Buchler v. Oregon Corrections Div., 316 Or 499, 518-19, 853 P2d 798 (1993) (Peterson, J., concurring).
With those principles in mind, we first consider the factors that usually are described as procedural, viz., those pertaining to the formation of the agreement. Plaintiff does not contend that the release was inconspicuous or ambiguous; that is, plaintiff does not contend that he was surprised by its terms. Thus, that factor weighs in favor of enforcement. Other procedural factors, however, point in a different direction. This was not an agreement between equals. Only one party to the contract-defendant-was a commercial enterprise, and that [*34] party exercised its superior bargaining strength by requiring its patrons, including plaintiff, to sign an anticipatory release on a take-it-or-leave-it basis as a condition of using its facilities. As the Restatement (Second) of Torts, section 496B, explains, a release may not be enforced
“where there is such a disparity in bargaining power between the parties that the agreement does not represent a free choice on the part of the plaintiff. The basis for such a result is the policy of the law which relieves the party who is at such a disadvantage from harsh, inequitable, and unfair contracts which he is forced to accept by the necessities of his situation. The disparity in bargaining power may arise from the defendant’s monopoly of a particular field of service, from the generality of use of contract clauses insisting upon assumption of risk by those engaged in such a field, so that the plaintiff has no alternative possibility of obtaining the service without the clause; or it may arise from the exigencies of the needs of the plaintiff himself, which leave him no reasonable alternative to the acceptance of the offered terms.”
Id. comment j (emphasis added).
Also, plaintiff had no opportunity in this [*35] case to negotiate for different terms or pay an additional fee for protection against defendant’s negligence. What makes the substantial disparity in the parties’ bargaining positions even more significant in this circumstance is the limited number of ski areas that provide downhill skiing and snow-boarding opportunities in Oregon, and the generality of the use of similar releases among that limited commercial cohort.13 Simply put, plaintiff had no meaningful alternative to defendant’s take-it-or-leave-it terms if he wanted to participate in downhill snowboarding. Although that factor is not, by itself, dispositive,
“[w]hen one party is in such a superior bargaining position that it totally dictates all terms of the contract and the only option presented to the other party is to take it or leave it, some quantum of procedural unconscionability is established. The party who drafts such a contract of adhesion bears the responsibility of assuring that the provisions of the contract are not so one-sided as to be unconscionable.”
Strand v. U.S. Bank Nat. Ass’n, 693 NW2d 918, 925 (ND 2005).
13 In an excerpt from the transcript of plaintiff’s deposition that was included in the summary judgment record, plaintiff testified that he had never been to a ski resort [*36] where a release such as the one at issue here was not required.
We next consider the substantive factors that are relevant to our inquiry. The parties have identified the following relevant factors: whether enforcement of the release would cause a harsh or inequitable result; whether defendant’s recreational business operation serves an important public interest or function; and whether the release purported to disclaim liability for more serious misconduct than ordinary negligence.
We begin with the question whether enforcement of the release would cause a harsh and inequitable result to befall the releasing party, in this case, plaintiff. As discussed, this court has recognized the importance of that consideration in other cases. See, e.g., Estey, 324 Or at 376. As pertinent here, we conclude that the result would be harsh because, accepting as true the allegations in plaintiff’s complaint, plaintiff would not have been injured if defendant had exercised reasonable care in designing, constructing, maintaining, or inspecting the jump on which he was injured. And that harsh result also would be inequitable because defendant, not its patrons, has the expertise and opportunity to foresee and control hazards [*37] of its own creation on its premises, and to guard against the negligence of its employees. Moreover, defendant alone can effectively spread the cost of guarding and insuring against such risks among its many patrons.
Those public policy considerations are embodied in the common law of business premises liability. Business owners and operators have a heightened duty of care toward patrons–invitees14–with respect to the condition of their premises that exceeds the general duty of care to avoid unreasonable risks of harm to others. Hagler v. Coastal Farm Holdings, Inc., 354 Or 132, 140-41, 309 P3d 1073 (2013); Garrison v. Deschutes County, 334 Or 264, 272, 48 P3d 807 (2002) (business invitee rule is a “special duty”). As this court explained in Woolston v. Wells, 297 Or 548, 557-58, 687 P2d 144 (1984):
“In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee’s visit. The possessor must exercise the standard of care above stated to discover conditions of the premises that create an unreasonable risk of harm to the invitee. The possessor must exercise that standard of care either to eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm.”
Furthermore, a business operator’s obligation to make its premises reasonably safe for its invitees includes taking into account [*38] the use to which the premises are put. See, e.g., Ragnone v. Portland School Dist. No. 1J, 291 Or 617, 621 n 3, 633 P2d 1287 (1981) (so stating); Mickel v. Haines Enterprises, Inc., 240 Or 369, 371-72, 400 P2d 518 (1965) (owner must “take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use of the premises.”).
14 An “invitee” is “[a] person who has an express or implied invitation to enter or use another’s premises, such as a business visitor or a member of the public to whom the premises are held open.” Bryan A Garner, Black’s Law Dictionary 846 (8th ed 1999).
The legislature has statutorily modified those duties to some extent in the Skier Responsibility Law, ORS 30.970 to 30.990. Under ORS 30.975, skiers assume certain risks:
“In accordance with ORS 31.600 [pertaining to contributory negligence] and notwithstanding ORS 31.620 (2) [abolishing the doctrine of implied assumption of risk], an individual who engages in the sport of skiing, alpine or nordic, accepts and assumes the inherent risks of skiing insofar as they are reasonably obvious, expected or necessary.”
ORS 30.970(1) describes “inherent risks of skiing”:
“‘Inherent risks of skiing’ includes, but is not limited to, those dangers or conditions which are an integral part of the sport, such as changing weather conditions, variations or steepness in terrain, [*39] snow or ice conditions, surface or subsurface conditions, bare spots, creeks and gullies, forest growth, rocks, stumps, lift towers and other structures and their components, collisions with other skiers and a skier’s failure to ski within the skier’s own ability.”
ORS 30.985 prescribes the duties of skiers, which generally deal with behaving safely while skiing.
By providing that a skier assumes the “inherent risks of skiing,” ORS 30.975 reduced ski area operators’ heightened common law duty to discover and guard against certain natural and inherent risks of harm. However, the Skier Responsibility Law did not abrogate the common-law principle that skiers do not assume responsibility for unreasonable conditions created by a ski area operator insofar as Cite as 356 Or 543 (2014) 565 those conditions are not inherent to the activity. See Nolan v. Mt. Bachelor, Inc., 317 Or 328, 336, 856 P2d 305 (1993) (Skier Responsibility Law provides that “[t]o the extent an injury is caused by an inherent risk of skiing, a skier will not recover against a ski area operator; to the extent an injury is a result of [ski area operator] negligence, comparative negligence applies”). It follows that the public policy underlying the common-law duty of a ski area operator to exercise reasonable care to avoid creating [*40] risks of harm to its business invitees remains applicable in this case.
In short, because (1) accepting as true the allegations in plaintiff’s complaint, plaintiff would not have been injured if defendant had exercised reasonable care in designing, constructing, maintaining, or inspecting the jump on which he was injured; and (2) defendant, not its patrons, had the expertise and opportunity–indeed, the commonlaw duty–to foresee and avoid unreasonable risks of its own creation on its business premises, we conclude that the enforcement of the release would cause a harsh and inequitable result, a factor that militates against its enforcement.
To continue our analysis, we next consider whether defendant’s business operation serves an important public interest or function. The parties sharply disagree about the importance of that factor to our resolution of this case. According to defendant, that factor is paramount here, because, as a matter of law, anticipatory releases of negligence liability are unenforceable only when a defendant provides an “essential” public service.
Although this court has not previously addressed that precise issue in the context of a release involving a recreational [*41] activity, other courts have done so. As defendant observes, courts in several jurisdictions that lack statutory prohibitions of anticipatory releases of liability for negligence have upheld such releases (at least in part) on the ground that the activity at issue did not involve an “essential” public service.15 However, courts in other jurisdictions have taken the opposite approach, concluding that, regardless of whether the release involves an essential public service, anticipatory releases that immunize a party from the consequences of its own negligence can violate public policy or be unconscionable.
15 See, e.g., Malecha v. St. Croix Valley Skydiving Club, Inc., 392 NW 2d 727 (Minn App 1986) (upholding an exculpatory agreement entered into between a skydiving operation and a patron); Chepkevich v. Hidden Valley Resort, 607 Pa 1, 2 A3d 1174 (2010) (skiing); Pearce v. Utah Athletic Foundation, 179 P3d 760 (Utah 2008) (bobsledding); Benedek v. PLC Santa Monica, LLC, 104 Cal App 4th 1351, 129 Cal Rptr 2d 197 (2002) (health club); Henderson v. Quest Expeditions, Inc., 174 SW3d 730, (Tenn Ct App 2005) (whitewater rafting).
For example, in Dalury v. S-K-I, Ltd., 164 Vt 329, 670 A2d 795 (1995), the Vermont Supreme Court rejected the argument that anticipatory releases of negligence liability necessarily are enforceable in the context of recreational activities because such activities are not essential. 670 A2d at 799. In that case, the plaintiff sustained serious injuries when he collided with a metal pole that formed part of the control maze for a ski-lift line. He brought a negligence action against the [*42] defendant ski area operator, alleging that it had negligently designed, built, and placed the maze pole. The trial court granted the defendant’s motion for summary judgment based on an anticipatory release that the plaintiff had signed absolving the defendant of liability for negligence.
On appeal, the court noted that the release was conspicuous and unambiguous, but it nevertheless concluded that the release violated public policy. Id. at 797. The court began its analysis with the Restatement (Second) of Torts § 496B comment b, which states that an anticipatory release should be upheld if (1) it is freely and fairly made, (2) between parties who are in equal bargaining positions, and (3) there is no societal interest with which it interferes. Dalury, 670 A2d at 797. The parties’ dispute focused on the last issue. The defendant urged the court to conclude that, because skiing-like other recreational activities-is not a necessity of life, the sale of a lift ticket is a purely private transaction that implicates no public interest. The court concluded that “no single formula will reach the relevant public policy issues in every factual context.” Id. at 798. Rather, the court stated that it would consider “the totality of the circumstances [*43] of any given case against the backdrop of current societal expectations.” Id.
The court found a significant public policy consideration in the case in the law of premises liability; in particular, the court stated, business owners–including ski area operators–owe a duty of care to make their premises safe for patrons where their operations create a foreseeable risk of harm. Id. at 799. The court observed that
“[d]efendants, not recreational skiers, have the expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone can properly maintain and inspect their premises, and train their employees in risk management. They alone can insure against risks and effectively spread the cost of insurance among their thousands of customers. Skiers, on the other hand, are not in a position to discover and correct risks of harm, and they cannot insure against the ski area’s negligence.
“If defendants were permitted to obtain broad waivers for their liability, an important incentive for ski areas to manage risk would be removed with the public bearing the cost of the resulting injuries. * * * It is illogical, in these circumstances, to undermine the [*44] public policy underlying business invitee law and allow skiers to bear risks they have no ability or right to control.”
Turning to the defendant’s argument that the release was enforceable because ski resorts do not provide an essential public service, the court stated that, “[w]hile interference with an essential public service surely affects the public interest, those services do not represent the universe of activities that implicate public concerns.” Id. The court held that, “when a facility becomes a place of public accommodation, it ‘render[s] a service which has become of public interest in the manner of the innkeepers and common carriers of old.'” Id. at 799-800 (quoting Lombard v. Louisiana, 373 U.S. 267, 279, 83 S Ct 1122, 10 L Ed 2d 338 (1963)) (internal quotation marks omitted).
Finally, the court’s analysis was informed by a statute that placed the “inherent risks” of any sport on the participant, insofar as the risks were obvious and necessary.16 The court stated that “[a] ski area’s own negligence * * * is neither an inherent risk nor an obvious and necessary one in the sport of skiing,” and, therefore, “a skier’s assumption of the inherent risks of skiing does not abrogate the ski area’s duty to warn of or correct dangers which in the exercise of reasonable prudence in [*45] the circumstances could have been foreseen and corrected.” Dalury, 670 A2d at 800 (internal quotation marks omitted).17
16 Vermont Statutes Annotated title 12, section 1037, provides:
“Notwithstanding the provisions of section 1036 of this title, a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary.”
17 For similar reasons, the Connecticut Supreme Court also has declined to enforce an anticipatory release of negligence liability in the face of the defendant’s contention that recreational activities do not implicate the public interest. Hanks v. Powder Ridge Restaurant Corp., 276 Conn 314, 885 A2d 734 (2005). Hanks was a negligence action brought by a plaintiff who was injured when his foot was caught between his snowtube and the artificial bank of a snowtubing run at a ski resort operated by the defendant. The defendant relied on an anticipatory release that the plaintiff had signed that purported to absolve the defendant from liability for its negligence. The court acknowledged that the release was conspicuous and unambiguous, but ultimately agreed with the Vermont Supreme Court that determining what constitutes the public interest required consideration of all relevant circumstances, including that the plaintiff lacked sufficient knowledge and authority to discern [*46] whether, much less ensure that, the snowtubing runs were maintained in a reasonably safe condition. Id. at 331. Thus, the court held, “it is illogical to permit snowtubers, and the public generally, to bear the costs of risks that they have no ability or right to control.” Id. at 332.
We, too, think that the fact that defendant does not provide an essential public service does not compel the conclusion that the release in this case must be enforced. As the court stated in Dalury, “[w]hile interference with an essential public service surely affects the public interest, those services do not represent the universe of activities that implicate public concerns.” 670 A2d at 799. It is true that ski areas do not provide the kind of public service typically associated with government entities or heavily regulated private enterprises such as railroads, hospitals, or banks. See Real Good Food, 276 Or at 1061 (“Banks, like common carriers and utility companies, perform an important public service, and, for that very reason, are subject to state and federal regulation.”). However, like other places of public accommodation such as inns or public warehouses, defendant’s business premises–including its terrain park–are open to the general public virtually without [*47] restriction, and large numbers of skiers and snowboarders regularly avail themselves of its facilities. To be sure, defendants’ business facilities are privately owned, but that characteristic does not overcome a number of legitimate public interests concerning their operation.18
18 Public accommodations laws that prohibit discrimination against potential users of the facility are just one example of limitations imposed by law that affect the use of defendant’s premises. See, e.g., ORS 447.220 (explaining purpose of ORS 447.210-280 to make places of public accommodation accessible to persons with disability); ORS 447.210 (defining public accommodation to include “places of recreation”); ORS 659A.403 (prohibiting discrimination in places of public accommodation); ORS 659A.400 (defining places of public accommodation for purposes of ORS 659A.403 to include places offering “amusements”).
The major public interests at stake are those underlying the law of business premises liability. The policy rationale is to place responsibility for negligently created conditions of business premises on those who own or control them, with the ultimate goal of mitigating the risk of injury-producing accidents. Hagler, 354 Or at 140-41; Garrison, 334 Or at 272. In that setting, where a business operator extends a general invitation [*48] to enter and engage in activities on its premises that is accepted by large numbers of the public, and those invitees are subject to risks of harm from conditions of the operator’s creation, their safety is a matter of broad societal concern. See Dalury, 670 A2d 799 (“[W]hen a substantial number of such sales take place as a result of the [operator’s] general invitation to the public to utilize the facilities and services in question, a legitimate public interest arises.”). The public interest, therefore, is affected by the performance of the operator’s private duties toward them. See, e.g., Strawbridge v. Sugar Mountain Resort, Inc., 320 F Supp 2d 425, 433-34 (WD NC 2004) (holding, under North Carolina law, that “the ski industry is sufficiently regulated and tied to the public interest” to preclude enforcement of anticipatory release, based on the principle that “a party cannot protect himself by contract[ing] against liability for negligence * * * where * * * public interest is involved, or where public interest requires the performance of a private duty”). Accordingly, we reject defendant’s argument that the fact that skiing and snowboarding are “non-essential” activities compels enforcement of the release in this case. Instead, we conclude that defendant’s business operation is sufficiently tied [*49] to the public interest as to require the performance of its private duties to its patrons.
Finally, we consider the nature of the conduct to which the release would apply in this case. Defendant makes a fair point that, although the release purports to immunize it from liability for any misconduct short of intentional conduct, plaintiff’s claim is based on ordinary negligence. Defendant notes that this court has held that an anticipatory release violates public policy where it purports to immunize the releasee from liability for gross negligence, reckless, or intentional conduct, but a release that disclaims liability only for ordinary negligence more often is enforced. K-Lines, 273 Or at 249. That statement is correct as a general comment on the validity of anticipatory releases, but, of course, whether any particular release will be enforced depends on the various factors that we discuss in this opinion. In the circumstances of this transaction, the fact that plaintiff’s claim is based on negligence rather than on more egregious conduct carries less weight than the other substantive factors that we have considered or than it would, for example, in a commercial transaction between parties of relatively [*50] equal bargaining power.19
19 Defendant does not contend that the release would be enforceable against a claim based on alleged gross negligence or reckless conduct.
SUMMARY AND APPLICATION
To summarize, our analysis leads to the conclusion that permitting defendant to exculpate itself from its own negligence would be unconscionable. As discussed, important procedural factors supporting that conclusion include the substantial disparity in the parties’ bargaining power in the particular circumstances of this consumer transaction, and the fact that the release was offered to plaintiff and defendant’s other customers on a take-it-or-leave-it basis.
There also are indications that the release is substantively unfair and oppressive. First, a harsh and inequitable result would follow if defendant were immunized from negligence liability, in light of (1) defendant’s superior ability to guard against the risk of harm to its patrons arising from its own negligence in designing, creating, and maintaining its runs, slopes, jumps, and other facilities; and (2) defendant’s superior ability to absorb and spread the costs associated with insuring against those risks. Second, because defendant’s business premises [*51] are open to the general public virtually without restriction, large numbers of skiers and snowboarders regularly avail themselves of its facilities, and those patrons are subject to risks of harm from conditions on the premises of defendant’s creation, the safety of those patrons is a matter of broad societal concern. The public interest, therefore, is affected by the performance of defendant’s private duties toward them under business premises liability law.
In the ultimate step of our unconscionability analysis, we consider whether those procedural and substantive considerations outweigh defendant’s interest in enforcing the release at issue here. Restatement (Second) of Contracts § 178 comment b (“[A] decision as to enforceability is reached only after a careful balancing, in the light of all the circumstances, of the interest in the enforcement of the particular promise against the policy against the enforcement of such terms.”). Defendant argues that, in light of the inherent risks of skiing, it is neither unfair nor oppressive for a ski area operator to insist on a release from liability for its own negligence. As defendant explains,
“[W]hen the plaintiff undertook this activity, he exposed himself [*52] to a high risk of injury. Only he controlled his speed, course, angle, ‘pop’ and the difficulty of his aerial maneuver. Skiing and snowboarding requires [sic] the skier to exercise appropriate caution and good judgment. Sometimes, even despite the exercise of due care, accidents and injuries occur.”
Further, defendant contends, denying enforcement of such a release
“improperly elevates premises liability tort law above the freedom to contract, fails to take into account the countervailing policy interest of providing recreational opportunities to the public, fails to recognize that certain recreational activities are inherently dangerous and fails to consider the fact that the ski area operator has little, if any, control over the skier/snowboarder.”
Defendant’s arguments have some force. After all, skiing and snow boarding are activities whose allure and risks derive from a unique blend of factors that include natural features, artificial constructs, and human engagement. It may be difficult in such circumstances to untangle the causal forces that lead to an injury-producing accident. Moreover, defendant is correct that several relevant factors weigh in favor of enforcing the release. [*53] As discussed, the release was conspicuous and unambiguous, defendant’s alleged misconduct in this case was negligence, not more egregious conduct, and snowboarding is not a necessity of life.
That said, the release is very broad; it applies on its face to a multitude of conditions and risks, many of which (such as riding on a chairlift) leave defendant’s patrons vulnerable to risks of harm of defendant’s creation. Accepting as true the allegations in plaintiff’s complaint, defendant designed, created, and maintained artificial constructs, including the jump on which plaintiff was injured.20 Even in the context of expert snowboarding in defendant’s terrain park, defendant was in a better position than its invitees to guard against risks of harm created by its own conduct.
20 We reiterate that the issues of whether defendant actually was negligent in one or more of the particulars alleged by plaintiff, whether and the extent to which plaintiff was comparatively negligent, and the extent to which either party’s negligence actually caused plaintiff’s injuries, are not before us on review.
A final point deserves mention. It is axiomatic that public policy favors the deterrence of negligent conduct. [*54] 2 Farnsworth on Contracts § 5.2, 9-12 (“[i]n precedents accumulated over centuries,” courts have relied on policy “against the commission or inducement of torts and similar wrongs”). Although that policy of deterrence has implications in any case involving the enforceability of an anticipatory release of negligence liability, here, that policy bolsters the other considerations that weigh against enforcement of the release. As the parties readily agree, the activities at issue in this case involve considerable risks to life and limb. Skiers and snowboarders have important legal inducements to exercise reasonable care for their own safety by virtue of their statutory assumption of the inherent risks of skiing. By contrast, without potential exposure to liability for their own negligence, ski area operators would lack a commensurate legal incentive to avoid creating unreasonable risks of harm to their business invitees. See Alabama Great Southern Railroad Co. v. Sumter Plywood Corp., 359 So 2d 1140, 1145 (Ala 1978) (human experience shows that exculpatory agreements induce a lack of care). Where, as here, members of the public are invited to participate without restriction in risky activities on defendant’s business premises (and many do), and where the risks of harm posed by operator negligence [*55] are appreciable, such an imbalance in legal incentives is not conducive to the public interest.
Because the factors favoring enforcement of the release are outweighed by the countervailing considerations that we have identified, we conclude that enforcement of the release at issue in this case would be unconscionable.21 And, because the release is unenforceable, genuine issues of fact exist that preclude summary judgment in defendant’s favor. It follows that the trial court erred in granting defendant’s motion for summary judgment and in denying plaintiff’s cross-motion for partial summary judgment, and that the Court of Appeals erred in affirming the judgment dismissing plaintiff’s action.
21 By so concluding, we do not mean to suggest that a business owner or operator never may enforce an anticipatory release or limitation of negligence liability from its invitees. As explained, multiple factors may affect the analysis, including, among others, whether a legally significant disparity in the parties’ bargaining power existed that made the release or limitation unfairly adhesive, whether the owner/operator permitted a patron to pay additional reasonable fees to obtain protection against negligence, [*56] the extent to which the business operation is tied to the public interest, including whether the business is open to and serves large numbers of the general public without restriction, and the degree to which the personal safety of the invitee is subjected to the risk of carelessness by the owner/ operator.
The decision of the Court of Appeals is reversed. The judgment of the trial court is reversed and the case is remanded to that court for further proceedings.
Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18Posted: May 5, 2014
This decision was just overturned by the Oregon Supreme Court in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 on December 18, 20014
The term is disaffirm, the minor must disaffirm the release or contract after reaching age 18 or the release or contract is valid.
Date of the Decision: September 5, 2013
Plaintiff: Myles A. Bagley, individually, Plaintiff-Appellant, and Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs
Defendant: Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort
Plaintiff Claims: (1) concluding that there was no genuine issue of material fact as to whether Bagley ratified, after reaching the age of majority, a release agreement entered into while he was a minor; (2) concluding that the release agreement was not contrary to public policy; and (3) concluding that the release agreement was neither substantively nor procedurally unconscionable.
Defendant Defenses: Release
Holding: for the defendant. The minor took advantage of the benefits of the contract (release) and did not disaffirm the contract upon reaching the age of majority (18).
This is a rare review of release or contract law because the odds are against it. A contract is voidable by the minor when the minor signs the contract. However, if the contract is in effect when the minor reaches the age of majority, the minor can either disaffirm the contract which puts the parties back in the position before the contract was signed or if he or she fails to do that he or she takes advantages of the benefits of the contract and continues to use it the contract is in force.
The minor signed a season pass release at the defendant ski area. His father signed a minor release and indemnity agreement. Two weeks later and before the plaintiff had started snowboarding he turned 18. Once he started snowboarding, after reaching age 18, he boarded at the defendant’s resort 26 different days and his pass was scanned 119 times.
Going through the terrain park where he seemed to spend most of his time, the plaintiff was injured on a jump which resulted in permanent paralysis.
The minor and his parents sued the resort. The trial court dismissed his complaints after the defendant filed a motion for summary judgment based on the release the minor had signed.
Summary of the case
The appellate court reviewed the facts and pointed several of the facts out repeatedly.
He was also an experienced snowboarder, had signed release agreements at other ski resorts in the past, and had purchased a season pass and signed a release agreement for each of the preceding three years that he spent snowboarding at Mt. Bachelor.
After reaching age 18 the plaintiff used the release 119 times over 26 days during a four month period. Once you affirm a contract, by using it and not disaffirming it, you cannot later disaffirm the contract. A contract is affirmed if the contract is not disaffirmed which requires an act on the part of the plaintiff. Meaning if the minor does not make an affirmative act to disaffirm the release then the release stands.
In Oregon, a former minor may disaffirm a contract within a “reasonable time” after reaching the age of majority, or, conversely, may ratify a contract after reaching the age of majority by manifesting an intent to let the contract stand, “[I]f an infant after reaching the age of majority engages in any conduct that objectively manifests an intent to regard the bargain as binding, the former minor will be held as a matter of law to have ratified the contract.”).
In this case the only disaffirmance occurred two years later when the plaintiff started his lawsuit.
The plaintiff then argued that because he had no knowledge of the power to disaffirm this release he should not be held to his failure to disaffirm. However the court shot this down with the standard statement. “However, we have previously stated that “[i]gnorance of the law is not a basis for not enforcing a contract.“”
The court then reviewed the requirements for a valid release under Oregon law. “[W]hen one party seeks to contract away liability for its own negligence in advance of any harm, the intent to do so must be ‘clearly and unequivocally expressed.”
The public policy argument was also shot down in a very common sense manner.
“[T]here are no public policy considerations that prevent a diving school from limiting liability for its own negligence. The diving school does not provide an essential public service[.]”). A ski resort, like a diving school, primarily offers “recreational activities” (with possible exceptions that do not apply here, e.g., training for search-and-rescue personnel) and does not provide an “essential public service.
The release was also found to not be unconscionable.
[T]he doctrine of unconscionability does not relieve parties from all unfavorable terms that result from the parties’ respective bargaining positions; it relieves them from terms that are unreasonably favorable to the party with greater bargaining power. Oregon courts have been reluctant to disturb agreements between parties on the basis of unconscionability, even when those parties do not come to the bargaining table with equal power. In those rare instances in which our courts have declared contractual provisions unconscionable, there existed serious procedural and substantive unfairness
The court followed up the public policy quote with “…albeit in dictum and in the context of addressing public-policy arguments, suggested that standard-form release agreements in the context of recreational activities are not impermissibly adhesive.”
A recreational activity is not subject to public policy arguments because the signer can:
“…simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable”
“[T]he release from liability is not invalid as a contract of adhesion, because [the] plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services.”
Because it was the plaintiff’s choice to board at the defendants ski area the release did not violate public policy.
When an individual enters a ski shop to buy ski equipment, s/he does not have a need for those goods and services, merely a desire. Should the seller demand exculpation as a condition for the sale of the equipment, the purchaser is free to walk away.
The one misstatement in my opinion which the court also pointed out was language that exempted the release for intentional acts. “THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.” The capitalized print made this statement in the release even standout. The court, found this to be curious and probably was thinking the same way I did, why give the plaintiff’s a way out of the release.
The Oregon Court of Appeals upheld the release as a defense to the claims of the plaintiff.
So Now What?
When a guest enters their date of birth in the information form indicating they are under the age of majority, this always creates a problems because minor’s cannot sign releases. However, if the minor can read the release, even the release is voided by the minor, it can still be used to prove assumption of the risk by the minor.
If the minor is turning the age of majority during the term of the release you can have the minor reaffirm the release or sign a new release after his birthday.
The court repeatedly pointed out how many times the plaintiff had used the release, how many releases at this resort and other resorts the plaintiff had signed before and the experience of the plaintiff. Keep track of this information because it will be valuable in any case showing that the release was an accepted contract for the plaintiff.
Never write in your release the ways the plaintiff can sue you. Here the statement in the release that it was not effective for intentional misconduct is the same as telling the plaintiff to write their complaint to couch the injury as an intentional act on the part of the defendant.
On the good side, the ski area had the minor sign the release, even though the release at the time was of no value. A release signed by a minor might have value later as in this case or might be able to prove assumption of the risk.
The Oregon Supreme Court has just accepted this case for review of this decision. So please learn from this article but do not rely upon it yet. (http://rec-law.us/1jaw8g2)
What do you think? Leave a comment.
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This decision was just overturned by the Oregon Supreme Court in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 on December 18, 20014
Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080
Myles A. Bagley, individually, Plaintiff-Appellant, and Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs, v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, Defendant-Respondent, and JOHN DOES 1-10, Defendants.
COURT OF APPEALS OF OREGON
258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080
September 6, 2012, Argued and Submitted
September 5, 2013, Filed
COUNSEL: Kathryn H. Clarke argued the cause for appellant. On the opening brief were Bryan W. Gruetter and Joseph S. Walsh. With her on the reply brief was Lisa T. Hunt.
Andrew C. Balyeat argued the cause for respondent. With him on the brief was Balyeat & Eager, LLP.
JUDGES: Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
OPINION BY: SERCOMBE
[**694] [*392] SERCOMBE, J.
Plaintiff Bagley, after suffering serious injuries while snowboarding over a “jump” in defendant Mt. Bachelor, Inc.’s (Mt. Bachelor) “terrain park,” brought this action alleging negligence in the design, construction, maintenance, or inspection of that jump. 1 The trial court granted Mt. Bachelor’s motion for summary judgment, which was based on the affirmative defense of release, and denied Bagley’s cross-motion for partial summary judgment pertaining to that same issue. Bagley appeals, asserting that the trial court erred in (1) concluding that there was no genuine issue of material fact as to whether Bagley ratified, after reaching the age of majority, a release agreement entered into while he was a minor; (2) concluding that the release agreement was not contrary [***2] to public policy; and (3) concluding that the release agreement was neither substantively nor procedurally unconscionable. For the reasons that follow, we agree with the trial court and, accordingly, affirm.
1 For ease of reading, notwithstanding additional named parties (Bagley’s parents and “John Does 1-10”), we refer throughout this opinion to plaintiff “Bagley” and defendant “Mt. Bachelor.”
[HN1] In reviewing a grant of summary judgment, we view the facts, along with all reasonable inferences that may be drawn from them, in the light most favorable to the nonmoving party–here, Bagley on Mt. Bachelor’s motion and Mt. Bachelor on Bagley’s cross-motion. ORCP 47 C; Vaughn v. First Transit, Inc., 346 Ore. 128, 132, 206 P3d 181 (2009). On September 29, 2005, just under two weeks before his 18th birthday, Bagley purchased a “season pass” from Mt. Bachelor. Bagley was a skilled and experienced snowboarder, having purchased season passes from Mt. Bachelor for each of the preceding three years and having classified his skill level as of early 2006, immediately prior to the injury, as “advanced expert.” Upon purchasing the season pass, he executed [**695] a release agreement as required by Mt. Bachelor. That [***3] agreement read, in pertinent part:
“RELEASE AND INDEMNITY AGREEMENT
“IN CONSIDERATION OF THE USE OF A MT. BACHELOR PASS AND/OR MT. BACHELOR’S PREMISES, I/WE AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, [*393] 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. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.
“* * * * *
“THE UNDERSIGNED(S) HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS ON BOTH SIDES OF THIS DOCUMENT. THIS INCLUDES, BUT IS NOT LIMITED TO, THE DUTIES OF SKIERS, SNOWBOARDERS, OR SNOWRIDERS. THE UNDERSIGNED(S) UNDERSTAND THAT THIS DOCUMENT IS AN AGREEMENT OF RELEASE AND INDEMNITY WHICH WILL PREVENT THE UNDERSIGNED(S) OR THE UNDERSIGNEDS’ ESTATE FROM RECOVERING DAMAGES FROM MT. BACHELOR, INC. IN THE EVENT OF DEATH OR INJURY TO PERSON OR PROPERTY. THE UNDERSIGNED(S), NEVERTHELESS, [***4] ENTER INTO THIS AGREEMENT FREELY AND VOLUNTARILY AND AGREE IT IS BINDING ON THE UNDERSIGNED(S) AND THE UNDERSIGNEDS’ HEIRS AND LEGAL REPRESENTATIVES.
“BY MY/OUR SIGNATURE(S) BELOW, I/WE AGREE THAT THIS RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH I/WE RENEW THIS SEASON PASS.
“SEE REVERSE SIDE OF THIS SHEET * * * FOR DUTIES OF SKIERS, SNOWBOARDERS, OR SNOW RIDERS WHICH YOU MUST OBSERVE.”
(Underscoring and capitalization in original; emphases added.) The reverse side of the document detailed the “Duties of Skiers” pursuant to ORS 30.990 and ORS 30.985 and also included printed notification that “Skiers/Snowboarders/Snowriders [*394] Assume Certain Risks” under ORS 30.975–namely, the “inherent risks of skiing.” 2 In addition, because Bagley was not yet 18, his father executed a “minor release and indemnity agreement” (capitalization omitted) that read as follows:
“I HEREBY AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH [***5] THE MINOR(S) NAMED BELOW MAY SUFFER OR FOR WHICH HE OR SHE 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 [**696] NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.
“BY MY SIGNATURE BELOW, I AGREE THAT THIS MINOR RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH THIS SEASON PASS IS RENEWED.
“I HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS.”
(Capitalization in original; emphasis added.)
2 Oregon has promulgated statutes specifically pertaining to skiing and ski areas. See ORS 30.970 – 30.990. Those statutes, inter alia, set forth the “duties” of skiers, require that ski area operators inform skiers of those duties, establish notice requirements and a statute of limitations pertaining specifically to injury or death while skiing, and provide that those who engage in the sport of skiing accept and assume the risks inherent in that activity.
Less than two weeks after purchasing the season pass and executing the [***6] above-quoted release agreement, Bagley reached the age of majority–turning 18 on October 12, 2005. Thereafter, on November 18, 2005, Bagley began using the pass, on which the crux of the release agreement was also printed:
[*395] “READ THIS RELEASE AGREEMENT
“IN CONSIDERATION FOR EACH LIFT RIDE, THE TICKET USER RELEASES AND AGREES TO HOLD HARMLESS AND INDEMNIFY MT. BACHELOR, INC., AND ITS EMPLOYEES AND AGENTS FROM ALL CLAIMS FOR PROPERTY DAMAGE, INJURY OR DEATH EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.”
(Capitalization in original; emphasis added.) Further, the following sign was posted at each of Mt. Bachelor’s ski lift terminals:
“YOUR TICKET IS A RELEASE
“The back of your ticket contains a release of all claims against Mt. Bachelor, Inc. and its employees or agents. Read the back of your ticket before you ride any lifts or use any of the facilities of Mt. Bachelor, Inc. If you purchase a ticket from someone else, you must provide this ticket release information to that person or persons.
“Skiers and lift passengers who use tickets at this resort release and agree to hold harmless and indemnify Mt. Bachelor, Inc., its employees and [***7] agents from all claims for property damage, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor’s premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.
“If you do not agree to be bound by the terms and conditions of the sale of your ticket, please do not purchase the ticket or use the facilities at Mt. Bachelor.
“Presentation of this ticket to gain access to the premises and facilities of this area is an acknowledgment of your agreement to the terms and conditions outlined above.”
(Capitalization in original; emphases added.)
Ultimately, beginning on November 18, 2005, after his 18th birthday, Bagley used his season pass to ride Mt. Bachelor’s lifts at least 119 times over the course of 26 days spent snowboarding at the ski area. However, on February 16, 2006, while snowboarding over a manmade jump in Mt. Bachelor’s “air chamber” terrain park, Bagley sustained serious injuries resulting in permanent paralysis.
[*396] On June 16, 2006, approximately four months later, Bagley provided Mt. Bachelor with formal notice of his injury under ORS 30.980(1), which requires [***8] that “[a] ski area operator * * * be notified of any injury to a skier * * * within 180 days after the injury * * *.” Nearly two years after the injury, on February 15, 2008, Bagley brought this action–filing a complaint alleging negligence on Mt. Bachelor’s part in designing, constructing, maintaining, or inspecting the jump on which Bagley was injured. Mt. Bachelor answered, in part, by invoking the affirmative defense of release–pointing to the above-quoted release agreements signed by Bagley and his father prior to the date of injury.
Mt. Bachelor quickly moved for summary judgment on that ground, arguing before the trial court that, by failing to disaffirm the voidable release agreement within a reasonable [**697] period of time after reaching the age of majority, and by accepting the benefits of that agreement and “objectively manifest[ing] his intent to affirm” it (i.e., by riding Mt. Bachelor’s lifts 119 times over 26 days), Bagley had ratified the release and was therefore bound by it. Mt. Bachelor further noted that Bagley “admittedly understood that he [had] entered into a release agreement and was snowboarding under its terms on the date of [the] accident.” Accordingly, Mt. Bachelor [***9] argued, because Bagley had ratified a release agreement that unambiguously disclaimed liability for negligence, there was no material issue of fact as to whether that agreement barred Bagley’s action, and Mt. Bachelor was entitled to judgment as a matter of law. 3
3 Mt. Bachelor additionally argued, as pertinent to this appeal, that the release agreement was neither adhesionary nor contrary to public policy under Oregon law. Specifically, it argued that “skiers and snowboarders voluntarily choose to ski and snowboard and ski resorts do not provide essential public services.”
Bagley then filed a cross-motion for partial summary judgment as to Mt. Bachelor’s affirmative defense of release, arguing that “there [was] no genuine issue of material fact [as to whether] the release [was] void and unenforceable as a matter of law.” Specifically, Bagley argued that he timely disaffirmed the release agreement by (1) notifying Mt. Bachelor of the injury pursuant to ORS 30.980(1), (2) filing his complaint for negligence within the two-year statute of limitations “for injuries to a skier” established by ORS 30.980(3), [*397] and (3) “plead[ing] infancy as a defense to [Mt. Bachelor’s] First Affirmative Defense [***10] on the release executed by [Bagley] while an infant.” Additionally, in response to Mt. Bachelor’s motion, Bagley alternatively argued that “whether [he] disaffirmed the Release within a reasonable time should be determined by the jury as a question of fact” because a material issue of fact existed as to Bagley’s knowledge of both the scope of the release (namely, whether it covered claims for negligence) and “of his right to disaffirm” it (i.e., whether it was voidable). He further argued that the release was contrary to public policy and “both substantively and procedurally unconscionable.”
The trial court agreed with Mt. Bachelor, reasoning that Bagley’s “use of the pass following his eighteenth birthday constitute[d] an affirmation of the contract and release agreement each time the pass was used, a total of 119 times over a period of 26 different days, up to February 16, 2006[,]” and noting that, “[o]nce there [was] an affirmation, [Bagley could] no longer disaffirm the contract.” The court rejected Bagley’s public policy and unconscionability arguments, reasoning that “[s]now riding is not such an essential service which requires someone such as [Bagley] to be forced to sign a [***11] release in order to obtain the service.” Accordingly, having determined that Bagley ratified the release agreement after reaching the age of majority and that “there [was] no basis by which [it could] find the release invalid[,]” the trial court granted summary judgment in Mt. Bachelor’s favor and denied Bagley’s cross-motion for partial summary judgment. Bagley now appeals, reprising his arguments below.
[HN2] On appeal, we review the trial court’s ruling on summary judgment to determine whether we agree “that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law.” ORCP 47 C; see O’Dee v. Tri-County Metropolitan Trans. Dist., 212 Ore. App. 456, 460, 157 P3d 1272 (2007). [HN3] No genuine issue of material fact exists if, “based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.” ORCP 47 C.
[*398] In his first assignment of error, Bagley asserts that “[t]here is a genuine factual dispute as to whether [his] actions or omissions after reaching the age of majority [***12] were enough to disaffirm or affirm the contract he entered with [Mt. Bachelor] when he was a minor.” More specifically, Bagley argues that “[a] jury could reasonably infer from the facts that merely turning 18 years old and continuing to snowboard was not conclusive evidence of [his] intent to affirm the release [**698] and agree to waive all prospective claims for [Mt. Bachelor’s] negligence.” He argues that a jury “could just as easily find that he promptly disaffirmed the contract” by notifying Mt. Bachelor of the injury approximately four months after it occurred as required by ORS 30.980(1), by filing suit for negligence within the applicable statute of limitations, or by pleading infancy in response to Mt. Bachelor’s affirmative defense of release. 4
4 Bagley alternatively argues that, “even if there is no genuine dispute of material fact, the inferences arising from the facts in this case are susceptible to more than one reasonable conclusion precluding summary judgment.” However, Bagley does not identify any facts that purportedly give rise to inferences susceptible to more than one reasonable conclusion, and, ultimately, his generalized argument to that effect is not materially different [***13] from his argument in support of his first assignment of error. Accordingly, we reject that alternative argument without further discussion.
Mt. Bachelor likewise reprises its arguments below, asserting that Bagley admittedly knew that he was snowboarding under the terms of a release agreement, was aware of the inherent risks of snowboarding (particularly given his advanced, aerial style of snowboarding), and, “[u]nderstanding those risks,” made “an informed decision to execute the release agreement” and “an informed decision to honor the agreement after reaching the age of majority because he wanted to snowboard.” As noted, Mt. Bachelor points to Bagley’s use of the pass after reaching the age of majority–arguing that Bagley ratified the release agreement by riding the lifts “no less than 119 times on 26 days before the subject accident.”
[HN4] In Oregon, a former minor may disaffirm a contract within a “reasonable time” after reaching the age of majority, see Highland v. Tollisen, 75 Ore. 578, 587, 147 P 558 (1915), or, conversely, may ratify a contract after reaching the age of majority by manifesting an intent to let the contract stand, [*399] see Haldeman v. Weeks, 90 Ore. 201, 205, 175 P 445 (1918); [***14] see also Richard A. Lord, 5 Williston on Contracts § 9:17, 166-70 (4th ed 2009) (“[I]f an infant after reaching the age of majority engages in any conduct that objectively manifests an intent to regard the bargain as binding, the former minor will be held as a matter of law to have ratified the contract.”). Further, as particularly relevant here, although what constitutes a reasonable period of time after reaching the age of majority varies widely depending on the circumstances, it is well established that [HN5] ratification of a voidable contract abolishes a party’s power to later disaffirm it. See Brown et ux v. Hassenstab et ux, 212 Ore. 246, 256, 319 P2d 929 (1957) (“The two courses of action are inconsistent and the taking of one will preclude the other.”); Snyder v. Rhoads, 47 Ore. App 545, 553-54, 615 P2d 1058, rev den, 290 Ore. 157 (1980) (similar).
Applying those principles to these facts, we agree with Mt. Bachelor and conclude that no objectively reasonable juror could find that Bagley disaffirmed the release agreement within a reasonable time after turning 18. Rather, the record gives rise to only one reasonable conclusion: By using the season pass at least 119 times over the course [***15] of 26 days between November 18, 2005 and February 16, 2006, Bagley objectively manifested his intent to let the release stand–affirmatively electing to ride the lifts and snowboard under the terms of the agreement (i.e., to accept the benefits of the agreement). His actions after the date of injury–at which time the release had already been ratified and Bagley’s power to disaffirm it thereby defeated–are immaterial. Cf. Highland, 75 Ore. at 587 (former minor’s disaffirmance held valid under circumstances where she had neither taken any affirmative action on the contract nor received any benefit from it); see also Restatement (Second) of Contracts § 85 comment b (1981) (power of disaffirmance may be lost, inter alia, “by exercise of dominion over things received”); Lord, 5 Williston on Contracts § 9:17 at 170 ( [HN6] “[I]f the infant after attaining majority voluntarily receives performance in whole or in part from the other party to the contract, this will amount to a ratification.”). 5
5 Although existing Oregon case law on point is limited, several other states have similarly reasoned that a former minor’s acceptance of the benefits of a contract may constitute a ratification. See, e.g., Jones v. Dressel, 623 P2d 370, 372-74 (Colo 1981) [***16] (holding that a former minor, who had signed a release at age 17 in order to skydive, “ratified the contract, as a matter of law, by accepting the benefits of the contract when he used [the defendant’s] facilities” and further stating that the question whether that former minor’s subsequent actions constituted disaffirmance of the contract was “not relevant” because the former minor had already ratified the contract); Parsons ex rel Cabaniss v. American Family Insurance Co., 2007 WI App 211, 305 Wis 2d 630, 639, 740 NW2d 399, 403 (Wis Ct App 2007), rev den, 2008 WI 19, 307 Wis. 2d 294, 746 N.W.2d 811 (Wis 2008) (former minor ratified release agreement in connection with settlement by retaining funds given as consideration for that release).
[*400] [**699] In reaching that conclusion, we emphasize that Bagley was less than two weeks short of the age of majority when he signed the release agreement and did not begin snowboarding under its terms until well over a month after turning 18. He was also an experienced snowboarder, had signed release agreements at other ski resorts in the past, and had purchased a season pass and signed a release agreement for each of the preceding three years that he spent snowboarding at Mt. Bachelor. See [***17] Haldeman, 90 Ore. at 205 (considering former minor’s maturity and life experience in determining whether contract had been ratified). Moreover, the language of the release was unambiguous, as discussed further below, and that language was both heavily emphasized and omnipresent–having been reproduced on the back of the physical season pass that Bagley was required to carry at all times and in large part on signage at each of the lift terminals to which Bagley was exposed at least 119 times. Indeed, given the exculpatory language on Bagley’s pass and the signage directing his attention to it, it is not implausible that Bagley released Mt. Bachelor from liability for negligence each time that he rode one of the lifts.
Nevertheless, Bagley affirmatively chose to accept the benefits of the agreement after reaching the age of majority and, as noted, continued to do so until the date of injury notwithstanding the pass’s and signage’s continuing reminders of the existence of the agreement and provision of ample exposure to its terms. The following exchange, which occurred during Bagley’s deposition, is particularly illustrative:
“[Mt. Bachelor’s Counsel]: The reason you didn’t go to Mt. Bachelor [***18] and tell them ‘You know what, I signed this agreement when I was 17, now I’m 18, I want to void it, I don’t want to be subject to it,’ what I’m asking you to [*401] acknowledge is the reason you didn’t do that is because you wanted [to] continue [to snowboard] and did continue [to snowboard] under the terms of the season pass agreement.
Thus, as the trial court correctly reasoned, when Bagley used the season pass 119 times to gain access to Mt. Bachelor’s lifts, he objectively manifested his intent to regard the release agreement as binding in order to reap its benefits–thereby ratifying it.
However, although he concedes that he was “aware of the release” and “aware of the inherent risks of his sport[,]” Bagley further argues that he did not know that the agreement released Mt. Bachelor from claims related to its own negligence. Nor, he argues, did he know that he had the power to disaffirm the contract upon turning 18. We conclude that such knowledge was not a necessary prerequisite to ratification and, therefore, that Bagley’s arguments as to his subjective understanding of both the release agreement and the law do not affect our determination that “no objectively reasonable [***19] juror could [have] return[ed] a verdict for” Bagley on the issue of ratification. ORCP 47 C.
Oregon subscribes to the “objective theory of contracts.” Kabil Developments Corp. v. Mignot, 279 Ore. 151, 156-57, 566 P2d 505 (1977) (citation omitted); Newton/Boldt v. Newton, 192 Ore. App. 386, 392, 86 P3d 49, rev den, 337 Ore. 84, 93 P.3d 72 (2004), cert den, 543 U.S. 1173, 125 S. Ct. 1365, 161 L. Ed. 2d 153 (2005). Accordingly, although there is undisputed evidence in the record showing that, after reaching the age of majority, Bagley was exposed to language expressly disclaiming liability for negligence on the part of Mt. Bachelor, 6 his subjective understanding [*402] [**700] of that language and the terms of the release agreement is not relevant to the question of whether he ratified that agreement such that it could be enforced against him. See, e.g., NW Pac. Indem. v. Junction City Water Dist., 295 Ore. 553, 557 n 4, 668 P2d 1206 (1983), modified on other grounds, 296 Ore. 365, 677 P2d 671 (1984) ( [HN7] “[F]ailure to read an instrument is not a defense to enforcement.”).
6 For instance, as noted, the season pass that he was required to carry with him at all times expressly disclaimed liability for negligence and drew his attention to that language with the following [***20] heading: “READ THIS RELEASE AGREEMENT[.]” (Capitalization in original.) Further, during his deposition testimony, Bagley confirmed that he had read signage posted prominently on the mountain that stated, as pertinent here, that
“[s]kiers and lift passengers who use tickets at this resort release and agree to hold harmless and indemnify Mt. Bachelor, Inc., its employees and agents from all claims for property damage, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor’s premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.”
We similarly reject Bagley’s argument regarding his lack of knowledge of the power to disaffirm the release agreement upon reaching the age of majority. In raising that issue, Bagley notes that, “[i]n some states, the former infant’s knowledge, or lack thereof, of his right to disaffirm a contract may be taken into consideration” in assessing whether there has been a ratification or disaffirmance. (Emphases added.) However, we have previously stated that [HN8] “[i]gnorance of [***21] the law is not a basis for not enforcing a contract.” Shea v. Begley, 94 Ore. App. 554, 558 n 3, 766 P2d 418 (1988), rev den, 307 Ore. 514, 770 P.2d 595 (1989) (citation omitted; emphasis added); see also Walcutt v. Inform Graphics, Inc., 109 Ore. App. 148, 152, 817 P2d 1353 (1991), rev den, 312 Ore. 589, 824 P.2d 418 (1992) (the plaintiff was not entitled to avoid contract due to her and her counsel’s “failure to take reasonable measures to inform themselves about her affairs”). Moreover, as Mt. Bachelor correctly points out, Bagley’s argument is drawn from the minority view among other jurisdictions. See Lord, 5 Williston on Contracts § 9:17 at 175-77 (former minor’s ignorance of legal defense of infancy treated as irrelevant in a majority of those jurisdictions that have considered the issue). As aptly stated by the Pennsylvania Supreme Court,
“[t]o require that one must have knowledge of a right to disaffirm in order to make an effective ratification of a voidable contract made in infancy would be inconsistent with the well-established rule that failure to disaffirm such contract within a reasonable time after coming of age terminates the privilege of disaffirmance.”
Campbell v. Sears, Roebuck & Co., 307 Pa 365, 371, 161 A 310, 312 (1932).
In [***22] short, both of Bagley’s ancillary arguments are inconsistent with the objective theory of contracts to which Oregon adheres; we look to the parties’ objective conduct, [*403] and, here, after reaching the age of majority, Bagley objectively manifested his intent to let the contract stand because he “wanted to snowboard[.]”
As noted, in his second assignment of error, Bagley asserts that the release agreement was void as contrary to public policy–focusing primarily on the respective bargaining power of the parties and an asserted “public interest [in] protecting a large number of business invitees, including [Bagley], from the negligence of ski area operators.” 7 (Some capitalization omitted.) [HN9] In evaluating whether a contract disclaiming liability for negligence is contrary to public policy, we assess the language of the agreement under the circumstances in order to determine whether it violates public policy “as applied” to the facts of the particular case. Harmon v. Mt. Hood Meadows Ltd., 146 Ore. App. 215, 217-18, 222-24, 932 P2d 92 (1997) (upholding release agreement disclaiming “any and all liability (including claims based upon negligence) for damage or injury” because the plaintiff’s action [***23] pertained only to ordinary negligence and therefore did not implicate the release’s potential coverage of recklessness or intentional misconduct [**701] (capitalization and boldface omitted)). Specifically, we stated in Harmon that
[HN10] “[t]he question of whether a contract provision is unenforceable as against some general, uncodified public policy must be determined on an ‘as applied’ basis. * * * [A] party seeking to avoid contractual responsibility must demonstrate that enforcement of the contractual provision as to him or her will offend public policy. That is so regardless of whether enforcement of the same contractual provision against other parties in other circumstances would violate public policy.”
Id. at 222 (emphases added); see generally Young v. Mobil Oil Corp., 85 Ore. App. 64, 69, 735 P2d 654 (1987) ( [HN11] “Oregon requires that a public policy be clear and ‘overpowering’ before a court will interfere with the parties’ freedom to contract on the ground of public policy.” (Citation omitted.)).
7 We assume without deciding that the “void as contrary to public policy” doctrine pertaining to this type of case has not been superseded by later-evolved principles concerning substantive unconscionability. [***24] See Restatement at § 208 comment a (unconscionability analysis generally “overlaps” with public-policy analysis).
[*404] Again, the release agreement provided, as pertinent here:
“RELEASE AND INDEMNITY AGREEMENT
“IN CONSIDERATION OF THE USE OF A MT. BACHELOR PASS AND/OR MT. BACHELOR’S PREMISES, 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. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.”
(Underscoring and capitalization in original; emphasis added.) Although that exculpatory language expressly excludes intentional misconduct from its purview, the same cannot be said with respect to gross negligence or recklessness. However, applying Harmon, because Bagley alleges only ordinary negligence, the failure to expressly exclude gross negligence or recklessness does [***25] not render the agreement contrary to public policy “as applied” to the negligence claim in this case. 146 Ore. App at 222.
Further, in assessing the language of the agreement, our decision in Steele v. Mt. Hood Meadows Oregon, Ltd., 159 Ore. App. 272, 974 P2d 794, rev den, 329 Ore. 10, 994 P.2d 119 (1999), provides substantial guidance. There, the plaintiff in a wrongful death action brought against a ski resort argued that the trial court had erred in granting summary judgment for the ski resort in part because “the terms of the release [were] ambiguous.” Id. at 276. We concluded that the agreement was ambiguous and stated that, [HN12] “[w]hen one party seeks to contract away liability for its own negligence in advance of any harm, the intent to do so must be ‘clearly and unequivocally expressed.'” Id. (quoting Estey v. MacKenzie Engineering Inc., 324 Ore. 372, 376, 927 P2d 86 (1996)). We further elaborated:
[*405] “In determining whether a contract provision meets that standard, the court has considered both the language of the contract and the possibility of a harsh or inequitable result that would fall on one party if the other were immunized from the consequences of its own negligence. The latter inquiry turns on the [***26] nature of the parties’ obligations and the expectations under the contract.”
Id. (citations and internal quotation marks omitted; emphasis added).
We conclude that the release agreement’s language “clearly and unequivocally” expressed Mt. Bachelor’s intent to disclaim liability for negligence. In reaching that conclusion, considering “the nature of the parties’ obligations and the expectations under the contract[,]” id., we note that Bagley admittedly understood that he was engaged in an inherently dangerous activity and that the agreement not only disclaimed liability [**702] for negligence but specifically stated that the “only” claims not released were those for intentional misconduct. Unlike the ambiguous release agreement in Steele, the above-quoted language expressly referred to negligence and was positioned prominently at the beginning of the release agreement; it was not obscured by unrelated provisions. See id. at 274-75 (exculpatory provision obscured by, inter alia, provision addressing skier’s duty to report injuries to the ski resort’s medical clinic). Indeed, we are hard-pressed to envision a more unambiguous expression of “the expectations under the contract”–namely, that in exchange [***27] for the right to use Mt. Bachelor’s facilities to participate in an inherently dangerous activity, Bagley was to release Mt. Bachelor from all claims related to anything other than intentional misconduct (including, of course, negligence).
Moreover, we have previously emphasized that [HN13] a release agreement disclaiming liability for negligence does not necessarily offend public policy where it pertains exclusively to “recreational activities,” and, most prominently, where the business seeking to relieve itself of such liability does “not provide an essential public service[.]” Mann v. Wetter, 100 Ore. App. 184, 187, 187 n 1, 785 P2d 1064, rev den, 309 Ore. 645, 789 P.2d 1387 (1990) (“[T]here are no public policy considerations that prevent a diving school from limiting liability for its own negligence. The diving school does not provide an [*406] essential public service[.]”). A ski resort, like a diving school, primarily offers “recreational activities” (with possible exceptions that do not apply here, e.g., training for search-and-rescue personnel) and does not provide an “essential public service[.]” Id.
Thus, bearing in mind the principles set forth in Mann and the recreational context of this particular case, [***28] 8 because the release agreement “clearly and unequivocally” disclaimed liability for negligence, and because Bagley’s claims relate only to ordinary negligence, under Oregon law the agreement was not contrary to public policy “as applied” to Bagley’s action. Steele, 159 Ore. App. at 276; Harmon, 146 Ore. App. at 222.
8 Regarding that recreational context, we further note that the legislature has enacted statutes indemnifying landowners from liability in connection with “use of the land for recreational purposes[.]” ORS 105.682; see ORS 105.672 – 105.696. Accordingly, we add that, as a general matter, it would be counterintuitive to hold that a contract with the same operative effect as that statutory scheme is void as contrary to public policy.
Finally, we reject Bagley’s third assignment of error, in which, as noted, he asserts that the release agreement was both procedurally and substantively unconscionable. At the outset, we emphasize the substantive rigor historically applied by Oregon courts in assessing claims of unconscionability:
[HN14] “‘[T]he doctrine of unconscionability does not relieve parties from all unfavorable terms that result from the parties’ respective bargaining positions; it [***29] relieves them from terms that are unreasonably favorable to the party with greater bargaining power. Oregon courts have been reluctant to disturb agreements between parties on the basis of unconscionability, even when those parties do not come to the bargaining table with equal power. In those rare instances in which our courts have declared contractual provisions unconscionable, there existed serious procedural and substantive unfairness.'”
Hatkoff v. Portland Adventist Medical Center, 252 Ore. App. 210, 217, 287 P3d 1113 (2012) (quoting Motsinger v. Lithia Rose-FT, Inc., 211 Ore. App. 610, 626-27, 156 P3d 156 (2007)) (emphasis in Motsinger). Further, “each case is decided on its own unique facts[,]” Vasquez-Lopez v. Beneficial Oregon, Inc., 210 Ore. App. 553, 567, 152 P3d 940 (2007), taking into account both the terms of the contract and the circumstances existing when the contract was signed.
[HN15] [*407] In assessing Bagley’s claim of procedural unconscionability, we focus on “the conditions of contract formation” and look to “two factors: oppression and surprise.” Id. at 566-67 (citation and internal quotation marks omitted). More specifically, “[o]ppression arises from an inequality of bargaining power [***30] which results in no real negotiation and an absence of meaningful [**703] choice. Surprise involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the terms.” Id. at 566 (citation and internal quotation marks omitted). Bagley addresses only the former, advancing a generalized argument that the agreement “was a contract of adhesion and there was a disparity in bargaining power.” (Some capitalization omitted.)
As noted, we do not find the release agreement procedurally unconscionable under these circumstances. Although the parties indeed came to the bargaining table with unequal power insofar as Mt. Bachelor required that the release be signed in order to allow Bagley to purchase a season pass, we have, albeit in dictum and in the context of addressing public-policy arguments, suggested that standard-form release agreements in the context of recreational activities are not impermissibly adhesive. See Harmon, 146 Ore. App. at 219 n 4 (citing cases from other jurisdictions and noting their holdings “that exculpatory provisions in ski-related form agreements were not impermissibly adhesive”); Mann, 100 Ore. App. at 187-88 [***31] (noting that “customers have a multitude of alternatives” in dealing with providers of “non-essential service[s,]” even where such providers hold an “economic advantage”). 9 Although we limit our holding to these “unique facts,” we rely in part on those principles in addressing both “oppression” and “surprise” (as well as substantive unconscionability, as set forth below).
9 Many other states, as well as federal courts, have, as Mt. Bachelor points out, “reached the same conclusion.” See, e.g., Chepkevich v. Hidden Valley Resort, L. P., 607 Pa 1, 29, 2 A3d 1174, 1191 (2010) (noting that, in the recreational context, “[t]he signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable”); Silva v. Mt. Bachelor, Inc., No CV 06-6330-AA, *2, 2008 U.S. Dist. LEXIS 55942 (D Or July 21, 2008) (“[T]he release from liability is not invalid as a contract of adhesion, because [the] plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services.”); Grbac v. Reading Fair Co., Inc., 521 F Supp 1351, 1355 (WD Pa 1981), aff’d, 688 F2d 215 (3d Cir 1982) (stock-car [***32] racing company’s standard-form release provision not adhesionary).
[*408] Here, with respect to “oppression,” Bagley was free to choose not to snowboard at Mt. Bachelor, was less than two weeks short of the age of majority when he signed the agreement, was an experienced snowboarder who had previously signed release agreements required by at least two other ski resorts, had signed a release agreement in obtaining a season pass at Mt. Bachelor during each of the preceding three years, and was accompanied by his father (who, as noted, signed a nearly identical agreement disclaiming liability for negligence). Each of those facts contributes to our conclusion that, notwithstanding the parties’ unequal bargaining power, the circumstances of contract formation were not impermissibly oppressive. Bagley and his father were presented with a “meaningful choice[,]” Vasquez-Lopez, 210 Ore. App. at 566, particularly given that, as noted, snowboarding is a recreational activity and Bagley could have simply declined to sign the release without being denied access to an essential public service.
With respect to “surprise,” as evidenced by the unambiguous language of the release agreement, and particularly given [***33] its additional clarification after disclaiming liability for negligence (“THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT”), this was not a situation where the “terms of the bargain [were] hidden” by Mt. Bachelor. Id. To the contrary, the above quoted paragraph pertaining to the skier’s release of claims, including claims for negligence, appeared at the beginning of the release agreement and was highlighted by a centered and underlined introductory heading drawing the skier’s attention to the fact that he or she was signing a release (“RELEASE AND INDEMNITY AGREEMENT”). On those facts, we find no indication of surprise and, coupled with our conclusion above as to oppression, cannot say that the release agreement was procedurally unconscionable.
In further arguing that the release agreement was substantively unconscionable, Bagley asserts that “[t]he Release term of the contract in question is unreasonably [**704] favorable to [Mt. Bachelor], the drafter of the contract and more powerful party.” Further, Bagley argues, the terms of the release “unconscionably shift[ ] the burden to protect [skiers] from [Mt. Bachelor’s] negligent behavior to the public that it invites [***34] upon its premises, including [Bagley].” [HN16] [*409] In assessing a contract for substantive unconscionability, we focus on the terms of the contract itself in light of the circumstances of its formation; ultimately, “[t]he substantive fairness of the challenged terms” is the “essential issue.” Carey v. Lincoln Loan Co., 203 Ore. App. 399, 423, 125 P3d 814 (2005), aff’d on other grounds, 342 Ore. 530, 157 P3d 775 (2007); see Vasquez Lopez, 210 Ore. App. at 566-69.
On these facts, the provision in the release agreement disclaiming liability for negligence was not “unreasonably” favorable to Mt. Bachelor. Carey, 203 Ore. App. at 422. Indeed, the principal Oregon case touching on the issue upheld a provision–albeit on an “as applied” basis in the context of that particular plaintiff’s public-policy argument–that not only disclaimed liability for negligence in connection with skiing but for “any and all liability” (presumably including liability related to gross negligence or intentional misconduct on the part of the ski resort). Harmon, 146 Ore. App. at 217-22 (emphasis added). Moreover, as noted, in Harmon we specifically cited cases from other jurisdictions “holding that exculpatory provisions in ski-related form [***35] agreements were not impermissibly adhesive.” Id. at 219 n 4. Returning to the overarching notion that the terms at issue must be read in light of their recreational context, in one of those cases, the New Jersey Superior Court aptly reasoned as follows:
“When an individual enters a ski shop to buy ski equipment, s/he does not have a need for those goods and services, merely a desire. Should the seller demand exculpation as a condition for the sale of the equipment, the purchaser is free to walk away. This is not so with the consumer of automobile insurance, or the individual who cannot find a place to live during a housing shortage. Unlike the skier, these individuals must face an inability to use their automobile, or the prospect of becoming homeless, if they are not willing to sign on the dotted line and exculpate the provider. The skier merely faces the prospect of a ski-less weekend.”
McBride v. Minstar, Inc., 283 NJ Super 471, 491, 662 A2d 592, 602 (NJ Super Ct Law Div 1994), aff’d sub nom McBride v. Raichle Molitor, USA, 283 NJ Super 422, 662 A2d 567 (NJ Super Ct App Div), rev den, 143 N.J. 319, 670 A.2d 1061 (1995) (emphasis in original). As noted, similar release agreements [*410] in the [***36] context of recreational activities have been upheld (including against claims of unconscionability) in a number of other jurisdictions. See Or App at n 9 (slip op at 20 n 9). Finally, [HN17] ORS 105.682 establishes a public policy in favor of indemnification of landowners where the land is used for, inter alia, recreational purposes. We fail to see how a private contract to the same effect is substantively unfair as a matter of law.
Accordingly, given existing case law and the aforementioned substantive rigor that we apply in assessing claims of unconscionability, see Hatkoff, 252 Ore. App. at 217, we conclude that the terms of Mt. Bachelor’s release were not substantively unconscionable under these circumstances. That is, the inclusion of the release provision did not constitute one of “those rare instances” where the terms of the contract were so “unreasonably favorable” to Mt. Bachelor that they were unconscionable. Id. (emphasis in original); see also Restatement at § 208 comment b (a contract has traditionally been held unconscionable only where “it was such as no man in his senses and not under delusion would make” (citations and internal quotation marks omitted)).
In sum, we conclude [***37] that Bagley ratified the release agreement prior to the date of injury, nullifying his power to later disaffirm it (whether by notice, filing suit, or pleading infancy), and that the agreement–coupled with the language printed on the season pass and signage at the lift terminals–was sufficiently clear as to its application to claims for negligence. We further conclude that Bagley’s lack of knowledge regarding the scope of the unambiguous agreement did not preclude [**705] summary judgment, nor did his lack of knowledge of the power to disaffirm it upon reaching the age of majority. As to whether the release agreement was valid in the first instance, we conclude that, as applied, the release agreement was not contrary to public policy. Nor was the agreement substantively or procedurally unconscionable. Accordingly, no genuine issue of material fact exists as to Mt. Bachelor’s affirmative defense of release, and the trial court did not err in granting summary judgment for Mt. Bachelor and denying partial summary judgment to Bagley on that basis.