Oregon Governor signs bill amending the Oregon Recreational Sue statute providing protection for volunteers and agents of the landowner for liability on land

The Oregon Supreme Court has interpreted the Oregon Recreational Use Statute to only apply to the landowner, not anyone else on the land. See Oregon Supreme Court decision says protection afforded by the OR Recreational Use Statute only applies to landowner, not volunteers or others on the land.

This decision will allow Boy Scouts, IMBA volunteers and others to go back onto the land and provide services to landowners and the public to make the land better for recreation.

The bill was written so it went into effect upon signing so the protection of the act was effective June 23, 2017. The issue still remains about the gap in protection from the decision of the Oregon Supreme Court on November 13, 2015 till June 23, 2017. Injured possible plaintiffs will be checking dates….

Bold sections in the Act below are the amended language.

 

79th OREGON LEGISLATIVE ASSEMBLY–2017 Regular Session

Enrolled

Senate Bill 327

Printed pursuant to Senate Interim Rule 213.28 by order of the President of the Senate in conformance with presession filing rules, indicating neither advocacy nor opposition on the part of the President (at the request of Senate Interim Committee on Business and Transportation)

CHAPTER ………………………………………….

AN ACT

Relating to recreational immunity from claims of persons entering land for certain purposes; amending ORS 105.672; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 105.672 is amended to read:

105.672. As used in ORS 105.672 to 105.696:

(1) “Charge”:

(a) Means the admission price or fee requested or expected by an owner in return for granting permission for a person to enter or go upon the owner’s land.

(b) Does not mean any amount received from a public body in return for granting permission for the public to enter or go upon the owner’s land.

(c) Does not include the fee for a winter recreation parking permit or any other parking fee of $15 or less per day.

(2) “Harvest” has that meaning given in ORS 164.813.

(3) “Land” includes all real property, whether publicly or privately owned.

(4) “Owner” means:

(a) The possessor of any interest in any land, [such as] including but not limited to the holder of [a fee] any legal or equitable title, a tenant, a lessee, an occupant, the holder of an easement, the holder of a right of way or a person in possession of the land;

(b) An officer, employee, volunteer or agent of a person described in paragraph (a) of this subsection, while acting within the scope of assigned duties; and

(c) A director, partner, general partner, shareholder, limited liability company member, limited liability partner or limited partner of a person described in paragraph (a) of this subsection.

(5) “Recreational purposes” includes, but is not limited to, outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, waterskiing, winter sports, viewing or enjoying historical, archaeological, scenic or scientific sites or volunteering for any public purpose project.

(6) “Special forest products” has that meaning given in ORS 164.813.

(7) “Woodcutting” means the cutting or removal of wood from land by an individual who has obtained permission from the owner of the land to cut or remove wood.

Enrolled Senate Bill 327 (SB 327-A) Page 1

SECTION 2. This 2017 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2017 Act takes effect on its passage.

Do Something: Thank the Governor and the legislature for the quick actions

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

Copyright 2017 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: http://www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recreational Use Statute, Oregon, Recreational Use, Immunity,

 

 

 

 

 

 

 

 

 

 

 

 


Johnson v. Gibson, 358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

Johnson v. Gibson, 358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

Emily Johnson, Plaintiff, v. Scott Gibson and Robert Stillson, Defendants.

SC S063188

SUPREME COURT OF OREGON

358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

November 13, 2015, Argued and Submitted

March 3, 2016, Decided

SUBSEQUENT HISTORY: Reconsideration denied by Johnson v. Gibson, 2016 Ore. LEXIS 281 (Or., Apr. 21, 2016)

PRIOR HISTORY:  [***1] US Court of Appeals Ninth Circuit 1335087. On certified questions from the United States Court of Appeals for the Ninth Circuit; certification order dated April 24, 2015; certification accepted June 4, 2015.

Johnson v. Gibson, 783 F.3d 1159, 2015 U.S. App. LEXIS 6551 (9th Cir. Or., 2015)

COUNSEL: Thane W. Tienson, Landye Bennett Blumstein LLP, Portland, argued the cause and filed the brief for plaintiff. With him on the brief was Christine N. Moore.

Harry Auerbach, Chief Deputy City Attorney, Portland, argued the cause and filed the brief for defendants. With him on the brief was Denis M. Vannier, Deputy City Attorney.

Kathryn H. Clarke, Portland, argued the cause and filed the brief for amicus curiae Oregon Trial Lawyers Association. With her on the brief was Shenoa L. Payne, Haglund Kelley LLP, Portland.

Thomas W. McPherson, Mersereau Shannon, LLP, Portland, filed the brief for amici curiae League of Oregon Cities, Association of Oregon Counties, Citycounty Insurance Services, Oregon School Boards Association, Special Districts Association of Oregon, and The International Municipal Lawyers Association.

Janet M. Schroer, Hart Wagner LLP, Portland, filed the brief for amicus curiae Oregon Association of Defense Counsel.

JUDGES: Before Balmer, Chief [***2]  Justice, and Kistler, Walters, Landau, Baldwin, Brewer and Nakamoto, Justices.*

* Linder, J., retired December 31, 2015, and did not participate in the decision of this case.

OPINION BY: WALTERS

OPINION

[**1152]  [*626]   WALTERS, J.

This case is before the court on two certified questions from the United States Court of Appeals for the Ninth Circuit. See ORS 28.200 – 28.255 (providing for certification of certain questions of Oregon law from specified federal courts and appellate courts of other states to Oregon Supreme Court). As framed by the Ninth Circuit, the questions are (1) whether individual employees responsible for repairing, maintaining, and operating improvements on City-owned recreational land made available to the public for recreational purposes are “owner[s]” of the land, as that term is defined in the Oregon Public Use of Lands Act, ORS 105.672 to 105.700,1 and therefore immune from liability for their negligence; and (2) if such employees are “owner[s]” under the Act, whether the Act, as applied to them, violates the remedy clause of Article I, section 10, of the Oregon Constitution.2 We conclude that the individual employees in this case do not qualify as “owner[s]” under the Act, and that we need not address the second certified question.

1 ORS 105.672(4), which defines “owner” for purposes of the Act, was amended in 2009, and those changes [***3]  went into effect January 1, 2010. Or Laws 2009, ch 532, § 1. Plaintiff alleges that her injuries occurred in July 2009. We therefore assume, as do the parties, that the Ninth Circuit’s questions refer to the version of the statute in place at the time plaintiff’s injuries occurred. That statute is ORS 105.672(4) (2007).

The current version of ORS 105.672(4) provides: “‘Owner’ means the possessor of any interest in any land, such as the holder of a fee title, a tenant, a lessee, an occupant, the holder of an easement, the holder of a right of way or a person in possession of the land.”

2 The remedy clause provides: “[E]very man  [HN1] shall have remedy by due course of law for injury done him in his person, property, or reputation.” Or Const, Art 1, § 10.

This case arose when plaintiff, who is legally blind, was injured when she stepped into a hole while jogging in a public park in the City of Portland (the City). Plaintiff filed a complaint against the City and defendants Gibson and Stillson. Defendant Gibson had created the hole to fix a malfunctioning sprinkler head; he was a park technician with primary responsibility for maintenance of the park. Defendant Stillson was the maintenance supervisor for all westside parks in the City.

[*627]  Plaintiff filed her [***4]  complaint in federal district court, invoking federal claim and supplemental jurisdiction. Plaintiff alleged, under federal law, that the City had violated Title II of the American’s with Disabilities Act (ADA), 42 USC sections 12131 to 12165, and, under state law, that all three defendants were liable for negligently causing her injuries. The City filed two motions: A motion to substitute itself as the sole defendant, pursuant to the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.302; and a motion for summary judgment.

The district court denied the City’s motion for substitution. Johnson v. City of Portland, CV No 10-117-JO (D Or Feb 10, 2011) (“Johnson I“). The court reasoned that substitution of the City would violate the remedy clause in Article I, section 10, of the Oregon Constitution, because the City was immune from liability under the Public Use of Lands Act. Had the court substituted the City as the sole defendant in the case, the only defendant would have been immune and entitled to dismissal, leaving plaintiff without a remedy for her injury. Id.

The district court granted the City’s motion for summary judgment, in part. The court granted the City summary judgment as to plaintiff’s federal ADA claim, leaving plaintiff’s negligence claim as her only remaining claim. The [***5]  district court declined to retain supplemental jurisdiction over that state law claim and dismissed the case. Id.

Plaintiff then filed a new complaint in federal court invoking diversity jurisdiction. Plaintiff again alleged a state law negligence claim against defendants Gibson and Stillson, and those defendants again filed a motion to substitute the City as the sole defendant under the OTCA. In Johnson II, the district  [**1153]  court agreed with the prior ruling in Johnson I that substitution of the City was not appropriate. Johnson v. Gibson, 918 F Supp 2d 1075, 1082 (D Or 2013). Then, the individual defendants filed a motion for summary judgment, contending that they were immune from liability under the Public Use of Lands Act. Id. at 1083. The district court agreed, reasoning that employees who maintain land qualify as “owner[s]” under that Act, and that defendants Gibson and Stillson were therefore immune from liability.  [*628]  Id. at 1085. The court also held that the Public Use of Lands Act does not violate the remedy clause. Id. at 1088. The court granted defendants’ motion for summary judgment. Id. at 1089. Plaintiff appealed to the United States Court of Appeals for the Ninth Circuit, and the Ninth Circuit certified to this court the two questions now before us.

We begin with the first question [***6]  posed and the text of the Oregon Public Use of Lands Act, which provides, in part:

[HN2] “Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes * * * when the owner of land either directly or indirectly permits any person to use the land for recreational purposes * * *. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes * * *.”

ORS 105.682(1). “Land” is defined as “all real property, whether publicly or privately owned.” ORS 105.672(3). “Owner” is defined as follows:

“‘Owner’ means the possessor of any interest in any land, including but not limited to possession of a fee title. ‘Owner’ includes a tenant, lessee, occupant or other person in possession of the land.”

ORS 105.672(4) (2007).

From that definition of “owner,” defendants make a three-step argument: First, that the definition of the term “owner” is ambiguous and is not limited to those with a legal interest in the land; second, that, considered in its proper context, the term includes owners’ employees and [***7]  agents; and third, that as City employees, defendants are entitled to recreational immunity.

Defendants’ argument focuses on the second sentence of the definition of “owner.” Defendants recognize that they do not qualify as “owner[s]” under the first sentence of that definition because they do not have legal title to, or a legal right in, the property where plaintiff was injured. However, they contend, the second sentence in the definition  [*629]  is broader, and it includes both persons who have a legal right in property–specifically, “tenant[s]” and “lessee[s]”–and those who do not–specifically, “occupant[s]” and those who are “in possession of the land.” Id. According to defendants, the dictionary definitions of those latter terms demonstrate that “owner[s]” include persons without legal or equitable title to, or interest in, land.

[HN3] A “possessor” is “one that possesses: one that occupies, holds, owns, or controls.” Webster’s Third New Int’l Dictionary 1770 (unabridged ed 2002). A “possessor” is also “one that holds property without title–called also naked possessor; contrasted with owner.” Id. (emphasis in original). “Possession” means “the act or condition of having in or taking into one’s control or holding at one’s disposal”; “actual [***8]  physical control or occupancy of property by one who holds for himself and not as a servant of another without regard to his ownership and who has legal rights to assert interests in the property”; “something owned, occupied, or controlled.” Id. “Occupy” means “to hold possession of”; “to reside in as an owner or tenant.” Id. at 1561. An “occupant” is “one who takes the first possession of something that has no owner”; “one who occupies a particular place or premises”; and “one who has the actual use or possession of something.” Id. 1560.

Like defendants, we surmise, from those definitions, that  [HN4] the terms “occupant” and “person in possession of the land” may include persons without legal or equitable title to, or interest in, the land. But that is not the only lesson we take from those definitions. Like plaintiff, we conclude that those terms describe persons who do more than  [**1154]  take up space on the land. Under those definitions, an “occupant,” or a “person in possession of the land” must have some control over the space, and, given the context in which those terms are used, it is likely that the control that the legislature intended is the ability to decide who may use the space or what use may be made [***9]  of it. The terms “occupant” and “person in possession of the land” are used in the same sentence as the terms “tenant” and “lessee.” ORS 105.672(4) (2007). Tenants and lessees have the ability to decide who may use the space that they control and for what purposes. Under noscitur a sociis, a maxim of statutory construction that  [*630]  tells us that the meaning of an unclear word may be clarified by the meaning of other words used in the same context, it is likely that the legislature intended that “occupant[s]” and “person[s] in possession of the land” have the same type of control as tenants and lessees. See State v. McCullough, 347 Ore. 350, 361, 220 P3d 1182 (2009) (so describing noscitur a sociis). Under that interpretation, only persons with authority to control and exclude from the land qualify as “owner[s]” of the land.

Further support for that interpretation is found in the context in which the term “owner” is used in the Act. The Legislative Assembly enacted  [HN5] the Public Use of Lands Act in 1971 “to encourage owners of land to make their land available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Or Laws 1971, ch 780, § 2, codified as former ORS 105.660 (1971), now codified as amended as ORS 105.676 (emphasis added). The immunities [***10]  provided by the Act apply only if “[t]he owner makes no charge for permission to use the land.” Former ORS 105.688(2)(a) (2007), renumbered as ORS 105.688(3) (2010) (emphasis added). An individual without a right to exclude others from the land or to otherwise control use of the land does not have the decision-making authority that the statute contemplates–the authority to make the land available to the public or to charge for permission to use the land.

Defendants do not point us to any statutory context or legislative history that indicates that the legislature understood the terms “occupant” or “person in possession of the land” in ORS 105.672(4) (2007) to support the unbounded meaning that defendants ascribe to those terms.3 In fact, a case that defendants cite for a different proposition supports  [*631]  plaintiff’s narrow interpretation of those terms. In Elliott v. Rogers Construction, 257 Ore. 421, 433, 479 P2d 753 (1971), the court considered the standard of care that applied to a contractor that was building a road for its principal. In discussing that issue, the court observed that “[c]ases from other jurisdictions and legal writers do not treat a contractor as an occupier of land.” Id. at 432. In that case, the court was not interpreting the definition of “owner” in the Public Use of Lands Act, but its observation [***11]  about the legal meaning of the word “occupant” is consistent with our interpretation of that word as being limited to individuals with a right to control and exclude from the land.

3 Defendants do argue that the main sponsor of the bill that led to the current version of the Act stated that it was “designed to be very broad” and to “guarantee [landowners] that they [would not] be paying out of pocket for * * * allowing their property to be used.” Tape Recording, House Committee on Natural Resources, Subcommittee on Agriculture and Forestry, HB 2296, Jan 30, 1995, Tape 4, Side A (statement of Rep Kevin Mannix). However, we do not find that general statement of purpose to be of assistance in determining the meaning of defined terms in the statute. See State v. Gaines, 346 Ore. 160, 171, 206 P3d 1042 (2009) (“[I]t is not the intent of the individual legislators that governs, but the intent of the legislature as formally enacted into law[.]”).

In this case, defendants do not argue that they had a right to exclude others from the land or to otherwise control the use of the land. Rather, they argue that the definition of “owner” is so ambiguous that it requires us to look beyond the words of the definition to the context surrounding ORS 105.682, particularly the [***12]  pre-existing common law. See Fresk v. Kraemer, 337 Ore. 513, 520-21, 99 P3d 282 (2004) (context includes pre-existing common law). Defendants contend that an examination of that pre-existing common law shows that the legislature must have intended “owner” to include persons who are employed  [**1155]  by, or are agents of, persons who are more classically denominated as owners.

Defendants argue that where land and property are concerned, the common law rule has long been that employees and agents have the same privileges and immunities as their principals. Defendants contend that, insofar as the legislature enacted and amended the Act in the context of that common law rule, it intended that that rule apply. Consequently, defendants assert, the legislature was not required to say explicitly what the common law already provides.

For the common law rule on which they rely, defendants point to two Oregon cases–Herzog v. Mittleman, 155 Ore. 624, 632, 65 P2d 384 (1937); and Elliott, 257 Ore. at 432-33. In the first of those cases, Herzog, the court examined a guest passenger statute that provided that a guest in a vehicle would have no cause of action against the owner or operator for damages unless the accident was “intentional on the  [*632]  part of [the] owner or operator or caused by his gross negligence or intoxication or his reckless disregard [***13]  of the rights of others.” Id. at 628. The question presented was whether a vehicle owner’s guest, who was operating the vehicle in question at the owner’s invitation, would be protected by the same rule on the theory that he was acting as the owner’s agent while driving the vehicle. The court looked to the Restatement (First) of Agency (1933) for assistance and began with section 343, which provides:

“An agent who does an act otherwise a tort is not relieved from liability by the fact that he acted at the command of the principal or on account of the principal, except where he is exercising a privilege of the principal, or a privilege held by him for the protection of the principal’s interest.”

Id. at 631 (internal quotation marks omitted). The court also looked to section 347 of the Restatement, which provides: “An agent who is acting in pursuance of his authority has such immunities of the principal as are not personal to the principal.” Id. (internal quotation marks omitted). Finally, the court quoted comment a to that section:

“a. Persons may have a personal immunity from liability with respect to all persons and for all acts, as in the case of a sovereign, or for some acts, as in the case of an insane person, or as to some persons as in the [***14]  case of a husband to a wife. * * * Unlike certain privileges such immunities cannot be delegated. On the other hand where an immunity exists in order to more adequately protect the interests of a person in relation to his property, the agent may have the principal’s immunity. Thus, the servant of a landowner while acting in the scope of his employment is under no greater duties to unseen trespassers than is the landowner[.]”

Id. at 631-32 (internal quotation marks omitted) (omission in original).

Reasoning from those provisions, the court explained that although “it is well settled that an agent who violates a duty which he owes to a third person is answerable for the consequences thereof,” if the agent is “acting within the authority, and pursuant to the direction of the principal, the agent is entitled to the same immunities as the principal would be had the principal done the same act under the  [*633]  same circumstances and such immunities were not personal to the principal.” Id. at 632. Applying that legal authority to the facts at hand, the court concluded that the standard of care set out in the statute was not personal to the principal–the car owner–but that it also extended to the agent–a guest that the owner [***15]  had authorized to drive the car. Id. at 633. The court further concluded that the plaintiff could not recover from the defendant-agent without a showing that the defendant-agent was grossly negligent. Id.

In the second of the Oregon cases that defendants cite, Elliott, the court considered whether a contractor working on a landowner’s property had the same limited duty of care to trespassers and licensees as did the landowner. 257 Ore. at 431-33. In that case, an employee of a construction company that was building a road for the State Highway Department accidentally injured a pedestrian who was crossing a portion of the road that had not yet been opened to the public. Id. at 424. The  [**1156]  court explained that, “[b]eing ‘clothed with the rights of the owner,’ [the construction company] was only under a duty to the plaintiff’s decedent to abstain from inflicting injury willfully or by active negligence.” Id. at 433. Because the plaintiff had alleged that the company’s employee had acted with wanton misconduct, however, the court held that the lawsuit could proceed. Id. at 434-35. Thus, without discussing the issues in the same terms used in the Restatement (First) of Agency, the court implicitly concluded that the standard of care applicable to the landowner [***16]  was not personal to the landowner, but that it also extended to the landowner’s agent.

In this case, defendants’ reliance on Herzog and Elliott is misplaced. Defendants draw general conclusions from the results in those cases without recognizing the distinction that is explicit in Herzog and implicit in Elliott–that is, the distinction between immunities that are personal to the principal and those that may extend to a principal’s agent. Immunities provided to a principal may, but do not always, extend to the principal’s agents. That is clear not only from the comment to the Restatement quoted above, but also from a line of Oregon cases to which plaintiff calls our attention. In those cases, this court considered whether the  [*634]  sovereign immunity of governmental landowners precluding their liability for defective conditions on their streets extends to agents responsible for the repair of those streets. The first case in which the court contemplated that issue was Mattson v. Astoria, 39 Ore. 577, 65 P 1066 (1901).

In Mattson, the plaintiff was injured as a result of the city’s failure to keep a public street in repair and suitable for travel. Id. at 578. The plaintiff challenged a clause of the city charter that exempted the city and members of [***17]  its council from liability for such failure. Id. The court said the following:

“That it is within the power of a legislature to exempt a city from liability to persons receiving injuries on account of streets being defective or out of repair, is unquestioned. * * * But in such case the injured party is not wholly without remedy. He may proceed personally against the officers to whom the charter delegates the duty of keeping the streets in repair, and from whose negligence the injury resulted.”

Id. at 579. Since Mattson, the court has consistently recognized that the liability of a local government as landowner is distinct from the liability of employees and agents of the government. For instance, in Gearin v. Marion County, 110 Ore. 390, 396-97, 223 P 929 (1924), the court explained:

“The constitutional guaranty that ‘every man shall have remedy by due course of law for injury done him in his person, property or reputation’ we think is self-executing and operates without the aid of any legislative act or provision. * * * It has, however, no application to an action sounding in tort when brought against the state or one of the counties of the state. In strict law neither the state nor a county is capable of committing a tort or lawfully authorizing one to be [***18]  committed. Counties, as well as the state, act through their public officials and duly authorized agents. The officers, agents, servants and employees of the state or a county, while in the discharge of their duties, can and sometimes do commit torts, but no lawful authorization or legal justification can be found for the commission of a tort by any such officer, agent, servant or employee. When a tort is thus committed, the person committing it is personally liable for the injury resulting therefrom. The wrongful act, however, is the act of the wrongdoer and not  [*635]  the act of the state or county in whose service the wrong-doer is then engaged. For the damages occasioned by the wrong thus committed it is within the power of the legislature to impute liability against the state or the county in whose service the wrongdoer is then engaged, or to exempt the state or county from such liability, but in either event the wrongdoer is himself personally responsible. It is the remedy against the wrongdoer himself and not the remedy which may or may not be imposed by statute against the state or county for the torts of its officers or agents  [**1157]  to which the constitutional guarant[y] applies.”

See also Rankin v. Buckman, et al., 9 Ore. 253, 259-63 (1881) (city [***19]  employees liable even when city is not).

From those cases, it appears that whether a principal’s immunity is personal to the principal or may extend to an agent is a matter of legislative choice subject to constitutional bounds. We presume that the legislature was aware of that existing law. Blachana, LLC v. Bureau of Labor and Industries, 354 Ore. 676, 691, 318 P3d 735 (2014). In addition, the Restatement (Second) of Agency section 347(1) (1958), which had been published by the American Law Institute when the Legislative Assembly enacted the Oregon Public Use of Lands Act in 1971, is in accord. It provides that “[a]n agent does not have the immunities of his principal although acting at the direction of the principal.” Id. Restatement section 347 comment a clarifies: “Immunities exist because of an overriding public policy which serves to protect an admitted wrongdoer from civil liability. They are strictly personal to the individual and cannot be shared.” Subject to constitutional limitations, the legislature must determine as a matter of public policy how broadly to extend immunities.

Consequently, we conclude that when the Legislative Assembly enacted the Public Use of Lands Act, legislators would not necessarily have assumed that granting immunity to landowners would also grant immunity to their employees and agents. The legal principles that [***20]  the court had previously applied, as well as the common law rules reflected in the restatements, recognized that the grant of immunity to a principal, particularly to a governmental principal, would not necessarily extend to the employees and agents of the  [*636]  principal. Whether a court would imply such an extension could depend, for instance, on whether the court considered the grant of immunity personal to the principal, or whether extension of immunity to an agent would eliminate a remedy that the Oregon Constitution requires.

In this case, in deciding whether to imply an extension of the immunity granted to “owner[s]” of land to their employees and agents, we first consider the statute’s text. Significantly, that text indicates that the legislature intended to extend the immunity of those who hold legal title to land to some others who stand in their stead–the owners of other lesser interests in land, including tenants and lessees, and those who qualify as “occupant[s]” or “person[s] in possession” of the land. The text does not, however, disclose a legislative intent to extend the immunity of owners to additional persons who stand in their stead, such as employees and non-employee agents.

Second, we look to the [***21]  statute’s context and legislative history and note that, when it was originally enacted in 1971, the Act was supported by owners of forestland who wished to open their lands to the public for recreational uses such as hunting and fishing. Testimony, Senate Committee on State and Federal Affairs, SB 294, March 1, 1971 (written statement of Sam Taylor, a proponent of the bill). When originally enacted, the Act provided that “[a]n owner of land owes no duty of care to keep the land safe for entry or use by others for any recreational purpose or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering thereon for any such purpose.” Or Laws 1971, ch 780, § 3. Thus, it appears that the legislature’s original intent was to relieve those who control the use of their land from responsibility to take affirmative steps to make their property safe for use by others; the legislature did not express an intent to benefit those who do not have the ability to make decisions about the use of land, or to relieve non-owners who commit negligent acts from responsibility for injuries caused by such acts.

The legislature amended the Act in 1995 to make it expressly [***22]  applicable to public landowners. Or Laws 1995, ch 456, § 1. However, neither that change nor other changes  [*637]  in the wording of the statute disclose an intent to change the purpose of the statute or to benefit additional classes of persons. Importantly, the legislature did not materially change the definition of owner in 1995. The 1971 Act provided that an “owner” is “the possessor of a fee title interest in any land, a tenant, lessee, occupant or other person in  [**1158]  possession of the land.” Or Laws 1971, ch 780, § 1. In 1995, the legislature broke the definition into two sentences and changed the phrase in the first sentence from “possessor of a fee title interest in any land” to “possessor of any interest in any land.” Or Laws 1995, ch 456, § 1. However, the legislature did not change the categories of persons to whom it granted immunity; in 1995, the legislature exempted the same persons from liability that it had exempted in 1971. When the legislature made the Public Use of Lands Act expressly applicable to public landowners in 1995, it did not demonstrate an intent to broaden the Act to benefit those who do not have the ability to make decisions about the use of land, or to relieve non-owners [***23]  who commit negligent acts from responsibility for injuries caused by such acts.

Defendants argue, however, that other statutory context points in that direction. Defendants call our attention to the fact that just four years earlier, in 1991, the legislature had amended the OTCA to provide that a claim against a public body is the sole remedy for the torts committed by employees of that public body. Or Laws 1991, ch 861, § 1. Defendants contend that, in light of that amendment, the Public Use of Lands Act must be read to shield governmental employees and agents; otherwise, the immunity it grants to governmental landowners would mean nothing. We disagree. The Public Use of Lands Act applies not only to public landowners, but also to private landowners. Just as it did before the amendment of the OTCA, the Public Use of Lands Act protects all “owner[s]” from liability in their capacity as “owner[s].” Just like private owners, public owners are exempt from liability for their own acts. The fact that public owners are not, in addition, exempt from liability for the acts of their employees or agents does not make the immunity granted by the Public Use of Lands Act illusory. The fact that public owners, like [***24]  private owners, are not shielded from liability if they employ non-owners who cause injury to  [*638]  others in the negligent performance of their duties does not mean that the Public Use of Lands Act has no purpose.

The legislature knows how to extend immunity to governmental employees and agents when it chooses to do so. See ORS 368.031 (immunizing counties and their officers, employees, or agents for failure to improve or keep in repair local access roads); ORS 453.912 (immunizing the state and local government and their officers, agents and employees for loss or injury resulting from the presence of any chemical or controlled substance at a site used to manufacture illegal drugs); ORS 475.465 (immunizing the state, DEQ, EQC, and their officers, employees, and agents from liability to a person possessing chemicals at alleged illegal drug manufacturing site).4 The legislature did not make that express choice in the Public Use of Lands Act. Should the legislature wish to extend the immunity provided to “owner[s]” to governmental employees and agents, it is free to do so, within constitutional bounds. However, we are unwilling to insert into the definition of “owner” in ORS 105.672(4) (2007) terms that the legislature did not include. See ORS 174.010 (office [***25]  of judge is to ascertain what is contained in statute, not to insert what was omitted or to omit what was inserted).

4 Another example, although enacted after the Public Use of Lands Act, is a 2011 statute that grants immunity relating to public trails. ORS 105.668(2) immunizes a “city with a population of 500,000 or more” and its “officers, employees, or agents” from liability for injury or damage resulting from the use of a trail or structures in a public easement or an unimproved right of way.

We answer the Ninth Circuit’s first certified question as follows:  [HN6] Individual employees responsible for repairing, maintaining, and operating improvements on Cityowned recreational land made available to the public for recreational purposes are not “owner[s]” of the land, as that term is defined in the Oregon Public Use of Lands Act. They are therefore not immune from liability for their negligence. We do not reach the second certified question concerning Article I, section 10, of the Oregon Constitution.

The certified questions are answered.

 


Oregon Volunteer Immunity Act or Limitation on Liability of Volunteers; conditions.

Title 3  Remedies and Special Actions and Proceedings  
Chapter 30-  Actions and Suits in Particular Cases  
Volunteers Transporting Older Persons and Persons with Disabilities
 
GO TO OREGON REVISED STATUTES ARCHIVE DIRECTORY
ORS § 30.480  (2016)
30.480  Limitation on liability of volunteers; conditions.

(1) When a provider of volunteer transportation services who is qualified under subsection (3) of this section provides the services under the conditions described in subsection (4) of this section to a person with a disability or a person who is 55 years of age or older, the liability of the provider to the person for injury, death or loss arising out of the volunteer transportation services shall be limited as provided in this section. When volunteer transportation services are provided to five or fewer persons at one time, the liability of the provider of the volunteer transportation services shall not exceed the greater of the amount of coverage under the terms of the provider’s motor vehicle liability insurance policy, as described in ORS 806.080, or the amounts specified in ORS 806.070 for future responsibility payments for:

     (a) Bodily injury to or death of any one person to whom the transportation services are provided, in any one accident.

     (b) Bodily injury to or death of two or more persons to whom the transportation services are provided, in any one accident.

     (c) Injury to or destruction of the property of one or more persons to whom the transportation services are provided, in any one accident.

(2) Notwithstanding the amount specified in subsection (1)(b) of this section by reference to ORS 806.070, if a qualified provider of transportation services provides the services to more than five persons, but not more than 16, at one time who have disabilities or who are 55 years of age or older, under the conditions described in subsection (4) of this section, the liability under subsection (1)(b) of this section shall not exceed the greater of the amount of coverage under the terms of the provider’s motor vehicle liability insurance policy or $ 300,000. The limitations on liability provided by ORS 30.475, 30.480 and 30.485 do not apply when volunteer transportation services are provided to 17 or more persons at one time who have disabilities or who are 55 years of age or older.

(3) The following persons qualify for the limitation on liability under subsections (1) and (2) of this section:

     (a) The person who provides or sponsors transportation services.

     (b) The owner of the vehicle in which transportation services are provided.

     (c) The person who operates the vehicle in which transportation services are provided.

(4) The limitation on liability under subsections (1) and (2) of this section applies to a person qualified under subsection (3) of this section only under the following conditions:

     (a) If the person is an individual, the individual must hold a valid Oregon driver’s license.

     (b) The person must provide the transportation services on a nonprofit and voluntary basis. However, this paragraph does not prohibit a sponsor of transportation services from reimbursing an operator of a private motor vehicle providing the services for actual expenses incurred by the operator. If an operator is paid, that operator is qualified only if operating as an emergency operator.

     (c) The person providing the transportation services must not receive from the persons using the services any substantial benefit in a material or business sense that is a substantial motivating factor for the transportation. A contribution or donation to the provider of the transportation services other than the operator of the motor vehicle or any mere gratuity or social amenity shall not be a substantial benefit under this paragraph.

     (d) Except as provided in paragraph (c) of this subsection, the transportation services must be provided without charge to the person using the services.

(5) The amounts received by a person with a disability or a person 55 years of age or older under the personal injury protection provisions of the insurance coverage of a person who qualifies for the limitation on liability under this section shall not reduce the amount that the person may recover under subsection (1) or (2) of this section.

(6) The liability of two or more persons whose liability is limited under this section, on claims arising out of a single accident, shall not exceed in the aggregate the amounts limited by subsection (1) or (2) of this section.

(7) This section does not apply in the case of an accident or injury if the accident or injury was intentional on the part of any person who provided the transportation services or if the accident or injury was caused by the person’s gross negligence or intoxication. For purposes of this subsection, gross negligence is negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others.

(8) For purposes of this section, a person has a disability if the person has a physical or mental disability that for the person constitutes or results in a functional limitation to one or more of the following activities: Self-care, ambulation, communication, transportation, education, socialization or employment.

 


Oregon Recreational Use Statute known as the Oregon Public Use of Lands Act

Oregon Recreational Use Statute

Oregon Public Use of Lands Act

Oregon Statutes

Title 10. PROPERTY RIGHTS AND TRANSACTIONS

Chapter 105. Property Rights

PUBLIC USE OF LANDS

105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way. 1

105.672. Definitions for ORS 105.672 to 105.696. 3

105.676. Public policy. 3

105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products. 4

105.688  Applicability of immunities from liability for owner of land; restrictions. 4

105.692. Right to continued use of land following permitted use; presumption of dedication or other rights. 8

105.699. Rules applicable to state lands. 9

105.696  Duty of care or liability not created; exercise of care required of person using land. 9

105.699  Rules Applicable to State Lands. 10

105.700. Prohibiting public access to private land; notice requirements; damages. 10

§ 105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way

(1)       As used in this section:

(a)             “Structures” means improvements in a trail, including, but not limited to, stairs and bridges, that are accessible by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance.

(b)             “Unimproved right of way” means a platted or dedicated public right of way over which a street, road or highway has not been constructed to the standards and specifications of the city with jurisdiction over the public right of way and for which the city has not expressly accepted responsibility for maintenance.

(2)       A personal injury or property damage resulting from use of a trail that is in a public easement or in an unimproved right of way, or from use of structures in the public easement or unimproved right of way, by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance does not give rise to a private claim or right of action based on negligence against:

(a)             A city with a population of 500,000 or more;

(b)             The officers, employees or agents of a city with a population of 500,000 or more to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;

(c) The owner of land abutting the public easement, or unimproved right of way, in a city with a population of 500,000 or more; or

(d)             A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in a city with a population of 500,000 or more.

(3)       Notwithstanding the limit in subsection (2) of this section to a city with a population of 500,000 or more, by adoption of an ordinance or resolution, a city or county to which subsection (2) of this section does not apply may opt to limit liability in the manner established by subsection (2) of this section for:

(a)             The city or county that opts in by ordinance or resolution;

(b)             The officers, employees or agents of the city or county that opts in to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;

(c) The owner of land abutting the public easement, or unimproved right of way, in the city or county that opts in by ordinance or resolution; and

(d)             A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in the city or county that opts in.

(4)       The immunity granted by this section from a private claim or right of action based on negligence does not grant immunity from liability:

(a)             Except as provided in subsection (2)(b) or (3)(b) of this section, to a person that receives compensation for providing assistance, services or advice in relation to conduct that leads to a personal injury or property damage.

(b)             For personal injury or property damage resulting from gross negligence or from reckless, wanton or intentional misconduct.

(c) For an activity for which a person is strictly liable without regard to fault.

§ 105.672. Definitions for ORS 105.672 to 105.696

As used in ORS 105.672 to 105.696 :

(1)       “Charge”:

(a)             Means the admission price or fee requested or expected by an owner in return for granting permission for a person to enter or go upon the owner’s land.

(b)             Does not mean any amount received from a public body in return for granting permission for the public to enter or go upon the owner’s land.

(c) Does not include the fee for a winter recreation parking permit or any other parking fee of $15 or less per day.

(2)       “Harvest” has that meaning given in ORS 164.813.

(3)       “Land” includes all real property, whether publicly or privately owned.

(4)       “Owner” means the possessor of any interest in any land, such as the holder of a fee title, a tenant, a lessee, an occupant, the holder of an easement, the holder of a right of way or a person in possession of the land.

(5)       “Recreational purposes” includes, but is not limited to, outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, waterskiing, winter sports, viewing or enjoying historical, archaeological, scenic or scientific sites or volunteering for any public purpose project.

(6)       “Special forest products” has that meaning given in ORS 164.813.

(7)       “Woodcutting” means the cutting or removal of wood from land by an individual who has obtained permission from the owner of the land to cut or remove wood.

§ 105.676. Public policy

The Legislative Assembly hereby declares it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes, for gardening, for woodcutting and for the harvest of special forest products by limiting their liability toward persons entering thereon for such purposes and by protecting their interests in their land from the extinguishment of any such interest or the acquisition by the public of any right to use or continue the use of such land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

§ 105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products

(1)       Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes, gardening, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

(2)       This section does not limit the liability of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

105.688  Applicability of immunities from liability for owner of land; restrictions.

(1) Except as specifically provided in ORS 105.672 to 105.696, the immunities provided by ORS 105.682 apply to:

(a) All land, including but not limited to land adjacent or contiguous to any bodies of water, watercourses or the ocean shore as defined by ORS 390.605;

(b) All roads, bodies of water, watercourses, rights of way, buildings, fixtures and structures on the land described in paragraph (a) of this subsection;

(c) All paths, trails, roads, watercourses and other rights of way while being used by a person to reach land for recreational purposes, gardening, woodcutting or the harvest of special forest products, that are on land adjacent to the land that the person intends to use for recreational purposes, gardening, woodcutting or the harvest of special forest products, and that have not been improved, designed or maintained for the specific purpose of providing access for recreational purposes, gardening, woodcutting or the harvest of special forest products; and

(d) All machinery or equipment on the land described in paragraph (a) of this subsection.

(2) The immunities provided by ORS 105.682 apply to land if the owner transfers an easement to a public body to use the land.

(3) Except as provided in subsections (4) to (7) of this section, the immunities provided by ORS 105.682 do not apply if the owner makes any charge for permission to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

(4) If the owner charges for permission to use the owner’s land for one or more specific recreational purposes and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to any use of the land other than the activities for which the charge is imposed. If the owner charges for permission to use a specified part of the owner’s land for recreational purposes and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to the remainder of the owner’s land.

(5) The immunities provided by ORS 105.682 for gardening do not apply if the owner charges more than $ 25 per year for the use of the land for gardening. If the owner charges more than $ 25 per year for the use of the land for gardening, the immunities provided by ORS 105.682 apply to any use of the land other than gardening. If the owner charges more than $ 25 per year for permission to use a specific part of the owner’s land for gardening and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to the remainder of the owner’s land.

(6) The immunities provided by ORS 105.682 for woodcutting do not apply if the owner charges more than $ 75 per cord for permission to use the land for woodcutting. If the owner charges more than $ 75 per cord for the use of the land for woodcutting, the immunities provided by ORS 105.682 apply to any use of the land other than woodcutting. If the owner charges more than $ 75 per cord for permission to use a specific part of the owner’s land for woodcutting and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to the remainder of the owner’s land.

(7) The immunities provided by ORS 105.682 for the harvest of special forest products do not apply if the owner makes any charge for permission to use the land for the harvest of special forest products. If the owner charges for permission to use the owner’s land for the harvest of special forest products, the immunities provided by ORS 105.682 apply to any use of the land other than the harvest of special forest products. If the owner charges for permission to use a specific part of the owner’s land for harvesting special forest products and the owner provides notice in the manner provided by subsection (8) of this section, the immunities provided by ORS 105.682 apply to the remainder of the owner’s land.

(8) Notices under subsections (4) to (7) of this section may be given by posting, as part of a receipt, or by such other means as may be reasonably calculated to apprise a person of:

(a) The limited uses of the land for which the charge is made, and the immunities provided under ORS 105.682 for other uses of the land; or

(b) The portion of the land the use of which is subject to the charge, and the immunities provided under ORS 105.682 for the remainder of the land.

§ 105.692. Right to continued use of land following permitted use; presumption of dedication or other rights

(1)       An owner of land who either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products does not give that person or any other person a right to continued use of the land for those purposes without the consent of the owner.

(2)       The fact that an owner of land allows the public to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products without posting, fencing or otherwise restricting use of the land does not raise a presumption that the landowner intended to dedicate or otherwise give over to the public the right to continued use of the land.

(3)       Nothing in this section shall be construed to diminish or divert any public right to use land for recreational purposes acquired by dedication, prescription, grant, custom or otherwise existing before October 5, 1973.

(4)       Nothing in this section shall be construed to diminish or divert any public right to use land for woodcutting acquired by dedication, prescription, grant, custom or otherwise existing before October 3, 1979.

§ 105.699. Rules applicable to state lands

The State Forester, under the general supervision of the State Board of Forestry, may adopt any rules considered necessary for the administration of the provisions of ORS 105.672 to 105.696 on state land.

105.696  Duty of care or liability not created; exercise of care required of person using land.

ORS 105.672 to 105.696 do not:

(1) Create a duty of care or basis for liability for personal injury, death or property damage resulting from the use of land for recreational purposes, for gardening, for woodcutting or for the harvest of special forest products.

(2) Relieve a person using the land of another for recreational purposes, gardening, woodcutting or the harvest of special forest products from any obligation that the person has to exercise care in use of the land in the activities of the person or from the legal consequences of failure of the person to exercise that care.

105.699  Rules Applicable to State Lands.

The State Forester, under the general supervision of the State Board of Forestry, may adopt any rules considered necessary for the administration of the provisions of ORS 105.672 to 105.696 on state land.

§ 105.700. Prohibiting public access to private land; notice requirements; damages

(1)             In addition to and not in lieu of any other damages that may be claimed, a plaintiff who is a landowner shall receive liquidated damages in an amount not to exceed $1,000 in any action in which the plaintiff establishes that:

(a)             The plaintiff closed the land of the plaintiff as provided in subsection (2) of this section; and

(b)             The defendant entered and remained upon the land of the plaintiff without the permission of the plaintiff.

(2)       A landowner or an agent of the landowner may close the privately owned land of the landowner by posting notice as follows:

(a)             For land through which the public has no right of way, the landowner or agent must place a notice at each outer gate and normal point of access to the land, including both sides of a body of water that crosses the land wherever the body of water intersects an outer boundary line. The notice must be placed on a post, structure or natural object in the form of a sign or a blaze of paint. If a blaze of paint is used, it must consist of at least 50 square inches of fluorescent orange paint, except that when metal fence posts are used, approximately the top six inches of the fence post must be painted. If a sign is used, the sign:

(A)       Must be no smaller than eight inches in height and 11 inches in width;

(B)       Must contain the words “Closed to Entry” or words to that effect in letters no less than one inch in height; and

(C)       Must display the name, business address and phone number, if any, of the landowner or agent of the landowner.

(b)             For land through which or along which the public has an unfenced right of way by means of a public road, the landowner or agent must place:

(A)       A conspicuous sign no closer than 30 feet from the center line of the roadway where it enters the land, containing words substantially similar to “PRIVATE PROPERTY, NO TRESPASSING OFF ROAD NEXT _____ MILES”; or

(B)       A sign or blaze of paint, as described in paragraph (a) of this subsection, no closer than 30 feet from the center line of the roadway at regular intervals of not less than one-fourth mile along the roadway where it borders the land, except that a blaze of paint may not be placed on posts where the public road enters the land.

(3)       Nothing contained in this section prevents emergency or law enforcement vehicles from entering upon the posted land.

(4)       An award of liquidated damages under this section is not subject to ORS 31.725, 31.730 or 31.735.

(5)       Nothing in this section affects any other remedy, civil or criminal, that may be available for a trespass described in this section.

 


Summer 2016 Commercial Fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of December 1, 2016. Thanks.

Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Blue is an employee fatality

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

Ref 2

Company

3/22

Cat Skiing

OR

Mt. Bailey

Avalanche hit tree

 

M

 

http://rec-law.us/1XSFbT7

 

Cat Ski Mount Bailey

5/4

Whitewater Rafting

WA

Wenatchee River

Raft Flipped

53

M

Dryden

http://rec-law.us/1TuBuzC

 

Orion River

 

Whitewater Rafting

ME

Dead River

Fell out

52

M

 

http://rec-law.us/22B3zeY

http://rec-law.us/1U0HrbU

North Country Rivers

5/22

Whitewater Rafting

CO

Arkansas River

Fell out

61

F

Parkdale

http://rec-law.us/1r4zOp3

http://rec-law.us/1O75mWC

Echo Canyon River Expeditions

6/4

Whitewater Rafting

AK

Lowe River

Fell out

48

F

 

http://rec-law.us/1Yemxbd

 

 

6/15

Whitewater Rafting

CO

Roaring Fork

Flip

50

M

Slaughterhouse section

http://rec-law.us/1WOcnyo

http://rec-law.us/1UkzCwI

Aspen Whitewater Rafting

6/15

Whitewater Rafting

AK

Kongakut River

Flip

69

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/15

Whitewater Rafting

AK

Kongakut River

Flip

67

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

63

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

 

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/24/16

Whitewater Rafting

CO

Green River

 

63

F

Disaster Falls

http://rec-law.us/295dJ7a

http://rec-law.us/290uTwS

Adrift Adventures

7/2/16

Whitewater Rafting

CO

Arkansas River

Fell out

51

F

Zoom Flume

http://rec-law.us/29h5oxj

http://rec-law.us/29hYin3

River Runners

7/17

Inflatable Kayak

OR

Rogue River

Fell out & trapped unwater

57

M

Wildcat Rapid

http://rec-law.us/2a9iiKF

 

 

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

39

F

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

13

M

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/23

Mountain Climbing

WY

Grand Teton National Park

Fell

42

M

Valhalla Canyon near the Black Ice Coulier

http://rec-law.us/2a88grE

http://rec-law.us/2as4s9f

Exum

9/12

Whitewater Rafting

AZ

Grand Canyon NP

Guide walked out of camp with inflatable

34

M

Pancho’s Kitchen

http://rec-law.us/2cIc9JI

 

OARS

If you would like a PDF of this chart please click here.

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2016 Recreation Law (720) Edit Law

What do you think? Leave a comment.

 

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Lawclip_image002_thumb.jpg

To Purchase Go Here:

 

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Avalanche, Cat Skiing, Oregon, Whitewater Rafting,

 

 


Summer 2016 Commercial Fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of September 1, 2016. Thanks.

Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Blue is an employee fatality

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

Ref 2

Company

3/22

Cat Skiing

OR

Mt. Bailey

Avalanche hit tree

 

M

 

http://rec-law.us/1XSFbT7

 

Cat Ski Mount Bailey

5/4

Whitewater Rafting

WA

Wenatchee River

Raft Flipped

53

M

Dryden

http://rec-law.us/1TuBuzC

 

Orion River

 

Whitewater Rafting

ME

Dead River

Fell out

52

M

 

http://rec-law.us/22B3zeY

http://rec-law.us/1U0HrbU

North Country Rivers

5/22

Whitewater Rafting

CO

Arkansas River

Fell out

61

F

Parkdale

http://rec-law.us/1r4zOp3

http://rec-law.us/1O75mWC

Echo Canyon River Expeditions

6/4

Whitewater Rafting

AK

Lowe River

Fell out

48

F

 

http://rec-law.us/1Yemxbd

 

 

6/15

Whitewater Rafting

CO

Roaring Fork

Flip

50

M

Slaughterhouse section

http://rec-law.us/1WOcnyo

http://rec-law.us/1UkzCwI

Aspen Whitewater Rafting

6/15

Whitewater Rafting

AK

Kongakut River

Flip

69

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/15

Whitewater Rafting

AK

Kongakut River

Flip

67

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

63

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

 

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/24/16

Whitewater Rafting

CO

Green River

 

63

F

Disaster Falls

http://rec-law.us/295dJ7a

http://rec-law.us/290uTwS

Adrift Adventures

7/2/16

Whitewater Rafting

CO

Arkansas River

Fell out

51

F

Zoom Flume

http://rec-law.us/29h5oxj

http://rec-law.us/29hYin3

River Runners

7/17

Inflatable Kayak

OR

Rogue River

Fell out & trapped unwater

57

M

Wildcat Rapid

http://rec-law.us/2a9iiKF

 

 

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

39

F

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

13

M

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/23

Mountain Climbing

WY

Grand Teton National Park

Fell

42

M

Valhalla Canyon near the Black Ice Coulier

http://rec-law.us/2a88grE

http://rec-law.us/2as4s9f

Exum

If you would like a PDF of this chart please click here. 2016 Commercial Fatalities 9.1.16

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2016 Recreation Law (720) Edit Law

What do you think? Leave a comment.

clip_image002 

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Avalanche, Cat Skiing, Oregon, Whitewater Rafting,

 

 


Almquist v. Synergo, LLC, 2016 U.S. Dist. LEXIS 79261

Almquist v. Synergo, LLC, 2016 U.S. Dist. LEXIS 79261

Cassidy Almquist, Plaintiff, v. Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation; Association For Challenge Course Technology, a Delaware non-profit corporation, Defendants.

Case No. 3:15-cv-01281-SB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

2016 U.S. Dist. LEXIS 79261

May 20, 2016, Decided

May 20, 2016, Filed

SUBSEQUENT HISTORY: Adopted by, Motion denied by Almquist v. Synergo, LLC, 2016 U.S. Dist. LEXIS 79002 (D. Or., June 9, 2016)

CORE TERMS: website, personal jurisdiction, swing, purposeful, forum state, weigh, http, www, inspector, jurisdictional, purposefully, inspection, acctinfo, visited, org, exercise of jurisdiction, interactive, prong, resident, direction’ test, alternative forum, quotation, consumers, litigate, comport, accreditation, adhere–, prima facie, citation omitted, general jurisdiction

COUNSEL: [*1] For Cassidy Almquist, Plaintiff: James E. Horne, LEAD ATTORNEY, Gordon Thomas Honeywell, LLP, Seattle, WA; Mario Interiano, Norma Rodriguez, Scott E. Rodgers, LEAD ATTORNEYS, PRO HAC VICE, Rodriguez Interiano Hanson Rodgers PLLC, Kennewick, WA; Reuben Schutz, Salvador A. Mungia, LEAD ATTORNEYS, PRO HAC VICE, Gordon Thomas Honeywell LLP, Tacoma, WA.

For Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation, Defendants, ThirdParty Plaintiffs: Jennifer L. Crow, LEAD ATTORNEY, Scheer & Zehnder, Portland, OR; Mark P. Scheer, Robert P. Schulhof , Jr, Scheer & Zehnder LLP, Portland, OR.

For Association for Challenge Course Technology, a Delaware non-profit corporation, Defendant: Matthew C. Casey, Bullivant Houser Bailey, PC, Portland, OR.

JUDGES: STACIE F. BECKERMAN, United States Magistrate Judge.

OPINION BY: STACIE F. BECKERMAN

OPINION

FINDINGS AND RECOMMENDATION

BECKERMAN, Magistrate Judge.

Cassidy Almquist (“Almquist”) filed an Amended Complaint against Synergo, LLC, an Oregon limited liability company, Synergo, an Oregon corporation (collectively “Synergo”), and the Association for Challenge Course Technology, a Delaware non-profit corporation (“ACCT”), alleging claims for negligence. Almquist’s [*2] action arises from an accident at the Bar-M-Ranch, in which she fell from a Giant Swing and was paralyzed. With respect to ACCT, Almquist alleges that ACCT was negligent (1) in promulgating standards for its certified inspectors, that allow them to certify challenge courses as safe when the inspector knows that untrained challenge course workers will operate the course, and (2) by failing to include in the inspection standards a provision directing an inspector to recommend that a course be closed until workers receive proper training. (Am. Compl. ¶¶ 16, 17 and 26.)

Synergo filed an Answer to Almquist’s Amended Complaint, and ACCT filed a Motion to Dismiss for Lack of Personal Jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. On April 5, 2016, this Court heard oral argument on ACCT’s request for dismissal. For the reasons set forth below, the district judge should deny ACCT’s Rule 12(b)(2) motion.

I. BACKGROUND

ACCT, a professional trade association for the challenge course industry, develops and publishes standards for installing, inspecting, and maintaining challenge courses. (Am. Compl. ¶¶ 24, 25.) ACCT trains and certifies professional challenge course inspectors. (Am. Compl. ¶ 25.) Synergo relied on ACCT’s standards [*3] in inspecting the Giant Swing at issue in this litigation. (Am. Compl. ¶ 28.)

Synergo is in the business of, among other things, inspecting challenge courses. (Am. Compl. ¶ 8.) Synergo is located in Tigard, Oregon, and is a dues-paying member of ACCT. Synergo is the only accredited Professional Vendor Member (“PVM”) of ACCT in Oregon.1 Synergo’s founder and manager, Erik Marter, served on the Board of Directors of ACCT, and is the only certified ACCT professional inspector in Oregon. http://www.teamsynergo.com/our-story/ ; and http://www.acctinfo.org/?PVMList%20 (lasted visited May 20, 2016). Synergo conducts inspections of challenge courses according to ACCT standards. (Am. Compl. ¶ 28.)

1 According to ACCT, “[a] PVM of ACCT is a company which has successfully completed the Professional Vendor Member Application, including the Accreditation, process. The process includes a stringent review which determines an applicant’s adherence to ACCT Accreditation Policies and Procedures and its good faith commitment to ACCT Standards. Successful completion of this process distinguishes a PVM from other vendors, identifying the PVM as having been found to be highly experienced and competent.” http://www.acctinfo.org/?PVMList (last visited May 20, 2016).

In February 2012, Cavalry Church Tri-Cities (“Cavalry”) [*4] constructed an “adventure course” on its Bar-M-Ranch property located in Richland, Oregon that included a Giant Swing. (Am. Compl. ¶ 6.) Calvary hired Synergo to inspect the Giant Swing after construction of the challenge course was complete. (Am. Compl. ¶ 11.) Synergo sent an employee to inspect the Giant Swing in June 2012. (Am. Compl.¶ 12.) During the inspection, Synergo discovered that the Cavalry and Bar-M-Ranch staffs were not trained to operate the swing. (Am. Compl. ¶ 16.) Synergo did not direct or recommend that Calvary close the Giant Swing until the operators of the swing were trained. (Am. Compl. ¶ 17.) If recommended by Synergo, Calvary would have closed the Giant Swing. (Am. Compl ¶ 19.)

During the week of July 15, 2013, Calvary hosted a summer camp at the Bar-M-Ranch. (Am. Compl. ¶ 20.) Almquist was a counselor at the summer camp. (Am. Compl. ¶ 22.) The camp director asked Almquist to demonstrate the use of the Giant Swing for the children attending the camp. (Am. Compl. ¶ 22.) Almquist agreed to do so and a camp employee, who was not trained to operate the Giant Swing, improperly connected her to the Giant Swing. Almquist fell 50 feet to the ground, paralyzing her from [*5] the waist down. (Am. Compl. ¶ 23.)

II. LEGAL STANDARD

“In opposing a defendant’s motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper.” CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir. 2011) (citing Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008)). “Where, as here, the defendant’s motion is based on written materials rather than an evidentiary hearing, ‘the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss.'” Id. (quoting Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010)). “Although the plaintiff cannot simply rest on the bare allegations of its complaint, uncontroverted allegations in the complaint must be taken as true[,] [and] [c]onflicts between parties over statements contained in affidavits must be resolved in the plaintiff’s favor.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (internal citations and quotation marks omitted).

III. DISCUSSION

ACCT moves to dismiss Almquist’s Amended Complaint for lack of personal jurisdiction. ACCT argues that it lacks sufficient contacts with Oregon to permit the Court’s exercise of either general or specific jurisdiction. Almquist acknowledges that general jurisdiction is not present here, but contends that the extent and nature of ACCT’s contacts with Oregon permit the Court to exercise specific jurisdiction over ACCT. [*6]

A. Constitutional Personal Jurisdiction Standards

“Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over [defendant].” Daimler AG v. Bauman, 134 S. Ct. 746, 753, 187 L. Ed. 2d 624 (2014). Oregon law authorizes personal jurisdiction over defendants to the full extent permitted by the United States Constitution. See Or. R. Civ. P. 4(L); Gray & Co. v. Firstenberg Mach. Co., Inc., 913 F.2d 758, 760 (9th Cir. 1990) (“Oregon’s long-arm statute confers jurisdiction to the extent permitted by due process.”). The Court must therefore inquire whether its exercise of jurisdiction over ACCT “comports with the limits imposed by federal due process.” Daimler, 134 S.Ct. at 753.

“Due process requires that defendants ‘have certain minimum contacts’ with the forum state ‘such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'” Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). “The strength of contacts required depends on which of the two categories of personal jurisdiction a litigant invokes: specific jurisdiction or general jurisdiction.” Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015). Specific jurisdiction is sometimes referred to as “case-specific” or “case-linked” jurisdiction, meaning it depends on an affiliation between the forum state and the underlying controversy, whereas general jurisdiction is sometimes referred to as “all-purpose” jurisdiction, [*7] meaning the court may assert jurisdiction over a defendant based on a forum connection unrelated to the underlying lawsuit (e.g., domicile, place of incorporation, or principal place of business). Walden v. Fiore, 134 S. Ct. 1115, 1121 n.6, 188 L. Ed. 2d 12 (2014). Almquist argues that specific jurisdiction exists over ACCT.

The Ninth Circuit employs the following three-prong test to determine if a defendant has sufficient minimum contacts to be subject to specific jurisdiction:

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable.

Picot, 780 F.3d at 1211 (quotations and citation omitted). Plaintiff bears the burden of satisfying the first two prongs. CollegeSource, 653 F.3d at 1076. The burden then shifts to the moving defendant to present “a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)) [*8] .

“The exact form of [a court’s] jurisdictional inquiry depends on the nature of the claim at issue.” Picot, 780 F.3d at 1212. For claims sounding in contract, courts in this circuit “generally apply a ‘purposeful availment’ analysis and ask whether a defendant has ‘purposefully avail[ed] [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'” Id. (quoting Schwarzenegger, 374 F.3d at 802). For claims sounding in tort, courts in this circuit “instead apply a ‘purposeful direction’ test and look to evidence that the defendant has directed his actions at the forum state, even if those actions took place elsewhere.” Id. Almquist asserts a tort claim against ACCT. Accordingly, ACCT’s motion to dismiss implicates only the purposeful direction test.

B. Specific Jurisdiction over ACCT

1. Purposeful Direction Test2

2 Almquist alleges a state negligence action against ACCT. As such, the “effects” test of Calder v. Jones, 465 U.S. 783, 788-89, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984), is inapplicable to the Court’s purposeful direction analysis in this case. See Holland America Line Inc. v. Wartsila North America, Inc., 485 F.3d 450, 460 (9th Cir. 2007) (holding that “it is well established that the Calder test applies only to intentional torts, not to the breach of contract and negligence claims presented here” (citing Calder, 465 U.S. at 789)); Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1088 (9th Cir. 2000) (emphasizing that Calder requires [*9] the defendant to individually and wrongfully target the plaintiff).

“A showing that a defendant purposefully directed his conduct toward a forum state . . . usually consists of evidence of the defendant’s actions outside the forum state that are directed at the forum, such as the distribution in the forum state of goods originating elsewhere.” Schwarzenegger, 374 F.3d at 803; see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) (“The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”). Due process permits the exercise of personal jurisdiction over a defendant who “purposefully direct[s]” his activities at residents of a forum, even in the “absence of physical contacts” with the forum. Burger King, 471 U.S. at 476.

ACCT argues that it did not purposefully direct its activities toward Oregon.3 By Declaration, Todd Domeck, Vice Chairman of the Board of Directors with ACCT, informed the Court that ACCT is a Delaware non-profit corporation with its principal place of business in Illinois. (Todd Domeck Decl. ¶ 3, Oct. 4, 2015.) ACCT has no office or registered agent in Oregon, and no employees who reside in Oregon. [*10] (Domeck Decl. ¶¶ 4-6.) Domeck also states that “ACCT was not consulted during the construction of the ‘Giant Swing,'” nor did ACCT provide training for “any employees of the Bar-M-Ranch who were to be operators of the ‘Giant Swing.'” (Domeck Decl. ¶¶ 9-10.)

3 ACCT also argues that “there has been absolutely no evidence submitted that plaintiff, the camp, or the specific ride operator . . . ever had any interaction with ACCT . . . or that they in any way relied on any information promulgated by ACCT.” (Def.’s Reply 10.) With regard to ACCT’s claim that Almquist cannot show that ACCT directed activity toward the people involved in the accident, this argument is foreclosed by the Supreme Court’s decision in Walden. 134 S. Ct. at 1122 (“[O]ur “minimum contacts” analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”) With regard to ACCT’s contention that Almquist has not shown reliance on the “information promulgated by ACCT,” that evidence is relevant to the merits of Almquist’s claim for negligence, and not to the jurisdictional question presently before the Court.

In light of those facts, the jurisdictional analysis here turns on the extent [*11] to which ACCT, as a non-profit trade association, acted by way of its website and its certification of Synergo to create a presence in Oregon. In aid of the Court’s analysis of ACCT’s purposeful direction in Oregon, the Court relies on the uncontroverted allegations of the Amended Complaint, the Micah Henderson Declaration, and the Internet websites of ACCT and Synergo.4 See Boschetto, 539 F.3d at 1015 (“plaintiff need only make a prima facie showing of jurisdictional facts” (quotations and citation omitted)).

4 ACCT argues that the websites are not authenticated and, thus, should not be considered by the Court. ACCT’s and Synergo’s websites were created and are maintained by Defendants in this case. Further, there is no challenge to the accuracy of the content presented on the websites. The parties dispute the sufficiency of ACCT’s contacts with Oregon, including contacts made through ACCT’s website. In the context of Almquist’s prima facie showing on a motion to dismiss for lack of personal jurisdiction, the Court may consider the information provided by ACCT and Synergo on their commercial websites. See, e.g., West Marine, Inc. v. Watercraft Superstore, Inc., No. C11-04459 HRL, 2012 U.S. Dist. LEXIS 18973, 2012 WL 479677, at *10 (Feb. 14, 2012) (“Courts have taken notice of defendants’ [*12] websites or characteristics thereof when determining personal jurisdiction.”); Coremetrics, Inc. v. Atomic Park.com, LLC, 370 F. Supp. 2d 1013, 1021 (N.D. Cal. 2005) (taking judicial notice of defendants’ website in personal jurisdiction analysis).

a. ACCT’s Website

The Ninth Circuit has established a sliding scale analysis to consider how interactive an Internet website is for the purpose of determining its jurisdictional effect. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir. 1997) (“In sum, the common thread, well stated by the district court in Zippo, is that the ‘likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of the commercial activity that an entity conducts over the Internet.'”) (quoting Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)); see also ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002) (holding that a state may assert jurisdiction over a nonresident defendant “when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable to the State’s courts”).

On its website, ACCT describes itself as “the world’s leading and largest American National Standards Institute (ANSI) Accredited Standards Developer focused specifically and solely on the [*13] challenge course industry.” http://www.acctinfo.org (last visited May 20, 2016). Through its website, ACCT represents that it “develops, refines, and publishes standards for installing, maintaining, and managing challenge courses; provides forums for education and professional development; and advocates for the challenge course and adventure industry.” Id. ACCT’s website is an interactive commercial website, and ACCT uses it to advertise and sell its services and merchandise. Specifically, individuals and businesses may purchase memberships and ACCT’s standards book, apply and register for inspector certification courses and exams, and access challenge course related employment listings.

As of November 2015, ACCT had 2,524 total members, with 136 of those members located in Oregon. (Micah Henderson Decl. ¶ 7, Jan. 7, 2016.) As such, slightly over 5% of ACCT’s worldwide members are located in Oregon. In addition, three of ACCT’s 129 certified inspectors (2.3%) are located in Oregon. (Henderson Decl. ¶ 9.) During the period from June 1, 2014 through November 24, 2015, seven of the 200 standards (3.5%) sold by ACCT were delivered within Oregon. (Henderson Decl. ¶ 10.) ACCT attributes less than one percent of [*14] its 2015 annual dues to members located in Oregon. (Henderson Decl. ¶ 8.) Finally, as of November 12, 2015, two of the 100 job postings (2%) on ACCT’s website were related to jobs in Oregon. (Henderson Decl. ¶ 11.) ACCT solicited and transacted these sales and services through its website.

Although the business ACCT conducts in Oregon is not overwhelming, the Court concludes that the nature and quality of ACCT’s contacts with Oregon via its website are sufficient to satisfy the purposeful direction test. See Tech Heads, Inc. v. Desktop Serv. Cntr., Inc., 105 F. Supp. 2d 1142, 1150-51 (D. Or. 2000) (finding personal jurisdiction proper where plaintiff presented evidence of a transaction involving an Oregon resident made through the defendant’s interactive website); see also Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 891-892 (6th Cir. 2002) (holding that quantity and specifically a “‘percentage of business’ analysis” is not the proper test for personal jurisdiction; rather the proper test is “whether the absolute amount of business conducted . . . [in the forum state] represents something more than ‘random, fortuitous, or attenuated contacts’ with the state”) (quoting Burger King, 471 U.S. at 475); Zippo Mfg. Co., 952 F. Supp. at 1126-1127 (recognizing that 3,000 subscriptions, or 2 percent of total subscriptions, was a sufficient basis for jurisdiction because the Supreme Court emphasizes the nature and [*15] quality of contacts with the forum rather than the quantity of contacts); cf. Millennium Enterprises, Inc. v. Millennium Music, LP, 33 F. Supp. 2d 907, 923 (D. Or. 1999) (declining to find personal jurisdiction based on an interactive website when there was no evidence of transactions with forum residents or evidence that the forum was targeted).

In any event, even if ACCT’s reach into Oregon via its website was not sufficient, standing alone, to confer personal jurisdiction, the Court finds that ACCT’s reach into Oregon went beyond mere solicitation of members and sales through its website. See Brayton Purcell, 606 F.3d at 1129 (“operating even a passive website in conjunction with something more — conduct directly targeting the forum — is sufficient to confer personal jurisdiction” (quotations and citation omitted)).

b. ACCT’s Contacts Directed at Synergo

The Court finds that ACCT directly targeted Oregon through the following actions: ACCT’s certification of Oregon-based Synergo as a PVM, advertising Oregon-based Synergo as a PVM (including recommending that consumers hire Synergo), and setting standards for the inspection of challenge courses, to which ACCT required Synergo to adhere. Specifically, ACCT established and promoted PVM designations for companies, including Synergo, that successfully complete [*16] the application and accreditation process, which can take up to 18 months to complete, and includes a site visit of one-to-three days in duration. http://www.acctinfo.org/page/PVMApplication (last visited May 20, 2016). ACCT describes the process as “a stringent review which determines an applicant’s adherence to ACCT Accreditation Policies and Procedures and its good faith commitment to ACCT Standards.” Id. After the stringent review process and onsite visit, ACCT endorses the PVMs as ” highly experienced and competent . ” http://www.acctinfo.org/?page=PVMList (last visited May 20, 2016). ACCT’s website directs consumers to PVMs, including providing a link to Synergo’s website. In turn, Synergo prominently displays its ACCT membership on its website, and advertises its ACCT-certified services, including inspection services in Oregon. http://www.teamsynergo.com (last visited May 20, 2016). Finally, ACCT has utilized Oregon-based Synergo personnel in the ranks of its leadership, including Synergo’s owner, Marter (ACCT’s Board of Directors), and Lindsay Wiseman James (ACCT’s Chair of the Public Relations/Marketing Committee). http://www.acctinfo.org/?92; http://www.acctinfo.org/?page=140&hhSearchTerms=%22 synergo%22 (last visited May 20, 2016).

The Court finds that ACCT’s close relationship with and promotion of Oregon-based Synergo establishes purposeful direction [*17] into Oregon, especially when considered in conjunction with the reach of ACCT’s interactive website to Oregon members and consumers. Accordingly, the first prong of the specific jurisdiction test (purposeful direction), is satisfied here.

2. Arising out of or Relating to the Forum Activities

The second prong of the specific personal jurisdiction test requires a plaintiff to demonstrate that the claims arise out of, or are related to, defendant’s forum-related activities. Ziegler v. Indian River County, 64 F.3d 470, 474 (9th Cir. 1995). Courts apply a “but for” test — that is, a showing that the claims would not have arisen but for ACCT’s contacts with Oregon. Doe v. Unocal Corp., 248 F.3d 915, 924 (9th Cir. 2001); Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995) (“We rely on a ‘but for’ test to determine whether a particular claim arises out of forum-related activities and thereby satisfies the second requirement for specific jurisdiction.”).

Almquist contends that ACCT “sent Synergo its standards book in Oregon and understood that, as a certified ACCT professional inspector, Synergo would adhere to ACCT standards when it inspected challenge courses.” (Pl.’s Opp. 7.) Almquist alleges that Synergo did adhere to ACCT standards and, as a result, she was injured. (Pl.’s Opp. 7-8.) Conversely, ACCT argues that Almquist’s negligence claim is barred by Oregon [*18] statutes and administrative rules that regulate the duties owed, and by whom, when operating an amusement ride in this state. (Def.’s Reply 5-6.) ACCT contends that, under Oregon law, it does not owe a duty to Almquist. As such, her negligence claim cannot arise from ACCT’s activities in the forum as a matter of law.

Whether Almquist may prevail on the merits of her negligence claim against ACCT is not before the Court at this time. For the purpose of the Court’s jurisdictional analysis, Almquist’s claims, as alleged, arise from ACCT’s contacts with Oregon. Almquist has alleged that “but for” ACCT promulgating deficient safety standards, she would not have fallen and sustained injuries in Oregon. Thus, the contacts ACCT had with Oregon–i.e., certifying Synergo and allegedly setting inadequate course inspection standards to which Synergo was required to adhere–are also the conduct that give rise to Almquist’s claims. Accordingly, the second prong of the specific personal jurisdiction test is satisfied here.

3. Reasonableness

The third prong of the Ninth Circuit’s specific personal jurisdiction test “requires a finding that assertion of jurisdiction is reasonable,” meaning “the court must [*19] determine whether the assertion of personal jurisdiction would comport with traditional notions of ‘fair play and substantial justice.'” Unocal Corp., 248 F.3d at 925 (quoting Int’l Shoe Co., 326 U.S. at 326). To determine reasonableness, courts analyze seven fairness factors:

(1) the extent of a defendant’s purposeful interjection [into the forum]; (2) the burden on the defendant in defending in the forum; (3) the extent of conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum.

Burger King, 471 U.S. at 476-77. No one factor is dispositive; a court must balance all seven. Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1486 (9th Cir. 1993).

ACCT argues that the exercise of jurisdiction would be unreasonable because it has not reached out to Oregon in any way, defending in Oregon would be a burden since it is based in Illinois, and Almquist cannot show that alternative forums are unavailable. (Mot. Dismiss 12-13.)

a. Purposeful Interjection

As discussed above, ACCT purposefully directed itself into Oregon by maintaining an interactive commercial website and by certifying and promoting [*20] Synergo. The Court finds the purposeful interjection factor weighs in favor of Almquist.

b. Burden on ACCT

Next, the court considers ACCT’s burden of litigating in Oregon. However, “unless the inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction.” Caruth v. Int’l Psychoanalytical Ass’n., 59 F.3d 126, 128-29 (9th Cir. 1995). This is a high standard to meet, as courts have consistently held that modern technological advances reduce the burden of litigating in remote jurisdictions. See, e.g., Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316, 1323 (9th Cir. 1998); Autobidmaster, LLC. V. Alpine Auto Gallery, LLC, No. 3:14-cv-1083-AC, 2015 U.S. Dist. LEXIS 65202, 2015 WL 2381611, at * 11 (D. Or. May 19, 2015) (“modern technological advances greatly reduce the burden of litigating in remote jurisdictions”).

ACCT is located in Illinois and does not have offices in Oregon. As such, there is some burden on ACCT to litigate in Oregon. However, ACCT does not contend the burden is so significant as to violate Due Process. The Court finds this factor weighs only slightly in favor of ACCT.

c. Conflict with Illinois Law

The parties agree this factor is neutral.

d. Oregon’s Interest

Oregon has a significant interest in providing a forum for people who are tortiously injured while working in the state. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984) (“It is beyond dispute that [*21] New Hampshire has a significant interest in redressing injuries that actually occur within the State.”) This interest extends to actions brought by nonresidents. Id.

Almquist was working in Oregon at the time of her injury. This factor weighs in favor of Almquist.

e. Efficient Judicial Resolution

The Court must also consider which forum can most efficiently resolve the dispute. To make this determination, the Court focuses on the location of the evidence and witnesses. Caruth, 59 F.3d at 129. The evidence and potential witnesses reside in Oregon, Washington, California, and Illinois. As such, one party must litigate in a foreign venue. While ACCT argues that its witnesses are located in “other states,” it does not contend that its burden is greater than Almquist’s were she forced to litigate elsewhere. In addition, this factor is “no longer weighed heavily given the modern advances in communication and transportation.” Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1133 (9th Cir. 2003).

Conversely, Almquist argues that almost all of the witnesses and evidence are located in Oregon or Washington. In addition, the accident occurred in Oregon, and the witnesses who ran the challenge course are likely residents of Oregon. Synergo is based in Oregon and performed its inspection [*22] of the Bar-M-Ranch in Oregon. The initial healthcare providers who treated Almquist are located in Oregon. Moreover, this action will go forward regardless of the outcome of the motion to dismiss because Synergo remains a defendant in this litigation. See Core-Vent Corp., 11 F.3d at 1489 (finding that efficiency factor tipped in plaintiff’s favor because the lawsuit would continue in the forum state with other parties); see also Washington State University Foundation v. Oswald, No. 3:99-cv-907-AS, 1999 U.S. Dist. LEXIS 21232, 2000 WL 251661, at *3 (D. Or. Jan. 3, 2000) (exercising personal jurisdiction where the forum state “appeare[d] to be the only jurisdiction in which the parties may totally resolve the action”).

This factor weighs in favor of Almquist.

f. Convenience and Effective Relief for Almquist

The Court next considers the importance of the forum to Almquist’s interests in convenient and effective relief. If Oregon is not a proper forum, Almquist will be forced to litigate its claim against ACCT in Illinois or Delaware, which presents inconvenience for Almquist in light of her medical condition and her claim against Synergo that will be litigated in this Court.

Traditionally, courts have not given a lot weight to this factor. See Ziegler, 64 F.3d at 476. However, the factor must be considered and it weighs in favor [*23] of Almquist.

g. Existence of an Alternative Forum

Finally, the Court must determine whether an adequate alternative forum exists. Almquist acknowledges that Illinois and Delaware are appropriate forums.5 This factor weighs in favor of ACCT.

5 At oral argument, counsel for Almquist informed the Court that the statute of limitations in both those forums likely foreclose the opportunity for Almquist to refile her negligence claim against ACCT in either Illinois or Delaware. The Court notes that savings statutes in both Illinois and Delaware may toll the statute of limitations, if this Court were to dismiss the claims against ACCT for lack of personal jurisdiction. See 10 Del. C. § 8118; 735 ILCS 5/13-217.

h. Balance of the Reasonableness Factors

Applying the seven-factor test, the Court concludes that exercising personal jurisdiction over ACCT is reasonable, and comports with fair play and substantial justice. The first, fourth, fifth, and sixth factors weigh in favor of Almquist, although the sixth factor is given little weight. The second and seventh factors weigh in favor of ACCT. The third factor is neutral. Although some factors weigh in favor of ACCT, it did not present a “compelling case” that exercising jurisdiction in [*24] this Court is unreasonable. See Boschetto, 539 F.3d at 1016 (“If the plaintiff establishes both prongs one and two, the defendant must come forward with a ‘compelling case’ that the exercise of jurisdiction would not be reasonable.”)

All of the requirements for specific jurisdiction are satisfied here. Accordingly, the district judge should deny ACCT’s Motion to Dismiss for Lack of Personal Jurisdiction.

IV. CONCLUSION

For the reasons set forth above, the district judge should DENY ACCT’s Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 31).

V. SCHEDULING ORDER

The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.

Dated this 20th day of May 2016.

/s/ Stacie F. Beckerman

STACIE F. BECKERMAN

United States Magistrate Judge


Summer 2016 Commercial Fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of July 20, 2016. Thanks.

Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Blue is an employee fatality

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

Ref 2

Company

3/22

Cat Skiing

OR

Mt. Bailey

Avalanche hit tree

 

M

 

http://rec-law.us/1XSFbT7

 

Cat Ski Mount Bailey

5/4

Whitewater Rafting

WA

Wenatchee River

Raft Flipped

53

M

Dryden

http://rec-law.us/1TuBuzC

 

Orion River

 

Whitewater Rafting

ME

Dead River

Fell out

52

M

 

http://rec-law.us/22B3zeY

http://rec-law.us/1U0HrbU

North Country Rivers

5/22

Whitewater Rafting

CO

Arkansas River

Fell out

61

F

Parkdale

http://rec-law.us/1r4zOp3

http://rec-law.us/1O75mWC

Echo Canyon River Expeditions

6/4

Whitewater Rafting

AK

Lowe River

Fell out

48

F

 

http://rec-law.us/1Yemxbd

 

 

6/15

Whitewater Rafting

CO

Roaring Fork

Flip

50

M

Slaughterhouse section

http://rec-law.us/1WOcnyo

http://rec-law.us/1UkzCwI

Aspen Whitewater Rafting

6/15

Whitewater Rafting

AK

Kongakut River

Flip

69

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/15

Whitewater Rafting

AK

Kongakut River

Flip

67

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

63

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

 

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/24/16

Whitewater Rafting

CO

Green River

 

63

F

Disaster Falls

http://rec-law.us/295dJ7a

http://rec-law.us/290uTwS

Adrift Adventures

7/2/16

Whitewater Rafting

CO

Arkansas River

Fell out

51

F

Zoom Flume

http://rec-law.us/29h5oxj

http://rec-law.us/29hYin3

River Runners

7/17

Inflatable Kayak

OR

Rogue River

Fell out & trapped unwater

57

M

Wildcat Rapid

http://rec-law.us/2a9iiKF

 

 

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

39

F

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

13

M

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

 

 

 

 

 

 

 

 

 

 

 

If you would like a PDF of this chart please click here.

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2016 Recreation Law (720) Edit Law

What do you think? Leave a comment.

clip_image002 

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Avalanche, Cat Skiing, Oregon, Whitewater Rafting,

 

 


Summer 2016 Commercial Fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of June 15, 2016. Thanks.

Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Blue is an employee fatality

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

Ref 2

Company

3/22

Cat Skiing

OR

Mt. Bailey

Avalanche, hit tree

 

M

 

http://rec-law.us/1XSFbT7

 

Cat Ski Mount Bailey

5/4

Whitewater Rafting

WA

Wenatchee River

Raft Flipped

53

M

Dryden

http://rec-law.us/1TuBuzC

 

Orion River

 

Whitewater Rafting

ME

Dead River

Fell out

52

M

 

http://rec-law.us/22B3zeY

http://rec-law.us/1U0HrbU

North Country Rivers

5/22

Whitewater Rafting

CO

Arkansas River

Fell out

61

F

Parkdale

http://rec-law.us/1r4zOp3

http://rec-law.us/1O75mWC

Echo Canyon River Expeditions

6/4

Whitewater Rafting

AK

Lowe River

Fell out

48

F

 

http://rec-law.us/1Yemxbd

 

 

6/15

Whitewater Rafting

CO

Roaring Fork

Flip

50

M

Slaughterhouse section

http://rec-law.us/1WOcnyo

http://rec-law.us/1UkzCwI

Aspen Whitewater Rafting

6/15

Whitewater Rafting

AK

Kongakut River

Flip

69

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/15

Whitewater Rafting

AK

Kongakut River

Flip

67

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

If you would like a PDF of this chart please click here: 2016 Summer Commercial Fatalities

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2016 Recreation Law (720) Edit Law

What do you think? Leave a comment.

clip_image002 

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Avalanche, Cat Skiing, Oregon, Whitewater Rafting,

 

 


States that do not Support the Use of a Release

The most changes in this form have occurred in the last year over the last ten years.

Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

State

Citation

Issues/Article

Releases are Void

Louisiana

C.C. Art. 2004 (2005)

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Montana

MCA § 27-1-701

Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.

Virginia

Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890)

Except for Equine Activities Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Oregon

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

Use of a Release is Restricted

Arizona

Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53

 

New Mexico

Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48

P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25

State created Equine Liability Statute so no need for release

West Virginia

Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;

1994 W. Va. LEXIS 161

 

Use of Releases is Probably Void

Connecticut

Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006

Conn. LEXIS 330

 

Mississippi

Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375

Mississippi Supreme Court makes it almost impossible to write a release that is enforceable because the court does not give direction as to what it wants.

Wisconsin

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Wisconsin decision has left the status of release law in Wisconsin in jeopardy

Wisconsin

Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121

Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release.

Vermont

Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127

 

Specific uses of Releases are Void

Alaska

Sec. 05.45.120(a).  Use of liability releases

A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.

Hawaii

King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004)

Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release

New York

General Obligation Law § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

 

What do you think? Leave a comment.

Copyright 2010 -2016 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #Montana, #Louisiana, #Virginia, #New York, #Hawaii, #Alaska, New York, Hawaii, Oregon, Louisiana, Montana, Virginia, New Mexico, Arizona, Alaska, Vermont, Wisconsin, Connecticut, #Vermont, #Wisconsin, #Connecticut, #New Mexico, #Arizona, #West Virginia, Oregon

 

 


2016 Commercial Fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of May 5, 2016. Thanks.

Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Blue is an employee fatality

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

 

Company

3/22

Cat Skiing

OR

Mt. Bailey

Avalanche, hit tree

 

M

 

http://rec-law.us/1XSFbT7

 

Cat Ski Mount Bailey

5/4

Whitewater Rafting

WA

Wenatchee River

Raft Flipped

53

M

Dryden

http://rec-law.us/1TuBuzC

 

Orion River

If you would like a PDF of this chart please click here.

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2016 Recreation Law (720) Edit Law

What do you think? Leave a comment.

clip_image002 

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Avalanche, Cat Skiing, Oregon, Whitewater Rafting,

 

 


States that do not Support the Use of a Release

Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

State

Citation

Issues/Article

Releases are Void

Louisiana

C.C. Art. 2004 (2005)

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Montana

MCA § 27-1-701

Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.

Virginia

Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890)

Except for Equine Activities Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Oregon

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

Use of a Release is Restricted

Arizona

Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53

 

New Mexico

Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48

P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25

State created Equine Liability Statute so no need for release

West Virginia

Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;

1994 W. Va. LEXIS 161

 

Use of Releases is Probably Void

Connecticut

Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006

Conn. LEXIS 330

 

Wisconsin

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Wisconsin decision has left the status of release law in Wisconsin in jeopardy

Wisconsin

Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121

Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release.

Vermont

Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127

 

Specific uses of Releases are Void

Alaska

Sec. 05.45.120(a).  Use of liability releases

A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.

Hawaii

King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004)

Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release

New York

General Obligation Law § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

 

What do you think? Leave a comment.

Copyright 2010 -2016 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

 

 

 


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

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

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

State: Oregon, Court of Appeals of Oregon

Plaintiff: Tabitha Becker

Defendant: Hoodoo Ski Bowl Developers, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2015

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

clip_image002What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

 

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

 

 

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Oregon, Chair Lift, Hoodoo Ski Bowl Developers, Inc., Release, Assumption of the Risk,

 


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

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

Tabitha Becker, Plaintiff-Appellant, v. Hoodoo Ski Bowl Developers, Inc., an Oregon corporation, dba Hoodoo Ski Area, Defendant-Respondent.

A154563

COURT OF APPEALS OF OREGON

269 Ore. App. 877; 346 P.3d 620; 2015 Ore. App. LEXIS 319

November 4, 2014, Argued and submitted

March 18, 2015, Decided

PRIOR HISTORY: [***1] Linn County Circuit Court. 112557. DeAnn L. Novotny, Judge.

DISPOSITION: Reversed and remanded.

COUNSEL: Kathryn H. Clarke argued the cause for appellant. With her on the briefs was William A. Gaylord.

Andrew C. Balyeat argued the cause for respondent. With him on the brief was Balyeat & Eager, LLP.

JUDGES: Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION BY: TOOKEY

OPINION

[**621] [*878] TOOKEY, J.

Plaintiff Becker, who was injured by a chair lift at Hoodoo’s ski area, brought this negligence action against defendant Hoodoo Ski Bowl Developers, Inc. (Hoodoo). Hoodoo filed a motion for summary judgment, arguing that it was entitled to the affirmative defense of release, and Becker filed a cross-motion for partial summary judgment, arguing that the release was unenforceable because it violated public policy and was procedurally and substantively unconscionable. The trial court granted Hoodoo’s motion for summary judgment, denied Becker’s cross-motion for partial summary judgment, and entered a judgment in favor of Hoodoo. Becker now appeals that judgment, renewing her argument that the release was unenforceable because it violated public policy and was procedurally and substantively unconscionable. For the reasons that follow, [***2] we reverse and remand.

[HN1] We review a 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.” 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.” Bagley v. Mt. Bachelor, Inc., 356 Ore. 543, 545, 340 P3d 27 (2014) (Bagley II).

Becker’s husband purchased a lift ticket for Becker to ski at Hoodoo’s ski area. An anticipatory release, along with Hoodoo’s logo, appeared on the face of the lift ticket. The release read as follows:

“Release Agreement

“‘The purchaser or user of this ticket understands that skiing can be hazardous and accepts and assumes the inherent risks of skiing including but not limited to changing weather conditions, variations or steepness in terrain, snow or ice conditions, surface or subsurface conditions, bare sports [sic], creeks and gullies, forest growth, rocks, stumps, lift towers and other structures and their [*879] components, collisions with chairlifts, snow grooming equipment [***3] and other skiers, and a skier’s [**622] failure to ski within the skier[‘]s own ability. Always ski in control.’

“‘THE USER OF THIS TICKET HEREBY RELEASES HOODOO SKI BOWL DEVELOPERS, INC., d.b.a. HOODOO SKI AREA AND ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS TICKET INCLUDING BUT NOT LIMITED TO SKIING ACTIVITIES AND LOADING AND UNLOADING FROM LIFTS. THIS RELEASE INCLUDES CLAIMS BASED UPON NEGLIGENCE.[‘]

“The holder of this ticket as condition of being permitted to use the facilities of the area agrees to assume all risk of personal injury or loss of or damage to property and that the management is not responsible for ticket if lost or stolen. This ticket may be revoked without refund at any time for misconduct of or nuisance caused by the holder[.]

“NO REFUNDS NOT TRANSFERABLE”

(Capitalization in original; emphases added.) The release occupied approximately one-half of the face of the ticket, and the logo occupied the other half.1 Becker did not notice or read the release.

1 The lift ticket was “designed to have its backing removed, and to then be folded over a metal wicket so that the backs of each half stick together resulting in the Hoodoo [***4] logo being visible on one side and the release agreement visible on the other side.” That design allowed the user of the ticket to remove the backing and attach “the wicket to his or her clothing before using the ski lifts.”

A sign was also posted in Hoodoo’s ski area. The sign provided, in part, that

“[a] ski area operator shall be notified of any injury to a skier by registered or certified mail within 180 days after the injury or within 180 days after the skier discovers or reasonably should have discovered, such injury. ORS 30.980(1). Failure to give notice as required by this section bars a claim for injuries or wrongful death. ORS 30.980(4).

“The above notice is required by Oregon Law and is presented in a manner reasonably calculated to inform. It is in addition to other notices and specific release agreements you may have entered into with Ski Area Management.”

[*880] On the day in question, Becker used a chair lift several times without incident. While Becker was waiting to again board the lift, a chair came around to the boarding area with its seat bottom upright. Becker “tried to turn her skis and go off to the right[,]” but the chair struck Becker, and she was injured.2

2 Becker’s complaint alleges, in part, that [***5] Becker

“was struck, lifted, run over, dragged and dropped by a moving chair lift, causing tearing, twisting, wrenching, bruising and abrading to the bones, muscles, ligaments, tendons, joints and associated soft tissues of her right arm and shoulder and both lower extremities, from all of which she suffered a dislocated right shoulder and associated brachial plexus injury, with radiculopathy and nerve pain and numbness into the fingers of her right hand, requiring her to undergo surgery and to keep her right arm in a sling, resulting in a temporary partially frozen shoulder, and a permanent partial disability of her shoulder and in continuing and intermittent pain, weakness, and reduced range of motion of her right arm; a low-back injury, with sciatic pain down her left leg; injuries to both knees, with parasthesia into the three middle toes of the left foot; and left heel and ankle pain and instability; and exacerbation of a pre-existing plantar fasciitis in her left foot. As a further result of these injuries, plaintiff is now at risk of developing arthritis in the injured areas as she ages.”

Becker subsequently filed this action, alleging that Hoodoo was negligent in its operation [***6] of the chair lift and that its negligence caused her injuries. Hoodoo filed a motion for summary judgment, arguing that it was entitled to the affirmative defense of release based on the release that was printed on Becker’s lift ticket. Becker filed a cross-motion for partial summary judgment, arguing that the release violated public policy and was procedurally and substantively unconscionable. After a hearing on those motions, the trial court ruled in favor of Hoodoo as noted above, and Becker now appeals.

On appeal, Becker contends that the trial court erred in granting Hoodoo’s motion for summary judgment, denying her cross-motion [**623] for partial summary judgment, and entering a judgment in favor of Hoodoo, again arguing that the release was unenforceable because it violated public policy and was procedurally and substantively unconscionable.3 Hoodoo responds that the trial court did not err [*881] because the release at issue is not contrary to public policy and is not unconscionable. In their appellate briefs, both parties cite Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390, 310 P3d 692 (2013) (Bagley I), rev’d, 356 Ore. 543, 340 P3d 27 (2014)–a case that was decided by this court after the parties argued their motions to the trial court and after the trial court entered judgment in favor [***7] of Hoodoo.

3 Becker also argues that “[t]here was no agreement reached under the circumstances of this case.” However, we need not decide that issue because, assuming without deciding that an agreement was reached in this case, enforcement of such an agreement would be unconscionable, as we conclude below.

The plaintiff in Bagley I, who had signed a release agreement4 when he purchased a season ski pass from the defendant Mt. Bachelor, Inc., was injured while snowboarding over a jump in the defendant’s “‘terrain park'” and brought an action alleging negligence in the design, construction, maintenance, or inspection of that jump. Id. at [*882] 392. There, as here, the defendant moved for summary judgment based on the affirmative defense of release, and the plaintiff argued that the release was contrary to public policy and unconscionable. After analyzing the facts in Bagley I, this court concluded that the release in that case was not contrary to public policy and that the terms of the release were neither procedurally nor substantively unconscionable. Id. at 410.

4 The release agreement at issue in Bagley, which was signed by the plaintiff, read, in part:

“‘In consideration of the use of a Mt. Bachelor pass and/or Mt. Bachelor’s [***8] 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 under-signed(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, enter into this agreement freely and voluntarily and agree it is binding on the undersigned(s) and the undersigneds’ heirs and legal representatives. [***9]

“‘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.'”

Bagley I, 258 Ore. App. at 392-93. (Capitalization omitted.) The “crux of the release agreement was also printed” on the plaintiff’s ski pass. Id. at 394.

In addition, a sign was posted at each of the defendant’s ski lift terminals, providing, in part, that “‘YOUR TICKET IS A RELEASE'” and advising members of the public not to purchase tickets without agreeing to be bound by the terms and conditions of the release. Id. at 395 (capitalization in original).

However, after the parties in this case briefed and argued this case to us, the Oregon Supreme Court reversed our decision in Bagley I. See Bagley II, 356 Ore. at 543. In so doing, the court explained that it would, “for the sake of convenience–if not doctrinal convergence–* * * address the parties’ public policy arguments in the context of [its] analysis of whether, in the particular circumstances of [that] case, enforcement of the release would be unconscionable.” Id. at 554. The court then [***10] set forth the “procedural factors” and “substantive considerations” that it gleaned from its prior decisions involving unconscionable contracts, stating:

“We glean from those decisions that [HN2] relevant procedural factors in the determination of whether enforcement of an anticipatory release would violate public policy or be unconscionable include whether the re [**624] lease 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 [***11] 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 previously has identified; it is also informed by any [*883] other considerations that may be relevant, including societal expectations.”

Id. at 560 (emphases added).

The court then analyzed those factors and considerations as they pertained to the facts in that case. When analyzing the procedural factors, the court noted that one factor–whether the release was conspicuous and unambiguous–weighed in favor of enforcement, as the plaintiff did not contend that he was surprised by the terms of the release. Id. at 561. The court then stated that “[o]ther procedural factors * * * point[ed] in a different direction[,]” noting that this “was not an agreement between equals” as “[o]nly one party to the contract–defendant–was a commercial enterprise, and that 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.” Id. The court also noted that “plaintiff had no opportunity * * * to negotiate for different terms or pay an additional [***12] fee for protection against defendant’s negligence.” Id. at 562.

When analyzing the substantive considerations, the court stated that “the enforcement of the release would cause a harsh and inequitable result” to befall the plaintiff; that the “defendant’s business operation [was] sufficiently tied to the public interest as to require the performance of its private duties to its patrons[;]” and that “the fact that plaintiff’s claim [was] based on negligence rather than on more egregious conduct carries less weight than the other substantive factors[.]” Id. at 565-70. The court concluded by stating, “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.” Id. at 573.

The release here is materially indistinguishable from the release at issue in Bagley, and, therefore, under the analysis set forth by the Oregon Supreme Court in Bagley II, we conclude that enforcement of the release in this case would likewise be unconscionable. Accordingly, Hoodoo is not entitled to prevail on its affirmative defense of release, [*884] and the trial court erred in granting [***13] Hoodoo’s motion for summary judgment, denying Becker’s cross-motion for partial summary judgment, and entering a judgment in favor of Hoodoo.

Reversed and remanded.


Stringer v. United States Department of Agriculture, 2014 U.S. Dist. LEXIS 150168

Stringer v. United States Department of Agriculture, 2014 U.S. Dist. LEXIS 150168

Daniel T. Stringer, Plaintiff, v. United States Department of Agriculture (Forest Service), Defendant.

Civ. No. 6:13-cv-1902-MC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

2014 U.S. Dist. LEXIS 150168

October 21, 2014, Decided

October 21, 2014, Filed

COUNSEL: [*1] For Daniel T Stringer, Plaintiff: J. Randolph Pickett, LEAD ATTORNEY, Pickett Dummigan Rhodes, LLP, Portland, OR; Matthew D. Kaplan, Matthew D. Kaplan, LLC, Portland, OR; R. Brendan Dummigan, Pickett Dummigan Rhodes, LLP, Portland, OR; Kristen C. West, Pickett Dummigan, LLC, Portland, OR.

For United States Department of Agriculture Forest Service, Defendant: James E. Cox, Jr., LEAD ATTORNEY, U.S. Attorney’s Office, Portland, OR.

JUDGES: Michael J. McShane, United States District Judge.

OPINION BY: Michael J. McShane

OPINION

OPINION AND ORDER

MCSHANE, Judge:

Plaintiff Daniel Stringer was injured while snowmobiling in the Deschutes National Forest. The United States Forest Service (Forest Service), which manages the Deschutes National Forest, allows members of the public to snowmobile on approximately 600 miles of trail within the forest free of charge.

The Court is asked to consider whether the Forest Service waived sovereign immunity under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80. Because Stringer neither paid a “charge” nor engaged or intended to engage in an activity subject to a “charge,” this Court finds that the Forest Service did not waive its immunity. Thus, defendant’s motion to dismiss, ECF No. 10, is GRANTED. [*2]

PROCEDURAL AND FACTUAL BACKGROUND

This action arises out of a snowmobile accident occurring in the Deschutes National Forest. On March 24, 2012, Stringer, along with five companions, rented five snowmobiles at a rental facility in Bend, Oregon. Compl. 3, ECF No. 1; Decl. of James E. Cox, Jr. 5, ECF No. 13-1. After receiving a 15-minute training tutorial, the group traveled to Wanoga Sno-Park. Decl. of James E. Cox, Jr. 2, ECF No. 13-3. Wanoga Sno-Park, a snowmobiling park located within the Deschutes National Forest between Bend and Mount Bachelor, is open to the public free of charge.1 See Decl. of Kevin W. Larkin 2-3, 5 ECF No. 11.

1 The state of Oregon does charge a $5 vehicle parking fee to park in the Wanoga Sno-Park parking lot. See Compl. 2-3, ECF No. 1; OREGON DEP’T OF TRANSP.,OREGON.GOV: SNO-PARK PARKING PERMITS, http://www.oregon.gov/ODOT/DMV/pages/vehicle/sno_park_permits.aspx(last visited Oct. 20, 2014).

At approximately 10 a.m., Stringer and his group departed on snowmobile trail #5 heading west toward Elk Lake Resort. Decl. of James E. Cox, Jr. 5, ECF No. 13-1. Stringer operated a two person sled accompanied by his fiancee, Danielle McBurnett. Compl. 3, ECF No. 1. Between 11:30 a.m. and 11:45 a.m., the group arrived at Elk Lake Resort. Decl. of [*3] James E. Cox, Jr. 5, ECF No. 13-1. After a brief break, the group decided to postpone lunch and return to Wanoga Sno-Park on snowmobile trail #5 heading east. Compl. 3, ECF No. 1; Decl. of James E. Cox, Jr. 5, ECF No. 13-1.

At approximately 12:50 p.m., the group approached a bridge at Falls Creek. See Decl. of James E. Cox, Jr. 1, ECF No. 13-1. Stringer, accompanied by McBurnett, sped up and pulled away from the group. Id. at 5. As he pulled away, Stringer left the trail and cut across an open meadow. Compl. 3, ECF No. 1. Realizing that the meadow led to an embankment of Falls Creek, Jessi Davis, a member of the snowmobiling group, sped up in an unsuccessful attempt to warn Stringer. Decl. of James E. Cox, Jr. 5, ECF No. 13-1. Stringer’s snowmobile launched over the creek and crashed into the far embankment head-on. Compl. 3, ECF No. 1. Stringer and McBurnett fell approximately 15 feet to the bottom of the ravine; resulting in extensive injuries. Id. at 3, 5. Stringer now seeks damages under the FTCA. Id. at 6.

STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A claim is plausible on its face when [*4] the factual allegations allow the court to infer the defendant’s liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The factual allegations must present more than “the mere possibility of misconduct.” Id. at 678.

While considering a motion to dismiss, the Court must accept all allegations of material fact as true and construe them in the light most favorable to the non-movant. Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). However, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986). If the complaint is dismissed, leave to amend should be granted unless the court “determines that the pleading could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (citations and internal quotation marks omitted).

DISCUSSION

Plaintiff, in reliance on Coleman v. Oregon Parks & Recreation Dep’t, 347 Or. 94, 217 P.3d 651 (2009), contends that defendant waived sovereign immunity under the FTCA by making a “charge” under ORS §§ 105.672(1)(a), 105.688(3). In response, defendant contests plaintiff’s interpretation of Coleman and argues that a charge was not made, and even if made, Wanoga Sno-Park is specific, separate, and distinct from any land that made such a charge.

The FTCA waives the sovereign immunity of the United States for claims based on the negligence of United States employees. 28 U.S.C. § 1346(b)(1); Yanez v. United States, 63 F.3d 870, 872 (9th Cir. 1995). The liability of the United [*5] States is determined “in the same manner and to the same extent as a private individual in like circumstances.” 28 U.S.C. § 2674. Because plaintiff’s accident occurred in Oregon, this action is governed by Oregon law. 28 U.S.C. § 1346(b)(1); Yanez, 63 F.3d at 872.

As stated in ORS § 105.676, “it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes . . . by limiting their liability toward persons entering thereon for such purposes . . . .” ORS § 105.6822 advances this policy by granting “immunity to landowners who open their land to the public for recreational purposes.” Coleman, 347 Or. at 97.

2 ORS § 105.682 provides:

(1) Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational [*6] purposes, gardening, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

(2) This section does not limit the liability of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

ORS § 105.688, however, limits the immunity provided in ORS § 105.682. ORS § 105.688 provides, in relevant part:

(3) Except as provided in subsection[] (4) . . . of this section, the immunities provided . . . do not apply if the owner makes any charge3 for permission to use the land for recreational purposes . . . .

(4) If the owner charges for permission to use the owner’s land for one or more specific recreational purposes and the owner provides notice in the manner provided by subsection (8) of this section,4 the immunities . . .apply to any use of the land other than the activities for which the charge is imposed. If the owner charges for permission to use a specified part of the owner’s land for recreational [*7] purposes and the owner provides notice in the manner provided by subsection (8) of this section, the immunities . . . apply to the remainder of the owner’s land.

3 ORS § 105.672(1)(a) defines “Charge” as “the admission price or fee requested or expected by an owner in return for granting permission for a person to enter or go upon the owner’s land.” This definition excludes “the fee for a winter recreation parking permit or any other parking fee of $15 or less per day.” ORS § 105.672(1)(c).

4 ORS § 105.688(8) provides:

(8) Notices . . . may be given by posting, as part of a receipt, or by such other means as may be reasonably calculated to apprise a person of:

(a) The limited uses of the land for which the charge is made, and the immunities provided under ORS 105.682 for other uses of the land; or

(b) The portion of the land the use of which is subject to the charge, and the immunities provided under ORS 105.682 for the remainder of the land.

Plaintiff contends that, under Coleman, defendant waived immunity by charging “a fee for any use of the land.” P1.’s Resp. to Def.’s Mot. to Dismiss 5, ECF No. 15 (emphasis in original). Specifically, plaintiff argues that because defendant charged third-parties5 a camping fee or a ski-lift fee within the Deschutes National Forest, defendant [*8] waived recreational immunity as to plaintiff’s injury occurring in that same forest. Id. at 5-8. This Court looks to Coleman.

5 Neither plaintiff nor any member of his snowmobiling group paid a camping fee or purchased a ski-lift ticket.

In Coleman, plaintiffs Bradley and Bonnie Coleman arrived at William M. Tugman State Park (Tugman Park) intending to camp overnight. 347 Or. at 96; Coleman v. Oregon Parks & Recreation Dep’t (Coleman App. Ct.), 221 Or. App. 484, 486, 190 P.3d 487 (2008), rev’d, 347 Or. 94, 217 P.3d 651 (2009). At that time, Tugman Park charged a fee for campsite and gazebo rental, but was otherwise open to the public free of charge. Coleman, 347 Or. at 96. Bradley, having arrived at the campsite, decided to explore the park with a friend on their mountain bikes. Coleman, 347 Or. at 96; Coleman App. Ct., 221 Or. App. at 486. While on a designated trail, Bradley rode his bike off a connected bridge, which lacked a ramp on one side. Coleman App. Ct., 221 Or. App. at 486.

The Supreme Court, in a four-to-three decision, denied defendant’s motion for summary judgment and concluded that defendant “did not establish that it made ‘no charge for permission to use’ Tugman Park.” Coleman, 347 Or. at 104. The Court further provided:

To be entitled to immunity, the landowner must make no charge for permission to use the land. If the landowner makes a charge for permission to use the its land, immunity does not apply, even if the injured person is not engaged in the use that was [*9] the basis for the charge at the time of injury. So, as in this case, if the landowner makes a charge to use a park for camping, the landowner forfeits its immunity, even if a camper is injured while biking.

Id. at 102-103 (emphasis in original). Plaintiff, in reliance on an excerpt from this quoted material, seeks to extend Coleman to the current action. This Court declines to do so.

The Deschutes National Forest comprises approximately 1.8 million acres of land, including three independent ranger districts. Decl. of Kevin W. Larkin 2, ECF No. 11. A fee charged at one end of the Deschutes National Forest cannot, as a matter of public policy, waive immunity at the other end of the same forest, thousands of miles away, simply because the government made a charge.6 See Hannon v. United States, 801 F. Supp. 323, 327 (E.D. Cal. 1992) (“The fact that somewhere else in the Inyo National Forest someone other than the plaintiff is charged for services does not negate the immunity defense throughout the Forest.”). As articulated in Coleman, there must be some requisite relationship between the fee charged and the injured plaintiff. 347 Or. at 103-104 (“As campers, plaintiffs were entitled to use all of Tugman Park, including its bike trials . . . . The state also did not establish that [*10] as a camper, plaintiffs’ use was limited to the piece of land associated with the charge.”) (emphasis added); see also Colin v. United States, No. C-99-5045 EDL, 2001 WL 776998, at *12 (N.D. Cal. May 17, 2001) (awarding summary judgment to defendant where “Plaintiff and his companions paid no fee to obtain access to the lake, either directly or indirectly”).7

6 The Coleman Court was presented with an analogous hypothetical:

Why, queries the state, would the legislature preclude recreational immunity for the owner of a 100-acre property that charged to use an equestrian riding center located on 10 acres of that land, but made 90 acres available to the public for free, when the plaintiff was injured hiking on the separate and distinct 90 acres?

347 Or. at 103. The Court declined to address the hypothetical, but indicated that “the land” as used in ORS § 105.688(2)(a) (amended 2009 and 2010), “may refer to a specific, separate, and distinct piece of real property.” Id.

7 In Colin, plaintiff was injured while diving into Lake Sonoma. 2001 WL 776998, at *1. At that time, the United States charged fees for overnight camping and boat launching. Id. at *11. Plaintiff, however, only engaged in activities that were free of charge: “day use of the swimming and picnic facilities.” [*11] Id.

Stringer, unlike the Colemans, lacked this requisite relationship. Stringer was neither a camper nor a skier;8, he was a snowmobiler. As a snowmobiler, Stringer engaged in an activity not subject to a “charge” under ORS § 105.672(1)(a). This conclusion is further supported by Justice Balmer’s dissenting opinion. In that opinion, Justice Balmer explained:

[U]nder the majority’s reasoning, if a person decided to rent a campsite (or to rent the gazebo), the state may not assert recreational immunity as to injuries suffered by that person while riding on a bike trial, but the state may assert such immunity as to a person who does not rent a campsite and who incurs an identical injury in an identical place on the land.

Coleman, 347 Or. at 109 (Balmer, J., dissenting). Stringer, like the dissent’s hypothetical non-camping bicyclist, is subject to recreational immunity. Had Stringer been either a camper or a skier, the state may have waived recreational immunity under ORS § 105.688. However, that factual scenario is not before this Court.

8 This Court reserves judgment as to whether either the camping fee or ski-lift fee qualify as “charges” under ORS § 105.672(1)(a).

CONCLUSION

For these reasons, defendant’s motion to dismiss, ECF No. 10, is GRANTED.

IT IS SO ORDERED.

DATED [*12] this 21st day of October, 2014.

/s/ Michael J. McShane

Michael J. McShane

United States District Judge


Oregon Recreational Use Statute

Oregon Statutes

Title 10. PROPERTY RIGHTS AND TRANSACTIONS

Chapter 105. Property Rights

PUBLIC USE OF LANDS

Current through 2015 Regular Session, Acts 2 through 49, 51 through 187, 189 through 204, 206 through 217, 222, and 228 through 241

§ 105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way. 1

§ 105.672. Definitions for ORS 105.672 to 105.696. 3

§ 105.676. Public policy. 3

§ 105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products. 4

§ 105.692. Right to continued use of land following permitted use; presumption of dedication or other rights. 4

§ 105.699. Rules applicable to state lands. 5

§ 105.700. Prohibiting public access to private land; notice requirements; damages. 5

 

§ 105.668. Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way

(1)       As used in this section:

(a)             “Structures” means improvements in a trail, including, but not limited to, stairs and bridges, that are accessible by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance.

(b)             “Unimproved right of way” means a platted or dedicated public right of way over which a street, road or highway has not been constructed to the standards and specifications of the city with jurisdiction over the public right of way and for which the city has not expressly accepted responsibility for maintenance.

(2)       A personal injury or property damage resulting from use of a trail that is in a public easement or in an unimproved right of way, or from use of structures in the public easement or unimproved right of way, by a user on foot, on a horse or on a bicycle or other nonmotorized vehicle or conveyance does not give rise to a private claim or right of action based on negligence against:

(a)             A city with a population of 500,000 or more;

(b)             The officers, employees or agents of a city with a population of 500,000 or more to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;

(c) The owner of land abutting the public easement, or unimproved right of way, in a city with a population of 500,000 or more; or

(d)             A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in a city with a population of 500,000 or more.

(3)       Notwithstanding the limit in subsection (2) of this section to a city with a population of 500,000 or more, by adoption of an ordinance or resolution, a city or county to which subsection (2) of this section does not apply may opt to limit liability in the manner established by subsection (2) of this section for:

(a)             The city or county that opts in by ordinance or resolution;

(b)             The officers, employees or agents of the city or county that opts in to the extent the officers, employees or agents are entitled to defense and indemnification under ORS 30.285 ;

(c) The owner of land abutting the public easement, or unimproved right of way, in the city or county that opts in by ordinance or resolution; and

(d)             A nonprofit corporation and its volunteers for the construction and maintenance of the trail or the structures in a public easement or unimproved right of way in the city or county that opts in.

(4)       The immunity granted by this section from a private claim or right of action based on negligence does not grant immunity from liability:

(a)             Except as provided in subsection (2)(b) or (3)(b) of this section, to a person that receives compensation for providing assistance, services or advice in relation to conduct that leads to a personal injury or property damage.

(b)             For personal injury or property damage resulting from gross negligence or from reckless, wanton or intentional misconduct.

(c) For an activity for which a person is strictly liable without regard to fault.

§ 105.672. Definitions for ORS 105.672 to 105.696

As used in ORS 105.672 to 105.696 :

(1)       “Charge”:

(a)             Means the admission price or fee requested or expected by an owner in return for granting permission for a person to enter or go upon the owner’s land.

(b)             Does not mean any amount received from a public body in return for granting permission for the public to enter or go upon the owner’s land.

(c) Does not include the fee for a winter recreation parking permit or any other parking fee of $15 or less per day.

(2)       “Harvest” has that meaning given in ORS 164.813.

(3)       “Land” includes all real property, whether publicly or privately owned.

(4)       “Owner” means the possessor of any interest in any land, such as the holder of a fee title, a tenant, a lessee, an occupant, the holder of an easement, the holder of a right of way or a person in possession of the land.

(5)       “Recreational purposes” includes, but is not limited to, outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, waterskiing, winter sports, viewing or enjoying historical, archaeological, scenic or scientific sites or volunteering for any public purpose project.

(6)       “Special forest products” has that meaning given in ORS 164.813.

(7)       “Woodcutting” means the cutting or removal of wood from land by an individual who has obtained permission from the owner of the land to cut or remove wood.

Cite as ORS 105.672

History. 1995 c.456 §1; 2007 c. 372, §1; 2009 c. 532, §1; 2010 c. 52, § 1

§ 105.676. Public policy

The Legislative Assembly hereby declares it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes, for gardening, for woodcutting and for the harvest of special forest products by limiting their liability toward persons entering thereon for such purposes and by protecting their interests in their land from the extinguishment of any such interest or the acquisition by the public of any right to use or continue the use of such land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

Cite as ORS 105.676

History. 1995 c.456 §2; 2009 c. 532, §3

§ 105.682. Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products

(1)       Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes, gardening, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

(2)       This section does not limit the liability of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, gardening, woodcutting or the harvest of special forest products.

Cite as ORS 105.682

History. 1995 c.456 §3; 2009 c. 532, §4

§ 105.692. Right to continued use of land following permitted use; presumption of dedication or other rights

(1)       An owner of land who either directly or indirectly permits any person to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products does not give that person or any other person a right to continued use of the land for those purposes without the consent of the owner.

(2)       The fact that an owner of land allows the public to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products without posting, fencing or otherwise restricting use of the land does not raise a presumption that the landowner intended to dedicate or otherwise give over to the public the right to continued use of the land.

(3)       Nothing in this section shall be construed to diminish or divert any public right to use land for recreational purposes acquired by dedication, prescription, grant, custom or otherwise existing before October 5, 1973.

(4)       Nothing in this section shall be construed to diminish or divert any public right to use land for woodcutting acquired by dedication, prescription, grant, custom or otherwise existing before October 3, 1979.

Cite as ORS 105.692

History. 1995 c.456 §5; 2009 c. 532, §5

§ 105.699. Rules applicable to state lands

The State Forester, under the general supervision of the State Board of Forestry, may adopt any rules considered necessary for the administration of the provisions of ORS 105.672 to 105.696 on state land.

Cite as ORS 105.699

History. 1979 c.434 §8; 1995 c.456 §7

§ 105.700. Prohibiting public access to private land; notice requirements; damages

(1)             In addition to and not in lieu of any other damages that may be claimed, a plaintiff who is a landowner shall receive liquidated damages in an amount not to exceed $1,000 in any action in which the plaintiff establishes that:

(a)             The plaintiff closed the land of the plaintiff as provided in subsection (2) of this section; and

(b)             The defendant entered and remained upon the land of the plaintiff without the permission of the plaintiff.

(2)       A landowner or an agent of the landowner may close the privately owned land of the landowner by posting notice as follows:

(a)             For land through which the public has no right of way, the landowner or agent must place a notice at each outer gate and normal point of access to the land, including both sides of a body of water that crosses the land wherever the body of water intersects an outer boundary line. The notice must be placed on a post, structure or natural object in the form of a sign or a blaze of paint. If a blaze of paint is used, it must consist of at least 50 square inches of fluorescent orange paint, except that when metal fence posts are used, approximately the top six inches of the fence post must be painted. If a sign is used, the sign:

(A)       Must be no smaller than eight inches in height and 11 inches in width;

(B)       Must contain the words “Closed to Entry” or words to that effect in letters no less than one inch in height; and

(C)       Must display the name, business address and phone number, if any, of the landowner or agent of the landowner.

(b)             For land through which or along which the public has an unfenced right of way by means of a public road, the landowner or agent must place:

(A)       A conspicuous sign no closer than 30 feet from the center line of the roadway where it enters the land, containing words substantially similar to “PRIVATE PROPERTY, NO TRESPASSING OFF ROAD NEXT _____ MILES”; or

(B)       A sign or blaze of paint, as described in paragraph (a) of this subsection, no closer than 30 feet from the center line of the roadway at regular intervals of not less than one-fourth mile along the roadway where it borders the land, except that a blaze of paint may not be placed on posts where the public road enters the land.

(3)       Nothing contained in this section prevents emergency or law enforcement vehicles from entering upon the posted land.

(4)       An award of liquidated damages under this section is not subject to ORS 31.725, 31.730 or 31.735.

(5)       Nothing in this section affects any other remedy, civil or criminal, that may be available for a trespass described in this section.

Cite as ORS 105.700

History. 1999 c.933 §1

 

 


No Joke, New Oregon bill would help protect ski areas, but no one else

The lawsuit that whipped out the protection afforded by releases which cost Mt. Bachelor $21.5 million affects ALL recreation providers in the state

There is a fight going in the Oregon Legislature to broaden the protection afforded by the Oregon Skier Safety Act because of a lawsuit where Mt. Bachelor lost $21.5 million. See Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

The reason for the suit is releases are void in Oregon. This decision affected every outdoor recreation provider in Oregon. The actions of the ski areas are good in one respect; they will protect themselves…..a little, but bad overall.

1.     The acts of the ski area should be to get releases reintroduced in the state as a legitimate contract in the state.

2.     Broadening the statute only helps for those specific things in the statute, a release covers everything.

However the really disturbing issue is either the rest of the outdoor recreation community in the state is asleep or more likely the ski industry ignored the other recreation providers and is just trying to protect ski areas.

I hope the ski area don’t have any summer activities, because they are going to be in the same boat as everyone else.

Wait, they do.

Mt. Bachelor has a bike park and offers bike lessons and other summer activities

Mt. Hood Meadows bike paths and kids camps and other summer activities

Willamette Pass summer activities

Anthony Lakes summer activities

Etc., etc., etc.,

See Bill would add terrain parks, tree wells to ‘inherent risks’ of skiing

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Bagley, Ski Area, Inherent Risks, Oregon,

 

 

 

 

 

 

 


States that do not Support the Use of a Release

Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

State

Citation

Issues

Releases are Void

Louisiana

C.C. Art. 2004 (2005)

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Montana

MCA § 27-1-701

Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.

Virginia

Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890)

Except for Equine Activities Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Use of a Release is Restricted

Arizona

Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53

 

New Mexico

Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48

P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25

 

West Virginia

Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;

1994 W. Va. LEXIS 161

 

Use of Releases is Probably Void

Connecticut

Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006

Conn. LEXIS 330

 

Oregon

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

Wisconsin

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Wisconsin decision has left the status of release law in Wisconsin in jeopardy

Vermont

Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127

 

Specific uses of Releases are Void

Alaska

Sec. 05.45.120(a).  Use of liability releases

A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.

Hawaii

King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004)

Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release

New York

General Obligation Law § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

 

What do you think? Leave a comment.

Copyright 2010 -2015 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #Montana, #Louisiana, #Virginia, #New York, #Hawaii, #Alaska, #Vermont, #Wisconsin, #Connecticut, #New Mexico, #Arizona, #West Virginia, Oregon

 

 


Oregon Supreme Court finds release signed at ski area is void as a violation of public policy. Less than a week later the lawsuits are being filed in droves.

This is a monumental decision that will affect all recreational activities in Oregon, not just ski areas. A decision that will give injured plaintiffs of any recreational activity the opportunity to void releases for any number or reasons.

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

State: Oregon Supreme Court

Plaintiff: Myles A. Bagley, Al Bagley, and Lauren Bagley

Defendant: Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort

Plaintiff Claims: negligent in the design, construction, maintenance, and inspection of the jump in the terrain park.

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 2014

Prior Article written about the Appellate Decision in this Case: Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18

The facts of this case have been copies from Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 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.

To determine the age of majority or the age a minor becomes an adult in each state see The age that minors become adults.

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.

The court also brought out in this case, signs posted at lifts terminals which restated the ticket was a release of liability. Oregon is the only court that had held that a lift ticket purchased to ski was a release. See Silva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942.

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

The court first stated it had not reviewed releases in decades. The court then reviewed the legal importance of contracts.

It is a truism that a contract validly made between competent parties is not to be set aside lightly. (“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. (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.”

The only contracts that will not be enforced, according to this decision, are those that are contrary to law, morality or public policy.

It is elementary that 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.

The court then looked at what issues surrounding or in a contract will void a contract based on a public policy issue. It is not that a contract may be harsh to one party to the contract. “…[t]he test is the evil tendency of the contract and not its actual injury to the public in a particular instance…” However, the court then did a 180-degree turn and stated that in this case:

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.

The court then proceeded to build its argument on why this contract was a violation of public policy. It first divided public policy into two types procedural or substantive.

Procedural unconscionability refers to the conditions of contract formation and focuses on two factors: oppression and surprise.

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. Surprise involves whether terms were hidden or obscure from the vantage of the party seeking to avoid them.

Generally speaking, factors such as ambiguous contract wording and fine print are the hallmarks of surprise.

In contrast, the existence of gross inequality of 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 was then defined as how the terms of the contract are viewed.

… 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.

Either issue, whether the issues in how the contract was created, procedural unconscionability, or the terms of the agreement itself, substantive unconscionability, can void a contract.

The court then went to review the contract in light of any legislation related to the activity. Although Oregon has a Skier Responsibility Act, the court did not find it was instructive in this case.

The court did find that under Oregon law, it could void a release if the results would be harsh. “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.”

The court then listed the ways a contract could be voided under Oregon law.

We glean from those 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.

The court refused to provide details or procedures that would void a contract. Rather the court relied on a “totality of the circumstances” test. This means it provides great leeway for a court to determine if the facts swayed a judge, not whether the facts met any set requirements.

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 court then compared the ways it had found (created) to void a contract under Oregon law to the present situation.

This was not an agreement between equals. Only one party to the contract-defendant-was a commercial enterprise, and that 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.

This analysis completely ignored the fact the contract covered recreational activities that most other states have found remove the take it or leave it bargaining issue. The exception being Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2. See Wisconsin decision has left the status of release law in Wisconsin in jeopardy.

The court found because the plaintiff had no opportunity to negotiate the terms or cost then there was an inequality of bargaining power between the plaintiff and the defendant. “Simply put, plaintiff had no meaningful alternative to defendant’s take-it-or-leave-it terms if he wanted to participate in downhill snowboarding.

The court found this alone was not enough to void the release. The court then looked at whether the results of enforcing the contract would be harsh and found this to be true.

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 of its own creation on its premises, and to guard against the negligence of its employees.

This analysis completely ignores the issue of whether or not the plaintiff could have examined the jump or had gone over the jump before. The defendant had introduced evidence that the season pass had been used dozens of times prior to the accident.

The court then ignored the Oregon Skier Responsibility Law and stated that even though the act had reduced the liability of a ski area it had not changed its common law liability for those conditions that are not inherent in the activity.

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

The court summed up its analysis to this point stating.

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 common law 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.

The court then looked at whether a ski area served an important public interest or function. The court found it did by adding an exception to the essential public service requirement stating that serving the public was enough.

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 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

Because the public was invited to ski, the release violated Oregon Public Policy.

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 to the public interest as to require the performance of its private duties to its patrons

The court then looked at the legal issues in a way I have never heard of before. The court accepted the plaintiff’s argument that the release was intended to prevent claims for negligence as well as for gross negligence, reckless, or intentional conduct. Although the court did not accept the argument in this case, it left the argument open for future cases.

The court summed up its opinion over a page and a half. The fact the release was written broadly caused the court’s concern.

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

However, the entire basis of its analysis was the court did not like the fact this injured plaintiff would not recover.

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.

So Now What?

This case not only opened up lawsuits against ski areas but turned any recreation provider into a target. In just two weeks since the decision came down several high-dollar lawsuits have been filed in Oregon. See Mt. Hood Meadows snowboarder claims teen slammed into her, sues teen’s parents for $955,000 and Fallen tree causes Portland mountain bike racer to crash, fracture neck, $273,000 suit says.

By stating that any provider was subject to the public policy exception to releases, the court effectively found that anyone injured by a recreation provider could have their releases voided.

If you are Oregon and have a release you may want to put in that the release is only for claims of ordinary negligence. This violates every principal I have espoused over the years, but here the court found that failing to have such a clause may make an argument for voiding a release.

This decision is stretched to reach its decision, and it is written quite vaguely and broadly giving future plaintiff’s dozens of ways of voiding a release. Catastrophic injuries are going to be more likely, based on this analysis, to void a release; however, those are the ones that attract the money.

Oregon ski area ticket prices are going to increase because Oregon ski area insurance is going up.  

What do you think? Leave a comment.

If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Bagley, Oregon, Supreme Court, Release, Public Policy, Terrain Park, Jump, Paraplegic,

 


Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

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.

SC S061821

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

OPINION

En Banc

BREWER, J.

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.

ANALYSIS

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.”

Id.

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.


AORE Student Literary Award Call for Manuscripts

A friendly reminder, the Association of Outdoor Recreation and Education (AORE) is inviting manuscript entries for the 2014 Outdoor Recreation and Education Student Literary Award for both graduate and undergraduate students. Winners receive a conference scholarship (in the form of a reimbursement). Selected manuscripts will be included in the 2014 Edited Papers (proceedings) of the AORE annual conference taking place November 12th – 14th in sunny Portland, Oregon.

Attached you will find the guidelines for submission. Manuscripts must be received no later than September 15th at 5pm PST. Please contact me at rjgagno with whatever questions you may have. Make it a great day!

 

Ryan Gagnon
Graduate Teaching and Research Assistant
Clemson University
Department of Parks, Recreation, & Tourism Management
rjgagno
“Remember that guy that gave up? Neither does anyone else.”

AORE Student Literary Award 2014 Guidelines.docx


Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18

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.

To determine the age of majority or the age a minor becomes an adult in each state see The age that minors become adults.

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.

If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Oregon, Mt. Bachelor, Mt. Bachelor, Inc., Mt. Bachelor Ski and Summer Resort,Myles A. Bagley, Snowboarder, Snowboarding, Terrain Park, Release, Disaffirm, Age of Majority, Air Chamber, Ski Area, Ski Resort, Boarder, Boarding,

 

 

WordPress Tags: Rare,injuries,Date,Decision,September,Plaintiff,Myles,Bagley,Appellant,Lauren,Plaintiffs,Defendant,Bachelor,Summer,Resort,Claims,fact,agreement,policy,Defenses,Release,advantage,odds,advantages,minors,adults,area,Once,terrain,park,parents,complaints,judgment,Summary,agreements,resorts,Oregon,infant,lawsuit,knowledge,failure,statement,basis,requirements,negligence,argument,manner,exceptions,personnel,doctrine,instances,dictum,context,arguments,adhesive,adhesion,defendants,equipment,goods,Should,seller,exculpation,sale,purchaser,opinion,UPON,INTENTIONAL,MISCONDUCT,Court,Appeals,guest,information,assumption,Keep,Here,complaint,injury,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,AdventureTourism,AdventureTravelLaw,AdventureTravelLawyer,AttorneyatLaw,BicyclingLaw,Camps,ChallengeCourse,ChallengeCourseLaw,ChallengeCourseLawyer,CyclingLaw,FitnessLaw,FitnessLawyer,HumanPoweredRecreation,JamesHMoss,JimMoss,OutdoorLaw,OutdoorRecreationLaw,OutsideLaw,OutsideLawyer,RecLaw,RecLawBlog,LawBlog,RecLawyer,RecreationalLawyer,RecreationLawBlog,RecreationLawcom,Lawcom,RiskManagement,RockClimbingLawyer,RopesCourse,RopesCourseLawyer,SkiAreas,SkiLaw,SummerCamp,Tourism,TravelLaw,YouthCamps,ZipLineLawyer,Snowboarder,Disaffirm,Chamber,Boarder

 


Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080

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.

A148231

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

OPINION

[**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.

“[Bagley]: Yes.”

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.”

(Emphasis added.)

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.

Affirmed.

WordPress Tags: Bagley,Bachelor,LEXIS,Myles,Plaintiff,Appellant,Lauren,Plaintiffs,Summer,Resort,Defendant,Respondent,JOHN,DOES,Defendants,COURT,APPEALS,OREGON,September,COUNSEL,Kathryn,Clarke,Bryan,Gruetter,Joseph,Walsh,Lisa,Hunt,Andrew,Balyeat,Eager,JUDGES,Ortega,Judge,Sercombe,Hadlock,OPINION,injuries,terrain,park,action,negligence,construction,maintenance,inspection,judgment,fact,agreement,policy,parents,inferences,ORCP,Vaughn,Transit,skill,injury,Upon,RELEASE,CONSIDERATION,PASS,PREMISES,AGREE,INDEMNIFY,OFFICERS,DIRECTORS,OWNERS,AGENTS,LANDOWNERS,COMPANIES,EMPLOYEES,HEREINAFTER,FROM,CLAIMS,DAMAGE,DEATH,SUFFER,LIABLE,SHALL,CLAIM,INTENTIONAL,MISCONDUCT,READ,UNDERSTAND,TERMS,BOTH,SIDES,DOCUMENT,INCLUDES,DUTIES,SKIERS,SNOWBOARDERS,SNOWRIDERS,PREVENT,UNDERSIGNEDS,ESTATE,DAMAGES,EVENT,PERSON,ENTER,INTO,HEIRS,LEGAL,SIGNATURE,REMAIN,FULL,FORCE,EFFECT,BOUND,THROUGHOUT,SEASON,SUBSEQUENT,SEASONS,RENEW,REVERSE,SIDE,SHEET,RIDERS,OBSERVE,emphases,notification,Assume,Certain,Risks,addition,HEREBY,MINOR,Capitalization,emphasis,statutes,areas,area,operators,requirements,statute,limitations,October,Thereafter,November,crux,LIFT,RIDE,TICKET,USER,RELEASES,AGREES,HOLD,Further,terminals,facilities,information,passengers,tickets,theory,recovery,sale,Presentation,February,chamber,June,operator,complaint,agreements,accident,resorts,infancy,Affirmative,Defense,infant,response,jury,knowledge,scope,affirmation,arguments,basis,Metropolitan,Trans,Dist,manner,juror,verdict,assignment,error,omissions,conclusion,argument,discussion,decision,Highland,Tollisen,Haldeman,Weeks,Richard,Lord,Williston,Contracts,ratification,Brown,Hassenstab,Snyder,Rhoads,Rather,Restatement,Second,dominion,performance,Although,acceptance,Jones,Dressel,Colo,Parsons,Cabaniss,American,Insurance,connection,settlement,life,Moreover,attention,reminders,existence,provision,exposure,Thus,prerequisite,determination,Kabil,Developments,Corp,citation,Newton,Boldt,cert,Indem,Junction,Water,instrument,enforcement,instance,testimony,mountain,Shea,Begley,Walcutt,Inform,Graphics,failure,affairs,jurisdictions,ignorance,Pennsylvania,Supreme,Campbell,Sears,Roebuck,Some,Harmon,Meadows,coverage,Young,Mobil,freedom,doctrine,analysis,Again,Steele,guidance,Estey,MacKenzie,consequences,obligations,expectations,citations,quotation,clinic,Mann,Wetter,exceptions,personnel,context,legislature,purposes,outset,instances,Hatkoff,Portland,Adventist,Medical,Center,Motsinger,Lithia,Rose,Vasquez,Lopez,Beneficial,account,formation,factors,oppression,negotiation,absence,Surprise,extent,adhesion,dictum,adhesive,holdings,customers,multitude,providers,advantage,Many,Chepkevich,Hidden,Valley,agent,Silva,Grbac,Fair,Supp,Here,clarification,situation,paragraph,indication,behavior,Carey,Lincoln,Loan,notion,Jersey,Superior,equipment,goods,Should,seller,exculpation,purchaser,consumer,automobile,shortage,individuals,provider,McBride,Minstar,Super,Raichle,Molitor,inclusion,delusion,whether,neither,snowboarder,three,pursuant,alia,four,months,skier,disaffirm,voidable,adhesionary,snowboard,unenforceable,disaffirmance,signage,exculpatory,didn


Oregon Ski Area Statutes

Oregon Ski Area Statutes

TITLE 3.  REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS

CHAPTER 30.  ACTIONS AND SUITS IN PARTICULAR CASES

SKIING ACTIVITIES

(2005) 30.970. Definitions for ORS 30.970 to 30.990.

As used in ORS 30.970 to 30.990:

(1)“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, 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.

(2)“Injury” means any personal injury or property damage or loss.

(3)“Skier” means any person who is in a ski area for the purpose of engaging in the sport of skiing or who rides as a passenger on any ski lift device.

(4)“Ski area” means any area designated and maintained by a ski area operator for skiing.

(5)“Ski area operator” means those persons, and their agents, officers, employees or representatives, who operate a ski area.

30.975. Skiers assume certain risks.

In accordance with ORS 31.600 and notwithstanding ORS 31.620 (2), 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.

30.980. Notice to ski area operator of injury to skier; injuries resulting in death; statute of limitations; informing skiers of notice requirements.

(1)A ski area operator shall be notified of any injury to a skier by registered or certified mail within 180 days after the injury or within 180 days after the skier discovers, or reasonably should have discovered, such injury.

(2)When an injury results in a skier’s death, the required notice of the injury may be presented to the ski area operator by or on behalf of the personal representative of the deceased, or any person who may, under ORS 30.020, maintain an action for the wrongful death of the skier, within 180 days after the date of the death which resulted from the injury. However, if the skier whose injury resulted in death presented a notice to the ski area operator that would have been sufficient under this section had the skier lived, notice of the death to the ski area operator is not necessary.

(3)An action against a ski area operator to recover damages for injuries to a skier shall be commenced within two years of the date of the injuries. However, ORS 12.160 and 12.190 apply to such actions.

(4)Failure to give notice as required by this section bars a claim for injuries or wrongful death unless:

(a)  The ski area operator had knowledge of the injury or death within the 180-day period after its occurrence;

(b)The skier or skier’s beneficiaries had good cause for failure to give notice as required by this section; or

(c)  The ski area operator failed to comply with subsection (5) of this section.

(5)Ski area operators shall give to skiers, in a manner reasonably calculated to inform, notice of the requirements for notifying a ski area operator of injury and the effect of a failure to provide such notice under this section.

30.985. Duties of skiers; effect of failure to comply.

(1)         Skiers shall have duties which include but are not limited to the following:

(a)  Skiers who ski in any area not designated for skiing within the permit area assume the inherent risks thereof.

(b)Skiers shall be the sole judges of the limits of their skills and their ability to meet and overcome the inherent risks of skiing and shall maintain reasonable control of speed and course.

(c)  Skiers shall abide by the directions and instructions of the ski area operator.

(d)Skiers shall familiarize themselves with posted information on location and degree of difficulty of trails and slopes to the extent reasonably possible before skiing on any slope or trail.

(e)  Skiers shall not cross the uphill track of any surface lift except at points clearly designated by the ski area operator.

(f)  Skiers shall not overtake any other skier except in such a manner as to avoid contact and shall grant the right of way to the overtaken skier.

(g)  Skiers shall yield to other skiers when entering a trail or starting downhill.

(h)Skiers must wear retention straps or other devices to prevent runaway skis.

(i)   Skiers shall not board rope tows, wire rope tows, j-bars, t-bars, ski lifts or other similar devices unless they have sufficient ability to use the devices, and skiers shall follow any written or verbal instructions that are given regarding the devices.

(j)   Skiers, when involved in a skiing accident, shall not depart from the ski area without leaving their names and addresses if reasonably possible.

(k)A skier who is injured should, if reasonably possible, give notice of the injury to the ski area operator before leaving the ski area.

(L) Skiers shall not embark or disembark from a ski lift except at designated areas or by the authority of the ski area operator.

(2)         Violation of any of the duties of skiers set forth in subsection (1) of this section entitles the ski area operator to withdraw the violator’s privilege of skiing.

30.990. Operators required to give skiers notice of duties.

Ski area operators shall give notice to skiers of their duties under ORS 30.985 in a manner reasonably calculated to inform skiers of those duties.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

 

 

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, EMS, Emergency Medical Systems, Oregon,, OR, Oregon Ski Statutes, Oregon Ski Safety Act, Skiing, Snowboarding, Ski Statute

WordPress Tags: Oregon,Area,Statutes,TITLE,REMEDIES,SPECIAL,ACTIONS,PROCEEDINGS,CHAPTER,SUITS,PARTICULAR,CASES,ACTIVITIES,Definitions,Inherent,dangers,variations,terrain,creeks,gullies,growth,components,collisions,failure,Injury,Skier,person,purpose,device,operator,agents,officers,employees,Skiers,accordance,Notice,injuries,death,statute,limitations,requirements,action,knowledge,occurrence,beneficiaries,subsection,operators,manner,Duties,skills,instructions,information,location,degree,extent,retention,accident,areas,Violation,Leave,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Samaritan,Emergency,Medical,Systems


Oregon Skier Safety Act

Oregon Skier Safety Act

OREGON REVISED STATUTES

TITLE 3 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS 

Chapter 30 – Actions and Suits in Particular Cases 

SKIING ACTIVITIES 

GO TO OREGON REVISED STATUTES ARCHIVE DIRECTORY

ORS § 30.970 (2011)

30.970 Definitions for ORS 30.970 to 30.990.

    As used in ORS 30.970 to 30.990:

(1) “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, 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.

(2) “Injury” means any personal injury or property damage or loss.

(3) “Skier” means any person who is in a ski area for the purpose of engaging in the sport of skiing or who rides as a passenger on any ski lift device.

(4) “Ski area” means any area designated and maintained by a ski area operator for skiing.

(5) “Ski area operator” means those persons, and their agents, officers, employees or representatives, who operate a ski area.

HISTORY: 1979 c.665 § 1

NOTES OF DECISIONS

Where plaintiff did not argue to trial court that her injuries were caused by combination of inherent risk of skiing and operator negligence which would have made doctrine of comparative fault applicable, trial court did not err in instructing jury that if plaintiff’s injury was caused by inherent risk of skiing, plaintiff could not recover. Jessup v. Mt. Bachelor, Inc., 101 Or App 670, 792 P2d 1232 (1990), Sup Ct review denied

Vicarious liability of ski area operator for negligence of its employee is not removed solely by fact that employee is skier. Nolan v. Mt. Bachelor, Inc., 317 Or 328, 856 P2d 305 (1993)

CASE NOTES

1. When both an inherent risk and a ski area operator’s negligence contribute to a skier’s injury, the questions of liability and apportionment of fault are for the trier of fact. Nolan v. Mt. Bachelor, Inc., 115 Ore. App. 27, 836 P.2d 770, 1992 Ore. App. LEXIS 1681 (1992), affirmed by, remanded by 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

2. It was error for trial court to submit jury instruction form in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by an inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part from the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

3. Given statute’s reference to Or. Rev. Stat. § 31.600, the comparative negligence statute, the legislature contemplated the possibility that skier’s injury might result in part from and inherent risk of skiing and in part from the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

4. Skier is barred from recovery against ski area operator for injury caused solely by an inherent risk of skiing, but if injury is caused by a combination of inherent risk of skiing and operator negligence, doctrine of comparative fault would apply. Jessup v. Mt. Bachelor, Inc., 101 Ore. App. 670, 792 P.2d 1232, 1990 Ore. App. LEXIS 526 (1990), review denied by 310 Ore. 475, 799 P.2d 646 (1990).

5. Or. Rev. Stat. § 30.970 shields ski area operators from liability for collisions between customers, not from accountability for a collision caused by an employee’s negligence. Nolan v. Mt. Bachelor, Inc., 115 Ore. App. 27, 836 P.2d 770, 1992 Ore. App. LEXIS 1681 (1992), affirmed by, remanded by 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

30.975 Skiers assume certain risks.

    In accordance with ORS 31.600 and notwithstanding ORS 31.620 (2), 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.

HISTORY: 1979 c.665 § 2

NOTES OF DECISIONS

Where plaintiff did not argue to trial court that her injuries were caused by combination of inherent risk of skiing and operator negligence which would have made doctrine of comparative fault applicable, trial court did not err in instructing jury that if plaintiff’s injury was caused by inherent risk of skiing, plaintiff could not recover. Jessup v. Mt. Bachelor, Inc., 101 Or App 670, 792 P2d 1232 (1990), Sup Ct review denied

[Former] ORS 18.470 allows jury to consider comparative negligence of skier’s own or another’s negligence as well as inherent risk of skiing. Nolan v. Mt. Bachelor, Inc., 115 Or App 27, 836 P2d 770 (1992), aff’d 317 Or 328, 856 P2d 305 (1993)

Collision between skier and ski instructor employed by ski area operator was not collision with another skier that skier accepts as inherent risk of skiing. Nolan v. Mt. Bachelor, Inc., 317 Or 328, 856 P2d 305 (1993)

Assumption of risk defense is available only to ski area operators. Stiles v. Freemotion, Inc., 185 Or App 393, 59 P3d 548 (2002), Sup Ct review denied

CASE NOTES

1. It was error for trial court to submit jury instruction form in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by an inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part form the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

2. Or. Rev. Stat. § 30.975 insulates a defendant ski operator from liability resulting from the inherent risks of skiing and bars a plaintiff’s claim only if the injury is due solely to those inherent risks; to the extent that injury is due to negligence of a ski operator’s employees, this section does not bar a plaintiff’s recovery. Pierce v. Mt. Hood Meadows Oregon, Ltd., 118 Ore. App. 450, 847 P.2d 909, 1993 Ore. App. LEXIS 262 (1993), review denied by 317 Ore. 583, 859 P.2d 540 (1993).

3. Skier is barred from recovery against ski area operator for injury caused solely by an inherent risk of skiing, but if injury is caused by a combination of inherent risk of skiing and operator negligence, doctrine of comparative fault would apply. Jessup v. Mt. Bachelor, Inc., 101 Ore. App. 670, 792 P.2d 1232, 1990 Ore. App. LEXIS 526 (1990), review denied by 310 Ore. 475, 799 P.2d 646 (1990).

30.980 Notice to ski area operator of injury to skier; injuries resulting in death; statute of limitations; informing skiers of notice requirements.

    (1) A ski area operator shall be notified of any injury to a skier by registered or certified mail within 180 days after the injury or within 180 days after the skier discovers, or reasonably should have discovered, such injury.

(2) When an injury results in a skier’s death, the required notice of the injury may be presented to the ski area operator by or on behalf of the personal representative of the deceased, or any person who may, under ORS 30.020, maintain an action for the wrongful death of the skier, within 180 days after the date of the death which resulted from the injury. However, if the skier whose injury resulted in death presented a notice to the ski area operator that would have been sufficient under this section had the skier lived, notice of the death to the ski area operator is not necessary.

(3) An action against a ski area operator to recover damages for injuries to a skier shall be commenced within two years of the date of the injuries. However, ORS 12.160 and 12.190 apply to such actions.

(4) Failure to give notice as required by this section bars a claim for injuries or wrongful death unless:

(a) The ski area operator had knowledge of the injury or death within the 180-day period after its occurrence;

(b) The skier or skier’s beneficiaries had good cause for failure to give notice as required by this section; or

(c) The ski area operator failed to comply with subsection (5) of this section.

(5) Ski area operators shall give to skiers, in a manner reasonably calculated to inform, notice of the requirements for notifying a ski area operator of injury and the effect of a failure to provide such notice under this section.

HISTORY: 1979 c.665 § 3

CASE NOTES

1. It was error for trial court to submit jury instruction form in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by and inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part from the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

30.985 Duties of skiers; effect of failure to comply.

    (1) Skiers shall have duties which include but are not limited to the following:

(a) Skiers who ski in any area not designated for skiing within the permit area assume the inherent risks thereof.

(b) Skiers shall be the sole judges of the limits of their skills and their ability to meet and overcome the inherent risks of skiing and shall maintain reasonable control of speed and course.

(c) Skiers shall abide by the directions and instructions of the ski area operator.

(d) Skiers shall familiarize themselves with posted information on location and degree of difficulty of trails and slopes to the extent reasonably possible before skiing on any slope or trail.

(e) Skiers shall not cross the uphill track of any surface lift except at points clearly designated by the ski area operator.

(f) Skiers shall not overtake any other skier except in such a manner as to avoid contact and shall grant the right of way to the overtaken skier.

(g) Skiers shall yield to other skiers when entering a trail or starting downhill.

(h) Skiers must wear retention straps or other devices to prevent runaway skis.

(i) Skiers shall not board rope tows, wire rope tows, j-bars, t-bars, ski lifts or other similar devices unless they have sufficient ability to use the devices, and skiers shall follow any written or verbal instructions that are given regarding the devices.

(j) Skiers, when involved in a skiing accident, shall not depart from the ski area without leaving their names and addresses if reasonably possible.

(k) A skier who is injured should, if reasonably possible, give notice of the injury to the ski area operator before leaving the ski area.

(L) Skiers shall not embark or disembark from a ski lift except at designated areas or by the authority of the ski area operator.

(2) Violation of any of the duties of skiers set forth in subsection (1) of this section entitles the ski area operator to withdraw the violator’s privilege of skiing.

HISTORY: 1979 c.665 § 4

CASE NOTES

1. It was error for trial court to submit jury instruction form in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by an inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part form the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

30.990 Operators required to give skiers notice of duties.

    Ski area operators shall give notice to skiers of their duties under ORS 30.985 in a manner reasonably calculated to inform skiers of those duties.

HISTORY: 1979 c.665 § 5

1. It was error for trial court to submit jury instruction from in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by an inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part from the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

1. 36 Willamette L. Rev. 83, COMMENT: CLEANING UP THE OREGON REVISED STATUTES: A MODEST PROPOSAL ON PUBLIC BODIES.