Saving yourself while sacrificing the rest of an industry. Is anyone going to buy you a drink for winning when you just made it easier to sue them?

In the US Forest Service response to the lawsuit to open snowboarding at Alta, allegations were made by the USFS that are going to come back and haunt all other ski areas in states with weak skier safety statutes.

Alta is one of three ski areas that do not allow snowboarding. Deer Valley and Mad River Glen are the other two. Alta and the US Forest Service were sued last year by a group of snowboarders wanting to open Alta to snowboarding. The lawsuit was based on Federal constitutional law, and the legal arguments have little relevance here. Except the USFS defense to the lawsuit placed into the record some statements that can create havoc in lawsuits against other ski areas.

A ski area operating on USFS land must file an Operation Plan. If the resort is open year round the plan may have two plans, a Winter Operation Plan and a Summer Operation Plan. The USFS in referencing the Alta’s Winter Operation plan quotes it stating:

Additionally, the Operating Plan provides that Alta reserves the right to exclude those whose “skiing device” is deemed to create an “unnecessary risk,” causes “undue damage to the quality of the snow,” and “is not consistent with [Alta’s] business management decisions.”

In another section of the USFS motion they quote the plan as:

Alta Ski Area reserves the right to exclude any type of skiing device that they deem creates an unnecessary risk to other skiers and/or the user of the device, or any device that they deem causes undue damages to the quality of the snow, or is not consistent with their business management decisions.

So snowboards have been labeled by a ski area and the USFS as an “unnecessary risk.” That risk in the second paragraph applies to other skiers on the mountain and the user. Another issue I find almost comical is the argument that snowboarders have a blind spot.

First, snowboarders go down the mountain facing sideways, whereas skiers go down the mountain facing forward and directly downhill. ECF No. 2, ¶ 87. A snowboarder’s side-ways orientation creates a blind-spot that they must turn into; skiers do not turn into their blind spot.

But so do skiers, and walkers, and people on an inner tube going down the hill. The blind spot is directly behind your head (your eyes) were you can’t see. That blind spot is not based on what is on your feet, but is based on your orientation to the other people.  A snowboarder going downhill has an identical blind spot to a skier crossing the hill. Neither can see behind them.

The issue is where a ski area can be sued for injuries of a skier; any injuries the skier alleges were caused by the snowboarder are going to be buttressed by the USFS motion and Alta’s Winter Operation Plan. Maybe even if injuries they do to themselves?

Are these issues critical to other ski areas? Hopefully not. However, they may be thrown up in other cases and can provide testimony that can influence a jury.

What do you think? Leave a comment.

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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.


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.

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2013-2014 In bound ski/board fatalities

It is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.

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 March 10, 2014. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

Are non-skiing/boarding fatalities that occurred inbounds on the slopes

Fatality while sledding at the Resort is in Green

2013 – 2014 Ski Season Fatalities

Date State Resort Where Trail Difficulty How Cause Ski/ Board Age Sex Home Helmet Ref Ref
12/11 CO Telluride Pick’NGad struck a tree 60 M Norwood CO No http://rec-law.us/190al75 http://rec-law.us/1fchteM
12/12 VT Killington Great Northern Trail Found 21 F PA No http://rec-law.us/1csgWCg
12/16 WA Crystal Mountain Resort Tinkerbell Beginner Lost control and veered off the trail Blunt Force Trauma F Yes http://rec-law.us/Jc4MX3
1/1 WV skiing into a tree M Opp, AL http://rec-law.us/1a6nAkQ
12/19 CO Winter Park Butch’s Breezeway Beginner blunt force injury to the head 19 M Yes http://rec-law.us/1f3ekSy
12/21 CA Heavenly Resort colliding with a snowboarder and being knocked into a tree 56 F NV No http://rec-law.us/JRiP4c http://rec-law.us/1a7REMW
1/11 CO Aspen Belisimo Intermediate hitting a tree Skier 56 M CO Yes http://rec-law.us/1hNbHoz http://rec-law.us/JTr7sY
1/11 MT Whitefish Mountain Resort Gray Wolf and Bighorn Found in a tree well Skier 54 M CA http://rec-law.us/1kx1deP
1/11 VT Stratton Mountain Resort Lower Tamarac Sledding Sledding 45 M NJ No http://rec-law.us/19x4mXb http://rec-law.us/1aRlxS5
1/14 NV Mount Charlteston Terrain Park Fall in Terrain Park Blunt Force Trauma Boarder 20 M NV No http://rec-law.us/1dsDW8B http://rec-law.us/1dyT1Hc
1/17 VT Killington Mouse Trap Trail Striking a tree Boarder 23 M NY http://rec-law.us/1dFfY9j http://rec-law.us/1dKUf0v
1/25 NM Ski Apache Intermediate Struck a Tree Skier 23 F TX http://rec-law.us/1n3PCCM http://rec-law.us/M5qA85
1/25 WA Ski Bluewood Country Road run Beginner Found at top of trail blunt force abdominal injury Skier 14 M WA No http://rec-law.us/1eaGBUM http://rec-law.us/1b4oewr
1/28 UT Deer Valley Keno Ski Run Intermediate hit a tree Skier 65 M FL Yes http://rec-law.us/1eg70Ax http://rec-law.us/1hRbIVm
2/1 VT Sugarbush Ski Resort Lower Rim Run and Lower FIS trails went off the trail and hit a trail sign broken neck Skier 19 F http://rec-law.us/1aeVJ3V http://rec-law.us/1j4jIpF
2/4 ME Sugarloaf resort Hayburner Expert skiing off a trail into trees Skier 21 M NY Yes http://rec-law.us/1fQtrMz http://rec-law.us/1b1OkG0
2/4 CA Heavenly Ski resort upper Nevada Woods Expert Closed area blunt force trauma Boarder 18 M Kings Beach, CA Yes http://rec-law.us/1byr68d http://rec-law.us/1b5exDA

2/7 CO Beaver Creek lower section of Beaver Creek suffered trauma injuries Skier 64 M St Louis, Mo http://rec-law.us/1ns4Hvu
2/8 CO Keystone Ski Area Porcupine and Bighorn Intermediate crashed into a tree blunt-force trauma Skier 46 M Yes http://rec-law.us/Nph8Oa
2/16 MT Whitefish Mtn Resort between Hollwood & Silvertip fell into treewell Skier 48 M Calgary, Alberta http://rec-law.us/1nKj8eh http://rec-law.us/1clTCu3
2/17 WA Stevens Pass Corona Bowl Expert hit head on rock major trauma Boarder 31 M No http://rec-law.us/O48FQH http://rec-law.us/1oRNQFT
2/18 VT Stowe Upper Gondolier hit another skier before sliding into trail sign Skier 30 M Brooklyn, NY Yes http://rec-law.us/1fkn5pt
2/19 WA Crystal Mountain Found in tree well Boarder 35 M Seattle, WA http://rec-law.us/1ffs2kY
3/5 PA Heavenly Valley collided with a tree internal bleeding from blunt-force trauma Boarder 21 M Warren, PA Yes http://rec-law.us/PRTn2a http://rec-law.us/1k4m72J
3/10 CO Copper Mountain Vein Glory Beginner striking a tree Boarder 22 M Denver, CO No http://rec-law.us/1kJvtTc
3/16 NY Whiteface Mountain trail and hit a tree Boarder 22 M Hemlock, NY http://rec-law.us/1gFq34F http://rec-law.us/1mfoli0
3/18 CO Snowmass Gunner’s View trail intermediate collided with a tree hemorrhagic shock due to pelvic trauma Boarder 54 M Germany Yes http://rec-law.us/OAM3Hn
3/21 WA Mission Ridge Ski & Board Resort Kiwa run ski dislodged from its binding Ski 47 M Seattle, WA http://rec-law.us/1jreZv1
3/22 VT Stratton Mountain Ski Resort 91 Trail Veered off the trial & crashed into a sign boarding 16 M Boston, MA http://rec-law.us/1jBxxIX http://rec-law.us/1oZzuSX
3/27 CO Keystone Resort intermediate lost control & hit a tree blunt force trauma Skier 60 M Charlotte, NC Yes http://rec-law.us/1dV5lgV http://rec-law.us/O6FJ9R
3/28 CO Snowmass Elk Camp Chairlift at the top of Sandy Park collision with another skier that led to Cohen hitting a tree multiple injuries Skier 45 M Cincinnati, OH Yes http://rec-law.us/1dHi0co http://rec-law.us/1dHi0co
4/1 WY Jackson Hole Pair-a-Chutes ( The Parachutes) collided with a tree significant body trauma Skier 31 M Jackson Hole, WY & PA http://rec-law.us/1dN158G http://rec-law.us/1ebWibv
4/3 CO Snowmass Cirque Headwall multiple chest injuries Skier 47 M Yes http://rec-law.us/PyekPa http://rec-law.us/1lA1H1g
4/6 CA Northstar Rail Splitter Advanced crashing into a tree Skier 67 M Van Nuys, CA Yes http://rec-law.us/1fWUnLK
4/6 NY Lake Placid Excelsior lost control and struck a tree Boarder 22 M Canandaigua, NY No http://rec-law.us/PG1Hls http://rec-law.us/1mUlNpW

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.

If you are unable to view the entire table click on the

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What is the basis for the snowboarder’s lawsuit against ALTA & the USFS? Number 1 question I’ve been asked the last 2 weeks, so I asked

I met the attorney representing the four snowboarders and two of the plaintiff’s in their suit to open ALTA to snowboarding. They are committed and not just 20 something losers in Colorado to check out the lawns…..

Here was the statement on how and why I got from their attorney Jonathan R. Schofield.

Although Alta was one of the first resorts to allow snowboarding, Alta began banning snowboarders from its public land in the 1980s with the approval of the U.S. Forest Service.  Meanwhile, Alta invites “skiers” of all ages and ability levels on this same land regardless of, among other things, the size, shape, or type of “ski” actually used.  For instance, a variety of skis, mono-skis, and even tele-boards are all allowed at Alta, even though they are nearly identical to snowboards in many respects.  On its face, Alta’s no-snowboarding policy treats snowboarders differently than skiers by excluding snowboarders from equal access to public land.

The Constitution guarantees fairness of the laws, and the Equal Protection Clause of the Fourteenth Amendment guarantees that similarly-situated persons will be treated alike unless governmental discrimination is, at a minimum, rationally related to a legitimate interest.  Because Alta operates under a government permit on public land and the Forest Service approves Alta’s actions, Alta and the Forest Service are government actors and their conduct must be lawful under the Equal Protection Clause.  Arguably, Alta has a legitimate interest in safely and effectively operating a ski resort under its permit.  However, as alleged in the lawsuit, there is no rational relationship between Alta’s snowboarding ban and Alta’s interest in operating its resort.  The lawsuit further alleges that the reasons offered to justify the snowboarding ban are mere pretext for animus (dislike) of the type of people believed to be “snowboarders.”  Animus is inherently irrational and can never justify governmental discrimination.

The lawsuit is available in its entirety by clicking here.

If you want to stay on top of the suit, the group has a non-profit called Wasatch Equality, with a website here.

I don’t know if they are going to win, but I bought a t-shirt. J

What do you think? Leave a comment.

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2013-2014 In bound ski/board fatalities

It is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.

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 February 10, 2014. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

Are non-skiing/boarding fatalities that occurred inbounds on the slopes

Fatality while sledding at the Resort is in Green

2013 – 2014 Ski Season Fatalities

#

Date

State

Resort

Where

Trail Difficulty

How

Cause

Ski/ Board

Age

Sex

Home town

Helmet

Reference

Ref # 2

1

12/11 CO Telluride Pick’N Gad Left the ski run, struck a tree and suffered fatal injuries 60 M Norwood, CO No http://rec-law.us/190al75 http://rec-law.us/1fchteM

2

12/12 VT Killington Great Northern Trail Found 21 F PA No http://rec-law.us/1csgWCg

3

12/16 WA Crystal Mountain Resort Tinkerbell Beginner Lost control and veered off the trail Blunt Force Trauma F Yes http://rec-law.us/Jc4MX3
4 1/1/14 WV skiing into a tree M Opp, AL http://rec-law.us/1a6nAkQ
5 12/21 CA Heavenly Resort colliding with a snowboarder and being knocked into a tree 56 F NV No http://rec-law.us/JRiP4c http://rec-law.us/1a7REMW
6 12/19 CO Winter Park Butch’s Breezeway Beginner blunt force injury to the head 19 M Yes http://rec-law.us/1f3ekSy
7 1/11 CO Aspen Bellisimo Inter hitting a tree Ski 56 M CO Yes http://rec-law.us/1hNbHoz http://rec-law.us/JTr7sY
8 1/11 MT Whitefish Mountain Resort Gray Wolf and Bighorn Found in a tree well Ski 54 M CA http://rec-law.us/1kx1deP
9 1/11 VT Stratton Mountain Resort Lower Tamarac Sledding Sledding 45 M NJ No http://rec-law.us/19x4mXb http://rec-law.us/1aRlxS5
10 1/14 NV Mount Charleston Terrain Park Fall in terrain park blunt-force trauma Boarder 20 M NV No http://rec-law.us/1dsDW8B http://rec-law.us/1dyT1Hc
11 1/17 VT Killington Mouse Trap Trail striking a tree Boarder 23 M NY http://rec-law.us/1dFfY9j http://rec-law.us/1dKUf0v
12 1/25 NM Ski Apache Inter struck a tree Skier 23 F TX http://rec-law.us/1n3PCCM http://rec-law.us/M5qA85
13 1/25 WA Ski Bluewood Country Road run Beginner Found at top of trail blunt force abdominal injury Skier 14 M WA No http://rec-law.us/1eaGBUM http://rec-law.us/1b4oewr
14 1/28 UT Deer Valley Keno ski run Inter hit a tree Skier 65 M FL Yes http://rec-law.us/1eg70Ax http://rec-law.us/1hRbIVm
15 2/1 VT Sugarbush Ski Resort Lower Rim Run and Lower FIS trails went off the trail and hit a trail sign broken neck Skier 19 F Newport, RI http://rec-law.us/1aeVJ3V http://rec-law.us/1j4jIpF
16 2/4 ME Sugarloaf resort Hayburner Expert skiing off a trail into trees Skier 21 M Hoosick Falls, NY No http://rec-law.us/1fQtrMz http://rec-law.us/1b1OkG0
17 2/4 CA Heavenly Ski Resort upper Nevada Woods Expert Closed area blunt force trauma Boarder 18 M Kings Beach, CA Yes http://rec-law.us/1byr68d http://rec-law.us/1b5exDA
18 2/8 CO Keystone Resort Porcupine and Bighorn Intermediate crashed into a tree blunt-force trauma Skier 46 M Yes http://rec-law.us/Nph8Oa
19 1/31 PA Seven Springs Mountain Resort hit a fence closed-head injury and a cervical spine fracture Skier 52 F Westmoreland County, PA http://rec-law.us/1lWLt5C http://rec-law.us/1h4zhOc
20 2/7 CO Beaver Creek lower section of Beaver Creek suffered trauma injuries Skier 64 M St. Louis, Mo http://rec-law.us/1ns4Hvu

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.

If you are unable to view the entire table Email me at Jim@Rec-law.us and put Ski Area Fatality Chart in the subject line. I’ll reply with a PDF of the chart.

What do you think? Leave a comment.

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Copyright 2014 Recreation Law (720) Edit Law

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2013-2014 In bound ski/board fatalities

It is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.

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 January 13, 2014. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

2013 – 2014 Ski Season Fatalities

#

Date

State

Resort

Where

How

Cause

Ski/ Board

Age

Sex

Home town

Helmet

Reference

 

 

1

12/11 CO Telluride Pick’N Gad Left the ski run, struck a tree and suffered fatal injuries 60 M Norwood, CO No http://rec-law.us/190al75 http://rec-law.us/1fchteM

2

12/12 VT Killington Great Northern Trail Found 21 F PA No http://rec-law.us/1csgWCg

3

12/16 WA Crystal Mountain Resort Tinkerbell Lost control and veered off the trail Blunt Force Trauma F Yes http://rec-law.us/Jc4MX3
4 1/1/14 WV skiing into a tree M Opp, AL http://rec-law.us/1a6nAkQ
5 12/21 CA Heavenly Resort colliding with a snowboarder and being knocked into a tree 56 F NV No http://rec-law.us/JRiP4c http://rec-law.us/1a7REMW
6 12/19 CO Winter Park Butch’s Breezeway blunt force injury to the head 19 M Yes http://rec-law.us/1f3ekSy
7 1/11 CO Aspen Bellisimo hitting a tree Ski 56 M CO Yes http://rec-law.us/1hNbHoz http://rec-law.us/JTr7sY
8 1/11 MT Whitefish Mountain Resort Gray Wolf and Bigho Found in a tree well Ski 54 M CA http://rec-law.us/1kx1deP

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 2013 Recreation Law (720) Edit Law

jim@rec-law.us

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

#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, Skier, Snowboarder, Ski Area, Fatality,

 


Court writes clear decision a jump in a terrain park is an open and obvious risk

If you practice law in this area, you should hold on to this decision because of its statements on the risks of a terrain park.

Anderson v Boyne USA, Inc., 2012 Mich. App. LEXIS 1725

Plaintiff: Patrick N. Anderson

Defendant: Boyne USA, Inc.,

Plaintiff Claims: Negligence

Defendant Defenses: Michigan Ski Area Safety Act

Holding: for the defendant

This is a pretty simple Michigan case applying the Michigan Ski Area Safety Act (SASA) to an injury in a terrain park.

The plaintiff was paralyzed after go off a jump at a terrain park. The plaintiff sued, and the defendant filed a motion for summary judgment based on the Michigan Ski Area Safety Act. The motion was granted the plaintiff appealed. The appellate court upheld the trial court decision.

The plaintiff went off the jump the previous day. On the second day of skiing, when he was injured, he had not inspected the jump. The plaintiff knew that the features of the park would change over time, including overnight.

Summary of the case

What is striking and great about this case is the court’s frankness in describing the terrain park and its risks. The Michigan Ski Area Safety Act, MCL 408.342 provides:

(1) While in a ski area, each skier shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Stay clear of snow-grooming vehicles and equipment in the ski area.

(c) Heed all posted signs and warnings.

(d) Ski only in ski areas which are marked as open for skiing on the trail board described in section 6a(e).

(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snowmaking or snow-grooming equipment.

As long as the risks or hazards of skiing are open and obvious to the sport, then the statute provides immunity to the ski area from suit.

Based on the statute, the Michigan Supreme court in another case (of the same name Anderson) found there were two types of inherent dangers in skiing: natural and unnatural hazards. The court then applied a legal principle, ejusdem generis which states: “general terms include those “of the same kind, class, character, or nature as those specifically enumerated.” Application of this principal provided a greater number of risks, more than those just listed in the statute.

Once hazards fall within the covered category, only if they are unnecessary or not obvious is the ski operator liable.” Id. The Court stated that the Legislature enacted the statute to remove these matters “from the common-law arena” and to grant immunity to ski-area operators. Id. Therefore, the reasonableness of the placement of the shack was not a consideration for the fact-finder.

The court found the jump in the terrain park was a hazard of skiing, even if created by the ski area; it was still a “variation in the terrain that a snowboarder would expect to see if he or she entered a terrain park. The court continued with this great statement.

Even if the jump were not inside the terrain park, it would still be a danger inherent in the sport of skiing; a snowboarder accepts the risks associated with snowboarding, regardless of whether he is snowboarding down a slope or performing tricks in a terrain park.

The court then went further and stated:

While it is true one can snowboard without jumps, a snowboarder enters a terrain park expecting to use jumps, rails, and boxes. Without those features, there would not be a terrain park. If a snowboarder did not want to use those features, he or she would not enter a terrain park. Instead, the snowboarder would simply propel down a ski hill. Therefore, a jump is a necessary feature of a terrain park.

There were signs posted at the entrance of the terrain park stating that skiers were responsible for familiarizing themselves with the terrain throughout its use, especially because the features change constantly due to snow conditions, weather, and usage. The jump was not a hidden feature of the park, and plaintiff would have seen it had he heeded all posted signs and warnings, as required by the statute.

The court looked at the plaintiff’s final argument that the jump was not obvious because the plaintiff was not aware of the dangerous it created by being improperly constructed. The plaintiff had an expert witness who opined that the jump could have been constructed in a “safer way.”

The court stated whether there was a safer way to make the jump was irrelevant. The statute removed this issue from litigation.

So Now What?

There are two statements by the court that you need to remember, and hopefully apply in your state. The first is:

Even if the jump were not inside the terrain park, it would still be a danger inherent in the sport of skiing; a snowboarder accepts the risks associated with snowboarding, regardless of whether he is snowboarding down a slope or performing tricks in a terrain park.

The creation of the terrain park or creating features in the terrain park does nothing to change the risks of skiing. The fact the feature is in a terrain park provides greater notice and ability to see and understand the risks to a skier or boarder. However, a jump, in or out of a terrain park, is still a risk to be assumed by someone on the slope.

The second is:

Without those features, there would not be a terrain park. If a snowboarder did not want to use those features, he or she would not enter a terrain park. Instead, the snowboarder would simply propel down a ski hill. Therefore, a jump is a necessary feature of a terrain park.

A terrain park is a hill without jumps, ramps, rails, half-pipes and other features. Without those features there is no terrain park. If you enter a terrain park there are going to be jumps, ramps, rails, half-pipes and other features.

Both of these would require that the language of your states Ski Area Statute is written similarly to Michigan’s. However both create great legal language for arguing that when you enter the terrain park you assume the risks of everything in the terrain park, even if you don’t understand or fail to inspect the features in it. But for the signs and ropes, a terrain park is no different from any other part of the ski slope.

This court put in an appeal the things many people have been saying for years.

What do you think? Leave a comment.

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

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

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Colorado Gems Card now Available with some added Features

Skiers and Riders Save on Lift Tickets and Explore Colorado’s Gem Resorts with New 2013/14 Colorado Ski Country USA Gems Card Program

Now On Sale, 2013/14 Season Gems Card Features Two-For-One Ticket Deals and Exclusive Promotions

Photo credit: Colorado Ski Country USA

Denver, Colo. – September 4, 2013 – Colorado Ski Country USA (CSCUSA) today unveiled the new 2013/14 Colorado Gems Card program and announced that cards are now available for purchase. For the 2013/14 season, the revised Gems Card program features two-for-one lift tickets at eight signature Colorado Gem ski resorts and exclusive Flash Deals promotions offered at Gem resorts throughout the season.

The new Gems Card program makes it easy to save on lift tickets. At any Gem resort, card holders can purchase one adult full day lift ticket and receive another adult full day lift ticket for free. Each Gems Card is good for one use per Gem resort, per season, and only a limited number of Gems Cards are available for sale.

In addition to the season-long, buy-one-get-one lift ticket deal, Gems Card holders also have exclusive access to Flash Deals. Flash Deals are special promotions and additional ways to save that are unique to each Gem resort and will be announced last minute throughout the season. CSCUSA will announce Flash Deals in the Gems newsletter, on social media, and on the Gems website www.ColoradoSki.com/gems. Only Colorado Gems Card holders will be able to take advantage of Flash Deals.

For savvy skiers and riders, the Colorado Gems Card is essential to enjoying the powder, terrain, and scenery that Colorado Ski Country has to offer. Available for $20, the 2013/14 Gems Card puts Colorado’s world-renowned skiing within reach for skiers and riders from Colorado and elsewhere. Card holders can take advantage of a day of two-for-one skiing at each of the eight participating resorts, redeeming the cost of the card after just one use.

By definition, a gem is a jewel; something prized especially for great beauty or perfection. There are eight Gems that add to the sparkle of Colorado’s crown of resorts and, in many ways, outshine their world famous neighbors. These Gems epitomize Colorado’s ski culture with their western authenticity, artisanal charm, and nostalgic skiing. Like diamonds in the rough, these resorts are strikingly beautiful, individually unique and not to be overlooked. The Colorado Gem resorts are: Arapahoe Basin, Eldora Mountain Resort, Loveland Ski Area, Monarch Mountain, Powderhorn Resort, Ski Cooper, Ski Granby Ranch, and Sunlight Mountain Resort.

For more information, or to purchase a Gems Card, visit www.ColoradoSki.com/Colorado-Gems-Card. Cards are available now and will be available throughout the upcoming ski season until they are sold out.

The Colorado Gems program is presented by Icelantic Boards; a Colorado based ski company that represents skis, art, adventure creativity, passion and innovation. More information on Icelantic can be found at www.IcelanticBoards.com

9.4.13 Skiers and Riders Save on Lift Tickets and Explore Colorado’s Gem Resorts.pdf


Nevada Skier Safety Act

Nevada Skier Safety Act

1.1 NEVADA REVISED STATUTES ANNOTATED

TITLE 40. Public Health And Safety.

CHAPTER 455A. Safety of Participants in Outdoor Sports.

Skiers and Snowboarders

GO TO NEVADA STATUTES ARCHIVE DIRECTORY

Nev. Rev. Stat. Ann. § 455A.023 (2012)

Table of Contents

Nevada Skier Safety Act 1

Table of Contents. 1

455A.010. Short title. 2

455A.020. Definitions. 2

455A.023. “Chair lift” defined. 3

455A.027. “Operator” defined. 3

455A.030. “Passenger” defined. 3

455A.035. “Patrol” defined. 3

455A.040. Transferred. 4

455A.050. Transferred. 4

455A.060. Transferred. 4

455A.070. “Skier” defined. 4

455A.075. “Skiing” defined. 4

455A.080. Transferred. 4

455A.083. “Snow recreation area” defined. 4

455A.085. “Snowboarder” defined. 5

455A.087. “Snowboarding” defined. 5

455A.090. “Surface lift” defined. 5

455A.100. Prohibited acts while on chair lift; skiing or snowboarding in area posted as closed prohibited. 5

455A.110. Duties of skiers and snowboarders. 6

455A.120. Prohibited acts. 7

455A.130. Signs at chair lifts: Requirements; inspection. 7

455A.140. Slopes, runs and trails: System of signs required; vehicles used by operator to be equipped with light. 8

455A.150. Illumination of signs at night. 8

455A.160. Skiers and snowboarders to notify operator or patrol of injury; limitation on liability of operator; duty of operator to minimize dangers. 9

455A.170. Prohibition against intoxication and use of controlled substances; duty to provide name and address to person injured in collision; penalty. 9

455A.180. Revocation of license or privilege to engage in skiing or snowboarding. 10

455A.190. County, city or unincorporated town may enact ordinance not in conflict with chapter. 10

455A.010. Short title.

NRS 455A.010 to 455A.190, inclusive, may be cited as the Skier and Snowboarder Safety Act.

455A.020. Definitions.

As used in NRS 455A.010 to 455A.190, inclusive, unless the context otherwise requires, the words and terms defined in NRS 455A.023 to 455A.090, inclusive, have the meanings ascribed to them in those sections.

455A.023. “Chair lift” defined.

“Chair lift” means a device, except for an elevator, that carries, pulls or pushes a person along a level or inclined path to, from or within a snow recreation area by means of a rope, cable or other flexible element that is driven by an essentially stationary source of power.

455A.027. “Operator” defined.

“Operator” means a person, or a governmental agency or political subdivision of this State, who controls or operates an area where persons engage in skiing or snowboarding.

455A.030. “Passenger” defined.

“Passenger” means a person who utilizes a chair lift for transportation.

455A.035. “Patrol” defined.

“Patrol” means agents or employees of an operator who patrol the snow recreation area.

455A.040. Transferred.

NOTES: Editor’s note. This section is now compiled as 455A.083.

455A.050. Transferred.

NOTES: Editor’s note. This section is now compiled as 455A.023.

455A.060. Transferred.

NOTES: Editor’s note. This section is now compiled as 455A.035.

455A.070. “Skier” defined.

“Skier” means a person who engages in skiing in a snow recreation area.

455A.075. “Skiing” defined.

“Skiing” means the act of using skis to move across snow-covered ground.

455A.080. Transferred.

NOTES: Editor’s note. This section is now compiled as 455A.027.

455A.083. “Snow recreation area” defined.

“Snow recreation area” means the slopes, trails, runs and other areas under the control of an operator that are intended to be used for skiing, snowboarding or for the observation of the sports.

455A.085. “Snowboarder” defined.

“Snowboarder” means a person who engages in snowboarding in a snow recreation area.

455A.087. “Snowboarding” defined.

“Snowboarding” means the act of using a snowboard to move across snow-covered ground.

455A.090. “Surface lift” defined.

“Surface lift” means a chair lift designed for skiers or snowboarders to remain in contact with the ground or snowy surface during transportation.

455A.100. Prohibited acts while on chair lift; skiing or snowboarding in area posted as closed prohibited.

A skier or snowboarder shall not:

1. Embark upon a chair lift:

(a) When the skier or snowboarder knows that he or she has insufficient knowledge or physical ability to use the chair lift safely; or

(b) That is posted as closed or not in operation;

2. Purposefully embark upon or disembark from a chair lift except at an area designated for such a purpose or at the direction and under the direct supervision of an authorized agent or employee of an operator;

3. Toss, throw or cast or intentionally drop, expel or eject an object from a chair lift;

4. Toss, throw or cast an object in the direction of a chair lift;

5. Fail or refuse to comply with:

(a) Reasonable instructions given to the skier or snowboarder by an authorized agent or employee of an operator regarding the use of a chair lift; or

(b) A sign posted pursuant to NRS 455A.130 or 455A.140;

6. Place any object in the uphill path of a surface lift;

7. Conduct himself or herself in a manner that interferes with the safe operation of a chair lift or with the safety of a passenger, skier or snowboarder; or

8. Engage in skiing or snowboarding in an area within the snow recreation area which is posted, as provided in NRS 207.200, as closed.

455A.110. Duties of skiers and snowboarders.

A skier or snowboarder shall, to the extent that the matter is within his or her control:

1. Locate and ascertain the meaning of signs in the vicinity of the skier or snowboarder posted pursuant to NRS 455A.130 and 455A.140;

2. Heed warnings and other information posted by an operator;

3. Remain a safe distance from vehicles, signs and equipment for grooming snow or for transportation;

4. Avoid skiers or snowboarders in motion when entering a slope, run or trail, and when commencing to engage in skiing or snowboarding from a stationary position;

5. Maintain a proper lookout and control of his or her speed to avoid downhill objects, skiers and snowboarders to the best of his or her ability; and

6. Conduct himself or herself in such a manner as to avoid injury to persons and property in a snow recreation area.

455A.120. Prohibited acts.

A skier or snowboarder shall not:

1. Use a ski or snowboard unless it is attached to the skier or snowboarder by a strap or equipped with a device capable of stopping the movement of the ski or snowboard when not attached to the skier or snowboarder;

2. Cross the uphill path of a surface lift except at locations designated by an operator; or

3. Willfully stop where the skier or snowboarder obstructs a slope, run or trail, or where he or she is not safely visible to uphill skiers or snowboarders.

455A.130. Signs at chair lifts: Requirements; inspection.

1. An operator shall prominently post and maintain signs in simple and concise language:

(a) By each chair lift, with information for the protection and instruction of passengers; and

(b) At or near the points where passengers are loaded on a chair lift, directing persons who are not familiar with the operation of the chair lift to ask an authorized agent or employee of the operator for assistance and instruction.

2. An operator shall prominently post and maintain signs with the following inscriptions at all chair lifts in the locations indicated:

(a) “Remove pole straps from wrists” at an area for loading skiers;

(b) “Safety gate” where applicable;

(c) “Stay on tracks” where applicable;

(d) “Keep ski tips or snowboard up” ahead of any point where a ski or snowboard can regain contact with the ground or snowy surface after a passenger departs from an area for loading skiers or snowboarders;

(e) “Prepare to unload” and “check for loose clothing and equipment” not less than 50 feet from an area for unloading skiers or snowboarders; and

(f) “Unload here” at an area for unloading skiers or snowboarders.

3. An operator shall inspect a snow recreation area for the presence and visibility of the signs required to be posted by this section each day before opening the snow recreation area for business.

455A.140. Slopes, runs and trails: System of signs required; vehicles used by operator to be equipped with light.

1. An operator shall post and maintain a system of signs:

(a) At the entrances to an established slope, run or trail to indicate:

(1) Whether any portion of the slope, run or trail is closed; and

(2) The relative degree of difficulty of the slope, run or trail;

(b) To indicate the boundary of the snow recreation area, except in heavily wooded areas or other terrain that cannot be skied or snowboarded readily; and

(c) To warn of each area within the boundary of the snow recreation area where there is a danger of avalanche by posting signs stating “Warning: Avalanche Danger Area.”

2. An operator shall equip vehicles it uses on or in the vicinity of a slope, run or trail with a light visible to skiers or snowboarders when the vehicle is in motion.

455A.150. Illumination of signs at night.

A sign required to be posted pursuant to NRS 455A.130; and 455A.140 must be adequately illuminated at night, if the snow recreation area is open to the public at night, and be readable and recognizable under ordinary conditions of visibility.

455A.160. Skiers and snowboarders to notify operator or patrol of injury; limitation on liability of operator; duty of operator to minimize dangers.

1. A skier or snowboarder who sustains a personal injury shall notify the operator or a member of the patrol of the injury as soon as reasonably possible after discovery of the injury.

2. An operator is not liable for the death or injury of a person or damages to property caused or sustained by a skier or snowboarder who knowingly enters an area which is not designated for skiing or snowboarding or which is outside the boundary of a snow recreation area.

3. An operator shall take reasonable steps to minimize dangers and conditions within the operator’s control.

455A.170. Prohibition against intoxication and use of controlled substances; duty to provide name and address to person injured in collision; penalty.

1. A skier or snowboarder shall not engage in skiing or snowboarding, or embark on a chair lift that is proceeding predominantly uphill, while intoxicated or under the influence of a controlled substance as defined in chapter 453 of NRS unless in accordance with a lawfully issued prescription.

2. A skier or snowboarder who is involved in a collision in which another person is injured shall provide his or her name and current address to the injured person, the operator or a member of the patrol:

(a) Before the skier or snowboarder leaves the vicinity of the collision; or

(b) As soon as reasonably possible after leaving the vicinity of the collision to secure aid for the injured person.

3. A person who violates a provision of this section is guilty of a misdemeanor.

455A.180. Revocation of license or privilege to engage in skiing or snowboarding.

An operator may revoke the license or privilege of a person to engage in skiing or snowboarding in a snow recreation area if the person violates any provision of NRS 455A.100, 455A.110, 455A.120 or 455A.170.

455A.190. County, city or unincorporated town may enact ordinance not in conflict with chapter.

The provisions of NRS 455A.010 to 455A.190, inclusive, do not prohibit a county, city or unincorporated town from enacting an ordinance, not in conflict with the provisions of NRS 455A.010 to 455A.190, inclusive, regulating skiers, snowboarders or operators.

 


NW Avalanche Center 2012-13 Newsletter #03

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An Update from the Avalanche Center

http://www.avalanche-center.org/
May 9, 2013 [Previous, December 5] – [Next, ? ] – [Updates Archive Index]

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Introduction, From the Director

It seems the entire winter went by with no updates this season. Resources have continued to diminished and my own time has been split between an increasing number of other things. However, the Avalanche Center is still here and there have been things happening. Even now we have a very timely spring climbers avalanche course available, designed specifially for this time of year as opposed to mid-winter skiing.

Following the minimal auction we held this season I was on an extended trip for entirely unrelated business. Following that was the annual Outdoor Retailer Show in Utah where we had an exhibitor table for the first time. This was good exposure within the industry, although whether it results in any benefits as far as providing public services is unclear. More recently I had another lengthy trip also unrelated to this project. But despite the unrelated trips and the somewhat involved OR show trip the Level 1 course has been operating and the store has operated, which is essential as it is the primary source of funding at this time.

Shirt Sale – After reducing our supply of shirts earlier we purchased a large number for the OR show, as well as a supply of decals. We sold quite a few but not nearly as many as we had ordered so we are still having a sale. We have all sizes S-XL in comfortable light weight short sleeves for summer, they are $15 including the shipping. You can get yours here: http://www.avalanche-center.org/shirts.php

Education – Avalanche Institute

Our Spring Climbers Course is now in full swing. This is a much simpler and shorter version of a complete Level 1 course and covers spring conditions with an emphasis on climbing (including spring ski mountaineering). In the Northwest US there is a secondary maximum in avalanche fatalities in May and June, and in Oregon the majority of all fatalities have been in late May and the very beginning of June.

This is not a slightly modified Level 1 course with a “twist” of some kind. The weather and snowpack modules are spring specific and do not cover the complications of mid-winter. There is no field day, the emphasis is entirely on planning a safe climb to begin with. Mountaineering usually involves starting before dawn and ascending steep slopes, any kind of snowpit observation once on the slope is a bit of an afterthought. Timing and the current surface conditions are the essential factors and most accidents happen at times when these things should have been identified before leaving home.

Originally it was estimated that this was equivalent in value to half of a complete Level 1 course. But given the complexity and completeness of the Level 1 course and after reviewing the climbing course we have set the regular cost at one third of the Level 1. Students who have completed our Level 1 can take the Climbers course free, and will have covered some of it already. Students who complete the Climbers course this spring may apply it’s full value towards a Level 1 course if they decide to pursue the complete in-depth material next fall.

Right now, through most of May, we are even discounting this particular course below the full value. And as always, members can pay even less. (Members – if you’re not logged in on the registration page just click the key icon to log in, the page should then refresh with the lower price.)

As with the Level 1 course there are complete details posted. You can start with a flowchart of the course modules, click on any of them for specific objectives, and click on the listing to the side for a complete description of any given module. Not only do we provide such complete details on what you will cover but we can guarantee you will be able to cover all of it. There will be nothing lost due to time constraints, outdoor conditions, any temporary loss of attention span, etc.

Like all of our complete courses this is a course, not a tuotrial or forum. There are scored assessments throughout so you have feedback and reinforcement, there is access to an instructor at any point in the course, and there are tools to collaborate with instructors and other students.

Incidentally, these pages are the first to use a new design for the Avalanche Institute which is consistent with the actual course pages. Feedback is welcome, especially with any problems encountered. They are heavily css based which is somewhat of a new approach for this site.

Store – Spring Sale

We have some items left to get rid of on sale. They’ve been posting on e-bay and we’ve sold some that way but close to everything is listed on the sale page now. There are still quite a few probes, B-1 and B-2 BCA shovels, and a few other things left. We’d like to get rid of these before the end of May, partly to free up space and partly because we need the cash flow over summer.

As always there are even lower prices for members, and no shipping. If you are on the sale page and not logged in it will show that. Click the key icon, log in, and the page should refresh with members deals. (When we began members features they were all just linked to from the welcome page but we have converted most of them to this method of displaying the members version to members who are logged in automatically.

Incidentally, shirts on the store sale page are even cheaper than the page linked to in the introduction above, and on the members sale page they are even cheaper – as cheap as we can possibly sell them for! (The price on the shirts page is somehow built in as $15 so until we figure out how to change that in paypal the store sale page is lower.)

Beacon Park Notes

One of our customers was doing some very in-depth practicing and beacon analysis this winter and the outcome is worth sharing.

He had what he felt were strange results with his new digital beacon. To eliminate the possibility of a faulty beacon we replaced it for him, although it seems like now that it was faulty. He continued to try multiple beacon searches with different brands and models and numbers of targets with mixed results.

In the end it appears one of the primary issues was using a beacon park for too many targets. The targets in beacon parks are not actual beacons – before long these would be recovered and disappear. They are very good simulations and work fine until you search for too many at once. SInce every park and each beacon model is a bit different, and spacings and orientations are different, it’s not possible to give a number for “too many”. But if you increase the number of target signals and it seems like your beacon is not acting quite right there are probably signal issues due to complicated spacings, orientations and other factors among the beacon simulators.

This should not be a serious limitation on the value of these parks for practice, it is possible to search for several signals and have a reasonable response from your beacon. Realistically it is very uncommon to have to search for very many signals at once, and to the extent it may happen any more than 3 should be extremely rare. There are a few such cases in our incident database than spans almost 2000 reports and 15+ years, but not many.

The beacon park “saturation” issue came up after some email discussions this customer had with other alpine club members, at least one representative from a beacon manufacturer, guides, and others. It appears to be the major reason for differences between several real beacons buried and too many signals in a park. But there are some secondary factors in some situations as well – there have always been potential difficulties with older analog beacons as targets, especially using flagging features for them, and differences in models may cause a few issues. It’s also important to get a feel for the best speed to move at, it seems that for many digital beacons steady but slow is best but be sure to practice with your own to see. Moving too fast or too abrupty may not allow the processing to keep up, especially with multiple burials.

So beacon parks are great for testing your beacon skills and finding out about any quirks with search speed, multiple signals, etc. But if you turn on too many targets and things don’t seem to work right you may just be exceeding the limits of what you can do there. (And the limits of what you really need to do anyway.)

One result of all the trial and error and discussion behind this is that Yuri probably knows his beacon very well by now, and probably has excellent searching skills!

On Tap …

There is work to be done this month as time allows and updates will be sent as that gets done. Aside from running the climbers course and selling off what’s left in the store the next task is continued catching up on the years incidents. This has been going on but slowly and any comments on this will have to wait for the next update.

Even though labor has always been almost entirely donated the spectre of paying overhead costs is always there, even through summer, and the biggest thing that helps the project right now is to contribute. Purchasing your equipment from us helps a lot too and often includes membership as well as access to educational material.

Remember:

We are up to 1770 friends and 205 followers on Facebook – are you one of them? If you are have you suggested us to any of your friends?

Jim Frankenfield
Executive Director


2012-2013 In bound ski/board 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.

Several Corrections have been made to items reported earlier.

If this information is incorrect or incomplete please let me know.  This is up to date as of March 28, 2013. Thanks.

Skiing and Snowboarding are still safer than your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks and to study.

2012 – 2013 Ski Season Deaths

Blue is a death of an employee while working

# Date State Resort Where How Ski / Board Age Sex Hometown Helmet Ref Ref
1 12/2 MI Boyne Highlands Resort Camelot fell within the slope boundaries and did not collide with any type of obstacle Boarder 17 F Alanson, MI http://rec-law.us/11JFVOo
2 12/21 CA Squaw Valley KT-22 strike the tree Skier 71 M Auburn, CA Yes http://rec-law.us/10ctrSt
3 12/24 CA Donner Ski Ranch Avalanche Boarder 49 M Hirschdale, CA http://rec-law.us/UCaHJz http://rec-law.us/Sgjsbi
4 12/24 CA Alpine Meadows Sherwood Bowl Avalanche Skier 53 M http://rec-law.us/13eiU72 http://rec-law.us/VGsqh5
5 12/30 CO Snowmass Hanging Valley Headwall Avalanche, swept over cliff Skier 49 F Patricia Hileman http://rec-law.us/RCv6fd http://rec-law.us/VOCr8H
6 1/4 CO Copper Mountain Vein Glory Hit Tree M Houston, TX No http://rec-law.us/RCy03u http://rec-law.us/VyzVnU
7 1/9 CO Keystone Frenchman Hit Tree Skier 20 F Austin, TX No http://rec-law.us/VSGVvz http://rec-law.us/WGPsjQ
8 1/9 CO Wolf Creek Hit Tree Skier 70 M Pagosa Springs, CO http://rec-law.us/XVWEj2
9 1/19 MD Wisp Squirrel Cage Hit tree Skier 40 M Rockville, MD http://rec-law.us/XPB9wz http://rec-law.us/UJnfeK
10 1/21 UT Park City Silver King Hit tree Skier 67 M NJ No http://rec-law.us/YchKpN http://rec-law.us/Wm6mrQ
11 2/3 CA Mammoth Lakes Wipe Out 2 Fell Skier M http://rec-law.us/14BKzzk
12 2/4 CO Aspen Mountain Jackpot run Collision Skier 48 F Philadelphia, PA Yes http://rec-law.us/YCh1hM http://rec-law.us/YChb8O
13 2/8 CO Keystone Porcupine Hit Tree Skier 27 M Palos Hills, IL (Hillman AFB NM) Yes http://rec-law.us/XbsYsL http://rec-law.us/XPtHkJ
14 2/10 CO Breckenridge Columbia Hit Tree Skier 45 M Reston, VA Yes http://rec-law.us/YtRJ3y http://rec-law.us/Ujx85e
15 2/22 MD Wisp Squirrel Cage Hit Tree Skier 38 M Upper Arlington, OH http://rec-law.us/133BO30 http://rec-law.us/UZfW57
16 3/2 WI Devils Head Ski Resort Hit Tree Skier 30 M Madison, WI http://rec-law.us/13Grw9f http://rec-law.us/WUwUUw
17 NJ Mountain Creek Hit surface Skier M No Email
18 3/13 ID Sun Valley Resort Roundhouse Lane Hit Tree Skier 38 F Hailey, ID Yes http://rec-law.us/140BJ0o
19 3/16 CA China Peak Mountain Resort Fell and/or hit stump Skier 49 M Fresno, CA Yes http://rec-law.us/YOYIHa
20 3/21 CO Steamboat Springs Ski Resort Hit Tree Skier 35 M http://rec-law.us/105wEOX
21 3/22 CO Snowmass Ski Area Coney Glade run & Lunchline trails Hit Tree Skier 42 M Kensington, Md Yes http://rec-law.us/ZkmHej http://rec-law.us/13pmmPR
22 3/27 UT Brighton Ski Area Found wrapped around tree Boarder 26 M Sandy, UT Yes http://rec-law.us/10m67gi http://rec-law.us/X0cqY7
23 3/3 UT Deer Valley Little Bell Hit Tree Skier 33 M No http://rec-law.us/13W2zI7 http://rec-law.us/16ztlSh
24 4/12 OR Mt Hood Meadows Hit Tree Skier 51 M Yes http://rec-law.us/15aIFse

There is a rumor, unsubstantiated of a fatality at a Colorado Ski Area. Supposedly a skier hit a tree.

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 2013 Recreation Law (720) Edit Law

jim@rec-law.us

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

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Have you seen or heard of these in the US?

10 FIS Rules for skiing and snowboarding

Here in the US we know Your Responsibility Code (or one of the million variations.)  The FIS Rules are similar but different. FIS or International Ski Federation, Federation International de Ski is mostly own for making the rules for ski races. However, outside of the US FIS is the ski association.

1. Respect for others

A skier or snowboarder must behave in such a way that he does not endanger or prejudice others.

2. Control of speed and skiing or snowboarding

A skier or snowboarder must move in control. He must adapt his speed and manner of skiing or snowboarding to his personal ability and to the prevailing conditions of terrain, snow and weather as well as to the density of traffic.

3. Choice of route

A skier or snowboarder coming from behind must choose his route in such a way that he does not endanger skiers or snowboarders ahead.

4. Overtaking

A skier or snowboarder may overtake another skier or snowboarder above or below and to the right or to the left provided that he leaves enough space for the overtaken skier or snowboarder to make any voluntary or involuntary movement.

5. Entering, starting and moving upwards

A skier or snowboarder entering a marked run, starting again after stopping or moving upwards on the slopes must look up and down the slopes that he can do so without endangering himself or others.

6. Stopping on the piste

Unless absolutely necessary, a skier or snowboarder must avoid stopping on the piste in narrow places or where visibility is restricted. After a fall in such a place, a skier or snowboarder must move clear of the piste as soon as possible.

7. Climbing and descending on foot

A skier or snowboarder either climbing or descending on foot must keep to the side of the piste.

8. Respect for signs and markings

A skier or snowboarder must respect all signs and markings.

9. Assistance

At accidents, every skier or snowboarder is duty bound to assist.

10. Identification

Every skier or snowboarder and witness, whether a responsible party or not, must exchange names and addresses following an accident.

 

However, the rules are a lot clearer and forceful in several areas.

First, there are more FIS Rules. Ten rather than the average of seven. (Remember Your Responsibility Code is not adopted by anyone but supported by NSAA and NSP. Resorts, or anyone, can alter, add or change the code.)

Second the FIS Rules cover additional things such as stopping at accidents and ascending up hill.

Finally, the FIS Rules are more specific on several areas. The Your Responsibility Code is interpreted daily in courts about what has more significance or importance. Mostly, which is more important, where you stop, how you start or whether the overtaking skier has issues. Any collision on the slopes is a battle between these issues with the injured party arguing that no matter the uphill skier is at fault. The FIS Rules eliminate a lot of that argument.

10-fis-rules-for-conduct-1.pdf

What do you think? Leave a comment.

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2012-2013 In bound ski/board 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.

Several Corrections have been made to items reported earlier.

If this information is incorrect or incomplete please let me know.  This is up to date as of January 8, 2013. Thanks.

Skiing and Snowboarding are still safer than your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks and to study.

2012 – 2013 Ski Season Deaths

Red is a probable death due to medical issues unrelated to skiing

Dark blue is a death of an employee while working

Tab through the Table to See the Entire Table

# Date State Resort Where How Cause Ski/Board Age Sex Name Home town Helmet Reference
1 11/29/12 ID Sun Valley ski resort Bald Mountain Chairlift Fell off (Medical?) 56 M Dana Mower Sun Valley, ID & Seattle, WA http://rec-law.us/Vi4ims http://rec-law.us/TyVnKu
2 12/1/12 CO Keystone Resort River Run Gondola Maze Standing in Maze (Medical) Skier 66 M Rex Brian Burton Castle Rock, CO http://rec-law.us/SCZHXJ http://rec-law.us/YkDioj http://rec-law.us/UjBMfK
3 12/2/12 MI Boyne Highlands Resort Camelot, (Beginner) fell within the slope boundaries and did not collide with any type of obstacle . Boarder 17 F Kasandra Knapp Alanson, MI http://rec-law.us/11JFVOo
4 12/9 CO Vail Born Free trail Hiking before resort opened (Medical) 61 M Denver http://rec-law.us/Zg0OC1
5 12/9 CO Vail Eagle Bahn Gondola (Medical) 63 M Douglas Voisard Vail http://rec-law.us/Zg0OC1
6 12/21 CA Squaw Valley KT-22 strike the tree, hitting the left side of his head Skier 71 M Theodore Stanley Sorensen Auburn, CA Yes http://rec-law.us/10ctrSt
7 12/24 CA Donner Ski Ranch Avalanche Boarder 49 M Steven Mark Anderson Hirschdale http://rec-law.us/UCaHJz http://rec-law.us/Sgjsbi
8 12/24 CA Alpine Meadows Sherwood Bowl Avalanche Skier 53 M Bill Foster http://rec-law.us/13eiU72 http://rec-law.us/VGsqh5
9 12/30 CO Snowmass Hanging Valley Headwall Avalanche Swept over cliff Skier 49 F Patricia “Patsy” Hileman http://rec-law.us/RCv6fd http://rec-law.us/VOCr8H
10 1/4 CO Copper Mountain Vein Glory Hit tree M Tristan Bartlett Houston, TX No http://rec-law.us/RCy03u http://rec-law.us/VyzVnU http://rec-law.us/WoJEf5

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 2013 Recreation Law (720) Edit Law

blog@rec-law.us

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

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Colorado Resorts Offering a Flurry of Early Season Ski Deals

Colorado Resorts Offering a Flurry of Early Season Ski Deals

Skiers can save with special offers on multi-day lift tickets, lessons, rentals, lodging, and a snow guarantee

DENVER, Colo. – November 9, 2012 – As the 2012/13 ski season gets underway in Colorado, Colorado Ski Country USA (CSCUSA) resorts are rolling out early season deals and incentives that underscore Colorado as a very attainable and affordable winter ski destination.

With the variety of discounted products recently released, savvy skiers will find that doing a little research can pay big dividends. “Guests have learned that by taking advantage of early season deals and booking their ski vacation early, they will yield the biggest savings and end up with a ski trip that fits their budget and needs,” explained Melanie Mills, president and CEO, Colorado Ski Country USA. “Resorts are able to leverage their partners in lodging, ski school and equipment rentals and put together some very creative and attractive packages.”

A sampling of resort early season deals is below and more can be found on www.ColoradoSki.com/deals.

Passes & Lift Tickets

East Wall at Arapahoe Basin

East Wall at Arapahoe Basin (Photo credit: Wikipedia)

Arapahoe Basin

Arapahoe Basin offers The Legend’s 4 Pass which is valid for four days of skiing or riding at Arapahoe Basin. The cost is $158 and the pass is non-transferable (this is a hard-card product that requires a photo) and available for purchase until December 14, 2012. Valid all season with no blackout dates, guests can purchase The Legend’s 4 online at Arapahoebasin.com or via phone by calling 888-ARAPAHOE.

Colorado Gems Card

The Colorado Gems Card is a discount card for use at the eight Colorado Gem resorts (Arapahoe Basin, Eldora, Loveland, Monarch, Powderhorn, Ski cooper, Ski Granby Ranch, and Sunlight). It offers deals and discounts that appeal to skiers and riders of all ages and abilities. In addition to the resorts’ upgraded season-long deals, there is a new component to this year’s Gems Card: Flash Deals. Flash Deals are special promotions and ways to save that are unique to each Gem resort and will be announced last minute throughout the season. CSCUSA will announce Flash Deals in the Gems newsletter, on social media, and on the Gems website www.ColoradoSki.com/gems. Only Colorado Gems Card holders will be able to take advantage of Flash Deals.

Powderhorn

The Powderhorn P-Card is neither a season pass nor a lift ticket, but still offers flexibility and savings. The P-Card is a $69 product that allows the purchaser one free day of skiing or snowboarding and additional days at 20 percent off a regular single day adult lift ticket for the rest of the season. Complementary to the P-Card is the Deca Card. The Deca Card can be used for gifts, families, groups, and friends. The Deca Card is $170 and allows the holder to purchase 10 half-price lift tickets, one at a time, all in one day, or any combination in between. It is transferable with no blackout dates. Details and more information can be found at www.Powderhorn.com.

Ski Cooper

New this season is Ski Cooper’s XP 4 Day Pass for $99. Providing direct-to-lift access (pass will be scanned at the lift), no blackout dates or restrictions, and the flexibility to not be used on consecutive days, this deal breaks down to skiing or riding for less than $25 a day. The XP 4 Pass is non-transferable. The $99 purchase price is good until opening day (November 22 as conditions permit) and then the pass can be purchased for $119 while supplies last. For details and more information please visit www.SkiCooper.com.

Steamboat

Guests are invited to spend the early season in Ski Town USA with the Boat Launch pass that offers three days of skiing and riding from November 22 – December 14. The pass is $129, but with snow in the forecast, Steamboat is offering discounted passes for the next week. For details and more information please visit www.steamboat.com/boatlaunch.

Sunlight

Sunlight offers a free lift ticket to Powderhorn passholders until December 20, 2012. Skiers and riders need to show their Powderhorn season pass at the Sunlight ticket window to receive a lift ticket for the day. This offer is valid for all ages and available from opening day at Sunlight (scheduled for Dec. 7) until December 20, 2012. For details and more information please visit www.Sunlightmtn.com.

Lift & Lodging Packages

Aerial view of Ski Cooper.

Aerial view of Ski Cooper. (Photo credit: Wikipedia)

Aspen/Snowmass

This year the Limelight Hotel in Aspen, where dogs are welcome, offers deals such as its Ski Free package* where guests can receive up to two lift tickets per day with a three night minimum stay, based on availability, and some blackout dates apply. Details and more information can be found at www.limelighthotel.com.

*Lift tickets do not have a dollar value and are non-refundable. Lift tickets are good at all four Aspen/Snowmass ski areas, including Aspen Mountain, Aspen Highlands, Buttermilk and Snowmass.

Copper Mountain

Copper Mountain’s Powder to the Pillow deal gives guests overnight stays in their back pocket to use at any point in time. Guests can pre-purchase three to six nights of lodging and reserve the rooms throughout the season. Visit www.CopperColorado.com for more information.

Crested Butte

A destination known for their past ski free promotions, Crested Butte Mountain Resort offers free skiing for everyone on Opening Day of the 2012-2013 winter season. On November 21, 2012, everyone skis for free, no strings attached. If guests want to stay longer and still receive free skiing, they can book the Ski Free with Lodging package with Crested Butte Vacations at www.skicb.com or call 800-600-2803. Stay one night and receive a free day of skiing for each person on the reservation. This package is available November 21 – December 19, 2012.

Purgatory
Skiers and riders can escape to the scenic Colorado Rocky Mountains for $95 per person/per night with Purgatory’s Rocky Mountain Getaway. The package includes two days of lift tickets and two nights lodging at Durango Mountain Resort. For more information and to book, guests can call 800-525-0892 and mention the “Rocky Mountain Getaway.” Details and more information can be found at www.DurangoMountainResort.com.

*Price is per person, per night, based on double occupancy, minimum two-night stay. Packages may be further customized. Not valid 12/24/2012 – 1/4/2013. Other restrictions may apply.

Steamboat

Steamboat believes that the early bird gets the worm through early rewards package. Travelers can save 20 percent on lifts and lodging for four nights and three days, as low as $394 per adult. A minimum four nights’ lodging and three day lift ticket is required for all guests. Additional savings can be found with Steamboat’s Airfare Sale, with flights as low as $150 into Steamboat’s Hayden Airport. United, Delta and American Airlines have deals from locations including Atlanta, New York, Chicago, Los Angeles, Orlando and more. Travelers need to book by November 30, 2012 for the best savings. For details and more information please visit http://www.steamboat.com/plan-your-trip/deals-and-packages/early-rewards.aspx.

Winter Park

Guest can book five flexible nights of lodging for $169 per night at The Vintage Hotel and they will receive a free Winter Park Season Pass. The season pass allows unrestricted access to Winter Park’s cruisers and Mary Jane’s famous mogul runs all season long. Lodging must book buy December 12, 2012.

New this year, Winter Park is offering a Snow Guarantee. With the guarantee, previously booked vacations can be rescheduled for later in the season if snow conditions are not up to guest’s standards. Trips must be booked for arrival/departure between November 14 – December, 20 2012. Notification of rescheduling must be made 48 hours prior to arrival (by 4 p.m., two days prior to arrival) and will be on a space available basis. Rescheduled trip must be used by April 21, 2013. The cost of the early season vacation will be applied to the later dates and any difference in cost will be paid by the guest and no refund will be offered.

This season Winter Park is offering 25 percent off nightly lodging at the resort. The discount applies to Winter Park Resort properties including Zephyr Mountain Lodge, Fraser Crossing, Founders Point, and Vintage Hotel. Offer is not valid December 26 – 31, 2012 and March 10 – 14, 2013 and must be booked by December 12, 2012. Details and more information can be found at www.WinterParkResort.com.

Lift/Lessons

Aspen/Snowmass

Aspen/Snowmass invites guest who are new to the sports of skiing and snowboarding to take advantage of a lift and lesson package and get on the slopes in the early season. Right now, guests can buy 2, get 3 on lift tickets, equipment rentals, and group lessons (all kids group lessons ages 5 – 17 and adult group lessons level 4 and up). Packages must be booked by November 19, 2012 and are valid November 22 – December 20, 2012. To book this package and get more information please visit www.stayaspensnowmass.com.

Loveland

Loveland has a deal for those who have never tried skiing or riding before but always wanted to. With Loveland’s 3-Class Pass, guests can learn a new sport and receive an Unrestricted Loveland Season Pass to enjoy and practice turns all season long. Guests can simply sign up for three ski or snowboard full lesson packages, which include lesson, all day lift ticket and equipment rental. Once they complete the third lesson, they will receive a season pass. Additional charges apply for novice and low intermediate adults. Prices and more information can be found at http://www.skiloveland.com/skischool/3_class_pass.aspx

Ski Granby Ranch

Ski Granby Ranch (formerly SolVista Basin) offers the Get On the Snow (GOTS) program for never-ever-before skiers or riders. With Ski Granby Ranch’s GOTS Program, guests can learn a new sport and receive a season pass to practice everything they learned. The program includes two full days of lessons and equipment rentals. Once the second lesson has been completed, guests will receive a season pass. For more information, please visit http://www.granbyranch.com/colorado-skiing-snowboarding-ski-resorts-ski-and-ride-school.html.

Wolf Creek

The Beginner Package at Wolf Creek Ski Area offers never-ever skiers and snowboarders a combination lift and group lesson ticket to keep it easy on the first day. The $56 price includes four hours in a group ski lesson and access to the beginner Nova double chairlift. For $66 the same deal can be used for snowboarders. This package is offered to adult skiers/boarders, as well as children ages nine and up. For details and more information please visit www.WolfCreekSki.com

Anniversary Deals

Copper Mountain

Copper Mountain welcomes its 40th season in the skiing business December 7 – 9 with throwback deals. All weekend long, Copper is offering anniversary themed specials; $40 lift tickets, $.72 beer at Endo’s, $40 equipment rental for two and $40 Ski & Ride School and Woodward at Copper packages and much more. Retro snow suits are requested but not required; visit www.CopperColorado.com for more details.

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Costs, when you win a lawsuit you normally can recover your costs

Gregorie v. Alpine Meadows Ski Corporation, 2011 U.S. Dist. LEXIS 20275

Costs do not include attorney fees

This case is a lawsuit by the parents of a 24-year-old girl who died snowboarding. The father, in response to her death founded the California Ski & Snowboard Association (CSSO as set forth by the court and California Ski and Snowboard Safety Organization based on their website). An association allegedly started to make ski areas safer. However, the young girl died out of bounds.

The girl and her friend were hiking out of bounds. On the way, they passed two signs warning people of the dangers. While on the High Beaver Tavers she slipped, slid out of bounds and died.

The girl signed a release before skiing at Alpine Meadows in California. On top of that she was described as an experienced snowboarder.

California Ski & Snowboard Association (CSSO) is an organization that I have written about as a wolf in sheep’s clothing (or maybe it should be skin or wool). Originally, the organization came across as wanting to work with ski areas to make them safer. See Grieving Father starts organization to make skiing safer and California Ski and Snowboard Safety Organization turns out to be a Wolf in Sheep’s Clothing.

Recently, the organization has changed its mission to:

Mission

To promote and support safety improvements in California skiing, snowboarding and recreational snow sports and serve as an independent, factual public resource regarding the safety of California ski resorts.

Vision

A recreational skiing and snowboarding environment in which federal and state governments, health and safety organizations and the ski resort industry are proactively and collaboratively working to establish and maintain the safest possible snow sport environment and experience.

Summary of the case

The plaintiffs sued for Premise’s liability, misrepresentation of the risk, negligence, breach of the season pass agreement, two claims of rescission and declaratory relief.

Rescission is a contract claim that attempts to void the contract and place the parties back in the position they were in prior to the signing of the contract. To win a claim for rescission the party wanting out of the agreement must claim material misstatement of the issues creating the contract, or something akin to fraud or misrepresentation.

The defendants filed a motion for summary judgment based on the release (express assumption of the risk) and primary assumption of the risk. The trial court granted the defendants motion and dismissed the claims of the plaintiff.

As is normal, the defendant then filed a bill of costs. This is a motion to recover their costs they expended in defending the lawsuit. Costs are normally granted to the winning party in a suit.

Costs are the actual money spent for things necessary to defend the suit. In federal court, costs are set out by statute.

Federal Rule of Civil Procedure 54(d)(1)

(1) Fees of the clerk and marshal;

(2)  [*5] Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

A better way to look at costs is; those things the party wrote a check to, necessary to litigate.

Costs do not include attorney fees. To recover attorney fees, there must be a violation of a state statute that awarded costs, a contract that awards costs or liquidated damages or an action (claim) by one side or the other that is frivolous, groundless and wholly without any legal merit. “Rule 54(d)(1) provides that costs, “other than attorney’s fees shall be allowed as of course to the prevailing party unless the court otherwise directs.”

Costs are up to the discretion of the court. Normally, the court will allow most costs if the costs were specifically part of the trial or litigation. I look at it this way. If the judge saw the results of what you paid for, then that might be costs.

On the other hand, if money was spent on something that only might or did lead to what the judge might see, then probably not allowed as costs.). “If the depositions are for investigatory or for discovery purposes only, rather than for presentation of the case, courts have found that they are not taxable.

The decision looks at several of the items the trial court allowed as costs. The original order allowing costs was $72,515.36. The court found that only $51,042.76 of the amount should have been allowed.

So Now What?

There are several interesting issues that are just good to know if you run a ski area or any recreation business. The deposition of the father took three days. Part of that deposition concerned the organization he started, California Ski & Snowboard Association (CSSO); however, no matter why, think about losing three days out of the office for deposition and probably another six days preparing for the deposition. Nine days total for something that if you work hard in the beginning, might have been prevented.

The expert witness of the plaintiff testified for two days. That would be an expensive two days. You and/or your insurance company would be paying probably two lawyers to attend the deposition and paying your expert witness to be questioned. Even if you are not having your expert deposed, just an employee, you are paying the employee to be there. Simply put, depositions on one side or the other can easily cost $1000 per hour.

Winning or losing a lawsuit, is an expensive proposition. Usually, the costs awarded by the court are less than 50% of the actual costs spent. Add to that the time incurred to defend a lawsuit, and it is ridiculous.

What do you think? Leave a comment.

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

Copyright 2012 Recreation Law (720) Edit Law

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

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Skier/Boarder Fatalities 2011-2012 Ski Season 2/15/12

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.

If this information is incorrect or incomplete please let me know.  This is up to date as of February 15, 2012. Thanks.

#

Date

Resort

Age

Skier Ability

Ski/ Tele /Boarder

Helmet

Reference

1

11/18/2011

Vail

62

Skier

Yes

http://rec-law.us/rBcn7A

2

11/18/2011

Breckenridge

19

Expert

Boarder

Yes

http://rec-law.us/rBcn7A

3

11/27/2011

Mountain High ski resor

23

Beginner

Boarder

Yes

http://rec-law.us/uGuW17

4

12/18/2011

Sugar Bowl ski resort

7

Expert

Skier

 

http://rec-law.us/viAqCR

5

1/4/2012

Ski Ward

19

Expert

Skier

http://rec-law.us/y3sOtx

6

1/11/2012

Ski Apache

29

Skier

No

http://rec-law.us/zdfQ4k

7

1/12/2012

Sugarloaf ski resort

41

Skier

Yes

http://rec-law.us/yNHkuc

8

1/14/2012

Silverton Mountain Ski Area

25

Expert

Skier

http://rec-law.us/zcw6MB

9

1/17/2012

Heavenly Mountain Resort

34

Boarder

Yes

http://rec-law.us/yRAXXc

10

1/18/2012

Aspen Highlands

30

Boarder

Yes

http://rec-law.us/wv7vDs

11

1/18/2012

Mt. Hood Meadows Ski Resort

15

Boarder

No

http://rec-law.us/AAnq46

12

1/19/2012

Park City

29

Boarder

Yes

http://rec-law.us/w0k4Pe

13

1/20/2012

Copper Mountain

51

Yes

http://rec-law.us/wD06TR

14

1/20/2012

Whiteface Mountain

25

Yes

http://rec-law.us/wDkcfl

15

1/21/2012

Vail

13

Expert

Skier

http://rec-law.us/xdhVcp

16

1/22/2012

Winter Park

28

Expert

Skier

http://rec-law.us/A0bbt

17

1/24/2012

Steamboat Ski Area

32

Boarder

http://rec-law.us/wF9UFc

18

1/24/2012

Taos Ski Valley

60

Skier

http://rec-law.us/wUl1Vz

19

1/25/2012

Keystone Ski Area

54

Skier

http://rec-law.us/AihrSt

20

1/27/2012

Mt. Hood Skibowl

17

Boarder

http://rec-law.us/zzD3KB

21

1/29/2012

Canyons Ski Resort

19

http://rec-law.us/wcPB7k

22

1/30/2012

Seven Springs Mountain Resort

36

Skier

http://rec-law.us/yOwgDg

27

1/31/2012

Solitude Ski Resort

74

Skier

No

http://rec-law.us/w68s4A

23

2/1/2012

Squaw Valley

51

Skier

http://rec-law.us/xqDrGE

26

2/4/2012

Sugarbush Resort

41

Skier

Yes

http://rec-law.us/zTDKPK

33

2/4/2012

Ski Windham Mountain Resor

54

Skier

http://rec-law.us/ySA8W4

24

2/5/2012

Keystone Ski Area

58

Skier

No

http://rec-law.us/wH6QJA

25

2/5/2012

Ski Windham Mountain Resort

54

Skier

http://rec-law.us/zcTZpF

30

2/6/2012

Mount Snow

33

http://rec-law.us/ABqYPQ

28

2/8/2012

Vail

37

Yes

http://rec-law.us/zF4Ck2

29

2/9/2012

Keystone Ski Area

72

Yes

http://rec-law.us/A9YwUD

31

2/11/2012

Jay Peak Resort

29

Boarder

Yes

http://rec-law.us/x3rzek

32

2/11/2012

Terry Peak Ski Area

24

Skier

No

http://rec-law.us/A0BvQq

 

What do you think? Leave a comment.

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

Copyright 2012 Recreation Law (720) Edit Law

blog@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

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The helmet issue is so contentious people will say the stupidest things

English: Powderbowl Express at Heavenly Ski Re...

Image via Wikipedia

County sheriff deputy reports a helmet would have saved the man’s life, even though he was wearing one and died of blunt force trauma.

In a sad case a snowboarder at Heavenly Mountain Resort avoided another skier and hit a sign post. See Snowboarder from England dies after crash at Heavenly. Another news source also reported the accident and received a quote from the investigating depty. The deputy was quoted in the article:

It is unknown if Perring was wearing a helmet at the time of the accident. A helmet would not have prevented the injuries that led to Perring’s death, Lovell said.

The first and most other reports stated the deceased, Perring was wearing a helmet. At the time of the quote, the newspaper reported the man died of blunt force trauma after hitting the sign, as reported by the deputy.

Perring was skiing on the resort’s Tamarack run about 3 p.m. when he attempted to avoid another skier, left the run and hit a sign post, Lovell said. He suffered blunt force trauma to his chest during the crash.

See Skier dies following collision with sign post at Lake Tahoe resort. Either the reporter was not quoting the deputy correctly (and obviously did not read their own article to put the quote in) or the deputy has been told or decided to say a helmet would have saved the person’s life.

They won’t.  So far there have been 13 fatalities at ski areas this season and seven of the deceased were wearing a helmet. One person was not wearing a helmet and five of the reports do not identify if the deceased was wearing a helmet. See Skier/Boarder Fatalities 2011-2012 Ski Season

Do Something

I hope this is bad reporting, editing or something.

Wear a helmet. It will prevent a head injury if you are skiing or boarding. Just remember it will not save your life and it may make you feel more secure leading you to ski or board faster diminishing or eliminating any protection the helmet provides.

Most importantly, think!

What do you think? Leave a comment.

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Copyright 2012 Recreation Law (720) Edit Law

blog@rec-law.us

Twitter: RecreationLaw

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Will the ski industry ignore itself into litigation nightmares or will it decided to make skiers assume the risk

Angland v. Mountain Creek Resort, Inc., 2011 N.J. Super. Unpub. LEXIS 2542

The issue as identified in this case is ongoing throughout the US, is the standard of care reckless skiing, the standard of care in most of life or just failing to ski perfectly.

This is another case that cannot be relied upon for any major legal principle because it is still facing months or years of litigation. However, it identifies an issue in the ski industry, and probably other industries in the future on the standard of care a skier owes another skier. (In this case I use the term skier to mean anyone on the mountain, skier, boarder, telemark skier, snow bike, etc.)

Is the standard of care that of someone acting recklessly or is the standard of care violating the “skier’s responsibility code?”

This case

The case is simple with drastic consequences. A snowboarder and a skier were on the same slope. Allegedly, another person cut the snowboarder off, and he quickly turned to his left colliding with Angland, the deceased. Angland fell and slid a distance into a wall where he died. Here is the court’s interpretation of what happened.

In order to avoid the unidentified skier, Brownlee turned quickly to his left. In doing so, Brownlee’s snowboard and the decedent’s skis became entangled. The two men collided, fell, and slid downhill. Decedent ultimately impacted a concrete bridge headfirst. He died as a result. Brownlee stopped sliding. He stood up and went to Angland’s assistance.

The family/estate of the deceased sued the ski area, Mountain Creek and the snowboarder. Mountain Creek and the snowboarder filed motions for summary judgment. Mountain Creek was dismissed from the suit based on the New Jersey Ski Statute. The court held that there was enough factual issue in the arguments of the parties that had to be decided by a jury so therefore the snowboarder was not dismissed from the case.

The main issue appears to be did the snowboarder violate the standard of care as set forth in the New Jersey Ski Statute. The relevant part of the statute is:

N.J.S.A. § 5:13-4. Duties of skiers  

(4)        Knowingly engage in any act or activity by his skiing or frolicking, which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.

The expert witness for the plaintiff testified that the snowboarder did violate the statute and consequently, the standard of care when he deviated “… from the statutory standard occurred when Brownlee failed to keep a proper lookout, made a panic stop, and turned to his left in front of decedent.”

If you are turning to avoid a collision, you are maintaining a proper lookout. If you are a goofy footed snowboarder you have limited vision to your left. Again, if you are avoiding a collision or a problem, you turn in skiing and boarding.

The court did not dismiss the complaint of the snowboarder because the court believed the snowboarder may have violated the statute. The statute is not aligned with the other states in how it describes the standard of care leaving a large whole in understanding what level of care is owed by one skier to another.

Do any of those issues rise to the level that they are reckless?

In the past, the standard to determine if a skier was skiing in a negligent manner was whether the skier was skiing recklessly. Reckless skiing is defined as:

….intentionally injure or engage in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport. Mastro v. Petrick, 93 Cal. App. 4th 83; 112 Cal. Rptr. 2d 185; 2001 Cal. App. LEXIS 2725; 2001 Cal. Daily Op. Service 9124 (California)

Carelessness and recklessness,’ though more than ordinary negligence, is less than willfulness or wantonness.” Strawbridge vs. Sugar Mountain Resort, 320 F. Supp. 2d 425; 2004 U.S. Dist. LEXIS 14561 (North Carolina)

A defendant, however, may not be held liable for negligent, or even reckless or intentional injurious conduct that is not outside the range of ordinary activity involved in the sport. Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27 (Rhode Island)

done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff. Stamp, v. The Vail Corporation, 172 P.3d 437; 2007 Colo. LEXIS 1082 (Colorado)

…recklessness is “a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent, Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 2005 Conn. LEXIS 500

Recklessness is not intentional acts; it is just short of that. The expert in this case looked at the issues and identified three things that the defendant snowboarder did that violated the New Jersey Ski Statute:

·        failed to keep a proper lookout

·        made a panic stop

·        turned to his left in front of decedent

In my opinion, none of the actions of the defendant in this case violated the standard of care. Looking at this from the standard of care of all other states with ski areas the defendant snowboarder was not reckless. However, if the plaintiff’s bar has its way, the actions of the defendant snowboarder may have violated the skier responsibility code.

The heart of the argument is the plaintiffs are attempting to change the standard of care from reckless to a much lower level. Usually, that level is aligned with the public-safety program developed by the National Ski Patrol called the Skier Responsibility Code. A few caveats about the code.

          1. It is not set in stone; in fact, an internet search for the code will identify dozens of different codes. The version on the National Ski Patrol website and the National Ski Area Association website are even different.

          2. It was created as a guideline, not a standard of care.

          3. Only Montana has incorporated the code in its statute.

So Now What?

My issue with the entire issue is no one seems to want to take a stand and say this is going to be a disaster if we don’t do something about it. Allowing the definition of a breach of the standard of care between skiers/boarders on the slope is going to cost ski areas a lot of money, more so if they are not named in the suit.

Every lawsuit based ski area land; the ski area is going to have to do things that cost money.

1.      Copies of reports, maps, and ski patrol information must be identified and provided to opposing parties.

2.    Employees will be deposed and attend trial; the resort is going to have to pay them to attend.

3.    When employees are being deposed, and possibly attend trial, attorneys are going to have to be hired to represent the employees.

These are just three quick instances. This does not include such things as closing the slope for a site inspection. If only two employees are subpoenaed think of the cost of preparing for deposition, being deposed, preparing for trial and attending a trial to a ski area.

This is very expensive and if the ski area is not named in the suit, there is no insurance to cover these costs.

From the perspective of this case, there is a lot left to argue. We can only wait and see what the outcome is, if we ever learn.

From the perspective of the ski industry, the industry needs to realize that this is only going to get worse.

The industry needs to:

·        Inform people that collisions, unless reckless or intentional are assumed and part of the risk of skiing. California has done this.

·        Change statutes to say that collisions in skiing, like in football, basketball, soccer, baseball are part of the risk of skiing, and a participant assumes the risk.

·        Define the Skier Responsibility Code as help, not the standard of care.

What do you think? Leave a comment.

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