The ASTM is voting on new terminology for terrain park jumps.

If you manage a ski area or work in the terrain park you MUST know about these changes.

The easiest way to get them is to become a member of the ASTM. The cost is only $75.00 per year to get involved. Although this may seem a little like ransom, it costs to find out how you are going to be affected, look at it from the perspective of it costs $75.00 to become involved and help your industry.

The only way you can access the information or vote is to be a member of the ASTM.

If you don’t the consequences could be dire.

The new description of a terrain park jump identifies twenty (20) different parks of a jump. If you are describing a jump on the
witness stand, you want to make sure that the term you use to describe a part of the jump is fully understood and defined to all the people involved.

The vote on these changes ends August 31, 2017 so get involved now:  Terminology Of Snow Sport Freestyle Terrain Park Jumps WK51845 PDF (368K)

Do Something

If you are in the ski industry, join the ASTM now!

What do you think? Leave a comment.

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Form and Contract and send it to me.

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Michigan decision rules skier who fell into half pipe after landing a jump could not recover based on 2 different sections of the Michigan Ski Area Safety Act.

Language of the Michigan Ski Area Safety Act used to stop plaintiff’s claims two different ways.

Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

State: Michigan, Court of Appeals of Michigan

Plaintiff: Marvin Marshall and Christine Marshall

Defendant: v Boyne USA, Inc.,

Plaintiff Claims: Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe.

Defendant Defenses: plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket.

Holding: for the defendant

Year: 2012

Plaintiff was skiing with a friend. In the morning, they had skied through the terrain park but had not skied the half pipe. In the afternoon, they went back to the terrain park and skied several jumps again. Plaintiff also noticed the warning sign at the entrance of the terrain park.

The half pipe in this case appears to be a trough lower than the height of the ski slope based upon the description in the decision. As the plaintiff landed a jump, he allegedly slid to a stop and then fell into the half pipe suffering injuries.

The plaintiff and his spouse sued the resort. The resort filed a motion for summary disposition (similar to a motion for summary judgment) with the court based on:

…plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket.

That motion was denied, and the defendants appealed the denial to the Michigan Appellate Court.

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

The court firs looked at the Michigan Ski Area Safety Act. The court found the claims of the plaintiff were barred by the act. Under the Michigan act, a skier assumes the risks of the sport that are necessary or not obvious.

We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Among the risks assumed are “variations in terrain.” MCL 408.342(2).

Because the actions of the plaintiff were covered under the act, the court then looked to see if the actions of the defendant ski area were in violation of any duty imposed under the act. The court did not find any violations of the act.

Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that defendant complied with this requirement.

The plaintiff argued that failing to mark the half pipe breached a duty to the plaintiff. However, the court found the plaintiff accepted that risk of an unmarked half pipe when he chose to ski into the terrain park and passed the warning sign.

By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law.

The defendant raised two additional arguments in its defense. The first was a release signed by the plaintiff when he rented his ski equipment and the “release” on the back of his lift ticket. Because the statute barred his claims and the lawsuit would be dismissed, the court did not look into either of those defenses.

The court reversed the trial court decision.

There was also a dissent in the case. The dissent agreed with the majority that the case should be reversed by based its decision to reverse on other grounds.

The dissent found the terrain park and the half pipe were necessary installations in a terrain park. However, the dissent agreed with the plaintiff’s that the half pipe was not obvious, which is what the dissent believes persuaded the trial court to deny the defendant’s motion.

However, because the plaintiff to actual knowledge of the half pipe that he observed earlier in the day while skiing he could not claim it was a hidden danger.

The dissent also felt the plaintiff should lose because the plaintiff failed to maintain reasonable control of his course and speed at all times as required by the Michigan Ski Area Safety Act.

I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after  executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.

The case was sent back to the trial court to be dismissed.

So Now What?

It’s nice when a plan comes together, and a statute is written so the court’s interpretation of the statute proceeds along the same lines as the writers of the statute intended.

The Michigan Ski Area Safety Act is a very effective act, almost as encompassing as Colorado’s. The act was written to make sure that injured skiers could only sue if the ski area actually did something to injure the plaintiffs.

The facts in this case also do not lead you to believe the plaintiff stretched the truth. His actions in skiing across the mountain to hit a jump which sent him further across the mountain diagonally were not super intelligent. However, did not result in any injury except his own.

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Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marvin Marshall and Christine Marshall, Plaintiffs-Appellees, v Boyne USA, Inc., Defendant-Appellant.

No. 301725

COURT OF APPEALS OF MICHIGAN

2012 Mich. App. LEXIS 928

May 15, 2012, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

SUBSEQUENT HISTORY: Leave to appeal denied by Marshall v. Boyne United States, Inc., 2012 Mich. LEXIS 2153 (Mich., Dec. 5, 2012)

PRIOR HISTORY: [*1]

Charlevoix Circuit Court. LC No. 10-091822-NF.

CORE TERMS: half pipe, terrain, skiing, ski, jump, skied, hit, inhere, hazard, trail, sport, downhill, feet, Safety Act SASA, ski resort, skier, slope, top, morning, timing, reversing, booth, edge

JUDGES: Before: HOEKSTRA, P.J., and SAWYER and SAAD, JJ. HOEKSTRA, P.J., (concurring).

OPINION

Per Curiam.

Defendant appeals by leave granted from the circuit court’s order denying defendant’s motion for summary disposition. We reverse and remand.

In 2009, plaintiff Marvin Marshall was skiing at defendant’s ski resort at Boyne Mountain in Charlevoix County with a friend, Randy. They skied several trails that morning, and also skied in the terrain park. Plaintiff was familiar with and had skied in terrain parks, which he described as having “jumps and different obstacles[.]” Plaintiff saw a warning sign at the entrance to the terrain park, but he did not read it.

The terrain park contained a half pipe that was about twenty feet deep. A half pipe is a ski attraction created by a trench in the snow that extends downhill. Skiers ski inside of the half pipe. On the morning of February 5, plaintiff saw the half pipe in the terrain park, but he did not ski into it. Plaintiff skied in an area just to the right of the half pipe.

After lunch, plaintiff and his friend went into the terrain park for a second time. They entered the terrain park from the left side this time. [*2] Plaintiff skied down the terrain park and hit the edges of a series of jumps. When plaintiff was halfway down the hill, Randy yelled to him and plaintiff stopped. Randy said that there was a good jump to their right that would be “good to hit.” Randy went first, and plaintiff followed. Plaintiff proceeded laterally across the hill (to the right, if one is facing downhill). Plaintiff “came almost straight across because there was enough of an incline . . . [he] didn’t have to come downhill much.”

Plaintiff successfully navigated the jump, which caused him to go up into the air about 12 to 15 feet. He landed and came to a stop by turning quickly to the right and power-sliding to a stop. As he looked around for Randy, plaintiff felt his feet go over the edge of the half pipe. He slid down the side a little bit, and then hit the bottom. Plaintiff shattered his left calcaneus (heel) and the top of his tibia, and broke his hip and right arm. He also fractured his left eye socket where his pole hit his head when he fell.

Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe. Defendant moved for summary disposition, [*3] arguing that plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket. The trial court denied the motion, concluding that there remained issues of fact. Thereafter, we granted defendant’s motion for leave to appeal. We review the trial court’s decision de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 23; 664 NW2d 756 (2003).

We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Anderson, 469 Mich at 26. Among the risks assumed are “variations in terrain.” MCL 408.342(2). Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that [*4] defendant complied with this requirement. Rather, plaintiffs argue that defendant breached a duty not imposed by the statute: to mark the half pipe itself. But Anderson makes clear that when SASA resolves a matter, common-law principles are no longer a consideration. Anderson, 469 Mich at 26-27. By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law. Anderson, 469 Mich at 25-26.

Accordingly, defendant was entitled to summary disposition by application of SASA. In light of this conclusion, we need not consider whether defendant was also entitled to summary disposition under the liability waivers.

Reversed and remanded to the trial court with instructions to enter an order of summary disposition in defendant’s favor. We do not retain jurisdiction. Defendant may tax costs.

/s/ David H. Sawyer

/s/ Henry William Saad

CONCUR BY: HOEKSTRA

CONCUR

Hoekstra, P.J., (concurring).

Although I join with the majority in reversing, I write separately because my reason for reversing differs from that of the majority.

In Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 26; 664 NW2d 756 (2003), [*5] the Supreme Court concluded that if a hazard inheres in the sport of skiing, it is covered by the Michigan’s Ski Area Safety Act (SASA), MCL 408.321 et seq., unless it is unnecessary or not obvious.

Here, it is undisputed that the half pipe, like the timing booth in Anderson, inheres to the sport of skiing and is a necessary installation in a terrain park. But unlike the timing booth in Anderson, plaintiff, in my opinion, makes an arguable claim that the half pipe was not obvious to persons skiing cross-hill. It appears that this argument persuaded the trial court to deny defendant’s motion for summary judgment.

But even assuming a fact question exists regarding whether the half pipe was not obvious, plaintiff admitted to actual knowledge of the location of the half pipe from having observed it earlier that same day while skiing. When skiing, a plaintiff is required by the SASA to “maintain reasonable control of his speed and course at all times,” MCL 408.342 (emphasis added). I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after [*6] executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.

/s/ Joel P. Hoekstra


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

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

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

State: Oregon Supreme Court

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

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

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

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 2014

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

The facts of this case have been copies from Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18.

This is a rare review of release or contract law because the odds are against it. A contract is voidable by the minor when the minor signs the contract. However, if the contract is, in effect, when the minor reaches the age of majority, the minor can either disaffirm the contract which puts the parties back in the position before the contract was signed or if he or she fails to do that he or she takes advantages of the benefits of the contract and continues to use it the contract is in force.

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

The minor signed a season pass release at the defendant ski area. His father signed a minor release and indemnity agreement. Two weeks later and before the plaintiff had started snowboarding, he turned 18. Once he started snowboarding, after reaching age 18, he boarded at the defendant’s resort 26 different days, and his pass was scanned 119 times.

Going through the terrain park where he seemed to spend most of his time, the plaintiff was injured on a jump which resulted in permanent paralysis.

The minor and his parents sued the resort. The trial court dismissed his complaints after the defendant filed a motion for summary judgment based on the release the minor had signed.

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

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

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

It is a truism that a contract validly made between competent parties is not to be set aside lightly. (“When two or more persons competent for that purpose, upon a sufficient consideration, voluntarily agree to do or not to do a particular thing which may be lawfully done or omitted, they should be held to the consequences of their bargain.”). The right to contract privately is part of the liberty of citizenship, and an important office of the courts is to enforce contractual rights and obligations. (so stating). As this court has stated, however, “contract rights are [not] absolute; * * * [e]qually fundamental with the private right is that of the public to regulate it in the common interest.”

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

It is elementary that public policy requires that * * * contracts [between competent parties], when entered into freely and voluntarily, shall be held sacred and shall be enforced by the courts of justice, and it is only when some other overpowering rule of public policy * * * intervenes, rendering such agreement illegal, that it will not be enforced.

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

Thus, for the sake of convenience–if not doctrinal convergence–we address the parties’ public policy arguments in the context of our analysis of whether, in the particular circumstances of this case, enforcement of the release would be unconscionable.

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

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

Oppression exists when there is inequality in bargaining power between the parties, resulting in no real opportunity to negotiate the terms of the contract and the absence of meaningful choice. Surprise involves whether terms were hidden or obscure from the vantage of the party seeking to avoid them.

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

In contrast, the existence of gross inequality of bargaining power, a takeit- or-leave-it bargaining stance, and the fact that a contract involves a consumer transaction, rather than a commercial bargain, can be evidence of oppression.

Substantive unconscionability was then defined as how the terms of the contract are viewed.

… generally refers to the terms of the contract, rather than the circumstances of formation, and focuses on whether the substantive terms contravene the public interest or public policy.

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

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

The court did find that under Oregon law, it could void a release if the results would be harsh. “Finally, this court has held that another factor for determining whether an anticipatory release may be unenforceable is the possibility of a harsh or inequitable result for the releasing party.”

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

We glean from those decisions that relevant procedural factors in the determination of whether enforcement of an anticipatory release would violate public policy or be unconscionable include whether the release was conspicuous and unambiguous; whether there was a substantial disparity in the parties’ bargaining power; whether the contract was offered on a take-it-or-leave-it basis; and whether the contract involved a consumer transaction.

Relevant substantive considerations include whether enforcement of the release would cause a harsh or inequitable result to befall the releasing party; whether the releasee serves an important public interest or function; and whether the release purported to disclaim liability for more serious misconduct than ordinary negligence.

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

Nothing in our previous decisions suggests that any single factor takes precedence over the others or that the listed factors are exclusive. Rather, they indicate that a determination whether enforcement of an anticipatory release would violate public policy or be unconscionable must be based on the totality of the circumstances of a particular transaction.

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

This was not an agreement between equals. Only one party to the contract-defendant-was a commercial enterprise, and that party exercised its superior bargaining strength by requiring its patrons, including plaintiff, to sign an anticipatory release on a take-it-or-leave-it basis as a condition of using its facilities.

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

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

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

As pertinent here, we conclude that the result would be harsh because, accepting as true the allegations in plaintiff’s complaint, plaintiff would not have been injured if defendant had exercised reasonable care in designing, constructing, maintaining, or inspecting the jump on which he was injured. And that harsh result also would be inequitable because defendant, not its patrons, has the expertise and opportunity to foresee and control hazards of its own creation on its premises, and to guard against the negligence of its employees.

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

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

Skier Responsibility Law provides that “[t]o the extent an injury is caused by an inherent risk of skiing, a skier will not recover against a ski area operator; to the extent an injury is a result of [ski area operator] negligence, comparative negligence applies

The court summed up its analysis to this point stating.

In short, because (1) accepting as true the allegations in plaintiff’s complaint, plaintiff would not have been injured if defendant had exercised reasonable care in designing, constructing, maintaining, or inspecting the jump on which he was injured; and (2) defendant, not its patrons, had the expertise and opportunity–indeed, the common law duty–to foresee and avoid unreasonable risks of its own creation on its business premises, we conclude that the enforcement of the release would cause a harsh and inequitable result, a factor that militates against its enforcement.

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

However, like other places of public accommodation such as inns or public warehouses, defendant’s business premises–including its terrain park–are open to the general public virtually without restriction, and large numbers of skiers and snowboarders regularly avail themselves of its facilities. To be sure, defendants’ business facilities are privately owned, but that characteristic does not overcome a number of legitimate public interests concerning their operation

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

Accordingly, we reject defendant’s argument that the fact that skiing and snowboarding are “non-essential” activities compels enforcement of the release in this case. Instead, we conclude that defendant’s business operation is sufficiently tied to the public interest as to require the performance of its private duties to its patrons

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

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

That said, the release is very broad; it applies on its face to a multitude of conditions and risks, many of which (such as riding on a chairlift) leave defendant’s patrons vulnerable to risks of harm of defendant’s creation

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

In the ultimate step of our unconscionability analysis, we consider whether those procedural and substantive considerations outweigh defendant’s interest in enforcing the release at issue here.

So Now What?

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

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

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

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

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

What do you think? Leave a comment.

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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.


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

This decision was just overturned by the Oregon Supreme Court in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 on December 18, 20014

The term is disaffirm, the minor must disaffirm the release or contract after reaching age 18 or the release or contract is valid.

Date of the Decision: September 5, 2013

Plaintiff: Myles A. Bagley, individually, Plaintiff-Appellant, and Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs

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

Plaintiff Claims: (1) concluding that there was no genuine issue of material fact as to whether Bagley ratified, after reaching the age of majority, a release agreement entered into while he was a minor; (2) concluding that the release agreement was not contrary to public policy; and (3) concluding that the release agreement was neither substantively nor procedurally unconscionable.

Defendant Defenses: Release

Holding: for the defendant. The minor took advantage of the benefits of the contract (release) and did not disaffirm the contract upon reaching the age of majority (18).

This is a rare review of release or contract law because the odds are against it. A contract is voidable by the minor when the minor signs the contract. However, if the contract is in effect when the minor reaches the age of majority, the minor can either disaffirm the contract which puts the parties back in the position before the contract was signed or if he or she fails to do that he or she takes advantages of the benefits of the contract and continues to use it the contract is in force.

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

The minor signed a season pass release at the defendant ski area. His father signed a minor release and indemnity agreement. Two weeks later and before the plaintiff had started snowboarding he turned 18. Once he started snowboarding, after reaching age 18, he boarded at the defendant’s resort 26 different days and his pass was scanned 119 times.

Going through the terrain park where he seemed to spend most of his time, the plaintiff was injured on a jump which resulted in permanent paralysis.

The minor and his parents sued the resort. The trial court dismissed his complaints after the defendant filed a motion for summary judgment based on the release the minor had signed.

Summary of the case

The appellate court reviewed the facts and pointed several of the facts out repeatedly.

He was also an experienced snowboarder, had signed release agreements at other ski resorts in the past, and had purchased a season pass and signed a release agreement for each of the preceding three years that he spent snowboarding at Mt. Bachelor.

After reaching age 18 the plaintiff used the release 119 times over 26 days during a four month period. Once you affirm a contract, by using it and not disaffirming it, you cannot later disaffirm the contract. A contract is affirmed if the contract is not disaffirmed which requires an act on the part of the plaintiff. Meaning if the minor does not make an affirmative act to disaffirm the release then the release stands.

In Oregon, a former minor may disaffirm a contract within a “reasonable time” after reaching the age of majority, or, conversely, may ratify a contract after reaching the age of majority by manifesting an intent to let the contract stand, “[I]f an infant after reaching the age of majority engages in any conduct that objectively manifests an intent to regard the bargain as binding, the former minor will be held as a matter of law to have ratified the contract.”).

In this case the only disaffirmance occurred two years later when the plaintiff started his lawsuit.

The plaintiff then argued that because he had no knowledge of the power to disaffirm this release he should not be held to his failure to disaffirm. However the court shot this down with the standard statement. “However, we have previously stated that “[i]gnorance of the law is not a basis for not enforcing a contract.“”

The court then reviewed the requirements for a valid release under Oregon law. “[W]hen one party seeks to contract away liability for its own negligence in advance of any harm, the intent to do so must be ‘clearly and unequivocally expressed.”

The public policy argument was also shot down in a very common sense manner.

“[T]here are no public policy considerations that prevent a diving school from limiting liability for its own negligence. The diving school does not provide an essential public service[.]”). A ski resort, like a diving school, primarily offers “recreational activities” (with possible exceptions that do not apply here, e.g., training for search-and-rescue personnel) and does not provide an “essential public service.

The release was also found to not be unconscionable.

[T]he doctrine of unconscionability does not relieve parties from all unfavorable terms that result from the parties’ respective bargaining positions; it relieves them from terms that are unreasonably favorable to the party with greater bargaining power. Oregon courts have been reluctant to disturb agreements between parties on the basis of unconscionability, even when those parties do not come to the bargaining table with equal power. In those rare instances in which our courts have declared contractual provisions unconscionable, there existed serious procedural and substantive unfairness

The court followed up the public policy quote with “…albeit in dictum and in the context of addressing public-policy arguments, suggested that standard-form release agreements in the context of recreational activities are not impermissibly adhesive.”

A recreational activity is not subject to public policy arguments because the signer can:

“…simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable”

“[T]he release from liability is not invalid as a contract of adhesion, because [the] plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services.”

Because it was the plaintiff’s choice to board at the defendants ski area the release did not violate public policy.

When an individual enters a ski shop to buy ski equipment, s/he does not have a need for those goods and services, merely a desire. Should the seller demand exculpation as a condition for the sale of the equipment, the purchaser is free to walk away.

The one misstatement in my opinion which the court also pointed out was language that exempted the release for intentional acts. “THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.” The capitalized print made this statement in the release even standout. The court, found this to be curious and probably was thinking the same way I did, why give the plaintiff’s a way out of the release.

The Oregon Court of Appeals upheld the release as a defense to the claims of the plaintiff.

So Now What?

When a guest enters their date of birth in the information form indicating they are under the age of majority, this always creates a problems because minor’s cannot sign releases. However, if the minor can read the release, even the release is voided by the minor, it can still be used to prove assumption of the risk by the minor.

If the minor is turning the age of majority during the term of the release you can have the minor reaffirm the release or sign a new release after his birthday.

The court repeatedly pointed out how many times the plaintiff had used the release, how many releases at this resort and other resorts the plaintiff had signed before and the experience of the plaintiff. Keep track of this information because it will be valuable in any case showing that the release was an accepted contract for the plaintiff.

Never write in your release the ways the plaintiff can sue you. Here the statement in the release that it was not effective for intentional misconduct is the same as telling the plaintiff to write their complaint to couch the injury as an intentional act on the part of the defendant.

On the good side, the ski area had the minor sign the release, even though the release at the time was of no value. A release signed by a minor might have value later as in this case or might be able to prove assumption of the risk.

The Oregon Supreme Court has just accepted this case for review of this decision. So please learn from this article but do not rely upon it yet. (http://rec-law.us/1jaw8g2)

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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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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.

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

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North Carolina Skier Safety Act

North Carolina Skier Safety Act

General Statutes of North Carolina

CHAPTER 99C. ACTIONS RELATING TO WINTER SPORTS SAFETY AND ACCIDENTS

Go to the North Carolina Code Archive Directory

N.C. Gen. Stat. § 99C-1 (2013)

§ 99C-1. Definitions

When used in this Chapter, unless the context otherwise requires:

(1) Competitor. — A skier actually engaged in competition or in practice therefor with the permission of the ski area operator on any slope or trail or portion thereof designated by the ski area operator for the purpose of competition.

(1a) Freestyle terrain. — Constructed and natural features in ski areas intended for winter sports including, but not limited to, terrain parks and terrain park features such as jumps, rails, fun boxes, half-pipes, quarter-pipes, and freestyle-bump terrain.

(2) Passenger. — Any person who is being transported or is awaiting transportation, or being conveyed on a passenger tramway or is moving from the disembarkation point of a passenger tramway or is in the act of embarking upon or disembarking from a passenger tramway.

(3) Passenger tramway. — Any device used to transport passengers uphill on skis or other winter sports devices, or in cars on tracks, or suspended in the air, by the use of steel cables, chains, belts or ropes. Such definition shall include such devices as a chair lift, J Bar, or platter pull, rope tow, and wire tow.

(4) Ski area. — All winter sports slopes, alpine and Nordic ski trails, freestyle terrain and passenger tramways, that are administered or operated as a ski area enterprise within this State.

(5) Ski area operator. — A person, corporation, or organization that is responsible for the safe operation and maintenance of the ski area.

(6) Skier. — Any person who is wearing skis or other winter sports devices or any person who for the purpose of skiing or other winter sports is on a designated and clearly marked winter sports slope, alpine or Nordic ski trail or freestyle terrain that is located at a ski area, or any person who is a passenger or spectator at a ski area.

(7) Winter sports. — Any use of skis, snowboards, snowshoes, or any other device for skiing, sliding, jumping, or traveling on snow or ice.

§ 99C-2. Duties of ski area operators and skiers

(a) A ski area operator shall be responsible for the maintenance and safe operation of any passenger tramway in his ski area and insure that such is in conformity with the rules and regulations prescribed and adopted by the North Carolina Department of Labor pursuant to G.S. 95-120(1) as such appear in the North Carolina Administrative Procedures Act. The North Carolina Department of Labor shall conduct certifications and inspections of passenger tramways.

A ski area operator’s responsibility regarding passenger tramways shall include, but is not limited to, insuring operating personnel are adequately trained and are adequate in number; meeting all standards set forth for terminals, stations, line structures, and line equipment; meeting all rules and regulations regarding the safe operation and maintenance of all passenger lifts and tramways, including all necessary inspections and record keeping.

(b) A skier shall have the following responsibilities:

(1) To know the range of the skier’s abilities to negotiate any ski slope or trail and to ski within the limits of such ability;

(2) To maintain control of the skier’s speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and obvious hazards and inherent risks, including variations in terrain, snow, or ice conditions, bare spots and rocks, trees and other forms of forest growth or forest debris;

(3) To stay clear of snow grooming equipment, all vehicles, pole lines, lift towers, signs, snowmaking equipment, and any other equipment on the ski slopes and trails;

(4) To heed all posted information and other warnings and to refrain from acting in a manner which may cause or contribute to the injury of the skier or others;

(5) To wear retention straps, ski brakes, or other devices to prevent runaway skis or snowboards;

(6) Before beginning to ski from a stationary position or before entering a ski slope or trail from the side, to avoid moving skiers already on the ski slope or trail;

(7) To not move uphill on any passenger tramway or use any ski slope or trail while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any narcotic or other drug or while such person is under the influence of alcohol or any narcotic or any drug;

(8) If involved in a collision with another skier or person, to not leave the vicinity of the collision before giving his name and current address to an employee of the ski area operator, a member of the ski patrol, or the other skier or person with whom the skier collided, except in those cases when medical treatment is required; in which case, said information shall be provided as soon as practical after the medical treatment has been obtained. If the other person involved in the collision is unknown, the skier shall leave the personal identification required by this subsection with the ski area operator;

(9) Not to embark upon or disembark from a passenger tramway except at an area that is designated for such purpose;

(10) Not to throw or expel any object from a passenger tramway;

(11) Not to perform any action that interferes with the operation or running of a passenger tramway;

(12) Not to use such tramway unless the skier has the ability to use it with reasonable safety;

(13) Not to engage willfully or negligently in any type conduct that contributes to or causes injury to another person or his properties;

(14) Not to embark upon a passenger tramway without the authority of the ski area operator;

(15) If using freestyle terrain, to know the range of the skier’s abilities to negotiate the terrain and to avoid conditions and obstacles beyond the limits of such ability that a visible inspection should have revealed.

(c) A ski area operator shall have the following responsibilities:

(1) To mark all trails and maintenance vehicles and to furnish such vehicles with flashing or rotating lights that shall be in operation whenever the vehicles are working or moving in the ski area;

(2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment that is used in snowmaking operations and located anywhere in the ski area;

(3) To indicate the relative degree of difficulty of a slope or trail by appropriate signs. Such signs are to be prominently displayed at the base of a slope where skiers embark on a passenger tramway serving the slope or trail, or at the top of a slope or trail. The signs must be of the type that have been approved by the National Ski Areas Association and are in current use by the industry;

(4) To post at or near the top of or entrance to, any designated slope or trail, signs giving reasonable notice of unusual conditions on the slope or trail;

(5) To provide adequate ski patrols;

(6) To mark clearly any hidden rock, hidden stump, or any other hidden hazard known by the ski area operator to exist;

(6a) To inspect the winter sports slopes, alpine and Nordic ski trails, and freestyle terrains that are open to the public at least twice daily and maintain a log recording: (i) the time of the inspection and the name of the inspector(s); and (ii) the general surface conditions, based on industry standards, for the entire ski area at the time of the inspections;

(6b) To post, in a conspicuous manner, the general surface conditions for the entire ski area twice daily; and

(7) Not to engage willfully or negligently in any type conduct that contributes to or causes injury to another person or his properties.

§ 99C-3. Violation constitutes negligence

A violation of any responsibility placed on the skier, passenger or ski area operator as set forth in G.S. 99C-2, to the extent such violation proximately causes injury to any person or damage to any property, shall constitute negligence on the part of the person violating the provisions of that section.

§ 99C-4. Competition

The ski area operator shall, prior to the beginning of a competition, allow each competitor a reasonable visual inspection of the course or area where the competition is to be held. The competitor shall be held to assume risk of all course conditions including, but not limited to, weather and snow conditions, course construction or layout, and obstacles which a visual inspection should have revealed. No liability shall attach to a ski area operator for injury or death of any competitor proximately caused by such assumed risk.

 


You have to be prepared way before trial, and you have to win at trial, because judges are given wide discretion in controlling your chances on appeal.

Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2506

This case significantly changed the ski industry.

This decision out of the Washington Appellate Court offers value in understanding some issues that occur at trial. It also offers an example of how much control a judge has in a trial and why a judge really can control the outcome of your trial if you are not prepared.

The plaintiff in this case was an experienced skier who had gone over the table-top  jump at issue before. There is conflicting testimony on how fast the plaintiff was skiing; however, he landed far down the hill beyond the landing zone. The injuries rendered him a quadriplegic. The case was taken to trial, and the jury found the plaintiff 55% liable and the ski area 45% liable. The jury awarded $30 million in damages, resulting in a $14 million-dollar  recovery for the plaintiff.

The plaintiff sued “alleging that it designed and built an unreasonably dangerous ski jump, and that it failed to close the jump or to warn of its dangers.” The defense argued that the risk was an inherent part of skiing, and the plaintiff was negligent and therefore, the cause of his injuries.

Summary of the case

Washington like all other states has comparative negligence. However, unlike the majority of the states, this is a pure comparative negligence state. That means the jury awards an amount and decides what percentage each party to the litigation is at fault. In the majority of states if the plaintiff is more than 50% or 51% at fault the plaintiff recovers nothing. This is not true in Washington. The percentage is applied to the damages, and the plaintiff receives that percentage of the damages. 45% of $30 million is about $14 million.

Washington has a Skier Safety Statute. However, it is very weak and does not define the risks of skiing. In this case, the statute provided very little benefit to the defendant.

The majority of the decision focuses on the jury instructions. Jury instructions are the actual written instructions the jury takes with them into the jury room that explain the law. The legal issues and definitions are each on a separate on a piece of paper that is numbered. By reading through the instructions in numerical order the jury is helped to decide the legal issues or more importantly decide how the facts apply to the law.

Some states have pre-printed jury instructions. Federal courts and several states the jury instructions are created by the parties and the judge. In both cases, the opposing attorneys and judge creates the final instructions that the jury will read.

The judge is given wide discretion in creating jury instructions and unless the jury instructions are plain wrong, they are rarely overturned. That was the case here. The defendant argued several issues with the jury instructions, and the appellate court found none of the issues were so great as to be wrong. The judge has vast discretion to determine the jury instructions.

“The court need not include specific language in a jury instruction, so long as the instructions as a whole correctly state the law.”

Washington Skier Safety Act does not have any definitions for terrain parks or jumps. Like many ski area acts, Washington’s has not been updated to keep up with the changes in the sport.

This left the defendant with a tough burden of proving the risks of jumping in a terrain park was an inherent risk of skiing.

Washington applies the landowner test to the duty owed to patrons at a ski area. Because the skier is there for the financial benefit of the ski area, the skier is a business invitee which the ski area owes “a duty to a skier to discover dangerous conditions through reasonable inspection, and repair that condition or warn the invitees, unless it is known or obvious.” The Appellate Court quoted from the Restatement of Torts to support its opinion, which places a very high burden upon a ski area.

An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein.

Restatement (Second) of Torts § 343, cmt. d (1965).

The defendant argued that a notice on a whiteboard was sufficient to warn of the dangers. However, the court found otherwise. The plaintiff’s experts also opined that there should have been an entrance to the jump so skiers could not get so much speed. That was supported by 15 incidents reports the plaintiff placed  into evidence of injuries from people landing beyond the jump landing zone. This was reduced from 66 the plaintiff had originally tried to have admitted.

If you keep paperwork showing a problem, you better also have paperwork showing what you did about the problem.

The ski area also argued they were not required to create a start point or place a sign there because the speed that a skier entered a jump was up to the skier.

The court, however, did make some statements from a skier’s perspective that seemed at odds with reality.

Lifts further contends that it had no duty to warn Salvini because he had used the jump before and was fully aware of its condition. This argument is not persuasive. Salvini’s previous use of the jump would not necessarily put him on notice that its design could increase the risk of severe injury from overshooting. Whether the jump’s deficiencies were “known and obvious” and whether Salvini should have anticipated the harm is a question of fact for the jury.

.. . . .

The trial court rejected most of the 66 incident reports offered by Salvini because it found that they were not sufficiently similar, and it admitted only “[t]hose accident reports documenting an injury occurring as a result of overshooting the jump in question, on either skis or snowboards (which go slower than skis.) … .” CP at 2635. If overshooting was a problem for slower moving snowboarders, it is reasonable to expect it to be a problem for skiers as well.

The first issue is that using a jump does not give you notice that the jump is dangerous seems to be at odds with reality. The issue that if you go over a jump and do not realize that it has increased dangers over skiing on flat terrain does not seem logical. Anytime you are going faster than you feel comfortable or above the ground without holding on to something seems to indicate an increase in risk that should be obvious to everyone.

At the same time, after you have done something dangerous enough times, enough being a different number for everyone, you become accustomed to the risk. However, being able to deal with the risk does not mean that you have totally lost the ability to understand or appreciate the risk.

The second is the court’s statement about snowboards going slower than skiers which does not seem to be supported in the opinion and could be argued in a lot of cases is as irrelevant. It is the skill of the person wearing the board or skis that have more of an influence on the speed rather than the implement itself.

This decision is a nasty one for ski areas. $14 million is a lot of money, especially for a small area and a small insurance pool

So Now What?

You cannot create risks just because every other competitor is doing it. If you state does not have the laws, or you do not have either the skills and knowledge or the defenses to deal with the risk you are over your head.

Find out what your competitors are doing. How they are approaching the risk. In this case, what fencing they are using, how they are building their features and who they are allowing in the features.

There were some very interesting things that occurred with this trial; however, that is the system we have in the US, and sometimes you get screwed.

Plaintiff: Kenneth Salvini

Defendant: Ski Lifts, Inc. (dba Snoqualmie Summit Ski Area)

Plaintiff Claims: Negligence

Defendant Defenses: inherent risks and signage

Holding: for the plaintiff

What do you think? Leave a comment.

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Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2506

Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2506

Kenneth Salvini et al., Individually, Respondents, v. Ski Lifts, Inc., Appellant.

NO. 60211-0-I

COURT OF APPEALS OF WASHINGTON, DIVISION ONE

2008 Wash. App. LEXIS 2506

October 20, 2008, Filed

NOTICE: Rules of the Washington Court of Appeals may limit citation to unpublished opinions. Please refer to the Washington Rules of Court.

SUBSEQUENT HISTORY: Reported at Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2529 (Wash. Ct. App., Oct. 20, 2008)

PRIOR HISTORY: [*1]

Appeal from King County Superior Court. Docket No: 05-2-13652-9. Judgment or order under review. Date filed: May 31, 2007. Judge signing: Honorable Laura Inveen.

COUNSEL: Counsel for Appellant(s): William Robert Hickman, Pamela A. Okano, Reed McClure, Ruth Nielsen, Nielsen Law Office Inc PS, Wendy E Lyon, Riddell Williams PS, Seattle, WA; James W. Huston, Morrison & Foerster, LLP, San Diego, CA; Beth S. Brinkmann, Ketanji Brown Jackson, Morrison & Foerster, LLP, Washington, DC.

Counsel for Respondent(s): John Robert Connelly Jr., Connelly Law Offices, James Walter Beck, Gordon Thomas Honeywell, Tacoma, WA; Philip Albert Talmadge, Tukwila, WA.

JUDGES: Authored by Linda Lau. Concurring: Marlin Appelwick, Ronald Cox.

OPINION BY: Linda Lau

OPINION

¶1 Lau, J. — While attempting a terrain park ski jump at a ski area, Kenneth Salvini was severely injured. Salvini and his parents brought a negligence action against the owner-operator Ski Lifts, Inc. The jury found Salvini 55 percent responsible and Ski Lifts 45 percent responsible. Ski Lifts appeals, arguing that the trial court improperly instructed the jury on duty, inherent risk, and signage, and that it admitted prejudicial and irrelevant evidence of prior accidents. We conclude that [*2] the jury instructions were proper and that the trial court did not abuse its discretion in admitting evidence of prior accidents for the limited purpose of notice. Accordingly, we affirm.

FACTS

¶2 Ski Lifts owns and operates Snoqualmie, a ski area that features downhill skiing and a terrain park filled with artificial jumps and structures. Among these features are “table top” jumps, which have a takeoff ramp, a flat deck section, and a landing slope. To jump a table top successfully, a skier must approach the takeoff ramp with sufficient speed to launch into the air and clear the deck while maintaining enough control to land upright on the landing slope. “Overshooting” occurs when the skier lands past the end of the landing slope.

¶3 At approximately 7 P.M. on February 11, 2004, Kenneth Salvini arrived at Snoqualmie with his father and some friends. It was night, and the snow was rough, icy, and hard. After spending about an hour skiing at the Alpental downhill area, the main ski lift broke down. They then moved to the Summit Central downhill area. Salvini and a friend took a lift to the top of the mountain and skied over to the terrain park. A message hand written in light blue pen on a whiteboard [*3] sign posted near the lift read, “Terrain park Tip of the Week: Most injuries in the terrain park are as a result of the rider out-jumping the landing. Thanks, your friendly Ski Patrol.” Ex. 7. A Ski Lifts employee testified that the message was posted following several overshooting incidents. But Salvini and his friend did not see the sign.

¶4 Salvini, an experienced skier, decided to try a table top jump in the lower part of the terrain park–one that he had successfully jumped while skiing the previous week. Salvini testified that his goal was to approach the jump with “enough speed to make sure [he] cleared the deck.” Verbatim Report of Proceedings (VRP) (Mar. 22, 2007) at 83. Ski Lifts asserted that Salvini approached the jump at an excessively high speed, but Salvini presented evidence that his speed was within the range expected at a ski jump. He lost control, rotated backwards, “overshot” the landing ramp, and landed on his back onto a flat or nearly flat area. Salvini is now a quadriplegic.

¶5 Salvini and his parents filed a negligence action against Ski Lifts, alleging that it designed and built an unreasonably dangerous ski jump and that it failed to close the jump or to warn of [*4] its dangers, thereby exposing him to an extreme risk of serious injury beyond the risks inherent in the sport. Ski Lifts asserted that it was not negligent and that Salvini’s injuries were solely the result of the inherent risks of the sport and Salvini’s own negligence.

¶6 Ski Lifts filed a motion in limine to exclude evidence of prior accidents at the terrain park. Salvini responded with a motion to admit 66 prior incident reports. After reviewing the incident reports, the trial court admitted 15 reports for “the limited issue of notice” but excluded the remainder because they were not substantially similar. Clerk’s Papers (CP) at 2632-35. 1 At Ski Lifts’ request, the trial court instructed the jury that the reports were admitted “for the limited purpose of showing that defendant had notice that people had overshot the landing of the jump on which the plaintiff was injured.” CP at 2672.

1 The court originally admitted 16 incident reports, but this was later reduced to 15.

¶7 The jury found Salvini 55 percent at fault and Ski Lifts 45 percent at fault. The jury also found that Salvini had suffered approximately $ 30 million in damages, resulting in a judgment against Ski Lifts of approximately [*5] $ 14 million. The trial court denied Ski Lifts’ motion for a new trial. Ski Lifts now appeals.

ANALYSIS

Jury Instruction on Inherent Risk

¶8 Ski Lifts argues that the trial court erred in refusing to give its proposed jury instruction. The instruction stated: “An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport.” CP at 2578. Alleged errors of law in jury instructions are reviewed de novo. Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 266, 96 P.3d 386 (2004). Whether to give a particular jury instruction, however, is within the trial court’s discretion. Boeing Co. v. Key, 101 Wn. App. 629, 632, 5 P.3d 16 (2000). “Jury instructions are sufficient if they allow the parties to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied.” Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). “The trial court is given considerable discretion in deciding how the instructions will be worded.” Goodman v. Boeing Co., 75 Wn. App. 60, 73, 877 P.2d 703 (1994), aff’d, 127 Wn.2d 1020, 890 P.2d 463 (1995).

¶9 Chapter 79A.45 RCW [*6] generally sets forth the responsibilities of skiers and ski area operators. 2 The statute “modifies, but is generally consistent with, the common law.” Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 397, 725 P.2d 1008 (1986). It provides that “[b]ecause of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety.” RCW 79A.45.030(6). “A defendant simply does not have a duty to protect a sports participant from dangers which are an inherent and normal part of a sport.” Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 500, 834 P.2d 6 (1992). But “[a]lthough the statute imposes both primary and secondary duties on skiers, it ‘does not purport to relieve ski operators from all liability for their own negligence.'” Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 524, 984 P.2d 448 (1999) (quoting Scott, 119 Wn.2d at 500). Risks caused by negligent provision of dangerous facilities are not “inherent” in a sport. Scott, 119 Wn.2d at 498.

2 Nothing in the statute specifically addresses terrain park ski jumping.

10 Washington’s ski statute does not define “inherent risk.” 3 The language of Ski Lifts’ proposed instruction is drawn from [*7] an intermediate California appellate court decision, Vine v. Bear Valley Ski Co., 118 Cal. App. 4th 577, 13 Cal. Rptr. 3d 370 (2004). In Vine, a snowboarder who was seriously injured on a terrain park ski jump brought a negligence action against the ski area. The ski operator, arguing that it owed no duty to protect Vine against inherent risks, requested the following instruction on assumption of risk:

“The defendant has no duty to eliminate, reduce or make safer the inherent risks of injury which arise from the nature of the sport of recreational snowboard jumping or the manner in which it is conducted. An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport.

“The defendant is under a duty to use ordinary care not to increase the risks to a snowboarder over and above those inherent in the sport. The defendant is under a duty to refrain from constructing a jump for use by the public which, by design, poses an extreme risk of injury.

“A failure to fulfill such duty is negligence.”

Id. at 594 n.5.

3 In contrast, some states have enacted ski safety statutes that define “inherent risks” [*8] and/or “inherent danger” of skiing with particularity. See, e.g., Colo. Rev. Stat. Ann. § 33-44-103(3.5) (West); Mich. Comp. Laws Ann. 408.342(2) (LexisNexis); 32 Me. Rev. Stat. Ann § 15217.

11 The trial court ruled that the primary assumption of risk doctrine did not apply because snowboarding does not inherently require jumps that are designed in such a way as to create an extreme risk of injury. Id. at 590. Thus, the court instructed the jury on ordinary negligence and contributory negligence but not on assumption of the risk. Id. at 595-97, 603.

12 The California appellate court held that the instructions were erroneous regarding the duty of care owed by the ski operator.

Nowhere was the jury informed that Bear Valley owed Vine no duty to protect her from the risks inherent in snowboard jumping. Indeed, the instructions suggested just the opposite, since it was obviously foreseeable that the inherent risks of riding a snowboard over the jump built by Bear Valley might result in injury.

Id. at 596. The court reasoned, “It is fundamentally unfair for a snowboarding injury case to go to a jury without any instruction on assumption of the risk.” Id. at 603.

13 Ski Lifts argues that under the reasoning [*9] of Vine, the trial court’s failure to give Ski Lifts’ proposed jury instruction defining the inherent risks of terrain park jumping deprived it of the ability to argue that the risks that caused Salvini’s accident were inherent in the sport and that he was responsible for his own injury. Salvini contends that the jury instructions given by the trial court were an accurate statement of the law and that Ski Lifts’ proposed additional instruction was unnecessary for Ski Lifts to argue its theory of the case.

14 We disagree with Ski Lifts. In Vine, the trial court declined to instruct the jury on the inherent risks of the sport, which erroneously precluded the jury from considering assumption of the risk. Here, in contrast, the trial court did instruct the jury on Salvini’s assumption of the risks that are an inherent and normal part of terrain park jumping. Instruction 16 stated,

A skier jumping in a terrain park assumes the dangers that are inherent in the sport of terrain park jumping. The ski area has no duty to protect a skier from dangers that are an inherent and normal part of jumping in a terrain park.

The ski area has a duty not to unduly enhance the risk of jumping in a terrain park [*10] beyond the risks inherent in the sport.

CP at 2674.

¶15 Instruction 16 properly informed the jury of Washington law, was not misleading, and permitted Ski Lifts to argue that the conditions and risks that caused Salvini’s injuries were an inherent and normal part of the sport. 4 During closing statements, Ski Lifts argued to the jury:

So what do we need to know in order to decide what is an inherent part of this sport? And what we know and what everybody has talked about is jumping is a fundamental activity, that’s what it is about. …

… Jumps are not safe, because ‘safe’ means free from injury or danger, free from risk, and we have to start out with the premise that this is an inherently dangerous activity; it is not free from risk. You can’t design out the risk, that’s part of jumping. …

… Talking about landing on your feet, landing on your landing gear, and absorbing the shock of a jump. That’s inherent in jumping, and that’s what is most important. …

… Two inherent dangers, everyone talked about it, losing control and falling. Those are things that come along with the sport.

… What we have to look at is what’s normal of [sic] this sport, and that the jumpers have [*11] the responsibility, they can choose their speed, depending on what they want to do. … And that’s why there is no starting point. That’s not a decision the ski area is making … , it is a decision the skier needs to make for themselves.

… .

The jump itself. Again, we talk first about what is normal to the sport. And the people who build the jump are telling you this is what’s normal for the sport. This is what all of the ski areas are doing, this is how the jumps are built. …

We have some other things that factor in to this particular table top and the choices that are available. And this is all part of what is normal in the sport. We have the jump itself, we have the two different landings, we have the half pipe off to the right, we have other jumps below, two take offs on that jump, and lots of room to go around on either side. … And those are things that we don’t have a duty to change because that’s an inherent and normal part of the sport. …

… .

… Because “normal” for a ski area includes people going to the first aid room for a whole variety of reasons, not to minimize it. But to say it is a risky sport and accidents happen, and you have to get back to [*12] the first part of our instruction, which is, there are inherent dangers … . And they are athletes and they are human and they did something different, and it ended up in injury. And nobody wants that to happen, but we can’t take that away and still have the sport, because what we have is something that is inherently dangerous and people are doing it because they want to. …

… .

… But what we know is that at the end of the day, it was not the ski area that caused the accident, it was the behavior of the jumper. And not in a critical way, because this is what is part of the sport. And that’s why it is an inherent risk, because it is very dangerous. And it starts out that way. And the ski area did not do anything to increase that danger. It is a normal jump and it is a normal activity. … The people that developed it told you what it was about, and the skier assumes the dangers that are inherent in the sport, and assumes what is part of the normal sport. Not a different sport, but this sport. And we don’t have a duty to make it a different sport. … What is this sport about? It is about the risk of falling and being injured. It is about speed and control and snow conditions [*13] and choices. And that’s all a normal part of the sport.

VRP (Apr. 4, 2007) at 6-46.

4 Salvini argues that Ski Lifts failed to preserve any error on inherent risks of ski jumping because it proposed and received instruction 16, which was a correct statement of the law. We disagree. Ski Lifts specifically took exception below to the trial court’s refusal to give an additional proposed definition of “inherent risk,” which it now contends was necessary for the jury to understand that phrase. This was sufficient to preserve the issue for appellate review under CR 51(f).

¶16 “Whether to define a phrase is a matter of judgment to be exercised by the trial court.” Goodman, 75 Wn. App. at 76. Under the instructions given, Ski Lifts could and did define the inherent and normal risks very broadly in crafting its argument to the jury. Ski Lifts’ additional instruction defining “inherent risk” was unnecessary and superfluous. 5 And when applied to this case, the definition is self-evident and obvious. The jury attributed 55 percent of the fault for the accident to inherent risk and Salvini’s own negligence. It is entirely speculative to conclude that the jury did not understand “inherent risk” or that [*14] the verdict would have been different if Ski Lifts’ proposed instruction had been given. 6 The trial court did not abuse its discretion in refusing to give a proposed instruction derived from California common law that was unnecessary to allow Ski Lifts to fully argue its theory of the case.

5 See Goodman, 75 Wn. App. at 76 (upholding trial court’s refusal to give a jury instruction defining the phrase “continuing violation” where the definition was self-evident and obvious when applied to facts of case).

6 In the special verdict form, the jury answered, “Yes” to the following question: “Was one or more of the inherent risks of jumping in a terrain park a proximate cause of plaintiff’s injuries?”

Jury Instruction on Duty to Discover Dangerous Conditions

¶17 Ski Lifts argues that instruction 15 misstated the duty owed by a ski area operator regarding the discovery and elimination of dangers, thereby erroneously holding Ski Lifts to an improperly broad duty to protect Salvini.

¶18 Instruction 15 stated,

The operator of a ski area owes its customers a duty to exercise ordinary care. This includes the exercise of ordinary care to provide reasonably safe facilities and to maintain in a reasonably safe [*15] condition those portions of the premises that such person is expressly or impliedly invited to use or might reasonably be expected to use. The operator of a ski area owes a duty to its customers to discover dangerous conditions through reasonable inspection, and repair that condition or warn the skier unless it is known or obvious.

CP at 2673. (Emphasis added.)

¶19 Ski Lifts objects only to the final, italicized sentence of the instruction, which was added at Salvini’s request over Ski Lifts’ objection. 7 This sentence was drawn directly from the Scott decision, which describes the duty of care for ski area operators. “A skier is a business invitee of a ski area operator. The operator owes a duty to a skier to discover dangerous conditions through reasonable inspection, and repair that condition or warn the invitees, unless it is known or obvious.” Scott, 119 Wn.2d at 500 (footnotes omitted). The Scott court further specified, “[T]he plaintiff assumes the dangers that are inherent in and necessary to the particular sport or activity” and that “[w]hile participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude [*16] a recovery for negligent acts which unduly enhance such risks.” Id. at 501 (third emphasis added).

7 Ski Lifts argues that instruction 15 misstated Washington law by failing to reference “unreasonably” dangerous conditions. Salvini contends that Ski Lifts failed to preserve this argument because it did not propose inserting the word “unreasonably” into the instruction. But Ski Lifts did object to instruction 15 on the ground that “the law would indicate that we don’t have a duty unless it is unreasonably dangerous. So I believe that the dicta from Scott that has been added to the WPIC instruction is not appropriate.” VRP (Apr. 3, 2007 P.M.) at 11. Accordingly, Ski Lifts’ proposed instruction was essentially the same as instruction 15, but without the final sentence taken from Scott. This sufficiently informed the trial court of the point of law in dispute to preserve for appellate review the issue of whether instruction 15 properly stated the duty owed by ski operators to skiers. Falk v. Keene Corp., 113 Wn.2d 645, 657-58, 782 P.2d 974 (1989). CR 51(f) does not require a party to additionally propose an alternative instruction under similar circumstances. Joyce v. State Dep’t of Corrections, 155 Wn.2d 306, 324-25, 119 P.3d 825 (2005).

¶20 Ski [*17] Lifts argues that the final sentence of instruction 15 misstated the duty of care for providers of an inherently dangerous activity such as terrain park ski jumping because, unlike Scott, it failed to specify that the duty was limited only to “unreasonably” dangerous conditions–those that “unduly enhance” the inherent risks. According to Ski Lifts, the omission of the word “unreasonably” from the jury instruction mistakenly informed the jury that Ski Lifts’ legal duty was to eliminate all dangers to terrain park ski jumpers–a standard that is impossible to meet. Ski Lifts further contends that instruction 16 was insufficient to cure the defect in instruction 15 regarding Ski Lifts’ duty of care for three reasons. First, it is not clear that the “unduly enhance” language of instruction 16 operates to limit instruction 15’s reference to “dangerous conditions.” Second, it was contradictory and confusing to instruct the jury that Ski Lifts was responsible for “dangerous conditions” (instruction 15) while also instructing it that Salvini assumed the dangers inherent in terrain jumping (instruction 16). Third, under the reasoning of Vine, the jury could not determine comparative fault [*18] without an instruction specifically defining the inherent risks assumed by Salvini.

¶21 We disagree with Ski Lifts and hold that instructions 15 and 16 properly instructed the jury on Washington law. “The court need not include specific language in a jury instruction, so long as the instructions as a whole correctly state the law.” Boeing Co. v. Key, 101 Wn. App. 629, 633, 5 P.3d 16 (2000).

¶22 Instruction 15 accurately summarized the well-established duty of care owed by ski area operators to skiers. Washington courts have adopted with approval the Restatement (Second) of Torts § 343 (1965), which sets forth the duties a possessor of land owes to an invitee. Iwai v. State, 129 Wn.2d 84, 95, 915 P.2d 1089 (1996). Section 343 states,

Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, [*19] and

(c) fails to exercise reasonable care to protect them against the danger.

¶23 The ski operator owes an affirmative duty of care to the skier, as a business invitee, to discover dangerous conditions through reasonable inspection and repair them or warn the invitees of the hazard unless it is known or obvious. See, e.g., Scott, 119 Wn.2d at 500; Brown, 97 Wn. App. at 524; Codd, 45 Wn. App. 396-97. Consistent with this standard, instruction 15 also stated that the ski area operator’s duty is to provide “reasonably safe facilities” and to maintain them in a “reasonably safe condition.” Furthermore, instruction 16–to which Ski Lifts did not object–specified that a ski area has no duty to protect against “dangers that are an inherent and normal part of jumping in a terrain park” and that “[t]he ski area has a duty not to unduly enhance the risk of jumping in a terrain park beyond the risks inherent in the sport.”

¶24 Together, these instructions accurately summarized the law, allowed Ski Lifts to argue its theory of the case, and were not contradictory, confusing, or misleading. Ski Lifts could, and did, argue that the risks of the jump were known and obvious. Ski Lifts could, and did, argue [*20] that Salvini’s injuries resulted from the inherent risks of the sport. And the trial court gave an instruction on comparative fault to which Ski Lifts did not object. As discussed above, Ski Lifts’ proposed instruction defining “inherent risk” was unnecessary to allow Ski Lifts to fully argue all of its claims. The trial court did not abuse its discretion in refusing to omit the final sentence from instruction 15.

Jury Instruction on Failure to Warn

¶25 Ski Lifts argues that Salvini offered no evidence of proximate cause to support his claim that Ski Lifts was liable on a failure to warn theory. Instruction 15 informed the jury that Ski Lifts had a duty to “discover dangerous conditions through reasonable inspection, and repair that condition or warn the skier unless it is known or obvious.” Instruction 17 stated, “A statute relating to ski areas provides: All signs for instruction of the public shall be bold in design with wording short, simple, and to the point. All such signs shall be prominently placed.” 8 Relying primarily on products liability cases, Ski Lifts contends that proof of proximate cause on a failure to warn theory requires the plaintiff to show that he would have read and [*21] heeded an adequate warning. Because instructions 15 and 17 invited the jury to find Ski Lifts liable for failure to warn in the absence of evidence that Salvini would have behaved differently had he received better warnings, Ski Lifts contends that there was insufficient evidence to support these instructions. 9 We disagree.

8 RCW 79A.45.010(1).

9 We also note that during closing arguments, Ski Lifts did not contend that Salvini had failed to provide sufficient evidence of proximate cause on a failure to warn theory.

¶26 As a preliminary matter, we note that Ski Lifts objected to the final sentence of instruction 15 on the ground that it misstated the premises liability standard of care for ski area operators. But it did not object to instruction 15 on the ground that it erroneously instructed the jury on a failure-to-warn theory. Nor did Ski Lifts mention instruction 15 when it objected to instruction 17 on the ground that there was no evidence of proximate cause to support it. CR 51(f) requires that counsel state distinctly the matter to which he objects and the grounds for that objection so that the court may correct any error before instructing the jury. Because Ski Lifts did not apprise [*22] the trial court of the point of law in dispute, it waived any claimed error regarding instruction 15 or its interplay with instruction 17 in the context of this argument. Falk v. Keene Corp., 113 Wn.2d 645, 657-58, 782 P.2d 974 (1989).

¶27 Ski Lifts’ argument misconstrues the purpose of instruction 17 in this premises liability case. Salvini claimed that Ski Lifts “was negligent in the design, construction, and maintenance of the terrain park jump on which [he] was injured.” CP at 2960 (instruction 2). To establish an action for negligence, a plaintiff must show (1) the existence of a duty, (2) breach of that duty, (3) a resulting injury, and (4) proximate cause. Iwai, 129 Wn.2d at 96. In premises liability cases, a landowner’s duty of care is governed by the entrant’s common law status as an invitee, licensee, or trespasser. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 128, 875 P.2d 621 (1994). Here, the parties do not dispute that Salvini was a business invitee of Ski Lifts.

¶28 “The duty owed by the possessor to the invitee derives from the entrant’s expectation that the possessor has exercised due care to make the premises reasonably safe.” The Law of Premises Liability (3d ed.) [*23] § 4.1, at 75 (2001). This duty may be fulfilled by an appropriate warning or other affirmative action to remedy the danger. Id. “An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein.” Restatement (Second) of Torts § 343, cmt. d (1965).

¶29 Salvini contended that Ski Lifts was negligent under this common law premises liability standard. And Ski Lifts could satisfy its duty to protect its customers from unreasonably dangerous conditions by providing adequate warnings. Instruction 17 went directly to Ski Lifts’ defense that it had met this duty. This instruction properly allowed the jury to evaluate the reasonableness of the warnings provided in light of the statutory signage requirements and the degree to which Salvini was comparatively at fault for failing to see the whiteboard sign.

¶30 Both parties presented evidence at trial regarding the reasonableness and adequacy of the warning signs. Expert witnesses Dr. Richard Gill and Richard Penniman testified extensively regarding the [*24] inadequacy of Ski Lifts’ warning signs. Salvini testified that he did not see the whiteboard sign. Salvini’s skiing companion and Salvini’s father, as well as several Ski Lifts employees, also testified that they did not see the sign. Expert witnesses Helge Lien and Richard Penniman testified that Ski Lifts should have designated a starting point for the jump to prevent skiers from gaining too much speed and overshooting the jump. Salvini argued in closing that the jump was not reasonably safe and that the signage failed to warn of the specific hazard known to Ski Lifts. He did not contend that Ski Lifts was additionally liable on a separate failure-to-warn theory.

¶31 Ski Lifts introduced photographs of its warning signs into evidence, and the photos were shown to the jury. Ski Lifts employees Dan Brewster and Bryan Picard 10 testified regarding the location and content of the warning signs. Ski Lifts’ expert witness Elia Hamilton testified that the warning signs at the entrance of the terrain park were “absolutely” appropriate. Ski Lifts relied on the signage evidence to argue in closing that Salvini was adequately warned. 11 Ski Lifts also argued that it had no duty to post signs designating [*25] a starting point because that choice is part of the skier’s responsibility. “‘[P]rejudicial error occurs where the jury is instructed on an issue that lacks substantial evidence to support it.'” Manzanares v. Playhouse Corp., 25 Wn. App. 905, 910, 611 P.2d 797 (1980) (quoting Haynes v. Moore, 14 Wn. App. 668, 672, 545 P.2d 28 (1975)). There was ample evidence to support giving instruction 17. 12

10 Bryan Picard was employed by Ski Lifts at the time of Salvini’s accident, but no longer employed by Ski Lifts at the time of trial.

11 “Another part of the responsibility code, observe all posted signs and warnings. The information is there. We can’t make people read signs, we can’t make people do anything, these are choices. But the signs are there, and this is part of the skiers’ responsibility.” VRP (Apr. 4, 2007 A.M.) at 9.

12 To the extent Ski Lifts contends that instruction 15 in combination with instruction 17 presented a separate inadequate warning theory of liability, Ski Lifts’ failure to request a clarifying special verdict form requiring the jury to indicate which theories of liability the jury relied upon precludes it from raising such an argument on appeal. See Davis v. Microsoft Corp., 149 Wn.2d 521, 539-40, 70 P.3d 126 (2003).

¶32 Ski [*26] Lifts further contends that it had no duty to warn Salvini because he had used the jump before and was fully aware of its condition. This argument is not persuasive. Salvini’s previous use of the jump would not necessarily put him on notice that its design could increase the risk of severe injury from overshooting. Whether the jump’s deficiencies were “known and obvious” and whether Salvini should have anticipated the harm is a question of fact for the jury. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 54, 914 P.2d 728 (1996). The jury instructions properly allowed Ski Lifts to argue that the alleged defect was known or obvious, while also allowing Salvini to argue that it was not.

Evidence of Prior Accidents

¶33 Ski Lifts argues that the trial court abused its discretion in admitting evidence and testimony regarding 15 prior incidents of overshooting the same jump at which Salvini was injured. The court ruled that these incident reports were not admissible “as substantive evidence of the existence of a dangerous condition,” but that they were sufficiently similar “to put Ski Lifts on notice of a potential defect to warrant further inquiry into the design of the jump, or the reasonableness [*27] of the signage in light of the multiple injuries caused as a result of overshooting the landing of the jump in question.” CP at 2635. Ski Lifts moved the court for a limiting instruction on the admission of prior incident reports. The trial court granted Ski Lifts’ motion and gave a limiting instruction.

Exhibits 154, 155, 160, 161, 163, 165, 166, 167, 170, 171, 172, 173, 174, 175 and 176 are accident reports. These accident reports have been admitted into evidence for the limited purpose of showing that defendant had notice that people had overshot the landing of the jump on which the plaintiff was injured. You are not to infer anything beyond notice by admission of these prior accidents.

CP at 2672 (instruction 14).

¶34 “A trial court’s decision admitting or excluding evidence is reviewed for an abuse of discretion, which occurs only when the exercise of discretion is manifestly unreasonable or based on untenable grounds or reasons.” Kimball v. Otis Elevator Co., 89 Wn. App. 169, 172-73, 947 P.2d 1275 (1997).

¶35 In a negligence case, other accidents and injuries are inadmissible to show a general lack of care or negligence, but may be admissible on other, more limited issues if the conditions [*28] are sufficiently similar and the actions are sufficiently numerous. 13 5 Karl B. Tegland, Washington Practice: Evidence § 402.11, at 304 (2007) (citing Panitz v. Orenge, 10 Wn. App. 317, 322, 518 P.2d 726 (1973)). Evidence of prior accidents which occurred under substantially similar circumstances is admissible for the purpose of demonstrating a dangerous condition or notice of a defect. Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984). Turner v. City of Tacoma, 72 Wn.2d 1029, 1036, 435 P.2d 927 (1967).

13 Some courts have recently relaxed the substantial similarity requirement when the evidence is offered for the purpose of showing notice. 5 Tegland, supra, § 402.11 (Supp. 2008).

¶36 The admitted reports need not be identical, only substantially similar. See, e.g., Seay v. Chrysler Corp., 93 Wn.2d 319, 324, 609 P.2d 1382 (1980) (upholding admission of evidence of other accidents involving same type of car chassis); Blood v. Allied Stores Corp., 62 Wn.2d 187, 189, 381 P.2d 742 (1963) (upholding exclusion of reports that showed “no similarity”); Miller v. Staton, 58 Wn.2d 879, 884-85, 365 P.2d 333 (1961) (upholding admission of evidence of previous fights in a tavern); [*29] O’Dell v. Chi., Milwaukee, St. Paul & Pac. R.R.., 6 Wn. App. 817, 826, 496 P.2d 519 (1972) (upholding admission of evidence of other near-accidents at same railroad crossing).

¶37 Ski Lifts first argues that Salvini failed to establish that the prior incidents were substantially similar to his situation because 13 of the 15 incident reports involved snowboarders, not skiers, and because the two reports involving skiers occurred under different conditions. We disagree. The trial court rejected most of the 66 incident reports offered by Salvini because it found that they were not sufficiently similar, and it admitted only “[t]hose accident reports documenting an injury occurring as a result of overshooting the jump in question, on either skis or snowboards (which go slower than skis.) … .” CP at 2635. If overshooting was a problem for slower moving snowboarders, it is reasonable to expect it to be a problem for skiers as well. Admitting evidence of prior accidents that occurred at the same table top jump, whether they involved skiers or snowboarders, was not an abuse of discretion.

¶38 Ski Lifts argues that the trial court’s limiting instruction was a confusing and meaningless restriction on [*30] the use of the evidence. 14 But Ski Lifts did not assign error to this limiting instruction and has therefore waived any objection to it. 15 Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 281, 96 P.3d 386 (2004). Indeed, Ski Lifts asked the court to read the limiting instruction immediately before the prior incident evidence was presented to the jury and to include it among the court’s instructions to the jury. The court granted both requests.

14 Ski Lifts appears to challenge both the giving and the language of the limiting instruction. “A limiting instruction is available as a matter of right. If evidence is admissible only for a limited purpose and an appropriate limiting instruction is requested, the court may not refuse to give the instruction.” 5 Tegland, supra, § 105.2 (2007) (interpreting ER 105).

15 The limiting instruction requested and proposed by Ski Lifts contained a final sentence stating, “You are not to infer from these accident reports that the defendant was negligent.” CP at 2637. Salvini requested that the court remove that sentence and replace it with, “[Y]ou are not to infer anything beyond notice by admission of these prior accidents.” 1 Transcript of Proceedings (TR) (Mar. 12, 2007) at 28. [*31] The trial court agreed with Salvini and modified Ski Lifts’ proposed instruction accordingly. Ski Lifts did not object.

¶39 Ski Lifts argues that the prior incidents should not have been admitted for the purpose of notice, because it conceded that it was aware of overshooting incidents. “Evidence of similar accidents is inadmissible to prove notice, if there is no question that there was notice, or if notice is not a disputed issue in the case.” 5 Tegland, supra, at 306 (citing Hinkel v. Weyerhaeuser Co., 6 Wn. App. 548, 555-56, 494 P.2d 1008 (1972)); Porter v. Chicago, M., P. & P.R. Co., 41 Wn.2d 836, 842, 252 P.2d 306 (1953). We disagree.

[T]he fact that evidence is undisputed does not, alone, make the evidence inadmissible. Undisputed evidence may be valuable background information or other information that the jury, in fairness, ought to hear.

Thus, as a general rule, a party cannot frustrate the introduction of evidence by offering to stipulate to the underlying facts.

5 Tegland, supra, at 469. See, e.g., State v. Pirtle, 127 Wn.2d 628, 652, 904 P.2d 245 (1995); State v. Rice, 110 Wn.2d 577, 598-99, 757 P.2d 889 (1988); the plaintiff is not bound to stipulate to the issue unless its probative [*32] value is substantially outweighed by unfair prejudice. Pirtle, 127 Wn.2d at 653.

¶40 The issue in this case went beyond the mere fact that Ski Lifts had notice of overshooting. The prior incident reports were probative of the extent and nature of the notice, which went directly to the question of whether Ski Lifts met its duty of care based on what it knew. Salvini is not categorically bound from introducing evidence of substantially similar prior overshooting incidents merely because Ski Lifts admitted it knew that they were occurring.

¶41 Ski Lifts also contends that the evidence was not probative of notice of a design defect because overshooting incidents are common. But evidence of prior accidents goes directly to the issue of whether Ski Lifts exercised reasonable care in light of what it knew about the performance of this particular table top jump. Therefore, it had probative value.

¶42 Ski Lifts argues that the incident reports should have been excluded under ER 403, which provides that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury … .” The burden of showing prejudice [*33] is on the party seeking to exclude the evidence. Carson v. Fine, 123 Wn.2d 206, 225, 867 P.2d 610 (1994); 5 Tegland, supra, § 403.2 at 435.

[T]he exercise of discretion in balancing the danger of prejudice against the probative value of the evidence is a matter within the trial court’s discretion and should be overturned only if no reasonable person could take the view adopted by the trial court. A trial judge, not an appellate court, is in the best position to evaluate the dynamics of a jury trial and therefore the prejudicial effect of a piece of evidence.

State v. Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007) (internal citations omitted).

¶43 Ski Lifts argues that any probative value was outweighed by the extreme prejudicial effect, because Salvini’s counsel and expert witnesses referenced the incident reports not just to demonstrate notice, but also to show that the jump was improperly designed and unreasonably dangerous. But although Ski Lifts lodged “a continuing objection regarding the accident reports,” 1 TR (Mar. 12, 2007) at 51, it never objected to Salvini’s closing argument or trial testimony that allegedly went beyond the limited purpose of notice. Rather, it raised this issue [*34] for the first time in its motion for a new trial. To challenge a trial court’s admission of evidence on appeal, a party must raise a timely and specific objection at trial. State v. Gray, 134 Wn. App. 547, 557, 138 P.3d 1123 (2006), review denied, 160 Wn.2d 1008 (2007). ?To be timely, the party must make the objection at the earliest possible opportunity after the basis for the objection becomes apparent.” Id. at 557 n.27. By failing to object at trial, a party waives any claim that the evidence was erroneously admitted. ER 103(a)(1); State v. Warren, 134 Wn. App. 44, 57-58, 138 P.3d 1081 (2006), review granted, 161 Wn.2d 1001 (2007).

¶44 Because Ski Lifts did not timely object to the improper argument and testimony, Ski Lifts waives any challenge to it now on appeal. “‘The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation.'” State v. Sullivan, 69 Wn. App. 167, 170-71, 847 P.2d 953 (1993) (quoting State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564 (1984)). But when a party who prevails on a motion in limine later suspects a violation of that ruling, that party has a [*35] duty to bring the violation to the court’s attention to allow the court to decide what remedy, if any, to direct. A.C. ex rel Cooper v. Bellingham Sch. Dist., 125 Wn. App. 511, 525, 105 P.3d 400 (2004). As one court explained,

[W]here the evidence has been admitted notwithstanding the trial court’s prior exclusionary ruling, the complaining party [is] required to object in order to give the trial court the opportunity of curing any potential prejudice. Otherwise, we would have a situation fraught with a potential for serious abuse. A party so situated could simply lie back, not allowing the trial court to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on appeal.

Sullivan, 69 Wn. App. at 172.

¶45 Here, while the court ruled that Salvini would be allowed to present evidence of prior incidents for the limited issue of notice, Ski Lifts was still required to object when Salvini’s counsel elicited improper testimony in violation of the motion in limine so the court could attempt to cure any resulting prejudice. By failing to do so, Ski Lifts waived review of this issue. In addition, Ski Lifts’ nonspecific continuing objection was insufficient to preserve the issue [*36] for appellate review. State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976); State v. Saunders, 132 Wn. App. 592, 607, 132 P.3d 743 (2006).

¶46 Ski Lifts further contends that the evidence was prejudicial because the jury might have improperly punished Ski Lifts for being a bad actor or improperly inferred that the jump must have been defective. We disagree. As discussed above, Ski Lifts successfully moved for a limiting instruction, which was read to the jury at the time the evidence was presented and was included in the court’s instructions to the jury. “A jury is presumed to follow the court’s instructions and that presumption will prevail until it is overcome by a showing otherwise.” Carnation Co. v. Hill, 115 Wn.2d 184, 187, 796 P.2d 416 (1990) (curative instructions); see also State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 487 (1995) (limiting instructions). And the trial court also instructed the jury in instruction 1 that “[i]t is your duty to decide the facts of the case based on the evidence presented to you during this trial” and that “[y]ou must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on [*37] the law given to you, not on sympathy, bias, or personal preference.” CP at 2657-59. Therefore, Ski Lifts’ arguments that the jury might have misused the evidence or that it might have improperly punished Ski Lifts are purely speculative.

¶47 In sum, we conclude that the jury instructions accurately stated the law, were not misleading, allowed Ski Lifts to argue its theory of the case, and were supported by substantial evidence. We further conclude that the prior incident reports were properly admitted. Accordingly, we affirm.

Cox and Appelwick, JJ., concur.

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Michigan appellate court supports dismissal of a case based on Michigan Ski Area Safety Act

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

Decision is definitive about the issues identifying how the Michigan Ski Area Safety Act is to be interpreted.

This decision is recent and can still be appealed by the plaintiff. However, the decision is written well, short, and thorough. In the case, the plaintiff was paralyzed on a jump in the terrain park at Boyne Mountain Ski Area. The trial court dismissed  the plaintiff’s lawsuit based on the Michigan Ski Safety Act, (SASA), MCL 408.341 et seq.

The plaintiff had been skiing at Boyne the prior day and had boarded through the terrain park. The terrain park was marked and had warning signs posted near the entrance into the terrain park. The court stated, “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.”

Summary of the case

The court in the first paragraph stated the Michigan Ski Safety Act barred the plaintiff’s claims because the jump was “an inherent, obvious, and necessary danger of snowboarding.” The reasoning was based on the SASA MCL 408.342 which states:

(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.

The court then interpreted a prior Michigan Supreme Court decision Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20; 664 NW2d 756 (2003) which stated: “in the hazards is that they all inhere in the sport of skiing and, as long as they are obvious and necessary to the sport, there is immunity from suit.”

The court looked at the jump in the terrain park as a “variation of terrain” which is listed as an inherent risk of skiing in the SASA. The jump was also something the plaintiff should expect to see if one entered the terrain park. A skier or snowboarder must accept the risks associated with the sport, whether going down the slope or “performing tricks in a terrain park.”

The court also looked at the terrain park not as some special part of the ski area but as part of the ski area. The following quote should be used in every motion over terrain park injuries in the future. It shows a true understanding of what a terrain park is.

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.

The court looked at the jump the plaintiff was injured jumping and found it was obvious. The plaintiff also knew of the jump, seeing it the previous day.

The court also took on the plaintiff’s expert witness. The plaintiff, through its expert argued the jump was designed or constructed incorrectly. The court found this to be irrelevant. How it was constructed does not matter because it is a risk that the plaintiff assumed as set forth in the statute. The Michigan legislature removed this argument from the case when it passed the law.

So Now What?

Finally, a decision concerning a terrain park from a court that understands what a terrain park is, part of a ski area. However, as stated above, this decision could still be appealed, which may result in a different decision.

This case shows an evolution of the courts understanding of snowboarding and terrain parks. Decisions in the past either failed to comprehend what a terrain park was or held the resort liable because the terrain park was outside the protection of the statute and obviously dangerous. See Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807 where the court found the half pipe to be a high-risk  feature when the plaintiff fell into it (not fell while in it, but fell from the berm into it.)

Here the court saw the park as just another part of the ski area. Like a roller or a bump made by grooming outside of the terrain park, whether or not the injury was caused in or out of the terrain, park does not matter. The jump is part of the resort as such covered by the definitions in the Michigan Ski Area Safety Act.

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

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

Patrick N. Anderson, Plaintiff-Appellant, v Boyne USA, Inc., Defendant-Appellee.

No. 306060

COURT OF APPEALS OF MICHIGAN

2012 Mich. App. LEXIS 1725

September 11, 2012, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: [*1]

Charlevoix Circuit Court. LC No. 10-028423-NO.

CORE TERMS: terrain, jump, ski, skiing, shack, snowboarder, skier, sport, ski area, snowboarding, placement, hazard, posted, timing, de novo, nonmoving party, ejusdem generis, grant immunity, reasonableness, snow-grooming, constructed, common-law, favorable, variation, ski-area, genuine, warnings, weather, marked, inhere

JUDGES: Before: SERVITTO, P.J., and FITZGERALD and Talbot, JJ.

OPINION

Per Curiam.

Plaintiff appeals as of right from an order granting plaintiff’s motion for summary disposition. We affirm.

Plaintiff filed a complaint against defendant after he was paralyzed as the result of a snowboarding accident involving a jump in the terrain park at Boyne Mountain Ski Resort. The trial court found that the Ski Area Safety Act (SASA), MCL 408.341 et seq, barred plaintiff’s claim because the jump was an inherent, obvious, and necessary danger of snowboarding.

We review a trial court’s decision on a motion for summary disposition de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Defendant filed its motion under both MCR 2.116(C)(8) and (C)(10), but the trial court did not specify the rule it was applying when it granted the motion. “However, where, as here, the trial court considered material outside the pleadings, this Court will construe the motion as having been granted pursuant to MCR 2.116(C)(10).” Hughes v Region VII Area Agency on Aging, 277 Mich App 268, 273; 744 NW2d 10 (2007). “A motion for summary disposition under MCR 2.116(C)(10) tests the [*2] factual sufficiency of the complaint.” BC Tile & Marble Co, Inc v Multi Building Co, Inc, 288 Mich App 576, 582-583; 794 NW2d 76 (2010). All documentary evidence supporting a motion under (C)(10) must be viewed in a light most favorable to the nonmoving party. Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 278; 769 NW2d 234 (2009). When reviewing a motion pursuant to MCR 2.116(C)(10), summary disposition may be granted if the evidence establishes that “there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law.” MCR 2.116(C)(10). “There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in a light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). In addition, this issue requires us to “determine whether a set of circumstances falls within the scope of MCL 408.342(2),” which is a question of law that is also reviewed de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20; 664 NW2d 756 (2003).

MCL 408.342 provides:

(1) While in a ski area, each skier shall do all [*3] 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.

The parties primarily rely on Anderson to support their positions. In Anderson, the plaintiff was in a ski competition at Pine Knob Ski Resort when he “‘caught an edge’ as he neared the finish line and lost his balance.” Anderson, 469 Mich at 22. As a result, “he collided with the shack housing the race timing equipment.” Id. Our Supreme Court noted that SASA provided [*4] for two types of dangers inherent in skiing: natural and unnatural hazards. Anderson, 469 Mich at 24. The examples listed in the statute “are employed to give the reader guidance about what other risks are held to be assumed by the skier [,]” but are not limited to those listed. Id. at 25. The Court applied the doctrine of ejusdem generis1 and “conclude[d] that the commonality in the hazards is that they all inhere in the sport of skiing and, as long as they are obvious and necessary to the sport, there is immunity from suit.” Id. The question then became “whether the timing shack was within the dangers assumed by plaintiff as he engaged in ski racing at Pine Knob.” Id. The Court held that it was. Id. The Court stated that the timing equipment was necessary for ski racing, and for it to function it had to be protected from the weather. Id. The shack provided that protection and “was obvious in its placement at the end of the run.” Id. The Court stated that the shack was “a hazard of the same sort as the ski towers and snow-making and grooming machines to which the statutes refers us.” Id. at 25-26. Further, the Court rejected the plaintiff’s argument that the shack was larger than other [*5] alternatives that could have been used for timing-equipment protection. Id. at 26. The Court stated, “We find nothing in the language of the statute that allows us to consider factors of this sort. 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. Id.

1 Under ejusdem generis, general terms include those “of the same kind, class, character, or nature as those specifically enumerated.” Anderson, 469 Mich at 25, n 1 (quotation marks and citation omitted).

As noted in Anderson, the list of examples in SASA is not exhaustive and is provided as guidance to determine what other risks a skier assumes. Here, the jump was a danger assumed by plaintiff as he snowboarded in the terrain park. Whether it was created by defendant or not, it was still a variation in the terrain that a snowboarder would expect to see if he or she entered a terrain park. Even if the jump [*6] 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. See Barrett v Mount Brighton, Inc, 474 Mich 1087; 1087, 719 NW2d 154 (2006) (indicating that the particular form of skiing does not matter).

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.

Further, the jump was in an obvious placement in the terrain park. Plaintiff was aware of the original jump the previous day, but failed to inspect the premises on the second day, even though he knew features of the park could change. 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 [*7] 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. See MCL 408.342(1)(c).

In addition, plaintiff argues that the jump was not obvious because he was unaware of the danger it created by being improperly constructed; he relies on his expert witness to support the assertion that the jump should have been constructed in a safer way. However, whether there was a safer alternative for creating the jump appears to be irrelevant for purposes of SASA. See Anderson, 469 Mich at 26. The Legislature enacted the statute to remove these matters “from the common-law arena” and to grant immunity to ski-area operators; therefore, reasonableness of the placement of the jump would not be a consideration. Id.

Affirmed.

/s/ Deborah A. Servitto

/s/ E. Thomas Fitzgerald

/s/ Michael J. Talbot


Ski Area Management Terrain Park Contest is Open

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Short and Sweet Michigan case backs up the Michigan Ski Area Safety Act

Marshall v. Boyne USA, Inc., 2012 Mich. App. LEXIS 928

If you have seen the terrain park and half pipe in the morning, it is hard to argue it was not marked in the afternoon.

The Michigan Appellate Court in a concise three-page  decision overruled the lower court and held that the Michigan Ski Safety Act bars the plaintiff’s claims.

The plaintiff was skiing at Boyne Mountain ski area in Michigan. He skied  into the Terrain Park earlier in the day. He had seen, but not read the warning sign before entering the park. After lunch, he and his friend went back into the park. After going off several jumps the plaintiff skied across the slope and went off another jump. As he was stopping he slid over the lip of the half pipe and fell into the half pipe suffering severe injuries. (This is the second case I’ve read where the person was injured in the half pipe not by going into the half pipe, but by falling into the half pipe from the berm. The first was Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807.)

The court correctly described the half pipe in its decision. “The terrain park contained a half pipe that was about twenty feet deep. A half pipe is a ski attraction created by a trench in the snow that extends downhill. Skier’s ski inside of the half pipe.” In the Dunbar case, where the court held for the plaintiff, the court had no idea what a half pipe was based on the description of the half pipe.

The plaintiff sued for negligently failing to adequately mark the boundaries of the half pipe. The defendants argued the Michigan Ski Safety Act, MCL 408.321 et seq., and two releases signed by the plaintiff protected them from suit.

So?

The court’s analysis of the legal issues was short and sweet. The court looked at the Michigan Ski Safety Act (SASA) and found no violation of the act and found nothing done by the ski area created liability not imposed by the act.

The SASA imposes a duty in the ski area to identify unnecessary or not obvious dangers. The act requires skiers to assume the risks of numerous items, including variations in terrain. The half pipe the court found was not unnecessary and was obvious because the plaintiff had seen it in the morning and because the terrain park had the required warning sign at the top of the ski run. The SASA  requires that hazards involve equipment and fixtures to be marked. The terrain park was neither.

By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law.

The ski area did not violate the SASA.

The court after coming to this conclusion did not look at the other defenses of the defendant, the two releases. One release had been signed by the plaintiff when he rented his ski equipment and one release was on the back of the lift ticket. The second argument would have been interesting; only one court has found the lift ticket to be a contract which could hold the defendant not liable. Most courts hold the language is simply warning language because there is not meeting of the minds to create a contract when you are just handed a piece of paper.

So Now What?

It is quite clear here that one of the reasons why the court held the way it did was because it understood what a half pipe was. In a similar case where the plaintiff got lost in the terrain park and fell into the half pipe the court held for the plaintiff, however, it was obvious from the decision the court had no clue about what a half pipe was or why the resort had one. (Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807)

It is important to remember that you need to educate the courts, the same way you educate your clients if you expect to keep both happy. Clients who do not understand what they are about to experience are more susceptible to getting hurt (based on my experience) and are not prepared for the experience. If your documentation shows you educated the client, the court in reviewing the evidence is more likely to also understand what the plaintiff knew and can easily find on your behalf.

If you did not adequately educate your client, then you leave it to your attorney to educate the court. This means you have to educate two people. You have to make sure your attorney understands what you do and why, and then you have to make sure your attorney can  pass that information on to the court.

If your client does not understand the risks, then your attorney and the court are not going to understand leaving you writing a check for any injuries.

Education is important even after school is over.

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Marshall v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marshall v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marvin Marshall and Christine Marshall, Plaintiffs-Appellees, v Boyne USA, Inc., Defendant-Appellant.

No. 301725

COURT OF APPEALS OF MICHIGAN

2012 Mich. App. LEXIS 928

May 15, 2012, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: [*1]

Charlevoix Circuit Court. LC No. 10-091822-NF.

CORE TERMS: half pipe, terrain, skiing, ski, jump, skied, hit, inhere, hazard, trail, sport, downhill, feet, Safety Act SASA, ski resort, skier, slope, top, morning, timing, reversing, booth, edge

JUDGES: Before: HOEKSTRA, P.J., and SAWYER and SAAD, JJ. HOEKSTRA, P.J., (concurring).

OPINION

Per Curiam.

Defendant appeals by leave granted from the circuit court’s order denying defendant’s motion for summary disposition. We reverse and remand.

In 2009, plaintiff Marvin Marshall was skiing at defendant’s ski resort at Boyne Mountain in Charlevoix County with a friend, Randy. They skied several trails that morning, and also skied in the terrain park. Plaintiff was familiar with and had skied in terrain parks, which he described as having “jumps and different obstacles[.]” Plaintiff saw a warning sign at the entrance to the terrain park, but he did not read it.

The terrain park contained a half pipe that was about twenty feet deep. A half pipe is a ski attraction created by a trench in the snow that extends downhill. Skiers ski inside of the half pipe. On the morning of February 5, plaintiff saw the half pipe in the terrain park, but he did not ski into it. Plaintiff skied in an area just to the right of the half pipe.

After lunch, plaintiff and his friend went into the terrain park for a second time. They entered the terrain park from the left side this time. [*2] Plaintiff skied down the terrain park and hit the edges of a series of jumps. When plaintiff was halfway down the hill, Randy yelled to him and plaintiff stopped. Randy said that there was a good jump to their right that would be “good to hit.” Randy went first, and plaintiff followed. Plaintiff proceeded laterally across the hill (to the right, if one is facing downhill). Plaintiff “came almost straight across because there was enough of an incline . . . [he] didn’t have to come downhill much.”

Plaintiff successfully navigated the jump, which caused him to go up into the air about 12 to 15 feet. He landed and came to a stop by turning quickly to the right and power-sliding to a stop. As he looked around for Randy, plaintiff felt his feet go over the edge of the half pipe. He slid down the side a little bit, and then hit the bottom. Plaintiff shattered his left calcaneus (heel) and the top of his tibia, and broke his hip and right arm. He also fractured his left eye socket where his pole hit his head when he fell.

Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe. Defendant moved for summary disposition, [*3] arguing that plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket. The trial court denied the motion, concluding that there remained issues of fact. Thereafter, we granted defendant’s motion for leave to appeal. We review the trial court’s decision de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 23; 664 NW2d 756 (2003).

We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Anderson, 469 Mich at 26. Among the risks assumed are “variations in terrain.” MCL 408.342(2). Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that [*4] defendant complied with this requirement. Rather, plaintiffs argue that defendant breached a duty not imposed by the statute: to mark the half pipe itself. But Anderson makes clear that when SASA resolves a matter, common-law principles are no longer a consideration. Anderson, 469 Mich at 26-27. By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law. Anderson, 469 Mich at 25-26.

Accordingly, defendant was entitled to summary disposition by application of SASA. In light of this conclusion, we need not consider whether defendant was also entitled to summary disposition under the liability waivers.

Reversed and remanded to the trial court with instructions to enter an order of summary disposition in defendant’s favor. We do not retain jurisdiction. Defendant may tax costs.

/s/ David H. Sawyer

/s/ Henry William Saad

CONCUR BY: HOEKSTRA

CONCUR

Hoekstra, P.J., (concurring).

Although I join with the majority in reversing, I write separately because my reason for reversing differs from that of the majority.

In Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 26; 664 NW2d 756 (2003), [*5] the Supreme Court concluded that if a hazard inheres in the sport of skiing, it is covered by the Michigan’s Ski Area Safety Act (SASA), MCL 408.321 et seq., unless it is unnecessary or not obvious.

Here, it is undisputed that the half pipe, like the timing booth in Anderson, inheres to the sport of skiing and is a necessary installation in a terrain park. But unlike the timing booth in Anderson, plaintiff, in my opinion, makes an arguable claim that the half pipe was not obvious to persons skiing cross-hill. It appears that this argument persuaded the trial court to deny defendant’s motion for summary judgment.

But even assuming a fact question exists regarding whether the half pipe was not obvious, plaintiff admitted to actual knowledge of the location of the half pipe from having observed it earlier that same day while skiing. When skiing, a plaintiff is required by the SASA to “maintain reasonable control of his speed and course at all times,” MCL 408.342 (emphasis added). I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after [*6] executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.

/s/ Joel P. Hoekstra


Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807

Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807

Camie R. Dunbar and Douglas Dunbar, Plaintiffs-Appellants, v. Jackson Hole Mountain Resort Corporation, a Wyoming Corporation, Defendant-Appellee.

No. 03-8057

United States Court of Appeals for the Tenth Circuit

2004 U.S. App. LEXIS 25807

December 14, 2004, Filed

Prior History: [*1] Appeal from the United States District Court for the District of Wyoming. (D.C. No. 02-CV-123D).

Disposition: Reversed.

Counsel: Robert E. Schroth Sr. (Robert E. Schroth Jr. and W. Keith Goody, with him on the briefs), Jackson, Wyoming, for Plaintiff-Appellant.

Mikel L. Moore (James K. Lubing, Jackson, Wyoming, with him on the brief), Christensen, Moore, Cockrell, Cummings & Axelberg, P.C., Kalispell, Montana, for Defendant-Appellee.

JUDGES: Before SEYMOUR, HENRY, and LUCERO, Circuit Judges.

OPINION BY: LUCERO

OPINION: LUCERO, Circuit Judge.

While skiing at the Jackson Hole Mountain Ski Resort, Camie Dunbar fell approximately twelve feet into a snowboard half-pipe, suffering severe injuries for which she alleges negligence on the part of Jackson Hole. At the time of her accident, Dunbar was attempting to exit a specially designated ski and snowboard terrain park. Finding that Jackson Hole did not owe Dunbar a duty of care for risks inherent to her chosen recreational activity under the Wyoming Recreational Safety Act, the district court granted summary judgment for the resort. Dunbar now appeals, arguing that the risks inherent to alpine skiing do not include the risk of falling into the side of a snowboard [*2] half-pipe when following a Jackson Hole employee’s instructions on how to exit the terrain park. We exercise jurisdiction under 28 U.S.C. § 1291 and REVERSE.

I

In March 2001, Camie Dunbar suffered the stated injuries when she skied off a snow ledge in a specially designed “terrain park” at the Jackson Hole Mountain Resort in Jackson Hole, Wyoming. A 33-year-old self-described intermediate skier from South Florida, Dunbar skied into the terrain park area with other members of her group who were part of a promotional ski trip sponsored by her employer Clear Channel Communications.

Containing various man made features such as a table top jump and a snowboard half-pipe, the Jackson Hole terrain park is designed for advanced skiers and snowboarders who choose to recreate in a very challenging risk-filled environment. The terrain park is separated by a fence and a boundary rope from an intermediate ski run. To enter the terrain park, skiers must pass through a gate marked with a warning sign, alerting them that they are entering an advanced ski area where “serious injuries, death, and equipment damage can occur.” At the time of the accident, the terrain [*3] park had been relocated to its position in an intermediate ski run, and did not appear on the Resort’s trail maps.

On the last day of her trip, Dunbar, along with Dave Dresher and Mike Jennings, went up the mountain intending to “investigate” the terrain park. In proceeding down an intermediate ski run, they skied through an initial gate providing a warning sign that they were entering a double black diamond “terrain feature trail.” After stopping adjacent to a red tram car which served as the office for the “pipe and park” crew who were responsible for maintenance of the terrain park, Dunbar observed other skiers and snowboarders maneuver various features in the terrain park.

Based on their observations, Dunbar and her companions decided that they did not want to try any of the features. In her deposition, Dunbar attested to thinking “this is my last day [and] I want to go home in one piece.” She stated that she did not know that there was a snowboard half-pipe in the terrain park, and believed instead that the area included only the jumps she observed from the red gondola. There is no suggestion by either party that Dunbar intended to jump any of the terrain jumps or intended [*4] to try her hand at stunts as a skier in a snowboard half-pipe. Having decided that she did not want to ski any of the double-black diamond features, she asked a Jackson Hole employee how to exit that area “if you don’t want to take this terrain park.” She was told either to take off her skis and hike back to the gate through which she had entered or to proceed in the direction of a “catwalk” to which the employee pointed.

Unbeknownst to Dunbar, the “catwalk” led to a side entrance to the snowboard half-pipe.

Ms. Dunbar along with her companions skied along the “catwalk.” Although it is a matter of some dispute between the parties, in order to proceed down the catwalk, skiers had to pass warning signs indicating that they were approaching a snowboard half-pipe area. Both Dunbar and her companions claim not to have noticed the signs. Dunbar and Jennings went along the catwalk, up an incline, across a flat deck, and fell approximately twelve feet into the half-pipe.

Jennings managed to maneuver his snowboard in such a way as to avoid injury.

Dunbar was not so fortunate. As a consequence of her fall into the half-pipe, she suffered severe injuries to her pelvis and thigh requiring surgery [*5] and intensive physical therapy. Dunbar testified that she will neither be able to return to her pre-injury range of motion, nor will she be capable of having a natural childbirth as a result of the injury to her hip.

Asserting that Jackson Hole’s negligence caused her injuries, Dunbar filed suit in district court. Jackson Hole filed a motion for summary judgment and a motion to strike portions of Dunbar’s affidavits as attempts to create sham factual issues in order to survive summary judgment. The district court granted both motions for Jackson Hole on the basis that portions of Dunbar’s affidavit were inconsistent with her deposition testimony. Dunbar now appeals.

II

We review a grant of summary judgment de novo, applying the same legal standards as the district court pursuant to Fed. R. Civ. P. 56(c). Chickasaw Nation v. United States, 208 F.3d 871, 875 (10th Cir. 2000). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled [*6] to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We must look carefully to determine if existing factual disputes are material, because “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A court may not grant summary judgment when “a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. When the moving party has informed the district court of the basis for its motion, however, a nonmoving party may not stand merely on its pleadings, but must set forth “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (citing Fed.R.Civ.P. 56(e)). In our application of this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Simms v. Oklahoma ex rel. Department of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). [*7] Furthermore, as a federal court sitting in diversity, we must ascertain the applicable Wyoming law as announced by the Wyoming Supreme Court so that the substantive law applied in federal court does not differ from what would apply in state court. Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10th Cir. 1994).

A

To protect providers of recreational sports and activities from liability for alpine skiing, equine activities, and other outdoor pursuits in the state, the Wyoming legislature limited their duty of care by enacting the Wyoming Recreation Safety Act. Wyo. Stat. Ann. § 1-1-121 et. seq.; see Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1101 (10th Cir. 2002). As a matter of common law, in order to prevail in a negligence action, a plaintiff would first have to demonstrate that the defendant owed her a duty to act with reasonable care. See, e.g., Erpelding v. Lisek, 2003 WY 80, 71 P.3d 754, 757 (Wyo. 2003). The Safety Act is designed to limit the duty a provider of recreational sports and activities owes to participants.

Under the Safety Act, a provider of a recreational opportunity has no duty [*8] to protect participants from “inherent risks” of the particular sport or recreational opportunity. Wyo. Stat. Ann. § 1-1-123. In relevant part, the act provides:

(a) Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.

(b) A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.

§ 1-1-123. Wyoming defines inherent risks as “those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.” Wyo. Stat. Ann. § 1-1-122(a)(i). Wyoming further defines “Sport or recreational opportunity” as meaning “commonly understood sporting activities,” which include “alpine skiing.” § 1-1-122(a)(iii). Thus, for example, a provider of an [*9] alpine skiing opportunity will not be liable for a duty of care with regard to dangers that are “characteristic of” or “intrinsic to” or “an integral part” of the sport of alpine skiing. However, the act does provide for a cause of action based on the negligence of the recreational opportunity provider when the injury is not the result of an inherent risk of the sport or recreational opportunity: “Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved.

. . .” § 1-1-123(c). Thus, whether a recreation provider owes its patrons a duty of care depends entirely on whether the specific risks can be characterized as inherent to the sport or activity.

What is inherent to a sport or activity, however, is far from self-evident. In Sapone, we defined “inherent” under the Wyoming Safety Act as either “’those risks which are essential characteristics of a sport and those which participants desire to confront,’ or they are undesirable risks which are simply a collateral part of the recreation activity.” Sapone, 308 F.3d at 1103 (citation omitted). We [*10] have further defined a risk that is not inherent as “a risk that was atypical, uncharacteristic, [and] not intrinsic to the recreational activity. . . .” Id. at 1104. Although equine activities are among those the Wyoming legislature clearly meant to protect, and although horseback riding indubitably involves inherent risks, we have concluded, following the Wyoming Supreme Court, that not all risks of horseback riding are inherent risks. Cooperman v. David, 214 F.3d 1162, 1167 (10th Cir. 2000); Halpern v. Wheeldon, 890 P.2d 562, 566 (Wyo. 1995). Some risks may occur from the choices a recreation provider makes on behalf of the participant and from the conditions in which the recreational opportunity is provided. Thus, atypical or uncharacteristic risks can arise even in those specific sports the Wyoming legislature clearly intended to exempt from liability for inherent risks.

Following the Wyoming Supreme Court in Halpern, we have held that “where genuine issues of material fact exist, the determination of whether something is or is not an inherent risk is a factual question that must be sent to the jury for determination.” [*11] Sapone, 308 F.3d at 1102.

As a preliminary matter, what sport or activity characterizes Camie Dunbar’s behavior is a matter of considerable dispute. Most generally, she was engaged in alpine skiing – a sport clearly covered by the Safety Act. If we were to analyze the risk at this level of generality, then it would certainly appear that falling twelve feet into a trench in the middle of an intermediate ski-run would decidedly not constitute an inherent risk of alpine skiing. Such a level of generality, however, is not appropriate. To determine what risk is inherent to Dunbar’s activity, we must go beyond a broad characterization and inquire into the specific circumstances of both her actions and those of the recreation provider.

When the Cooperman court examined the risks of horseback riding in the context of the specific facts of that case, for example, it employed a different analytical framework than if it had merely asked the abstract question whether falling off a horse is an inherent risk of horseback riding. Cooperman, 214 F.3d at 1167. Because a determination of what risks are inherent to a sport or activity may change by descriptive [*12] differences, we have stated that “when attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the [participant] was exposed.” Cooperman, 214 F.3d at 1167. Instead, we must analyze the risk “at the greatest level of specificity permitted by the factual record.” Id. As an example of this principle, we have explained:

If the only fact presented to the court is that the horse bucked while the rider was properly sitting on the horse, we would frame the duty question as whether a bucking horse is an inherent risk of horseback riding. However, if the facts established that the owner of the horse lit firecrackers next to the horse and the horse bucked, we would ask whether a horse bucking when firecrackers are lit next to the horse is an inherent risk of horseback riding. Id.

For instance, in Cooperman, we determined that the risk of a slipping saddle, in light of the lack of scientific precision in hand cinching, is inherent to horseback riding. Id. at 1168. However, in Sapone, we concluded that a child sustaining injuries when falling [*13] from the saddle during a trail-riding lesson was not an inherent risk when there was evidence that the horse was too large, that the instructions were inadequate, that no headgear was provided, and that the route was too dangerous. Sapone, 308 F.3d at 1104. Similarly, in Madsen v. Wyoming River Trips, Inc., 31 F. Supp. 2d 1321, 1329 (D. Wyo. 1999), the district court determined that the risks inherent to white-water rafting did not include risks of injury resulting from the recreation provider’s overcrowding the boat. See also Carden v. Kelly, 175 F. Supp. 2d. 1318, 1329 (2001) (finding a genuine issue of material fact whether, given the actions and inactions of the recreation provider, a horse’s stumbling and falling was an inherent risk of horseback riding).

In the present case, the district court’s order hinged on a determination of where Ms. Dunbar was located when she made her choice to proceed down the catwalk. Thus, not simply a question of alpine skiing, but of alpine skiing in a designated terrain park became the significant “factual setting” the district court used to examine the inherent risks to which Dunbar was exposed. [*14]

In its order granting Jackson Hole’s motion for summary judgment, the district court stressed, and Jackson Hole urges on appeal, the need to focus on the choices that Dunbar made when entering the terrain park. Reasoning that an inherent risk analysis could not properly be conducted without considering Dunbar’s choices, the district court focused on the facts of Dunbar’s conduct as the recreational participant. Central to the district court’s determination of inherent risk was the simple fact of Dunbar’s choice to enter the terrain park.

The court found that “a terrain feature such as a half-pipe located within a fenced terrain park is an inherent risk to a skier that voluntarily and knowingly enters that park.” Dunbar v. Jackson Hole, No. 02-CV-123-D, slip op. at 14-15 (D. Wyo. June 16, 2003). Furthermore, the court concludes that having entered the terrain park, Dunbar “decided to enter the [metaphorical] ‘rodeo’ and thus assumed the risk associated with that activity.” Id. at 15. We disagree.

First, we note that the plain language of the Safety Act focuses on “any person who takes part in any sport or recreational opportunity,” Wyo. Stat. Ann. § 1-1-123 [*15] , and does not mention the location of the sport or activity.

We fail to see how simply being present in the terrain park redefines the sport or activity in which Dunbar is engaged, especially absent further choices to take part in any of the terrain park features. No doubt location may have a bearing on how to characterize a participant’s activity, but it is not automatically determinative as the district court suggests. n1 Indeed, from the record, it is not clear whether the double black diamond designation applied to the area of the intermediate ski run from the putative entrance to the terrain park to the red tram car and from the tram car to the catwalk. There seems to be no dispute that in the areas Dunbar traversed a skier would not confront any unusual risks or features that differed from those elsewhere on the intermediate ski run (at least until the point where Dunbar fell into the half-pipe). Thus it would seem to be an open question whether the warning signs and double black designation properly applied to the area that Dunbar actually traversed or if they were limited to the physical space containing the dangerous terrain features. If the double black diamond designation [*16] applies only to the specific terrain features and if the warnings apply only to those skiers and snowboarders who attempt to maneuver over and among the trail features down the fall line of the mountain, then it may be difficult to conclude that Dunbar assumed a double black diamond risk simply by skiing across the fall line on an intermediate slope to the tram car and then proceeding, as directed, by way of the catwalk. Proper resolution of these factual questions concerning the impact of Dunbar’s specific location on Jackson Hole’s duty, however, are for a jury, not for the court, to decide.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 As to the issue of whether or not Dunbar had actually entered the park, we note that the district court is itself not descriptively clear, stating at one point that “she had misgivings about entering and asked a JHMR employee how to get out of the terrain park.” Dunbar, slip op. at 13. Of course, if she had not “entered” she could not ask how to “get out.” We conclude from this only that mere presence in the terrain park may be too fine a reed to hang a determination that Dunbar was engaged in a categorically different recreational activity which contained greater inherent risks than does ordinary alpine skiing.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*17]

Second, we conclude that there is a difference between the consequences of conduct chosen by Dunbar, and risks that are inherent to that choice. It does not necessarily follow, as the district court finds, that having entered the terrain park, Dunbar also chose to confront all the features and conditions present within it. Although the district court emphasized the choices and conduct of the plaintiff in determining what risks she assumed, the court makes no distinction between the risks that are inherent to her actual choices – to ski into the terrain park area, but not to “take” any of the features – and risks that are inherent to choices one would make when actually intending to ski over the specific features.

Indeed, a reasonable person who entered the general area of the terrain park would stop first to view the features and decide whether or not to attempt to maneuver over or through any of them. In fact, Jackson Hole’s warning signs, the presence of which figure prominently in this dispute, direct skiers and snowboarders to “please observe terrain features, their risks, and their degree of difficulty before using.” That is precisely what Ms. Dunbar did. She chose to enter [*18] the area of the terrain park – if not the terrain park itself – but specifically chose not to “use” or “take” any of the terrain park features after doing exactly what Jackson Hole’s signs advised her to do: “observe . . . before using.” Presumably, Jackson Hole does not wish to claim that it operates like the Hotel California – where you can check in any time you like but you can never leave. Accordingly, it was error for the district court to conclude that having followed Jackson Hole’s instructions, having assessed the risks and decided not to use the terrain features, that there is no material issue of fact concerning whether a skier could leave without accruing those very risks. Having “entered” the terrain park, Dunbar did not “use” the terrain park as a terrain park—viz., she did not attempt to jump the table top jump nor did she attempt to do stunts in the snowboard half-pipe. She attempted to exit the terrain park without “taking” any of the features, and followed instructions from a Jackson Hole employee on how to exit the park. Given the specific factual setting of this case, what risks are associated with Dunbar’s actual choices and what duty Jackson Hole owed her are [*19] properly questions for the jury.

Accordingly, we conclude that the district court erred when it found that the risk of falling twelve feet into a snowboard half-pipe was an inherent risk of Dunbar’s alpine skiing when she had stopped and observed double diamond terrain features and had chosen not to “take” those features. When, as is here, genuine issues of material fact exist, it is properly a question for the jury to determine whether dangers that are “characteristic of” or “intrinsic to” or “an integral part” of the sport of alpine skiing evaluated under the specific factual circumstances of this case include those encountered by Dunbar in skiing from the main intermediate run to the tram car and from the tram car along the catwalk. Sapone, 308 F.3d at 1102 (“whether something is or is not an inherent risk is a factual question that must be sent to the jury for determination”); see also, Dillworth v. Gambardella, 970 F.2d 1113, 1123 (2d Cir. 1992) (holding under a Vermont statute similar to Wyoming’s, that determination of inherent danger “is a question of fact properly submitted to the jury”).

B

As we have observed, inquiry into what [*20] dangers constitute an inherent risk under the Safety Act is inextricably intertwined with an inquiry into what duty the recreation provider owes to the participant, and whether that question is properly one for the judge or jury. If Dunbar’s accident was not the product of an inherent risk of her recreational activity, then a question remains for the fact finder concerning what duty was owed her and whether Jackson Hole fulfilled that duty. We conclude that the district court improperly analyzed the issue of Jackson Hole’s duty.

When the issue of duty involves questions of fact, as is the case with “inherent risks,” the Wyoming Supreme Court has held that the question of a defendant’s duty should be resolved by a jury. Halpern, 890 P.2d at 565. However, in certain instances where no material questions of fact exist – e.g., if the risk is clearly one inherent to the sport – the district court may decide as a matter of law that a provider does not owe a duty to the participant under the Safety Act. Halpern, 890 P.2d at 566 (noting that “in appropriate cases where no genuine issues of material fact exist, the district court may decide as a matter of [*21] law that the provider does not owe a duty to the participant.“). Such was not the case here.

How the district court framed the statement of Jackson Hole’s duty is crucial to a proper disposition of this case. It has become something of a standard analysis in this line of cases for a district court to frame the question of duty, in addition to the question of inherent risk, in the form of a fact-specific inquiry. Indeed, as the district court noted in another Safety Act case, “the Court cannot stress how important it is to frame the duty question correctly. If the duty question is framed incorrectly, the legislature’s intent to allow a cause of action for negligence will be lost.” Madsen, 31 F. Supp. 2d. at 1329.

In the present case, the district court framed the question of duty as follows:

Whether Camie Dunbar’s injuries occurred as a result of the inherent risk of alpine skiing when this thirty-three year-old experienced skier knowingly entered a specially designated terrain park, skied past five warning signs, made the choice not to exit by way of the gate she entered understanding that she would encounter expert and double expert terrain features, [*22] skied up the visible half-pipe wall, and across a fourteen-foot platform.

Dunbar, slip op. at 14. We have already concluded that Dunbar’s mere presence in the entrance area of the terrain park does not give rise as a matter of law to a heightened risk above what is normal to alpine skiing. We now conclude that the question of Jackson Hole’s duty was improperly framed because it employs facts in dispute, and does not view the facts in the light most favorable to the non-moving party.

Specifically, the district court’s finding that Dunbar chose not to exit the terrain park area via the gate by which she entered understanding that she would encounter expert and double expert terrain features is itself a fact open to dispute. Whether or not her choice was made with that understanding is a disputed fact, and read in the light most favorable to the plaintiff, the district court improperly incorporated a disputed fact in a light favoring the defendant. Second, the district court frames the duty question by stating that Dunbar “skied up the visible half-pipe wall.” Id. Whether or not what she skied up was in fact visibly a half-pipe wall is itself a disputed fact, and inclusion [*23] of this fact in a light most favorable to the defendant was improper.

Finally, the district court states that Dunbar “skied past five warning signs,” which although perhaps true (though contested), shades the “duty question” in a way that ignores the factual issues of the content and import of each of those signs in the context of the Jackson Hole employee’s instructions on how to exit the park. Given the fact that we have previously held that the question of a provider’s duty is partially determined by a fact-specific framing of inherent risk, we conclude that the district court erred in making factual findings that are properly findings for a jury. See Sapone, 308 F.3d at 1102.

Finally, we note that whatever risks Dunbar assumed herself, it seems clear that she did not also assume the risk of needing to interpret the delphic statements of Jackson Hole’s employees. Both Jackson Hole and the district court focus on the issue of choices that Dunbar made, ignoring the choice that Jackson Hole made for her in directing her to exit the terrain park area by either hiking out the main entrance or skiing along the catwalk. We have made clear that a duty of care may arise [*24] from choices made for the participant by the recreation provider. Sapone, 308 F.3d at 1104; see also, Madsen, 31 F. Supp. 2d at 1328-29; Carden, 175 F. Supp. 2d. at 1328-29. Absent from the district court’s order is any recognition that once Dunbar asked a Jackson Hole employee how to exit the terrain park area without “taking” any of the features, Jackson Hole owed a duty to provide her with appropriate instructions, which might have included a specific warning to beware of the drop into the half-pipe at the end of the catwalk. Whether or not they fulfilled that duty is a question for the jury. Accordingly, the district court erred when it framed the question of Jackson Hole’s duty by incorporating facts in dispute and when it failed to submit the question of duty to the fact finder pursuant to Wyoming Supreme Court precedent.

On appeal, Dunbar also raises as error the district court’s granting Jackson Hole’s motion to strike portions of her affidavit as creating sham factual issues to survive summary judgment. Those supposed sham facts dealt with Dunbar ‘s understanding of whether she had entered the actual terrain park (the [*25] area including the jumps) when located at the tram car. Because we conclude that summary judgment was inappropriate, the issue of Dunbar’s affidavit is now moot.

III

For the reasons set forth above, we REVERSE the district court and REMAND for further proceedings consistent with this opinion.


Safety First Mantra Highlighted At Colorado Ski Resorts

Safety First Mantra Highlighted At Colorado Ski Resorts

Safety Week Features Knowing the Code Giveaways, Safety Events, and Artistic Showcases
Colorado Ski Country USA (CSCUSA) and its 22 member resorts, in conjunction with the National Ski Areas Association (NSAA), have teamed up to promote National Safety Awareness Week, which begins tomorrow, January 14, and runs through January 21.
With fresh snow on the mountains from the past week, CSCUSA member resorts across the state will host events, clinics and other activities designed to educate and remind skiers and riders of the importance of slope safety. These programs, promotions and prizes motivate safe skiing and riding behavior, and highlight the Skier Responsibility Code and various resort safety measures.
“This week reinforces the value of safety that our member resorts prioritize for our consumers,” said Melanie Mills, CSCUSA president and CEO. “Guest safety is number one at our resorts and this week is an excellent chance to refresh awareness about skiing and snowboarding responsibly, which is the best way for everyone to enjoy a day on the slopes.”
For CSCUSA member resorts, every week is safety week as resorts have safety measures in place permanently during the season. Examples of how resorts raise awareness about safety include providing information about snow safety and avalanches, educating guests about helmet use, posting reminders about proper hydration and sunscreen use, and designating slow skiing zones.
Ultimately, it is the responsible behavior of skiers and riders that make the slopes safe. Knowing the nationally recognized Your Responsibility Code is crucial to skier and rider responsibility. Referred to simply as The Code, it is comprised of seven principles that collectively outline on-mountain skier etiquette and safe skiing practices.
Responsibilities within The Code include:
  • Always stay in control, and be able to stop or avoid other people or objects.
  • People ahead of you have the right of way. It is your responsibility to avoid them.
  • You must not stop where you obstruct a trail, or are not visible from above.
  • Whenever starting downhill or merging into a trail, look uphill and yield to others.
  • Always use devices to help prevent runaway equipment.
  • Observe all posted signs and warnings. Keep off closed trails and out of closed areas.
  • Prior to using any lift, you must have the knowledge and ability to load, ride and unload safely.
Below are details about resort-specific events happening for National Safety Awareness Week:

Arapahoe Basin

Arapahoe Basin is hosting a safety weekend on January 14-15 starting at 10 a.m. The base area will be filled with booths focusing on the terrain park, ski patrol, snowsports, and more. One of the sponsors will also be giving away 100 helmets each day, along with a raffle and cake.

Copper Mountain

Copper Mountain will showcase its year-long safety efforts with Copper Safety Fest on January 14-16 in Copper’s Center Village. Along with kid-friendly signage and messaging throughout the West Village, Copper is showing off artwork created by Frisco Elementary School third-graders that focuses on the Responsibility Code and Terrain Park Safety. Copper has also teamed up with many community safety entities like the National Ski Patrol, Copper Mountain Ski Patrol and Avalanche Dogs, US Forest Service, and more to offer tips and information during its family-friendly Safety Fest.
Safety Fest will also have a Flight-For-Life helicopter fly-over on January 15, as well as Avalanche Dog drills and an open house at Ski Patrol Headquarters. There will be daily prize drawings in Burning Stones Plaza.
Copper Ski Patrol is also inviting guests to join in sweeping the mountain during Safety Fest. Each day at 4:15 p.m., Ski Patrol will sweep the trails to make sure that all guests are safely off the mountain before it closes. Guest can sign-up to follow a patroller as they clear the mountain. Spots are limited, so guests must sign up by 2 p.m. that day. For more information and to sign up, call 970.968.2318 x 66124.

Echo Mountain

Echo Mountain celebrates National Safety Awareness Week with activities on January 14-21. Activities include a kids’ poster contest, an on mountain slope-safety scavenger hunt, a stretching session, Responsibility Code trivia and prizes, a Never Summer demo day, and more. Helmet discounts of up to 10 percent will also be offered to Echo Mountain pass holders at participating stores. For more information, visit http://www.echomt.com/.

Loveland

Loveland is kicking off Safety Week on Saturday, January 14 with a visit from Neptune Mountaineering and Pieps, who will join with the Loveland Ski Patrol to give guests avalanche awareness information and beacon training. The ski area’s terrain park crew will also be giving information on the Smart Style Program. Loveland will also feature a manned booth to give information on the skier responsibility code, the importance of sun safety with help from Rocky Mountain Sun Screen, and hydration issues with support from Vitamin Water.

Steamboat

Safety Week at Steamboat will feature a variety of safety messages and activities listed below:
§ Park Rangers: The designers, testers and maintainers of Steamboat’s Terrain Parks will be in Gondola Square January 14-16 sharing the PARKWISE code.
§ Meet Patrol: The men and women who help keep the mountain safe will be onsite in Gondola Square January 14-16 to provide additional information and answer any questions guests may have about mountain safety.
§ Bear the Safety Dog: Steamboat’s Safety Mascot will be in Gondola Square January 14-16.
§ Snow Safety/Avalanche Awareness: On Saturday and Sunday, January 14 and 15, Steamboat Ski Patrol will host special seminars on snow safety and avalanche awareness. The seminars are free to the public and meet at Patrol Headquarters at the top of Sundown Express Chairlift at 1:00 p.m. both days.
§ Know the Code Contest: Skiers and Riders will randomly be stopped on the slopes by members of Steamboat’s Patrol. If they know at least three of the seven parts to the Responsibility Code they’ll receive a prize. The contest runs January 14-22.
§ Billy Kidd One O’Clock Run: This is a free clinic by Steamboat’s director of skiing, who will be joined by Patrol.
§ Free Mountain Tours: Guests c join Steamboat’s Ambassadors with SlopeWise & Safety Information from Patrol at 10:30 a.m. at the top of Vagabond Trail.
§ Free Racing: Any guests who can tell the attendant one of the seven topics of the Responsibility Code races free at the NASTAR training course.

Sunlight

The Sunlight Ski Patrol and Valley View Hospital are hosting Safety Awareness Day at Sunlight Mountain Resort on January 21. As a part of the event, $2,000 worth of helmets will be given to kids in the valley. Visit http://www.sunlightmtn.com/ for more information on the day’s events.

Winter Park

During Safety Week, employees of Winter Park will be out on the mountain, around the Winter Park Resort base and in The Village at Winter Park, sporadically wearing their “Know the Code” arm bands. Guests that talk about the Code with Winter Park employees will be entered into a drawing for a 2012-13 Winter Park Resort adult season pass. During the weekends, Winter Park Resort will have tents set up at the bases of Winter Park and Mary Jane with NSAA giveaways.
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Skier/Boarder Fatalities 2011-2012 Ski Season

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. Thanks.

#

Date

Resort

Run

Run Difficulty

Age

Skier Ability

Ski/ Tele /Boarder

Cause of Death

Helmet

Reference

1

11/18

Vail

Gitalong Road

Beginner

62

Skier

Yes

http://rec-law.us/rBcn7A

2

11/18

Breckenridge

Northstar

Intermediate

19

Expert

Boarder

suffered massive internal injuries

Yes

http://rec-law.us/rBcn7A

3

11/27

Mountain High ski resort

Chisolm trail

Beginner

23

Beginner

Boarder

internal injuries

Yes

http://rec-law.us/uGuW17

4

12/18

Sugar Bowl

Chair Lift

 

7

Expert

Skier

fell off chair lift

 

http://rec-law.us/viAqCR

5 1/4 Ski Ward Chair Lift 19 Expert Skier fell of chair lift http://rec-law.us/y3sOtx

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