Lawsuit against Mt. Bachelor to proceed

Supreme Court finds liability waiver unenforceable

By Scott Hammers, The Bulletin

A Bend snowboarder paralyzed from the waist down in a crash at Mt. Bachelor will be able to proceed with a suit against the resort, the Oregon Supreme Court ruled Thursday.

Myles Bagley was 18 when he crashed on a jump in a terrain park at Mt. Bachelor in February 2006, breaking two vertebrae. Bagley filed suit in Deschutes County Circuit Court seeking $21.5 million from the resort, but the local court, and later the Oregon Court of Appeals, ruled that by signing a liability release when he purchased his season pass, Bagley had waived his right to sue.

Thursday, the state Supreme Court ruled the liability release is unenforceable, a finding that could have far-reaching implications for the recreation industry.

The court’s published opinion cited a disparity in the bargaining power of a ski area and a skier, claiming the liability release is offered on a “take-it-or-leave-it basis.” As Mt. Bachelor is open to the general public largely without restriction, and visitors subject themselves to the risk of harm from conditions created by the resort operators, the safety of resort visitors “is a matter of broad societal concern,” the opinion stated.

The court found there are “inherent risks” to skiing and snowboarding but those risks do not justify insulating ski area operators from all liability.

“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,” read the opinion. “By contrast, without potential 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.”

Attorneys representing the two parties offered their reactions Thursday afternoon.

Bend attorney Andy Balyeat, representing Mt. Bachelor, said a ski area can exert only limited control over how individual skiers or snowboarders interact with features on the mountain.

“Obviously Mt. Bachelor doesn’t want to see people hurt at their resort. The reason the ski industry utilizes releases is not because they’re not safe and they don’t want to be held to a standard, but because the skier or snowboarder is uniquely in charge of their speed, course, whether they’re entering a terrain park, or what kind of trick they’re going to attempt.”

Eugene attorney Art Johnson, representing Bagley, said he accepts that the individual rider assumes most of the risks of visiting a ski area, but features constructed by resort management are different.

“The things in a terrain park are not just casually made, they’re made with some knowledge — so, there should be some knowledge of how they can be used and used safely,” he said.

Balyeat said although a terrain park may increase the inherent risk of skiing, it’s not significantly different than any other part of the mountain.

“I don’t accept the proposition that terrain parks are not an inherent risk of skiing, because we move snow all the time — we groom, some runs have moguls,” Balyeat said. “Terrain parks are very common, very popular, and all over the country.”

Bagley’s original suit suggested the jump on which he was injured was negligently constructed, but that question has not been explored in court.

Johnson said it’s difficult to predict when Bagley’s suit will be heard in Deschutes County Circuit Court.

— Reporter: 541-383-0387, shammers@bendbulletin.com

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