By Taylor W. Anderson

The Bulletin

Bill in Salem — Senate Bill 849 and House Bill 3512 were identical bills that would have updated Oregon’s skier safety statute that defines the risks that are considered inherent to skiing and snowboarding in Oregon. The industry sought the bills to avoid costly lawsuits representatives say will cause costs for all skiers to rise as soon as next season. Opponents said the bill would have removed incentives for the ski resorts to make skiing safer.

Sponsors: Sen. Tim Knopp, R-Bend; Reps. Knute Buehler, R-Bend and Mark Johnson, R-Hood River

History: Industry attorneys say they sought the bills because a state Supreme Court decision in December invalidated a release agreement previously believed to bar lawsuits by skiers and snowboarders who are injured or killed on the hill.

What’s next: Bills won’t move this session.

Online: Read the bill at https:// olis.leg.state.or.us

SALEM — Oregon ski resorts are taking two routes to avoid being sued by skiers who are injured or killed on ski hills after a recent court ruling exposed two holes in the industry’s ability stave off lawsuits.

The first effort is to potentially create new liability agreements all skiers and snowboarders enter into when they buy lift passes to ski on a hill.

The second is through the Legislature, and a committee on Friday killed one of two bills sponsored by Bend Republicans Sen. Tim Knopp and Rep. Knute Buehler that would have provided new protection to help ski areas avoid lawsuits.

If passed, Knopp’s and Buehler’s bills would have updated the list of what are called “inherent risks” of skiing in Oregon to prevent lawsuits over injuries and deaths in all avalanches and accidents in terrain parks.

But Knopp’s bill in the Senate won’t move forward this session, and Buehler’s bill likely won’t get a hearing before a Tuesday deadline.

The industry will now look for other ways to protect itself while resort officials such as Mt. Bachelor CEO Dave Rathbun and resort attorneys say they are vulnerable to new lawsuits and will pass rising costs onto skiers as soon as next season.

“If somebody catches an edge or collides with another skier, or somebody loses control when they’re trying to do a trick off of a snow feature, those are inherent risks. That’s not negligence,” said Andy Balyeat, an attorney who represents Mt. Bachelor and Hoodoo Ski Resort and wrote Knopp’s Senate Bill 849. “But under Oregon’s current scheme, a person can allege negligence.”

Injuries in terrain parks aren’t laid out in Oregon law. Under Knopp and Buehler’s bills, skiers and snowboarders injured on terrain park features would assume the risk and not be allowed to hold the resort liable. All avalanches and falls into tree wells would be covered as well.

Balyeat and another attorney, Brad Stanford, who represents several of the state’s largest ski areas, proposed rewriting the list of skiing hazards that are considered unavoidable and therefore the skier’s responsibility to avoid.

“What we were trying to accomplish with this legislation was to align the Oregon statute with every other Western state statute that indicates a skier cannot bring a claim,” Balyeat said.

Skiers bring suits against resorts in Western states, but all states west of Colorado have different “inherent risks” laws and courts have ruled differently.

Greg Kafoury, an attorney who has represented injured Oregon skiers, said the industry asked the Legislature for new laws that “would remove any incentive at all” to focus on ski area safety.

“It’s a public policy question about whether we’re all better served if these guys have an incentive to make it safe,” Kafoury said.

An ongoing Colorado Supreme Court case will decide whether the spouse of a skier who died in an in-bounds avalanche has grounds to sue despite the inherent risks that an avalanche could have occurred.

The Oregon Supreme Court last December ruled a Mt. Bachelor release agreement — in which skiers agree to take on the inherent risks — was overly broad and that the resort was potentially liable for a severe injury to Myles Bagley, who was paralyzed as an 18-year-old after a fall in a terrain park in 2006. Bagley is suing for $21.5 million.

In its ruling in the Mt. Bachelor case, the Supreme Court ruled that if ski resorts can never be held liable for minimizing “unreasonable risks,” then there’s no incentive to eliminate the risks.

The ruling upended a system Oregon resorts relied on for decades that prevented skiers from successfully suing over injuries and deaths.

Balyeat said after the decision that resorts in Washington, California and Alaska are better protected from costly lawsuits.

“States that don’t enforce release agreements typically have comprehensive ski area safety statutes, and what all those ski areas have in common are they bar claims arising out of an inherent risk of skiing,” Balyeat said.

Kathryn Clarke, an attorney who represented Myles Bagley in the Supreme Court case against Mt. Bachelor, said courts in other states — including the West — have ruled against release agreements and held resorts liable. She said resorts in other states are just as vulnerable to lawsuits that could have the same impact as the Bagley case.

“Releases aren’t in the statutes (in Washington and California), but the court in their state hasn’t yet declared their releases unenforceable,” Clarke said.

Stanford told The Bulletin last week he and Balyeat are now discussing how to adopt new release agreements that would hold up after the Bagley decision.

“We’re looking at ways to rewrite the releases to see if some of the issues the court raised can be addressed,” Stanford said. “But we’re not going to know for a while if those will be acceptable to a court.”

Clarke said the decision broadly struck down the release agreement, and it would be difficult to create a new release that holds up.

“I don’t think they’re going to be able to find it easy to work around (the Bagley decision) and I’m sorry to hear we’re going to have to face future litigation on these issues,” Clarke said.

Both sides believe the court’s ruling may nullify releases used by other areas of the recreation industry that are potentially dangerous, and both Buehler and Stanford separately said they believe a coalition of groups will ask the Legislature for new laws to protect them.

“The issue’s not going away,” Buehler said. “I think we’ll have to form a coalition of people pushing for this type of reform and come up with a strategy on how to continue solving this problem.”

— Reporter: 406-589-4347, tanderson@bendbulletin.com

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