Appeals court denies snowboarder

Bagley injured in 2006 accident on ski mountain terrain park

By Sheila G. Miller / The Bulletin

Mt. Bachelor is not responsible for the injuries and ultimate paralysis a young snowboarder suffered at the ski area in 2006, the Oregon Court of Appeals affirmed on Thursday.

The court upheld a decision by the Deschutes County Circuit Court that tossed out a $21.5 million lawsuit filed in 2008 by Myles Bagley, who was 18 when he was paralyzed from the waist down after going over a jump in an expert terrain park in February 2006.

According to the appeals court decision, written by Judge Timothy Sercombe, Bagley bought his season pass on Sept. 29, 2005, less than two weeks before his 18th birthday.

“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,’” Sercombe wrote in the decision.

A release Bagley signed stated the passholder would release the ski area from “any and all claims for property damage, injury or death” the passholder suffered or was liable for causing others. “The only claims not released are those based upon misconduct.”

Because Bagley was 17 when he bought his pass, his father also signed a minor release.

A similar release agreement was printed on the back of Bagley’s ski pass.

According to the court’s decision, Bagley began riding on Nov. 18, 2005, and between that date and his accident on Feb. 16, 2006, Bagley hit the mountain 26 days and rode the lifts at least 119 times.

Bagley’s attorney in 2008, Bryan Gruetter, argued if the jump had been designed differently Bagley wouldn’t have been paralyzed, and the complaint alleged the ski area was negligent in the jump’s construction, maintenance, and inspection.

But Mt. Bachelor attorney Andy Balyeat argued Bagley had waived his right to sue the ski area when he bought his season pass in 2005 and he and his father signed release forms.

Deschutes County Circuit Court Judge Stephen Forte agreed, and in 2010 granted Mt. Bachelor a summary judgment, dismissing the lawsuit.

In the appeal, Bagley’s argument centered on whether, after turning 18, his continued snowboarding on the mountain was evidence that he affirmed the release. The appeal also alleged that the release agreement Bagley signed was void because it was “contrary to public policy” because of the different levels of power the ski area and Bagley had in the agreement, as well as the public interest of keeping skiers and snowboarders safe from the negligence of ski area operators. And the appeal argued the release agreement was “unconscionable.”

The appeals court found that “by using the season pass at least 119 times over the course of 26 days ... Bagley objectively manifested his intent to let the release stand — affirmatively electing to ride the lifts and snowboard under the terms of the agreement.”

The court also determined the language used in the release was clear and was located at each of the lifts and on the back of Bagley’s pass.

“We are hard-pressed to envision a more unambiguous expression of ‘the expectations under the contract’ — namely, that in exchange 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),” the decision states.

If Bagley had not wanted to release the ski area from liability, the court’s decision states, he could have chosen not to use Mt. Bachelor and could have declined to sign the release and would have been denied the right to ride there. Because snowboarding is a recreational activity, refusing to sign the release would not be denying him access to “an essential public service.”

Kathryn Clarke, who handled the appeal for Bagley, said she had not yet read the opinion.

“I suspect we will petition for review but I can’t give you a firm decision on that,” she said.

Oregon law

ORS 30.975: “... 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 30.990: “Ski area operators shall give notice to skiers of their duties ... in a manner reasonably calculated to inform skiers of those duties.”