Bulletin staff report

The Oregon Supreme Court has agreed to allow a petition for review in a lawsuit pitting a paralyzed snowboarder against Mt. Bachelor.

The state’s court of appeals ruled in September 2013 that Mt. Bachelor was not responsible for the injuries and ultimate paralysis of Myles Bagley, then an 18-year-old snowboarder who was paralyzed from the waist down after going over a jump in an expert terrain park in February 2006. The appeals court had upheld a Deschutes County Circuit Court decision to toss out the $21.5 million lawsuit filed in 2008 against the ski area.

Now, the Oregon Supreme Court will allow a petition for review on two issues: whether a negligence liability release agreement that is a non-negotiable condition to entering a ski area violates public policy, and whether such a release agreement is “unconscionable under Oregon law.”

In the appeals court decision, Mt. Bachelor was found not responsible for Bagley’s injuries in part because of releases the snowboarder and his father had signed when he bought his season pass on Sept. 29, 2005, fewer than two weeks before his 18th birthday.

Bagley, who classified his skill level before the injury as an advanced expert, signed a release stating 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, and a similar release agreement was printed on the back of Bagley’s ski pass.

Bagley went to the mountain 26 days between Nov. 18, 2005, and his accident on Feb. 16, 2006.

In the initial lawsuit, Bagley’s attorney argued the ski area was negligent in the jump’s construction, maintenance and inspection, and if the jump had been designed differently his injuries would not have been so serious. Mt. Bachelor argued Bagley waived his right to sue when he bought the pass and signed release forms. In 2010, the lawsuit was dismissed.

In the appeal, Bagley argued in part that the release agreement he 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.

But 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 appeals court also noted the release agreement was clear and posted at the lifts, and that because snowboarding is a recreational activity, refusing to sign the release and being denied the right to ride at Mt. Bachelor would not deny Bagley an essential public service.