From the desk of Jeffrey D. Eberhard: : Earlier this year, we provided a case update regarding the Oregon Supreme Court’s review of anticipatory releases (releasing a party for harm that has yet to occur) at ski resorts in Bagley v. Mt. Bachelor. Providers of recreation, especially outdoor recreation, often use releases in order to diminish their exposure to liability by requiring patrons to release the providers from liability for harm caused by the use of their facilities or equipment. In this follow-up case, read on to see how the Court of Appeals applied the Supreme Court’s analysis to a case involving a skier injured by a chair lift.
Claims Pointer: In determining whether a release violates public policy or is unconscionable, courts look at the following factors: (1) whether the release is conspicuous and ambiguous; (2) whether there is substantial disparity in bargaining power; (3) whether the release is offered on a take-it-or-leave-it basis; and (4) whether the release involved a consumer transaction. Furthermore, a court will consider substantive issues such as whether enforcement of the release would cause a harsh or equitable result, whether the release serves a public interest, and whether the release attempts to disclaim liability for anything more than negligence (i.e. intentional conduct). Here, the Court of Appeals held that a ski resort could enforce its release against a patron when its negligent operation of a chair lift caused the patron serious injuries. While this case is instructive in showing how the courts will address these ski resort releases, it remains to be seen whether other recreational releases (i.e. rafting, climbing, gear rental, etc.) will hold up under the Oregon Supreme Court’s analysis in Bagley.
Becker v. Hoodoo Ski Bowl Developers, Inc., 269 Or App 877 (March 18, 2015)
Tabitha Becker was a patron of Hoodoo Ski Bowl, an Oregon ski resort located a few hours southeast of Portland. Becker’s husband had purchased her...