NEGLIGENCE: CRIPPLING CONSEQUENCES OF BAGLEY V. MT. BACHELOR AND LIABILITY EXPOSURE TO THE SKI INDUSTRY

Bagley v. Mt. Bachelor[1]will likely have a significant negative effect on negligence suits against ski operators.[2]Specifically, the Oregon ski operators may be held to a strict expert standard for terrain parks.[3]More generally, if Bagely sets a legal trend, the whole ski industry would probably suffer from more negligence lawsuits based on non-enforceable liability releases.[4]  Bagely creates an “expert” snowboarder/skier standard for the ski operator when “even in the context of [an] expert snowboarding in defendant’s terrain park.” The court held that the “defendant was in a better position than its invitees to guard against risk of harm created by its own conduct.”[5]However, it is important that courts enforce liability releases in the situation involving an injured skier/snowboarder where the ski operator was not grossly negligent and the injury resulted from a skier/snowboarder jumping in a terrain park because the enforcement of liability releases is essential to the ski industry.[6]

Here, this case turns on this court’s reasoning that snowboarder/skiers are invitees under Oregon law, and the ski resort must create safe human made features even for the expert snowboarder/skier in a ski run designed with jumps.[7]By not enforcing the release, the ski operator has additional liability for the skiers/snowboarders’ voluntary actions in expert terrain parks.[8]

A court moreover could argue that terrain parks are just too dangerous for the general public.[9]For example, BASE jumping in national parks is an extremely dangerous sport where even if a private company was allowed a park permit, the risk of death likely would be too great of a risk to overcome with a liability release.[10]In contrast, ski terrain parks are a common standard in the ski industry and an appeal in the sport.[11]Slope style and boardercross are both Olympic sports that require the construction of terrain parks.[12]If ski operators had to create terrain parks to an Oregon court expert standard, those world famous Olympic events would likely cease to exist. As a matter of international policy, the ski industry would not benefit from the burdensome repercussions of an expert standard for terrain parks. Thus, Bagley’sexpert standard would likely undermine the essential appeal of the sport.

The enforcement of liability releases consequently is an essential aspect of the ski industry. These releases prevent the ski operator from excessive negligence litigation for an inherently dangerous sport.[13]In ski resort liability cases, the ski operator strongly argues that negligence liability waivers are enforceable when the ski operator does not offer an indispensable public service.[14]The enforcement of liability releases also is an essential aspect of the ski industry because skiing/snowboarding may involve deadly accidents.[15]Thus, in the situation involving an injured skier/snowboarder where the ski operator was not grossly negligent and the injury resulted from a skier/snowboarder jumping in a terrain park, the court should enforce the liability release.

[1]Bagley v. Mt. Bachelor, Inc., 356 Or. 543, 572 (2014).

[2]Dillworth v. Gambardella, 970 F.2d 1113, 1117 (2d Cir. 1992).

[3]Bagley, 356 Or. 543, 572.

[4]Dillworth, 970 F.2d at 1117.

[5]Bagley, 356 Or. 543, 572.

[6]Dillworth, 970 F.2d at 1117 (Use of liability releases)

[7]Id.

[8]Id.

[9]See Use of the National Parks, 36 CFR 2.17(a)(3) (Dec. 1, 2017, 11:00AM), https://www.nps.gov/policy/mp/chapter8.htm [https://perma.cc/QFC8-JMAJ] (parachuting or BASE jumping, whether from an aircraft, structure, or natural feature, is generally prohibited from high risk of injury or death).

[10]Id.

[11]Joel Muzzey, Outlaw Revival: Riding and Remembering the First Snowboard Park, TransWorld SNOWboarding (Jan. 19, 2017), https://snowboarding.transworld.net/photos/outlaw-revival-riding-remembering-first-snowboard-terrain-park-bear-mountain/ [https://perma.cc/VG94-CYZD].

[12]Olympic Snowboarding History, Olympic(Dec. 1, 2017), https://www.olympic.org/snowboard-equipment-and-history%5Bhttps://perma.cc/UWK8-QXNX%5D (snowboarding became an Olympic sport in 1998).

[13]Dillworth v. Gambardella, 970 F.2d 1113, 1117 (2d Cir. 1992).

[14]See, e.g., Malecha v. St. Croix Valley Skydiving Club, 392 N.W.2d 727 (Minn. App. Ct. 1986) (upholding an exculpatory agreement entered into between a skydiving operation and a patron); Chepkevich v. Hidden Valley Resort, 607 Pa. 1, 2 A.3d 1174 (2010) (holding enforceable skiing release); Pearce v. Utah Athletic Foundation, 179 P.3d 760 (Utah 2008) (enforceable bobsledding release); Benedek v. PLC Santa Monica, LLC,104 Cal. App. 4th 1351, 129 Cal. Rptr. 2d 197 (2002) (enforceable health club release); Henderson v. Quest Expeditions, Inc., 174 S.W.3d 730, (Tenn.Ct.App.2005) (enforceable whitewater rafting release).

[15]Stamp v. Vail Corp., 172 P.3d 437, 449 (2007).

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