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).

Nobel Prize- Importance of an Executor

The creation of the Nobel Prize depended on the executors of Alfred Nobel’s estate.[1] In the will of the Swedish scientist Alfred Nobel, he created international prizes in 1895.[2] After Mr. Nobel invented dynamite in the 1800s, he made a huge fortune selling his invention to mining and military operations.[3]

From 1901 to present, the Nobel prize has been awarded over 570 times to over 900 different people or organizations.[4] In 1888, a French newspaper mistakenly reported that Mr. Nobel died and called him the “Merchant of Death.”[5] After Mr. Nobel read the article, it is believed that he made a final will giving over 90% of his assets to the creation of the Nobel Prize Foundation.[6] However, Mr. Nobel upset his surviving family with his final will because most of his assets were not bequeathed to them.[7]

In Mr. Nobel’s will, Ragnar Sohlman and Rudolf Lilljequist were named executors.[8] The will read: “As Executors of my testamentary dispositions, I hereby appoint Mr. Ragnar Sohlman, resident at Bofors, Vamland, and Mr. Rudolf Lilljequist, 31 Malmskillnadsgatan, Stockholm, and at Bengtsfors near Uddevalla. To compensate for their pains and attention, I grant to Mr. Ragnar Sohlman, who will presumably have to devote most time to this matter, One Hundred Thousand Crowns, and to Mr. Rudolf Lilljequist, Fifty Thousand Crowns; – Alfred Bernhard Nobel, will dated Paris, 27 November 1895.”[9]

To establish the Nobel Prize, Sohlman spent several years.[10] The will did not detail the rules for selecting award recipients.[11] As a further difficulty, Sohlman had to gather all of Mr. Nobel’s assets spread across several European countries.[12] One anecdote describes how Mr. Sohlman and Mr. Lilljequist decided to move most of Mr. Nobel’s assets to Sweden, but they feared that the French government would prevented that vast amount of money (roughly $150 million) from leaving its country.[13] As a result, the executors traveled around Paris with a horse and carriage collecting shares, bonds and legal documents of the Nobel estate. Then, the assets were shipped to Sweden on rail as registered luggage.[14]

Here, Nobel’s will is an interesting example of the application of the “dead hand.”[15] In this context, Nobel’s dead hand was an overwhelmingly huge hairy one. The creation of the Nobel Foundation is unique because the foundation acts like an investment company and is tax exempt from all taxes in Sweden and in the United States.[16] Also, the monetary award is roughly $100 thousand for the recipient.[17] Further, separate committees  complete the actual selection process for the award.[18] As stated earlier, the structure and guidelines for the Nobel Prize are the creation of Mr. Sohlman and were not actually in Mr. Nobel’s will.[19] Fortunately, Mr. Sohlman was an exemplary executor who understand Nobel’s intent in his will for the creation of the Nobel prizes.[20] Thus, one’s dead hand is only as good as his executors.[21]

[1]See The Conundrum of Alfred Nobel, National Geographic 8-11 (July/August 2017) (summarizing historic context and facts surrounding the Nobel Prize creation).

[2]Id.

[3] Evan Andrews, Did a Premature Obituary Inspire the Nobel Prize, History (Dec. 9, 2016), http://www.history.com/news/did-a-premature-obituary-inspire-the-nobel-prize [https://perma.cc/Z3QA-B434].

[4]Nobel Prize Facts, Nobelprize (Mar. 4, 2018), https://www.nobelprize.org/nobel_prizes/facts.

[5]See supra note 3.

[6]See supra note 1.

[7]Id.

[8]Id.

[9]Full Text of Alfred Nobel’s Will (Feb. 15, 2018), https://www.nobelprize.org/alfred_nobel/will/will-full.html [https://perma.cc/S73F-JF5P].

[10]See supra note 1.

[11]Id.

[12]Id.

[13]Id.

[14]Id.

[15]See, e.g., Garrett Ham, The Problem of the Dead Hand, GarrettHam (Sept. 20, 2013), https://www.garrettham.com/dead-hand/ (discussing the limitations of the deceased to control the living).

[16]See supra note 1.

[17]Id.

[18]Id.

[19]Id.

[20]See Ragnar Sohlman – Executor of the Will, Nobelprize (Mar. 5, 2018), https://www.nobelprize.org/alfred_nobel/will/sohlman.html (summarizes how Sohlman executed Nobel’s will).

[21]See Ham, supra note 15.