Bagley v. Mt. Bachelor, Inc.

• Decision Date: 05 September 2013
• Docket Number: 08CV0118SF; A148231.
• Citation: 310 P.3d 692,258 Or.App. 390
• Parties: Myles A. BAGLEY, individually, Plaintiff–Appellant, and Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs, v. MT. BACHELOR, INC., dba Mt. Bachelor Ski and Summer Resort, Defendant–Respondent, and John Does 1–10, Defendants.
• Court: Oregon Court of Appeals

258 Or.App. 390

310 P.3d 692

Myles A. BAGLEY, individually, Plaintiff–Appellant,

and

Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs,

v.MT. BACHELOR, INC., dba Mt. Bachelor Ski and Summer Resort, Defendant–Respondent,andJohn Does 1–10, Defendants.

08CV0118SF; A148231.

Court of Appeals of Oregon.

Argued and Submitted Sept. 06, 2012.

Decided Sept. 5, 2013.

Kathryn H. Clarke argued the cause for appellant. On the opening brief were Bryan W. Gruetter and Joseph S. Walsh. With her on the reply brief was Lisa T. Hunt.

Andrew C. Balyeat argued the cause for respondent. With him on the brief was Balyeat & Eager, LLP.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.

SERCOMBE, J.

Plaintiff Bagley, after suffering serious injuries while snowboarding over a “jump” in defendant Mt. Bachelor, Inc.'s (Mt. Bachelor) “terrain park,” brought this action alleging negligence in the design, construction, maintenance, or inspection of that jump.¹ The trial court granted Mt. Bachelor's motion for summary judgment, which was based on the affirmative defense of release, and denied Bagley's cross-motion for partial summary judgment pertaining to that same issue. Bagley appeals, asserting that the trial court erred in (1) concluding that there was no genuine issue of material fact as to whether Bagley ratified, after reaching the age of majority, a release agreement entered into while he was a minor; (2) concluding that the release agreement was not contrary to public policy; and (3) concluding that the release agreement was neither substantively nor procedurally unconscionable. For the reasons that follow, we agree with the trial court and, accordingly, affirm.

In reviewing a grant of summary judgment, we view the facts, along with all reasonable inferences that may be drawn from them, in the light most favorable to the nonmoving party—here, Bagley on Mt. Bachelor's motion and Mt. Bachelor on Bagley's cross-motion. ORCP 47 C; Vaughn v. First Transit, Inc., 346 Or. 128, 132, 206 P.3d 181 (2009). On September 29, 2005, just under two weeks before his 18th birthday, Bagley purchased a “season pass” from Mt. Bachelor. 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.” Upon purchasing the season pass, he executeda release agreement as required by Mt. Bachelor. That agreement read, in pertinent part:

“ RELEASE AND INDEMNITY AGREEMENT

“IN CONSIDERATION OF THE USE OF A MT. BACHELOR PASS AND/OR MT. BACHELOR'S PREMISES, I/WE AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES (HEREINAFTER ‘MT. BACHELOR, INC.’) FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH I/WE MAY SUFFER OR FOR WHICH I/WE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CA USED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.

“ * * * * *

“ THE UNDERSIGNED (S) HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS ON BOTH SIDES OF THIS DOCUMENT. THIS INCLUDES, BUT IS NOT LIMITED TO, THE DUTIES OF SKIERS, SNOWBOARDERS, OR SNOWRIDERS. THE UNDERSIGNED(S) UNDERSTAND THAT THIS DOCUMENT IS AN AGREEMENT OF RELEASE AND INDEMNITY WHICH WILL PREVENT THE UNDERSIGNED(S) OR THE UNDERSIGNEDS' ESTATE FROM RECOVERING DAMAGES FROM MT. BACHELOR, INC. IN THE EVENT OF DEATH OR INJURY TO PERSON OR PROPERTY. THE UNDERSIGNED(S), NEVERTHELESS, ENTER INTO THIS AGREEMENT FREELY AND VOLUNTARILY AND AGREE IT IS BINDING ON THE UNDERSIGNED(S) AND THE UNDERSIGNEDS' HEIRS AND LEGAL REPRESENTATIVES.

“BY MY/OUR SIGNATURE(S) BELOW, I/WE AGREE THAT THIS RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH I/WE RENEW THIS SEASON PASS.

“SEE REVERSE SIDE OF THIS SHEET * * * FOR DUTIES OF SKIERS, SNOWBOARDERS, OR SNOW RIDERS WHICH YOU MUST OBSERVE.”

(Underscoring and capitalization in original; emphases added.) The reverse side of the document detailed the “Duties of Skiers” pursuant to ORS 30.990 and ORS 30.985 and also included printed notification that “Skiers/Snowboarders/SnowridersAssume Certain Risks” under ORS 30.975—, the “inherent risks of skiing.” ² In addition, because Bagley was not yet 18, his father executed a “minor release and indemnity agreement” (capitalization omitted) that read as follows:

“I HEREBY AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH THE MINOR(S) NAMED BELOW MAY SUFFER OR FOR WHICH HE OR SHE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY

NEGLIGENCE.

THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.

“BY MY SIGNATURE BELOW, I AGREE THAT THIS MINOR RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH THIS SEASON PASS IS RENEWED.

“I HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS.”

(Capitalization in original; emphasis added.)

Less than two weeks after purchasing the season pass and executing the above-quoted release agreement, Bagley reached the age of majority—turning 18 on October 12, 2005. Thereafter, on November 18, 2005, Bagley began using the pass, on which the crux of the release agreement was also printed:

“READ THIS RELEASE AGREEMENT

“IN CONSIDERATION FOR EACH LIFT RIDE, THE TICKET USER RELEASES AND AGREES TO HOLD HARMLESS AND INDEMNIFY MT. BACHELOR, INC., AND ITS EMPLOYEES AND AGENTS FROM ALL CLAIMS FOR PROPERTY DAMAGE, INJURY OR DEATH EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.”

(Capitalization in original; emphasis added.) Further, the following sign was posted at each of Mt. Bachelor's ski lift terminals:

“YOUR TICKET IS A RELEASE

“The back of your ticket contains a release of all claims against Mt. Bachelor, Inc. and its employees or agents. Read the back of your ticket before you ride any lifts or use any of the facilities of Mt. Bachelor, Inc. If you purchase a ticket from someone else, you must provide this ticket release information to that person or persons.

“Skiers and lift passengers who use tickets at this resort release and agree to hold harmless and indemnify Mt. Bachelor, Inc., its employees and agents from all claims for property damage, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor's premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.

“If you do not agree to be bound by the terms and conditions of the sale of your ticket, please do not purchase the ticket or use the facilities at Mt. Bachelor.

“Presentation of this ticket to gain access to the premises and facilities of this area is an acknowledgment of your agreement to the terms and conditions outlined above.”

(Capitalization in original; emphases added.)

Ultimately, beginning on November 18, 2005, after his 18th birthday, Bagley used his season pass to ride Mt. Bachelor's lifts at least 119 times over the course of 26 days spent snowboarding at the ski area. However, on February 16, 2006, while snowboarding over a manmade jump in Mt. Bachelor's “air chamber” terrain park, Bagley sustained serious injuries resulting in permanent paralysis.

On June 16, 2006, approximately four months later, Bagley provided Mt. Bachelor with formal notice of his injury under ORS 30.980(1), which requires that “[a] ski area operator * * * be notified of any injury to a skier * * * within 180 days after the injury * * *.” Nearly two years after the injury, on February 15, 2008, Bagley brought this action—filing a complaint alleging negligence on Mt. Bachelor's part in designing, constructing, maintaining, or inspecting the jump on which Bagley was injured. Mt. Bachelor answered, in part, by invoking the affirmative defense of release—pointing to the above-quoted release agreements signed by Bagley and his father prior to the date of injury.

Mt. Bachelor quickly moved for summary judgment on that ground, arguing before the trial court that, by failing to disaffirm the voidable release agreement within a reasonableperiod of time after reaching the age of majority, and by accepting the benefits of that agreement and “objectively manifest[ing] his intent to affirm” it ( i.e., by riding Mt. Bachelor's lifts 119 times over 26 days), Bagley had ratified the release and was therefore bound by it. Mt. Bachelor further noted that Bagley “admittedly understood that he [had] entered into a release agreement and was snowboarding under its terms on the date of [the] accident.” Accordingly, Mt. Bachelor argued, because Bagley had ratified a release agreement that unambiguously disclaimed liability for negligence, there was no material issue of fact as to whether that agreement barred Bagley's action, and Mt. Bachelor was entitled to judgment as a matter of law. ³

Bagley then filed a cross-motion for partial summary judgment as to Mt. Bachelor's affirmative defense of release, arguing that “there [was] no genuine issue of material fact [as to whether] the release [was] void and unenforceable as a matter of law.” Specifically, Bagley argued that he timely disaffirmed the release agreement by (1) notifying Mt. Bachelor of the injury pursuant to ORS 30.980(1), (2) filing his complaint for...