Blair v. Mt. Hood Meadows Development Corp.

• Decision Date: 30 June 1981
• Docket Number: No. CA,CA
• Citation: 630 P.2d 827,291 Or. 293
• Parties: Dale Thomas BLAIR, Respondent, v. MT. HOOD MEADOWS DEVELOPMENT CORPORATION, Petitioner. 13331; SC 27330.
• Court: Oregon Supreme Court

Page 827

630 P.2d 827

291 Or. 293

Dale Thomas BLAIR, Respondent, v. MT. HOOD MEADOWS DEVELOPMENT CORPORATION, Petitioner.

No. CA 13331; SC 27330.

Supreme Court of Oregon.

Argued and Submitted March 2, 1981.

Decided June 30, 1981.

Darrel L. Johnson, Portland, argued the cause for petitioner. With him on the briefs were I. Franklin Hunsaker, III, and Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Portland.

Leslie M. Roberts, of Kell, Alterman & Runstein, Portland, argued the cause and filed briefs for respondent.

Before DENECKE, C. J., and TONGUE, LINDE, PETERSON, TANZER and CAMPBELL, JJ.

CAMPBELL, Justice.

This is an action in negligence brought by plaintiff as a result of an injury he sustained while skiing at defendant's ski facility at Mt. Hood.

Plaintiff, a 28-year-old experienced skier, and a companion had spent a morning skiing on runs prepared by defendant at its facility. The weather on the day of the accident was overcast with mist, causing poor visibility and creating a "flat light" effect, limiting a person's ability to perceive variations in the depth and other contrasts or contours in the snow. Plaintiff was injured when he chose to return to the lodge by way of a run that he had never skied. From the starting point of the North Canyon run, the lodge was visible straight ahead down the slope. However, the run was not a straight path to the lodge. The base of the run formed a plateau where the run branched sharply to the right, at a point known as "Eric's Corner," and then to the left, crossing a culvert over a creek to the lodge. Plaintiff, unaware of the curves in the run, skied straight ahead toward the lodge and off the intended run, falling into the creek ravine separating the ski area from the lodge, injuring his right arm and shoulder.

The plaintiff's first amended complaint alleged that the defendant was negligent:

1. In failing to warn plaintiff by flags or other markers of the concealed creek-ravine.

2. In creating a hazardous condition by plowing snow in a manner that created a ski run directly into the hidden creek-ravine.

3. In failing to mark the creek-ravine promptly after receiving notice from other skiers that the ski run was dangerous.

4. In failing to close off the area in which the plaintiff was skiing.

The defendant, by way of an affirmative defense in its answer, alleged that the plaintiff was negligent in that he did not keep a proper lookout, was skiing too fast, and did not use the regular and normal ski paths.

The jury returned the following special verdict:

"1. Was Defendant negligent in one or more of the respects claimed in Plaintiff's Complaint which caused damage to Plaintiff?

"ANSWER: No "

Judgment was entered for the defendant, and the plaintiff appealed to the Court of Appeals, assigning as error the giving of the following instruction by the trial court:

"Sports activities involve some risks. Every person who takes part in a sport accepts and submits himself to the dangers that are inherent or a reasonable part of that sport."

Plaintiff contended on appeal that the instruction should not have been given because it was too broad a statement of the principle of assumption of risk. ¹

ORS 18.475(2) provides:

"The doctrine of implied assumption of risk is abolished."

The Court of Appeals held that the type of assumption of risk involved in this case was distinguishable from "implied assumption of risk" abolished by ORS 18.475(2) and was therefore still a recognized doctrine in Oregon. The Court of Appeals reversed and remanded for a new trial because the instruction given was too broad a statement of the principle of assumption of risk in that it failed to inform the jury that a sports participant assumes only those risks which are "necessary to the sport and are known to him." (Original emphasis.) The defendant ski operator petitioned for review of this decision. We reverse the Court of Appeals. ²

We first proceed to consider whether any instruction concerning risks assumed by virtue of participation in sports activities is proper since the 1975 enactment of ORS 18.475(2). ³

We interpreted ORS 18.475(2) and its relationship to the comparative fault scheme (ORS 18.470) in Thompson v. Weaver, 277 Or. 299, 560 P.2d 620 (1977). We pointed out in that case that prior to the adoption of ORS 18.475(2) our decisions had recognized the distinction urged by Harper and James ⁴ between "primary" and "secondary" assumption of risk. We noted that an earlier version of ORS 18.470, which establishes the comparative fault scheme, had abolished the doctrine of assumption of the risk in its secondary sense only, as a species of contributory negligence. We suggested generally that the later enactment of ORS 18.475(2) was intended to abolish implied assumption of risk as a distinct defense in both its primary sense (as a counterpart to no duty) and in its secondary sense (as a type of contributory negligence). See also Hornbeck v. Western States Fire Apparatus, Inc., 280 Or. 647, 572 P.2d 620 (1977).

We then limited our interpretation of the effects of ORS 18.475(2) in eliminating the complete bar to negligence, formerly imposed by the doctrine of implied assumption of risk, to the situations described below:

" * * * The statute makes no distinction whether a plaintiff's implied assumption of risk is regarded as a form of negligence on his part or whether his implied assumption of the risk is claimed to excuse defendant for risks that would be his 'fault' vis-a-vis other persons in plaintiff's position. Implied assumption of the risk is abolished as a basis for barring recovery on either theory." (Emphasis supplied.) Thompson v. Weaver, supra, 277 Or. at 304, 560 P.2d 620.

Applying this interpretation to the facts, Thompson refused to allow a defendant to circumvent the comparative fault scheme in ORS 18.470 and the effects of ORS 18.475(2) by a claim that he owed the plaintiff "no duty" of due care under the circumstances due to plaintiff's conduct in voluntarily getting under a mobile home which had been improperly raised by jacks. An absence of duty on the part of the defendant, like the bar formerly raised by the doctrine of assumption of risk, would have completely defeated plaintiff's recovery for negligence. We held that since the enactment of ORS 18.475(2) this type of conduct of the plaintiff may reduce liability, if at all, under the relative fault formula in ORS 18.470 only and is no longer a complete defense to a negligence action even when recharacterized as an "absence" of or limitation upon duty.

We specifically left for the future the implications of our analysis of ORS 18.475(2) for situations where a "plaintiff has agreed to join in an activity (such as a sporting event) in which the particular hazard is a known element of the activity even when properly conducted, i. e., when dangerous conduct that would be 'fault' in other contexts is not fault at all." Thompson v. Weaver, supra 277 at 305, 560 P.2d 620.

In Hornbeck v. Western States Fire Apparatus, supra, 280 Or. at 651, 575 P.2d 620 this court said:

" * * * According to Thompson (277 Or. 299, 560 P.2d 620 (1977)), the elimination of applied assumption of risk leaves only a defense based on some form of knowing consent or waiver expressed between the parties, or perhaps based on plaintiff's agreement to join in a sport or similar activity in which the particular risk is a known element of the activity when properly conducted. * * * "

The case under consideration directly involves the question left open in Thompson and Hornbeck.

We now turn to the statutory language and to the legislative history of ORS 18.475(2) to determine its effect upon the type of defense whose continued existence was left open in the Thompson and Hornbeck cases. ORS 18.475(2) was enacted as part of a bill amending the comparative fault scheme in ORS 18.470. A memorandum to the House Judiciary Committee from Representative Frohnmayer explained the implications of ORS 18.475(2) for the comparative fault scheme as follows:

"Section 5 abolishes the doctrine of implied assumption of the risk. Ritter v. Beals, 225 Or. 504 (358 P.2d 1080) (1961) subsumed under contributory negligence the form of assumption of the risk in which plaintiff voluntarily and unreasonably encounters a known risk; this type of assumption of the risk is unaffected by section 5 and should be pleaded as contributory negligence. Plaintiff's reasonable assumption of the risk or 'implied consent' is no longer a defense. This resolves the anomaly arguably possible under present law that plaintiff's reasonable conduct might bar recovery completely while unreasonable conduct leads to the possibility of partial recovery." (Footnotes omitted.)

The memorandum added in footnote 10, "Of course if defendant has no duty toward the plaintiff there is no liability." ⁵

Our analysis of ORS 18.475(2) is confused by our past decisions which have lumped together several widely different defenses under the common label of assumption of risk. The lack of label also makes it difficult to determine which aspects of the doctrine the legislature intended to eliminate in abolishing "implied" assumption of risk. ⁶

Prior to the enactment of ORS 18.475(2), some of our decisions utilized the concept of implied assumption of risk in analyzing the negligence cases involving risks of participation in dangerous sports activities described in Thompson. See Vendrell v. Sch. Dist. 26C, Malheur Co., 233 Or. 1, 376 P.2d 406 (1962); cf. Franks v. Smith, 251 Or. 98, 444 P.2d 954 (1968); Whipple v. The Salvation Army, 261 Or. 453, 495 P.2d 739 (1972). These decisions typically focused upon the relationship between the plaintiff and the hazard in finding adequate grounds for implying plaintiff's consent to the hazard causing injury and for relieving the defendant operator of the activity from liability. ⁷ In the Vendrell case the plaintiff brought an action...