Anticipatory Release Law Still Evolving in Oregon

Many businesses attempt to immunize themselves from the consequences of their future misconduct by using language that attempts to give them a license to harm others without being held accountable. Sometimes those waiver or release provisions are on the backs of tickets or stubs.

Oregon is still working through the implications of Bagley v. Mt. Bachelor, Inc., 356 Or 543 (2014), in which the Oregon Supreme Court decided that the liability release on the back of a season ticket purchased by 17-year-old Myles Bagley was unconscionable. Myles was paralyzed after going off a jump in a terrain park that he claimed was negligently constructed by Mt. Bachelor. While Oregon statutes protect ski area operators from the inherent risks of the sport, negligent terrain park construction is not such an inherent risk. The Oregon Supreme Court concluded that this was not an agreement between equals and that Mt. Bachelor exercised its superior bargaining strength by requiring its patrons “to sign an anticipatory release on a take-it-or-leave-it basis as a condition of using its facilities.”

Some business attorneys have been modifying anticipatory releases, trying to find a better compromise between public policy concerns and their client’s financial interests. The ski industry tried a different approach, pushing a bill in the last session to create broader immunity for ski resorts. The bill specifically sought to expand the Oregon Ski Safety Act to include terrain parks and the “movement of snow” to create such terrain parks as some of the “inherent risks of skiing” for which ski resorts would be immune from liability.

The bill failed to pass.

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