Ski season is upon us!
Oregon ski resort operators worried about legal expenses and insurance costs are backing a bill that would reauthorize the liability releases recently rejected as "unconscionable" by the state Supreme Court, while adding avalanches, tree wells and terrain parks to the list of risks inherent to skiing and snowboarding.
The legislation is known as Senate Bill 849, and it is co-sponsored by five Republican Oregon lawmakers: Senator Tim Knopp of Portland, Rep. Knute Buehler of Bend, Senator Chuck Thomsen of Hood River, Rep. John Huffman of The Dalles and Rep. Mark Johnson of Parkdale.
SB 849 would amend four Oregon statutes and declare an emergency in order to protect resorts from the risk and expense of personal injury lawsuits. It would expand the list of risks inherent to skiing and snowboarding and allow resorts to continue to use liability waivers to limit lawsuits.
Skiers and snowboarders could still sue resorts for gross negligence by the resort and its employees (for example, a chairlift falling down to the ground). But they would be barred from suing over the expanded list of inherent risks to the sport.
“The goal is to have an updated and current statute that reflects how the industry has changed and evolved since 1979,” said John A. Gifford, President of the Pacific Northwest Ski Area Association.
One big change in the industry in recent decades has been the development and explosion of terrain parks for snowboarders and freeskiers. The proposed legislation addresses that big change by adding all of the features in terrain parks to the list of risks inherent to the sport and protected from lawsuits.
Gifford said SB 849 was developed after studying the current Oregon statute and recent trends in other states including Montana, Idaho and Colorado. Montana updated its skiing statute in February of 2015, and Idaho updated its statute in February of 2014. The updated statutes all have brought in language specific to terrain parks.
But the biggest change in SB 849 involves liability releases, the "promise not to sue" contracts skiers and snowboarders sign to purchase passes. Language in the bill’s second section directly contradicts a recent ruling of the Oregon Supreme Court by stating that liability releases used to protect resorts from lawsuits are “not unconscionable or contrary to public policy.”
On December 18, 2014, the Oregon Supreme Court ruled that liability releases are exactly that — "unconscionable" — and therefore invalid.
The concept of unconscionability is meant to address several problems with contracts, including imbalance of power. The Supreme Court held that the ski resort holds far more power than the skier or snowboarder and that the contract clearly favors the more powerful party, the resort.
The court’s ruling that liability releases are unconscionable allowed a $21.5 million terrain park lawsuit against Mount Bachelor to proceed. It also opened the door to recently filed suits against Skibowl (for a collision between snowboarders - one allegedly drunk) and Hoodoo (for a tubing hill accident).
Ski resort executives, already facing a historically thin snow season, warn that a barrage of similar lawsuits would raise costs and prices, threaten the economic viability of the Oregon ski industry, and cost jobs.
"The impact of not updating the skier statue will eventually cost jobs, limit access to public lands, and threaten the economic stability of these areas and the state of Oregon as a whole," testified Matthew Drake, CEO of Mt. Hood Meadows at a public hearing in Salem March 30.
Richard Rizk, a Portland lawyer and Mount Hood skier who handles skiing and snowboarding cases, criticized the bill as over-reaching. “The law goes beyond the inherent risk rule which already provides ski resorts with vast protection from suits unique to its industry,” he said.
Rizk also questioned the declaration of emergency in the bill: “The ‘emergency’ affecting ski resorts is weather-related, not suit-related,” he said. “By declaring an emergency at the outset, the bill overstates from the start and loses credibility.”
Here are the exact definitions of the newly added inherent risks of skiing and snowboarding in the bill, "freestyle terrain" and "movement of snow":
“Freestyle terrain” means terrain parks and terrain features including jumps, hits, ramps, banks, funboxes, jibs, rails, half-pipes, quarter-pipes and any other natural or constructed features…
“Movement of snow” means:
(a) Slides, sloughs or avalanches;
(b) Any natural or constructed depressions in snow, including tree wells; or
(c) Any natural or constructed accumulations of snow, including snowmaking mounds.
The exact wording of Section 2 of SB 849, addressing the liability releases recently rejected by the Supreme Court, is as follows (note the protection from "unreasonable conditions created by the operator"):
(1) Except as provided in subsection (2) of this section, a ski area operator may require skiers to release the operator from claims for liability, including, but not limited to, claims arising out of the negligence of the operator and claims for unreasonable conditions created by the operator that are not inherent to the activity, before participating in skiing at the ski area.
A release described in this subsection is not unconscionable or contrary to public policy.
(2) A ski area operator may not require a skier to release the operator from claims for
liability for intentional acts or for gross negligence.
Oregon is not the only state to reject liability releases for ski areas. Vermont resorts lost their ability to require releases in a landmark case in 1995, and New York and Alaska also have rejected them.
On the other hand, numerous states including Washington and California allow ski resorts to use liability releases to contain legal and insurance costs.
SB 849 was introduced in Salem on March 3, was referred to the Judiciary Committee on March 5 and received a public hearing on March 30. To become law it will need Democratic support to go with its Republican co-sponsors, since it would have to pass a House and Senate controlled by Democrats and be signed into law by Democratic Governor Kate Brown.
Gifford said Oregon resorts continue to meet with and talk to Democrats hoping for bipartisan support.
“We talked to a number of Democrats and are still talking to them,” said Gifford. “They had a number of reasons why they don’t want to sign on just yet, but as you know these bills get massaged as they go through. We’re trying to work through all that.”
Gifford estimated the bill's chances of passing to be "about 50-50."