Date: 03-18-2015

Case Style: Tabitha Becker v. Hoodoo Ski Bowl Developers, Inc. d/b/a Hoodo Ski Area

Case Number: A154563

Judge: Tookey

Court: Oregon Court of Appeals on appeal from the Circuit Court, Linn County

Plaintiff's Attorney: Kathryn Clarke argued the cause for appellant. With
her on the briefs was Bill Gaylord

Defendant's Attorney: Andrew C. Balyeat argued the cause for respondent. With
him on the brief was Balyeat & Eager, LLP.

Description: Plaintiff Becker, who was injured by a chair lift at
Hoodoo’s ski area, brought this negligence action against
defendant Hoodoo Ski Bowl Developers, Inc. (Hoodoo).
Hoodoo filed a motion for summary judgment, arguing that
it was entitled to the affirmative defense of release, and
Becker filed a cross-motion for partial summary judgment,
arguing that the release was unenforceable because it violated
public policy and was procedurally and substantively
unconscionable. The trial court granted Hoodoo’s motion for
summary judgment, denied Becker’s cross-motion for partial
summary judgment, and entered a judgment in favor of
Hoodoo. Becker now appeals that judgment, renewing her
argument that the release was unenforceable because it violated
public policy and was procedurally and substantively
unconscionable. For the reasons that follow, we reverse and
remand.
We review a trial court’s rulings on summary judgment
to determine whether “there is no genuine issue as to
any material fact” and whether “the moving party is entitled
to prevail as a matter of law.” ORCP 47 C. “We view
the historical facts set out in the summary judgment record,
along with all reasonable inferences that may be drawn
from them, in the light most favorable to the nonmoving
party—plaintiff on defendant’s motion for summary judgment,
and defendant on plaintiff’s cross-motion.” Bagley
v. Mt. Bachelor, Inc., 356 Or 543, 545, ___ P3d ___ (2014)
(Bagley II).
Becker’s husband purchased a lift ticket for Becker
to ski at Hoodoo’s ski area. An anticipatory release, along
with Hoodoo’s logo, appeared on the face of the lift ticket.
The release read as follows:
“Release Agreement
“ ‘The purchaser or user of this ticket understands that
skiing can be hazardous and accepts and assumes the
inherent risks of skiing including but not limited to changing
weather conditions, variations or steepness in terrain,
snow or ice conditions, surface or subsurface conditions,
bare sports [sic], creeks and gullies, forest growth,
rocks, stumps, lift towers and other structures and their
Cite as 269 Or App 877 (2015) 879
components, collisions with chairlifts, snow grooming equipment
and other skiers, and a skier’s failure to ski within
the skier[’]s own ability. Always ski in control.’
“ ‘THE USER OF THIS TICKET HEREBY RELEASES
HOODOO SKI BOWL DEVELOPERS, INC., d.b.a.
HOODOO SKI AREA AND ITS AGENTS FROM ANY
AND ALL CLAIMS AND LIABILITIES ARISING OUT
OF OR IN CONNECTION WITH THE USE OF THIS
TICKET INCLUDING BUT NOT LIMITED TO SKIING
ACTIVITIES AND LOADING AND UNLOADING FROM
LIFTS. THIS RELEASE INCLUDES CLAIMS BASED
UPON NEGLIGENCE.[’]
“The holder of this ticket as condition of being permitted
to use the facilities of the area agrees to assume all risk of
personal injury or loss of or damage to property and that
the management is not responsible for ticket if lost or stolen.
This ticket may be revoked without refund at any time
for misconduct of or nuisance caused by the holder[.]
“NO REFUNDS NOT TRANSFERABLE”
(Capitalization in original; emphases added.) The release
occupied approximately one-half of the face of the ticket, and
the logo occupied the other half.1 Becker did not notice or
read the release.
A sign was also posted in Hoodoo’s ski area. The
sign provided, in part, that
“[a] ski area operator shall be notified of any injury to a
skier by registered or certified mail within 180 days after
the injury or within 180 days after the skier discovers
or reasonably should have discovered, such injury. ORS
30.980(1). Failure to give notice as required by this section
bars a claim for injuries or wrongful death. ORS 30.980(4).
“The above notice is required by Oregon Law and is presented
in a manner reasonably calculated to inform. It is
in addition to other notices and specific release agreements
you may have entered into with Ski Area Management.”
1 The lift ticket was “designed to have its backing removed, and to then be
folded over a metal wicket so that the backs of each half stick together resulting
in the Hoodoo logo being visible on one side and the release agreement visible on
the other side.” That design allowed the user of the ticket to remove the backing
and attach “the wicket to his or her clothing before using the ski lifts.”
880 Becker v. Hoodoo Ski Bowl Developers, Inc.
On the day in question, Becker used a chair lift several
times without incident. While Becker was waiting to
again board the lift, a chair came around to the boarding
area with its seat bottom upright. Becker “tried to turn her
skis and go off to the right[,]” but the chair struck Becker,
and she was injured.2
Becker subsequently filed this action, alleging that
Hoodoo was negligent in its operation of the chair lift and
that its negligence caused her injuries. Hoodoo filed a motion
for summary judgment, arguing that it was entitled to the
affirmative defense of release based on the release that was
printed on Becker’s lift ticket. Becker filed a cross-motion
for partial summary judgment, arguing that the release violated
public policy and was procedurally and substantively
unconscionable. After a hearing on those motions, the trial
court ruled in favor of Hoodoo as noted above, and Becker
now appeals.
On appeal, Becker contends that the trial court
erred in granting Hoodoo’s motion for summary judgment,
denying her cross-motion for partial summary judgment,
and entering a judgment in favor of Hoodoo, again arguing
that the release was unenforceable because it violated
public policy and was procedurally and substantively unconscionable.
3 Hoodoo responds that the trial court did not err
2 Becker’s complaint alleges, in part, that Becker
“was struck, lifted, run over, dragged and dropped by a moving chair lift,
causing tearing, twisting, wrenching, bruising and abrading to the bones,
muscles, ligaments, tendons, joints and associated soft tissues of her right
arm and shoulder and both lower extremities, from all of which she suffered
a dislocated right shoulder and associated brachial plexus injury, with radiculopathy
and nerve pain and numbness into the fingers of her right hand,
requiring her to undergo surgery and to keep her right arm in a sling, resulting
in a temporary partially frozen shoulder, and a permanent partial disability
of her shoulder and in continuing and intermittent pain, weakness,
and reduced range of motion of her right arm; a low-back injury, with sciatic
pain down her left leg; injuries to both knees, with parasthesia into the three
middle toes of the left foot; and left heel and ankle pain and instability; and
exacerbation of a pre-existing plantar fasciitis in her left foot. As a further
result of these injuries, plaintiff is now at risk of developing arthritis in the
injured areas as she ages.”
3 Becker also argues that “[t]here was no agreement reached under the circumstances
of this case.” However, we need not decide that issue because, assuming
without deciding that an agreement was reached in this case, enforcement of
such an agreement would be unconscionable, as we conclude below.
Cite as 269 Or App 877 (2015) 881
because the release at issue is not contrary to public policy
and is not unconscionable. In their appellate briefs, both
parties cite Bagley v. Mt. Bachelor, Inc., 258 Or App 390,
310 P3d 692 (2013) (Bagley I), rev’d, 356 Or 543, ___ P3d
___ (2014)—a case that was decided by this court after the
parties argued their motions to the trial court and after the
trial court entered judgment in favor of Hoodoo.
The plaintiff in Bagley I, who had signed a release
agreement4 when he purchased a season ski pass from the
defendant Mt. Bachelor, Inc., was injured while snowboarding
over a jump in the defendant’s “ ‘terrain park’ ” and
brought an action alleging negligence in the design, construction,
maintenance, or inspection of that jump. Id. at
4 The release agreement at issue in Bagley, which was signed by the plaintiff,
read, in part:
“ ‘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 caused 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 under-signed(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.’ ”
Bagley I, 258 Or App at 392-93. (Capitalization omitted.) The “crux of the release
agreement was also printed” on the plaintiff’s ski pass. Id. at 394.
In addition, a sign was posted at each of the defendant’s ski lift terminals,
providing, in part, that “ ‘YOUR TICKET IS A RELEASE’ ” and advising members
of the public not to purchase tickets without agreeing to be bound by the
terms and conditions of the release. Id. at 395 (capitalization in original).
882 Becker v. Hoodoo Ski Bowl Developers, Inc.
392. There, as here, the defendant moved for summary judgment
based on the affirmative defense of release, and the
plaintiff argued that the release was contrary to public policy
and unconscionable. After analyzing the facts in Bagley I,
this court concluded that the release in that case was not
contrary to public policy and that the terms of the release
were neither procedurally nor substantively unconscionable.
Id. at 410.
However, after the parties in this case briefed and
argued this case to us, the Oregon Supreme Court reversed
our decision in Bagley I. See Bagley II, 356 Or at 543. In
so doing, the court explained that it would, “for the sake
of convenience—if not doctrinal convergence—* * * address
the parties’ public policy arguments in the context of [its]
analysis of whether, in the particular circumstances of
[that] case, enforcement of the release would be unconscionable.”
Id. at 554. The court then set forth the “procedural
factors” and “substantive considerations” that it gleaned
from its prior decisions involving unconscionable contracts,
stating:
“We glean from those decisions that relevant procedural
factors in the determination of whether enforcement of an
anticipatory release would violate public policy or be unconscionable
include whether the release was conspicuous and
unambiguous; whether there was a substantial disparity
in the parties’ bargaining power; whether the contract
was offered on a take-it-or-leave-it basis; and whether the
contract involved a consumer transaction. Relevant substantive
considerations include whether enforcement of the
release would cause a harsh or inequitable result to befall
the releasing party; whether the releasee serves an important
public interest or function; and whether the release
purported to disclaim liability for more serious misconduct
than ordinary negligence. Nothing in our previous decisions
suggests that any single factor takes precedence over
the others or that the listed factors are exclusive. Rather,
they indicate that a determination whether enforcement
of an anticipatory release would violate public policy or be
unconscionable must be based on the totality of the circumstances
of a particular transaction. The analysis in that
regard is guided, but not limited, by the factors that this
court previously has identified; it is also informed by any
Cite as 269 Or App 877 (2015) 883
other considerations that may be relevant, including societal
expectations.”
Id. at 560 (emphases added).
The court then analyzed those factors and considerations
as they pertained to the facts in that case. When
analyzing the procedural factors, the court noted that one
factor—whether the release was conspicuous and unambiguous—
weighed in favor of enforcement, as the plaintiff
did not contend that he was surprised by the terms of the
release. Id. at 561. The court then stated that “[o]ther procedural
factors * * * point[ed] in a different direction[,]” noting
that this “was not an agreement between equals” as “[o]nly
one party to the contract—defendant—was a commercial
enterprise, and that party exercised its superior bargaining
strength by requiring its patrons, including plaintiff, to
sign an anticipatory release on a take-it-or-leave-it basis as
a condition of using its facilities.” Id. The court also noted
that “plaintiff had no opportunity * * * to negotiate for different
terms or pay an additional fee for protection against
defendant’s negligence.” Id. at 562.
When analyzing the substantive considerations,
the court stated that “the enforcement of the release would
cause a harsh and inequitable result” to befall the plaintiff;
that the “defendant’s business operation [was] sufficiently
tied to the public interest as to require the performance of
its private duties to its patrons[;]” and that “the fact that
plaintiff’s claim [was] based on negligence rather than on
more egregious conduct carries less weight than the other
substantive factors[.]” Id. at 565-70. The court concluded by
stating, “Because the factors favoring enforcement of the
release are outweighed by the countervailing considerations
that we have identified, we conclude that enforcement of the
release at issue in this case would be unconscionable.” Id. at
573.
The release here is materially indistinguishable
from the release at issue in Bagley, and, therefore, under the
analysis set forth by the Oregon Supreme Court in Bagley
II, we conclude that enforcement of the release in this case
would likewise be unconscionable. Accordingly, Hoodoo is
not entitled to prevail on its affirmative defense of release,
884 Becker v. Hoodoo Ski Bowl Developers, Inc.
and the trial court erred in granting Hoodoo’s motion for
summary judgment, denying Becker’s cross-motion for partial
summary judgment, and entering a judgment in favor of
Hoodoo.

Outcome: Reversed and remanded.

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Defendant's Experts:

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