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

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.

Reversed and remanded.