Oregon skiing waiver lawsuit

[JerryBaumchen 1,046]

Hi folks,

http://www.oregonlive.com/pacific-northwest-news/index.ssf/2014/12/broad_liability_waivers_are_un.html#incart_most-read

Maybe some of our legal-eagles on here could offer a thought or two.

NOTE: It mentions 'parachuting companies'

Jerry Baumchen

[ryoder 1,381]

Does Oregon have anything comparable to CO's law?

http://www.denverpost.com/ci_22813161/colorado-ski-industry-enjoys-protection-from-law-waivers

"There are only three things of value: younger women, faster airplanes, and bigger crocodiles" - Arthur Jones.

[JerryBaumchen 1,046]

Hi Ryoder,

Quote

Does Oregon have anything comparable to CO's law?

I simply do not know.

I did talk to my son ( local corporate attorney ) about this artilce/decision and he said that it was the talk of the office.

Apparently, one of the arguments in the lawsuit is that the ski resort had not determined that the snowboard jump site was safe. I'm not sure how one would determine such a thing; but that is what the courts will probably tell us.

Jerry Baumchen

[skyjumpenfool 2]

Sounds like skiing is about to get even more expensive? But this could be a death sentence for DZ's.

Birdshit & Fools Productions

"Son, only two things fall from the sky."

[wolfriverjoe 1,340]

Hi Jerry,

Quote

Apparently, one of the arguments in the lawsuit is that the ski resort had not determined that the snowboard jump site was safe. I'm not sure how one would determine such a thing; but that is what the courts will probably tell us.

I think that it's pretty easy to see that if a lot of other people have launched off the ramp without injury (probably including the plaintiff), then the jump isn't inherently dangerous - at least not "badly constructed" dangerous.
Not that jumping off these kinds of ramps is exactly "safe."

IMHO, this sucks. HE chose to go down the hill. HE chose to go off the ramp.
I'm not a big fan of "waivering" negligence, even in skydiving.
If someone (business owner) does something clearly wrong, then there should be some responsibility.

But this isn't that.

If this goes through, I think the main result will be the end of jumps and terrain parks.

"There are NO situations which do not call for a French Maid outfit." Lucky McSwervy

"~ya don't GET old by being weak & stupid!" - Airtwardo

[CanuckInUSA 0]

I would say this ruling by the Oregon Supreme Court was made by people with little real world experience outside of the sheltered legal world they live in. I doubt very much anyone from the ski resort told the individual behind this lawsuit that he had to jump off of that ski jump. The dude likely clearly made the decision on his own to launch himself off of the jump.

How many people read the waiver on their ski pass? I know I don't read it every time, but I have made a point to read it. The only difference between a ski pass and the sky diving waiver a Drop Zone uses, is the DZ asks the participant to sign the waiver. So I doubt DZs should be effected here. But neither should ski resorts. What's next? $10,000 daily ski pass to pay for all the legal challenges fools who do dumb things at the resorts, get hurt and then decide to sue?

In a past life, I was a volunteer ski patroller (as well as one year when I worked as a full time pro) at the Banff Alberta ski resort of Lake Louise. I have worked my share of nasty accidents and let me tell you rarely is there an accident on one of the black expert and/or green novice trails. The vast majority of the accidents occur on blue intermediate trails. Plus the accidents tend to occur at two times of the day. They occur just after lunch when the drunks get out of the bar and decide he we have been drinking, now let's go skiing. Dumb asses. The other time when accidents occur is at the end of the day when people are tired and they let their guard down on these intermediate trails which often become icy because the people who use intermediate trails don't know the difference between a carved turn and a skidded turn and often don't maintain their edges.

I wonder if the lawyers and judges behind this ruling ever stopped for a second to consult the people who live and work in the industry? Or did they base their ruling from their white ivory towers looking down on all us commoners they rule over. More dumb asses, these fools who work in the legal systems across the land.

Try not to worry about the things you have no control over

[lawrocket 3]

It's political. Each state has its own rules and legislature can set the state's rules.

My wife is hotter than your wife.

[jakee 1,254]

CanuckInUSA

I would say this ruling by the Oregon Supreme Court was made by people with little real world experience outside of the sheltered legal world they live in. I doubt very much anyone from the ski resort told the individual behind this lawsuit that he had to jump off of that ski jump. The dude likely clearly made the decision on his own to launch himself off of the jump.

Yeah, 'cos if you're a judge that clearly means you've never played sports or have to live in the same world as normal people. Heck, I bet it's ten years since they've even seen sunshine! Step outside the library for a second, nerds!

Also, my understanding is that the Oregon SC haven't said that the plaintiff is right, or that he should win his lawsuit - they've only said that the reason for dismissing it was wrong, and that waivers cannot cover anything up to and including gross negligence.

Do you want to have an ideagasm?

[SethInMI 145]

jakee

Also, my understanding is that the Oregon SC haven't said that the plaintiff is right, or that he should win his lawsuit - they've only said that the reason for dismissing it was wrong, and that waivers cannot cover anything up to and including gross negligence.

Yeah, after reading the judgement, I agree. It specifically says the court had to assume for sake of argument that the jump WAS negligently constructed or maintained, and then assuming it was, determine if the waiver covered that. They decided it did not, but now I guess it is up to the lower court to determine if the jump was in fact negligently constructed or maintained.

The judgement does mention Oregon's Skier Responsibility Law, which shields ski resorts from liability for certain aspects of skiing, but not, apparently, from negligence in terrain park construction and maintenance.

It's flare not flair, brakes not breaks, bridle not bridal, "could NOT care less" not "could care less".

[tkhayes 124]

It is probably also true that the person did not 'sign a waiver' in the same way that skydivers sign a waiver.

I would think a season's pass as a ski hill might be a check box "I accept the terms and conditions" or perhaps nothing at all, other than the fine print on the back of the pass.

In almost every skydiving situation i have seen, the waiver in initialed paragraph and by paragraph and then signed at the end with full legal name etc.

I can see where courts would see a difference in the application of the validity of such agreements across different sports.

So the fix may be that ski resorts simply adopt a similar tactic, albeit time consuming that have skiers sign a complete waiver just to get in.

[JerryBaumchen 1,046]

Hi tk,

Quote

It is probably also true that the person did not 'sign a waiver' in the same way that skydivers sign a waiver.

I don't ski, but my son & son-in-law both do. This is true, they never actually sign anything.

On the other hand, the OR Supreme Court ruling made no mention of the details of the waiver. Only the broad scope of it.

Jerry Baumchen

[headoverheels 291]

tkhayes

It is probably also true that the person did not 'sign a waiver' in the same way that skydivers sign a waiver.

...

So the fix may be that ski resorts simply adopt a similar tactic, albeit time consuming that have skiers sign a complete waiver just to get in.

Oddly, day tickets where I mostly ski just have the ticket waiver, but I have to sign a waiver when I pick up my season pass, in which I also promise to be a good boy (ski safely, stay in bounds, etc).

[SethInMI 145]

headoverheels

Oddly, day tickets where I mostly ski just have the ticket waiver, but I have to sign a waiver when I pick up my season pass, in which I also promise to be a good boy (ski safely, stay in bounds, etc).

The colorado law link that ryoder posted led me to a article that discussed the disparity in colorado ski resorts policies that you mentioned: the season pass purchasers have to sign their waivers, but the day - week ticket purchasers do not sign anything. Since season pass holders are largely residents of colorado, this creates a two tier system in which in-staters have potentially less recourse via the court system, and the article theorized that this could be an issue that courts could one day take up.

It's flare not flair, brakes not breaks, bridle not bridal, "could NOT care less" not "could care less".

[ryoder 1,381]

SethInMI

***

Oddly, day tickets where I mostly ski just have the ticket waiver, but I have to sign a waiver when I pick up my season pass, in which I also promise to be a good boy (ski safely, stay in bounds, etc).

The colorado law link that ryoder posted led me to a article that discussed the disparity in colorado ski resorts policies that you mentioned: the season pass purchasers have to sign their waivers, but the day - week ticket purchasers do not sign anything. Since season pass holders are largely residents of colorado, this creates a two tier system in which in-staters have potentially less recourse via the court system, and the article theorized that this could be an issue that courts could one day take up.

That is weird. Every time I've bought a season pass, I had to sign a waiver before they would give it to me, but years I don't have the season pass, there is a bunch of legalese on the back of the ticket, which (IIRC) pretty much says if you use the ticket, you accept the legalese.

I don't have a ticket handy, due to dealing with a bad back for the last few days while my favorite ski area just got 30" powder in two days.

"There are only three things of value: younger women, faster airplanes, and bigger crocodiles" - Arthur Jones.

[jakee 1,254]

Quote

Well, there used to be a concept of 'implied risk.' If you go to a baseball game and a foul ball clonks you in the head, that's an implied risk.

That's a good analogy. If the ball hits you, no liability. If the stadium's falling to bits and part of it hits you, liability.

Do you want to have an ideagasm?

[JohnnyMarko 1]

ryoder

******

Oddly, day tickets where I mostly ski just have the ticket waiver, but I have to sign a waiver when I pick up my season pass, in which I also promise to be a good boy (ski safely, stay in bounds, etc).

The colorado law link that ryoder posted led me to a article that discussed the disparity in colorado ski resorts policies that you mentioned: the season pass purchasers have to sign their waivers, but the day - week ticket purchasers do not sign anything. Since season pass holders are largely residents of colorado, this creates a two tier system in which in-staters have potentially less recourse via the court system, and the article theorized that this could be an issue that courts could one day take up.

That is weird. Every time I've bought a season pass, I had to sign a waiver before they would give it to me, but years I don't have the season pass, there is a bunch of legalese on the back of the ticket, which (IIRC) pretty much says if you use the ticket, you accept the legalese.

I don't have a ticket handy, due to dealing with a bad back for the last few days while my favorite ski area just got 30" powder in two days.

This is on the back of my Colorado season pass

[dpreguy 14]

Oregon Supreme Court is substituting it's view of "unconscionable" over the participant's agreement.
Pretty ridiculous.
Wow:
Horseback riding stables
Ski Resorts, ski rentals
Skydive Businesses, esp tandems
10K-Marathon etc run organizers
Bike ride groups (MS Charity Bike ride, etc)
Softball and Baseball youth and adult leagues
Tennis businesses
Surfing companies
Hangglider and Paraglider companies
Snowmobile rentals
Archery and gun ranges
Waterski instruction and rental companies
Gymnast training centers
Whitewater rafting companies
Boat rental companies
Little buzzy go cart and motorcycle rentals
Dance instruction
Mountain guide and rock climbing schools and climbing walls
Holy Batman! This is just a quick, off the top of my head list. There must be a hundred more businesses that rely on the protection of waivers to stay in business.

The Oregon ruling basically embraces the point of view that
adults cannot voluntarily make the decision to take risks.
In recreational states, and indeed all the states this would kill almost all waivered recreational businesses. My belief is that European countries have a completely different viewpoint. Our tort system allows anyone to sue, without consequences of losing. My understanding of the English tort system is that if you sue for an ordinary tortious act, and lose, you have to pay the defendant's legal fees. Weeds out the cases without merit. Maybe we need that here in the US.

[JerryBaumchen 1,046]

Hi Walt,

Quote

Our tort system allows anyone to sue, without consequences of losing.

That depends upon who you define as 'anyone'. If the plaintiff(s) lose, the attorney(s) is out a lot of time: Time = $$$$$.

Quote

Maybe we need that here in the US.

Never going to happen.

Jerry Baumchen

[kallend 1,621]

Iago

If someone stands on the railing and tries to dive in the pool, that's a separate issue. That's just being a dumb ass.

.

There are elaborate legal theories that the lawyers and courts have constructed and legislatures have embraced, which protect dumb-asses at the expense of the rest of us. As a side effect, they pad the bank accounts of the plaintiffs' bar.

One of the problems of having too many lawyers in political office.

...

The only sure way to survive a canopy collision is not to have one.

[kallend 1,621]

tkhayes

It is probably also true that the person did not 'sign a waiver' in the same way that skydivers sign a waiver.

I would think a season's pass as a ski hill might be a check box "I accept the terms and conditions" or perhaps nothing at all, other than the fine print on the back of the pass.

In almost every skydiving situation i have seen, the waiver in initialed paragraph and by paragraph and then signed at the end with full legal name etc.

I can see where courts would see a difference in the application of the validity of such agreements across different sports.

So the fix may be that ski resorts simply adopt a similar tactic, albeit time consuming that have skiers sign a complete waiver just to get in.

At one DZ (I think it was Perris) the first time I went there I was videotaped stating my name, and that I had voluntarily read and signed the waiver and knew full well that I was likely to die or be maimed but was going to do it anyway so there! (Or something like that).

...

The only sure way to survive a canopy collision is not to have one.

[jakee 1,254]

Quote

The Oregon ruling basically embraces the point of view that
adults cannot voluntarily make the decision to take risks.

No, I don't believe it does. It embraces the point of view that a business can't use a waiver to get away with negligent behaviour that increases the risk beyond what is reasonably inherent in the activity.

Take skydiving - awkward landing on a tandem and customer breaks ankle, sorry, shit happens. But if, say, unlicensed tandem master, out of date reserve, jumping through cloud in winds of 15kts gusting 30 and something happens... DZO's in a world of shit.

Do you want to have an ideagasm?

[jimjumper 25]

They still do. I was told it was due to a case where the person signing the waiver was under the influence and after injury, his lawyer argued the waiver should be held null and void since the plaintiff wasn't cognizant of what he was signing and that the DZ should have recognized the signs of intoxication. The videotaping is/was done to demonstrate in court that the person wasn't displaying any overt signs of intoxication.

[dpreguy 14]

Waivers only cover ordinary negligence. Everything you have
mentioned (except for the out of date reserve) is ordinary negligence, and is waived. And should be.
To hold otherwise will kill all of the activities I mentioned, and a lot more. Oregon's rule would be the end, unless of course jump tickets go to $50 and riding a horse for an hour goes up to $200, etc etc. The nanny state philosophy is alive and well in Oregon! Hope the EbolOregon Waiver Disease doesn't become contagiousl

[Divalent 89]

JerryBaumchen

Hi tk,

Quote

It is probably also true that the person did not 'sign a waiver' in the same way that skydivers sign a waiver.

I don't ski, but my son & son-in-law both do. This is true, they never actually sign anything.

On the other hand, the OR Supreme Court ruling made no mention of the details of the waiver. Only the broad scope of it.

Jerry Baumchen

But the court did note that in the case they were considering, the person did sign a waiver (since he purchased a seasons pass, and so they got an actual signature). So this was not a case where the plaintiff was arguing they were unaware of what they signed. And the plaintiff was claiming that they were injured by ordinary negligence.

Anyway, I looked at the opinion, and I while I think skydiving sits closer to the "enforce the waiver" side of things, I'm not so sure it is that much closer.

From the last page of the opinion (foot note 21):

Quote

By so concluding, we do not mean to suggest that a business owner or operator never may enforce an anticipatory release or limitation of negligence liability from its invitees. As explained, multiple factors may affect the analysis, including, among others:

1. whether a legally significant disparity in the parties’ bargaining power existed that made the release or limitation unfairly adhesive,

2. whether the owner/operator permitted a patron to pay additional reasonable fees to obtain protection against negligence,

3. the extent to which the business operation is tied to the public interest, including whether the business is open to and serves large numbers of the general public without restriction, and,

4. the degree to which the personal safety of the invitee is subjected to the risk of carelessness by the owner/ operator.

Considering the tandem and student jumper side of this, for these 4 factors that the court said led them to conclude the waiver was uninforcable, I would guess that skydiving waivers would also be disfavored by factors 1, 2, and 4, but favored by #3. (For licensed jumpers, I think #4 swings over to favoring the waivers, except perhaps for the plane ride.)

AFAIK, there isn't any insurance one could buy, although I'm not sure why not. I mean, I would think there could be money to be made by an insurance company selling a per jump policy for like $30-50 or so that could provide catastrophic coverage beyond what normal medical insurance would cover. (Perhaps coupled with a section in the waiver where the person affirms that they do carry medical insurance).

Any insurance folks out there that think such a policy would be possible?

[jakee 1,254]

dpreguy

Waivers only cover ordinary negligence. Everything you have
mentioned (except for the out of date reserve) is ordinary negligence, and is waived. And should be.

So companies should be able to knowingly act in a manner that is both unsafe and illegal and when someone gets hurt as a direct result say 'sorry, waiver'? That's ridiculous.

Quote

To hold otherwise will kill all of the activities I mentioned, and a lot more. Oregon's rule would be the end, unless of course jump tickets go to $50 and riding a horse for an hour goes up to $200, etc etc.

If that's the case then the entire civil legal system is broken and waivers are just a bandaid anyway.

Do you want to have an ideagasm?