## Facts

- Myles A. Bagley, an experienced snowboarder, bought a season pass from Mt. Bachelor Ski and Summer Resort.
- As a condition of purchase, Bagley signed a preprinted release purporting to waive “any and all claims,” including claims based on the resort’s negligence (except intentional misconduct).
- Bagley was seriously injured while snowboarding over a man-made jump in the resort’s terrain park and was permanently paralyzed.
- Bagley sued, alleging the resort negligently designed, constructed, maintained, and inspected the jump.
- Mt. Bachelor asserted the release as an affirmative defense to bar Bagley’s negligence claims.

## Issues

1. Whether an anticipatory liability release in a season-pass agreement that purports to exculpate a ski area operator from its own negligence is unenforceable as against public policy and/or unconscionable.
2. Whether the resort was entitled to summary judgment based on the release.

## Decision

- The Oregon Supreme Court reversed the Court of Appeals and the trial court.
- The Court held that enforcement of the release would be unconscionable and therefore unenforceable.
- Because the release could not bar the negligence claims, Mt. Bachelor was not entitled to summary judgment on that ground.
- The case was remanded for further proceedings on Bagley’s negligence claims.

## Legal Principles

- Under Oregon contract law, an exculpatory clause may be unenforceable if it is unconscionable in light of both procedural and substantive considerations.
- Procedural unconscionability focuses on contract formation, including adhesion terms, lack of meaningful choice, and unequal bargaining power in a standardized, nonnegotiable agreement.
- Substantive unconscionability focuses on the one-sidedness of the terms, including clauses that shift all losses from a party’s negligent premises management onto a paying customer with no realistic ability to bargain.
- Recreational context does not, by itself, validate a release that attempts to immunize a commercial operator from negligence in designing or maintaining facilities under its exclusive control; courts may distinguish inherent risks of the sport from risks created or increased by the operator’s negligence.
- If an exculpatory clause is unenforceable, it cannot support summary judgment for the defendant on the plaintiff’s negligence claims.

## Conclusion

The Oregon Supreme Court held that Mt. Bachelor’s season-pass release, which purported to waive liability for the resort’s own negligence relating to terrain-park safety, was unconscionable and unenforceable; it reversed summary judgment for the resort and remanded for litigation of the negligence claims.


Bagley v. Mt. Bachelor, Inc., 356 Or. 543, 340 P.3d 27 (Or. 2014)