Myles A. BAGLEY, individually, Petitioner on Review, and Al BAGLEY, individually; and Lauren Bagley, individually, Plaintiffs,
MT. BACHELOR, INC., dba Mt. Bachelor Ski and Summer Resort, Respondent on Review, and John DOES 1-10, Defendants
Argued and Submitted May 7, 2014
[Copyrighted Material Omitted]
CC 08CV0118SF; CA A148231. On review from the Court of Appeals. [*]
Bagley v. Mt. Bachelor, Inc., 258 Or.App. 390, 310 P.3d 692, (2013)
The decision of the Court of Appeals is reversed. The judgment of the trial court is reversed, and the case is remanded to that court for further proceedings.
Kathryn H. Clarke, Portland, argued the cause and filed the briefs for petitioner on review. With her on the briefs was Arthur C. Johnson.
Andrew C. Balyeat, Balyeat & Eager, LLP, Bend, argued the cause and filed the brief for respondent on review.
Michael J. Estok, Lindsay Hart, LLP, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.
Kristian Roggendorf, Roggendorf Law LLC, Lake Oswego, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.
[356 Or. 545] BREWER, J.
The issue on review in this case is whether an anticipatory release of a ski area operator's liability for its own negligence in a ski pass agreement is enforceable in the face of an assertion that the release violates public policy and is unconscionable. Plaintiff suffered serious injuries while snowboarding over a jump in defendant ski area operator's " terrain park," and brought this action alleging that defendant was negligent in the design, construction, maintenance, and inspection of the jump. Defendant moved for summary judgment based on an affirmative defense of release; plaintiff filed a cross-motion for partial summary judgment on the ground that the release was unenforceable as a matter of law. The trial court granted defendant's summary judgment motion and denied plaintiff's cross-motion. Plaintiff appealed, asserting, among other arguments, that the trial court erred in concluding that the release did not violate public policy and that it was neither substantively nor procedurally unconscionable. The Court of Appeals affirmed. Bagley v. Mt. Bachelor, Inc., 258 Or.App. 390, 310 P.3d 692 (2013). Because we conclude that enforcement of the release would be unconscionable, we reverse and remand.
FACTS AND PROCEDURAL BACKGROUND
We review the 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. Id.; Vaughn v. First Transit, Inc., 346 Or. 128, 132, 206 P.3d 181 (2009). The historical facts in the record largely relate to the enforceability of the release at issue. Defendant's summary judgment motion did not address the issues of negligence, causation, or damages. Therefore, insofar as those issues are relevant to [356 Or. 546] the enforceability of the release, we accept as true the allegations in plaintiff's complaint. ORCP 47 C (adverse party on summary judgment has burden of producing evidence only " on any issue raised in the motion as to which adverse party would have burden of persuasion at trial" ).
On September 29, 2005, plaintiff purchased a season pass from defendant for use at defendant's ski area. Plaintiff was a skilled and experienced snowboarder, having purchased season passes from defendant for each of the preceding three years and having classified his skill level as of early 2006, before being injured, as an " advanced expert." Upon purchasing the season pass, plaintiff executed a written " release and indemnity agreement" that defendant required of all its patrons. That document provided, in pertinent 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 undersigned(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 [356 Or. 547] 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."
(Capitalization omitted.) The reverse side of the document detailed the " Duties of Skiers" under ORS 30.985 and ORS 30.990 and also included a printed notification that " Skiers/Snowboarders/Snowriders Assume Certain Risks" under ORS 30.975--the " inherent risks of skiing." 
On November 18, 2005, plaintiff began using the pass, which stated, in part:
" Read this release agreement
" In consideration for each lift ride, the ticket user releases and agrees to hold harmless and indemnify Mt. Bachelor, Inc., and its employees and agents from all claims for property damage, injury or death even if caused by negligence. The only claims not released are those based upon intentional misconduct."
(Capitalization omitted.) Further, the following sign was posted at each of defendant's ski lift terminals:
" YOUR TICKET IS A RELEASE
" The back of your ticket contains a release of all claims against Mt. Bachelor, Inc. and its employees or agents. [356 Or. 548] Read the back of your ticket before you ride any lifts or use any of the facilities of Mt. Bachelor, Inc. If you purchase a ticket from someone else, you must provide this ticket release information to that person or persons.
" Skiers and lift passengers who use tickets at this resort release and agree to hold harmless and indemnify Mt. Bachelor, Inc., its employees and agents from all claims for property damage, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor's premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.
" If you do not agree to be bound by the terms and conditions of the sale of your ticket, please do not purchase the ticket or use the facilities at Mt. Bachelor.
" Presentation of this ticket to gain access to the premises and facilities of this area is an acknowledgment of your agreement to the terms and conditions outlined above."
(Capitalization in original.)
Beginning on November 18, 2005, plaintiff used his season pass to ride defendant's lifts at least 119 times over the course of 26 days that he spent snowboarding at the ski area. On February 16, 2006, while snowboarding over a human-made jump in defendant's " air chamber" terrain park, plaintiff sustained serious injuries resulting in his permanent paralysis. Approximately four months later, plaintiff provided defendant with notice of his injuries under ORS 30.980(1), which requires that " [a] ski area operator shall be notified of any injury to a skier * * * within 180 days after the injury[.]" Within two years after he was injured, plaintiff brought this action; his complaint alleged negligence on defendant's part in designing, constructing, maintaining, and inspecting the jump on which plaintiff was injured. Defendant answered, in part, by invoking the affirmative defense of release, pointing to the above-quoted documents.
In its summary judgment motion, defendant asserted that plaintiff " admittedly understood that he [had] entered into a release agreement and was snowboarding under its terms on the date of [the] accident." Defendant [356 Or. 549] argued that the release conspicuously and unambiguously disclaimed its future liability for negligence, and that the release was neither unconscionable nor contrary to public policy under Oregon law, because " skiers and snowboarders voluntarily choose to ski and snowboard and ski resorts do not provide essential public services." Thus, defendant reasoned, there was no material issue of fact as to whether the release barred plaintiff's action, and defendant was entitled to judgment as a matter of law.
In his cross-motion for partial summary judgment, plaintiff asserted that the release was unenforceable because it was contrary to public policy and was " both substantively and procedurally unconscionable." The trial court rejected plaintiff's public policy and unconscionability arguments, reasoning that " [s]now riding is not such an essential service which requires someone such as [p]laintiff to be forced to sign a release in order to obtain the service." Accordingly, the trial court granted summary judgment in defendant's favor and denied plaintiff's cross-motion for partial summary judgment.
As noted, the Court of Appeals affirmed. The court initially observed that the line between the public policy and unconscionability doctrines on which plaintiff relied was not clearly delineated:
" We assume without deciding that the 'void as contrary to public policy' doctrine pertaining to this type of case has not been superseded by later-evolved principles concerning substantive unconscionability. See Restatement [( Second) of Contracts ], § 208 comment a [(1981)] (unconscionability analysis generally 'overlaps' with public-policy analysis)."
Bagley, 258 Or.App. at 403 n 7. The court then proceeded separately to analyze plaintiff's arguments. It first concluded that the release did not violate public policy. In particular, the court understood plaintiff to rely on an uncodified Oregon public policy that gives primacy to the tort duties of landowners and business operators to provide safe premises for invitees. In rejecting plaintiff's argument, the Court of Appeals relied on several factors. First, the court observed that the release " clearly and unequivocally" expressed defendant's intent to disclaim liability for negligence. Id. at [356 Or. 550] 405 (" [W]e are hard-pressed to envision a more unambiguous expression of 'the expectations under the contract'[.]" ). Second, the court noted that anticipatory releases that disclaim liability only for ordinary negligence do not necessarily offend public policy where they pertain exclusively to recreational activities and, most importantly, where the party seeking to relieve itself from liability does not provide an essential public service. Id. The court noted that a ski resort primarily offers recreational activities that, with possible exceptions that do not apply in
this case, such as training for search-and-rescue personnel, do not constitute essential public services. Id. at 406. Third, the court stated that plaintiff's claims were based on ordinary negligence and did not ...