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Becker v. Hoodoo Ski Bowl Developers, Inc.

Court of Appeals of Oregon

March 18, 2015

Tabitha BECKER, Plaintiff-Appellant,
v.
HOODOO SKI BOWL DEVELOPERS, INC., an Oregon corporation, dba Hoodoo Ski Area, Defendant-Respondent

Argued and submitted November 4, 2014.

Linn County Circuit Court. 112557. DeAnn L. Novotny, Judge.

Kathryn H. Clarke argued the cause for appellant. With her on the briefs was William A. Gaylord.

Andrew C. Balyeat argued the cause for respondent. With him on the brief was Balyeat & Eager, LLP.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

Page 621

[269 Or.App. 878] TOOKEY, J.

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, 340 P.3d 27 (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 [269 Or.App. 879] components, collisions with chairlifts, snow grooming equipment and other skiers, and a skier's

Page 622

failure to ski within the skier[']s own ability. Always ...

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