There are many opportunities for visitors (and locals) in South Florida to engage in fun activities, such as personal watercraft rentals, parasailing, horseback riding, boating, etc. But many companies do require participants to sign a release signing away their right to sue in the event they are injured.
In many instances, courts will respect these signed waivers as a valid legal contract, so long as the signature belongs to someone over 18. However, there are circumstances under which a court may find such an agreement “unconscionable,” and therefore unenforceable – meaning injured party still retains the right to pursue litigation.
This was the case for plaintiff in Bagley v. Mt. Bachelor, Inc., reviewed recently by the Oregon Supreme Court. Our Fort Lauderdale vacation injury lawyers recognize that while this decision doesn’t directly impact cases in Florida, similar rulings have been reached by courts here. Additionally, findings by state supreme courts are often weighed by others when facing similar cases.
According to court records, the issue before the state high court was whether an anticipatory release of a ski operator’s liability for its own negligence was enforceable where plaintiff asserts a violation of public policy rendering it unconscionable.
Plaintiff had purchased a season pass to snowboard on property owned by defendant. Plaintiff was an experienced and skilled snowboarder, having been classified as an “advanced expert” skill level.
In purchasing his season pass, he signed a waiver of liability, which indicated the only claims of injury he could bring forth would be those based on intentional misconduct.
Approximately one month into the season, plaintiff suffered serious injuries while using the ski area. He sustained permanent paralysis.
Litigation was later filed alleging defendant was negligent in designing, constructing, maintaining and inspecting the jump on which plaintiff was hurt. Defendant invoked the affirmative defense of the release, pointing to the waiver of liability.
In plaintiff’s cross-motion against summary judgment for defense, he argued the waiver was unconscionable.
Trial court sided with defendant, finding it was not conspicuous or unambiguous. Although it was offered on a “take or leave it” basis, plaintiff had the option of choosing not engage in a non-essential recreational activity.
Appellate court affirmed, and plaintiff appealed then to the state supreme court. The state high court reversed, noting several issues.
One, this was not an agreement between equals, the court found. defendant was a commercial enterprise that in effect exercised superior bargaining strength by requiring participants to sign a release on a take-it-or-leave-it basis in order to use the facilities. Plaintiff’s options for recreational downhill snowboarding in Oregon were limited in that region. Further, plaintiff had no opportunity to negotiate different terms or pay some additional fee for protection against negligence of defendant.
Additionally, a waiver of liability does not release a premises owner from the duty to to make sure the property is reasonably safe for invitees and to take reasonable precautions to protect invitees from foreseeable dangers. While noting skiing/snowboarding is an inherently dangerous activity, there was evidence to suggest that had defendant exercised reasonable care in the construction/maintenance/inspection of the jump on which plaintiff was injured, the injury would not have occurred.
Thus, trial court’s ruling was reversed and the case remanded for trial.
Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Bagley v. Mt. Bachelor, Inc., Dec. 18, 2014, Oregon Supreme Court
More Blog Entries:
Allstate v. Manzo-Pianelli – Florida Umbrella Insurance Disputes, Nov. 25, 2014, Boca Raton Injury Lawyer Blog