The Oregon Supreme Court was asked Wednesday to invalidate Mt. Bachelor's liability waiver by a snowboarder paralyzed from the waist down on one of the ski resort's expert jumps.
Snowboarder Myles Bagley's attorneys argue that the resort bears a responsibility for the jump's design, which they argue was flawed, and say the resort's waiver is "unconscionable." Attorneys for the resort replied that the snowboarder must take into account the inherently risky behavior of expert jumps.
The injured snowboarder's attorney, Kathryn Clark, of Portland, told NewsChannel 21 Thursday: "He went over a man-made constructed jump in a terrain park in Mt. Bachelor, and when he came down he landed in such a way that he broke his spine and he's paraplegic."
"We contend that that occurred because of a defective design in the jump," she added.
Clark says they are going to the Oregon Supreme Court to find out if the liability waiver on the Mt. Bachelor pass in enforceable or not.
"We are hoping that they hold that that the release is unenforceable under these circumstances, and we will then go back to the trial court and put a case together," Clark said. "Mt. Bachelor has defenses -- they already are claiming that this is an inherent risk of the sport."
The arguments at Astoria High School's auditorium centered on the difference between the assumed risk that skiers and snowboarders take on dangerous jumps and the responsibility of a snow park operator to make sure its jumps and moguls are safe.
Bagley was 18 when he was injured at Mt. Bachelor in 2006 on a jump. Bagley sought $21.5 million in Deschutes County Circuit Court in 2008. A judge threw out the lawsuit, and the Oregon Court of Appeals affirmed that decision.
Bagley's case could have broad ramifications for release agreements that must be signed in order to take part in an activity. The Legislature has made specific rules for amusement parks, which include ski lifts, but the issue of broader recreational activity has not yet been defined.
Clarke argued that the waiver is contrary to public policy, saying that it protects Mt. Bachelor from activities that people have a right to engage in.
"It's a risky sport, and Myles Bagley knew that," Clarke said. "That's what he thought he was agreeing to, assuming the risks of the sport. But that's not what happened.
"This was a man-made jump, and it was designed, and it was designed defectively."
Andrew C. Balyeat, an attorney for Mt. Bachelor, argued that skiing and snowboarding are activities in which the participants assume risk. To propose waivers for any activity would be excessive, he said, but in some cases, risk is assumed.
"If you buy a ticket to a movie theater, do you have an expectation that a projector is going to fall on your head? No," Balyeat said. "Like it or not, for those of us who love to ski and love to snowboard, it's risky, it's dangerous, it's icy."
The justices' questions focused on finding precedent in Oregon law for Bagley's claims. Clarke argued that consumer law is the main factor in the case - Bagley was sold a good, she argued, that injured him.
Chief Justice Thomas Balmer asked Balyeat why Bagley's situation was different from American snowboarder Shaun White's decision to withdraw from the Olympic slopestyle contest in Krasnaya Polyana, Russia, over safety concerns.
"He chose not to participate because the course was unsafe," Balmer said. "Why should the owner of a course not be liable for an unsafely designed course?"
Balyeat replied that the jump is similarly, inherently risky.
"Nowhere does it say," Balyeat said, "that a mogul or a tabletop jump isn't part of the risk."
We'll have more of Mt. Bachelor's comments about the lawsuit in another report on NewsChannel 21 Friday evening.