By GARY A. WARNER/Oregon Capital Bureau
The long battle over Oregon’s unique recreational liability standard was renewed Wednesday at a hearing in the state Capitol on a bill to limit lawsuits by those injured while using ski resorts, gyms, on rafting trips or in community marathons.
Senate Bill 754 would overturn an Oregon Supreme Court ruling in the case of a 2006 accident at the Mt. Bachelor ski resort near Bend. The state’s high court ruled in 2014 that the standard user waivers limiting liability were “unconscionable contracts.”
Advocates include members of Oregon’s nearly $17 billion recreation industry, cities like Bend, Hood River and Lincoln City that depend on outdoor tourism, and the insurance industry. Protect Oregon Recreation, an alliance created to support SB 754, has over 125 member business, groups and associations. The group estimates that recreation accounts for 245,000 jobs in Oregon.
Letters in support of the bill were submitted by an eclectic array of interests that included the Oregon Chamber of Commerce, Bend Paddling Trail Alliance, Southern Oregon University Outdoor Leadership Degree Program, Oregon Coast Visitors Association, Jackson County Roads and Parks Administration, Visit Central Oregon, the Academy of Modern Martial Arts in Lake Oswego, and Portland’s A-WOL Dance Collective.
SB 754 supporters say Oregon is the only one of 11 western states that has effectively nullified liability waivers. That puts the state at a disadvantage for building outdoor tourism. The liability ruling has created concerns not just for ski resorts, but for rafting guides, bicycle rental companies, outdoor sports instructors, as well as indoor gyms and health clubs that routinely require customers to sign liability waivers. It could also impact local sports clubs and community running, paddling, bicycling and other events.
Jeff Kohnstamm, whose family has run Timberline Lodge on Mount Hood since 1955, said recreation was central to the state’s identity and economic health.
“As Oregonians, recreation is part of who we are,” he said. “It is vital to countless livelihoods and enhances the well-being of all constituents.”
Kohnstamm detailed what he said were the growing number of activities such as riding on bike trails that insurance companies will no longer cover. He said the increasing premium hikes and sometimes outright refusal of coverage would likely expand into more recreational areas, including downhill skiing.
“Without liability reform, this is a harbinger of things to come,” he said.
Earlier attempts to overturn the court ruling have come up short, with the Oregon Trial Lawyers Association often organizing opposition. At Wednesday’s hearing, the testimony against the bill was led by people who were injured or whose family members had been killed while involved with recreational businesses or groups.
Myles Bagley, whose case set the current legal standard, testified against the bill. In 2006, Bagley, then 18, crashed on a jump at Mt. Bachelor’s terrain park, suffering injuries that left him paralyzed from the waist down.
The Deschutes County Circuit Court and the Oregon Court of Appeals ruled that Bagley could not sue because he had signed a liability release. Eight years later, the Oregon Supreme Court overturned the lower courts, calling the blanket liability waivers that went with the purchase of a season pass were “unconscionable contracts.”
Bagley testified Wednesday that attempts to shift responsibility for dangerous man-made features such as the expert-level ski jump at Mt. Bachelor were “immoral.”
“Now I must live my life paralyzed through no fault of my own,” Bagley said.
Bill has broader support now
Earlier attempts to change the law have failed to win approval. The new coalition mounted the current effort following a Multnomah County case in May 2022 in which former professional mountain biker Gabriel Owens was awarded $11.4 million in a lawsuit against Mt. Hood Ski Bowl. Owens was left paralyzed when his bike hit a drainage ditch that crossed an expert-level bike path, causing him to lose control and collide with a signpost.
Gretchen Mandekor, Owen’s attorney, testified Wednesday that SB 754 would give recreational operators “a free pass” that went beyond the natural dangers that users expect and man-made problems such as the rut created by the drainage ditch at Mt. Hood Ski Bowl that caused Owens’ crash.
“There is a difference between inherent risk and risk created by the businesses,” she said.
Testimony was also given by a woman whose husband was killed on an icy snowboarding run on Mount Hood, and the mother of a woman who drowned when pinned underwater when guides on a river trip near Eugene lost control of a raft, flipping the riders into the water strewn with fallen trees and other debris.
The future of the bill is uncertain. It cuts across the usual partisan divisions in the Legislature, with sponsors from both political parties who represent communities where recreational sports are a major part of the economy.
Most Republicans back the bill, but it also draws support from centrist Democrats.
The chief sponsors include Sen. Aaron Woods, D-Wilsonville, Sen. Bill Hansell, R-Athena, and Sen. Daniel Bonham, R-The Dalles. On the House side, the chief sponsor is Rep. John Lively, D-Springfield.
“It’s rare to see so much diversity in this political environment,” Hansell said Wednesday.
The supporting sponsors include Senate Minority Leader Tim Knopp, R-Bend, Sen. Dick Anderson, R-Lincoln City, and Sen. Mark Meek, D-Oregon City. On the House side, Rep. Ken Helm, D-Beaverton, and David Gomberg, D-Otis.
In 2020, recreation businesses and their supporters created The Oregon Big Tent Recreation Coalition to push for legislation to change the liability standard. But the session ended almost as soon as it started after Republicans walked out over a carbon cap bill. Hundreds of bills died as the House and Senate were short of the two-thirds quorum required under the state constitution to conduct business. The clock ran out on the 35-day short session and was automatically adjourned, killing pending bills.
SB 754 includes provisions to make the change in liability retroactive except for any claim that has a final judgment entered before the effective date of the measure. It includes an “emergency clause” which means that if approved by the Legislature and signed by Gov. Tina Kotek, it would go into effect immediately.
While the hearing is a key step forward for the bill, its future is dependent on whether Senate Judiciary Committee Chair Sen. Floyd Prozanski, D-Eugene, announces a work session for the bill prior to a March 17 deadline. The session is when the committee would vote on any amendments and decide whether to send the bill to the floor of the Senate. It would then go to the House, where it would most likely be assigned to the House Judiciary Committee, which is chaired by Rep. Jason Kropf, D-Bend.
With over 2,000 bills and a state budget under consideration, SB 754 will need a major push to stay viable. The Legislature has several attorneys among its members, who are supported by the Oregon Trial Lawyers Association. House Speaker Dan Rayfield, D-Corvallis, is an attorney who has received strong backing from the trial lawyers.
The trial lawyers did not have an official speaker testify at the hearing on Wednesday. The organization released a short statement Tuesday opposing the bill.
“This bill would allow a recreational facility’s negligence to go unchecked,” the statement said. “It gives them blanket immunity and reason to not follow safety standards.”
As someone who went on various kayak and raft trips with outfitters in my younger days, I always found these waivers reprehensible. But you had no choice to sign them if you wanted to go on a trip. There should be no legal out for negligence.
Since writing my earlier comment I am sorry to realize that my state rep, David Gomberg, is a sponsor of this horrible bill. This bill will let people responsible for killing clients in recreation businesses off the hook if they are negligent.
Ski resorts are perhaps the biggest players in this discussion and are a slightly different animal when it comes to risk and negligence. Most resorts offer terrain parks — both in the winter when there’s snow and in summer months for mountain biking — with man-made features that must be groomed constantly to maintain safety. Unfortunately they do not “constantly groom them”. “There are some factors in ski injuries that are beyond the control of ski operators, but they shouldn’t be able to shirk liability for manmade equipment or enhancements to the slope or keeping runs open when they are too dangerous and should be closed,” Bagley told lawmakers. “I’ve crashed into trees, rocks, all that. That’s my fault,” Owens told lawmakers. “But to have a manmade object, knowing it’s dangerous, and not changing it until something happens, it’s just not right.”
Man-made features are very different than risks “inherent” in the sport. They are above and beyond what the ski statute says ORS 30.900.