In a recent Oregon Court of Appeals case, the court upheld a challenge to a "waiver" signed by a season pass holder at a ski resort. The plaintiff had apparently signed this agreement prior to turning eighteen years of age, and continued to use the ski facility as part of the season pass. After becoming an adult, the plaintiff was injured at the facility, and filed an injury claim.
The court rejected several arguments that the agreement was invalid. First, the Court found that the plaintiff ratified the agreement by continuing to appear at the ski facility after his eighteenth birthday. Second, the Court found that the release agreement did not violate any public policy concerns. In order for such agreements to pass muster, they must "clearly and unequivocally" disclaim any liability. Finally, the court rejected any argument that the contract was a "contract of adhesion" which are contracts that result from a significant disparity in bargaining power. In rejecting this argument, the Court found that snowboarding was not any essential public service.
Although the Court found that the agreement was clear and unequivocal, it appears that the judicial policy in construing these agreements focuses also on the activity that is subject to the waiver. For example, in cases involving risky activities like snowboarding, scuba diving, or skydiving, courts are generally more willing to validate a waiver of liability agreement. However, with everyday activities like car rentals, courts may take a harder look at the language in the agreement. Also, courts may ask themselves whether not people really read every clause in a rental or some other consumer agreement, including a waiver of liability.
When evaluating a case, we look at whether or not there is a waiver of liability, and if so, whether it is enforceable. Sometimes, there may also be immunity from liability as a result of a statute. The most common example is recreational land use liability immunity, which is available to landowners in Oregon and Washington.
If you have questions about whether not a waiver of liability is enforceable, contact us at 503-325-8600. We have researched and argue these issues for other clients, and can share our thoughts on how the law works in your situation.