The Recreation Industry and Trial Lawyers Battle Over Liability Waivers

Drownings on the Rogue River. Horrific — and
sometimes fatal — ski accidents on Mount Hood and Mt. Bachelor. Stomach-turning
sexual abuse at the hands of a trusted coach. And even being crushed nearly to
death by an escaped 1,400-pound Sisters Rodeo bull named Party Bus.

Those and other appalling anecdotes of
recreation gone wrong transfixed the House Committee on Economic Development,
Small Business and Trade on Feb. 19. And, as its name suggests, the committee
was equally engaged with tales of costly lawsuits and soaring insurance
premiums detailed by ski resorts, rafting guides and backcountry outfitters.

Few bills this session will be more
heavily fraught than House Bill 3140, which would allow all recreational
businesses to require customers to “release the operator from any claim for
ordinary negligence.” In other words, to sign a liability waiver.

Slippery Slope: Trial lawyers push back against the recreation industry. Credit: Gilbert Terrazas

The bill does not define “ordinary
negligence,” but Black’s Law
Dictionary defines it as a situation that “could have been avoided if
the person had exercised due care.”

Despite its opacity, the bill thrusts
into public view a battle raging between one of Oregon’s economic backbones — the
recreation industry — and the Oregon Trial Lawyers Association, long one of
Salem’s most potent political forces.

Both sides paint the bill in
near-apocalyptic terms. Representatives from the recreation industry — which
state figures show generated more than $16 billion in spending in 2022 — say
“nuclear” jury verdicts have caused insurance costs to soar, threatening the
survival of the mostly small businesses that connect Oregonians to the pastimes
they love.

Hannah Wintucky, a Baker City resident
who represents the Outdoor Industry Association, told lawmakers that operators
will fail without the relief granted by liability waivers. “This legislation is
essential,” she said, “to maintaining the viability of Oregon’s recreation
industry and ensuring continued access to outdoor opportunities for all.”

But a leading Portland trial lawyer says
forcing consumers to waive their rights to sue for ordinary negligence is
fundamentally unfair. “Passage of HB 3140 would strip protections from
consumers,” David Sugerman says.

The specific case that led to House Bill
3140 stretches back nearly 20 years. In February 2006, Myles Bagley, a keen,
18-year-old snowboarder from Bend, took a horrific fall at Mt. Bachelor after
launching from a poorly constructed jump at the resort’s terrain park. The
accident left Bagley a paraplegic.

After years of litigation, the Oregon
Supreme Court issued a landmark ruling in 2014, saying enforcement of a release
Bagley signed waiving the resort’s liability would be “unconscionable.”

Bagley testified last week that letting
companies off the hook for ordinary negligence would also be a mistake.
“Without liability, ski resorts have no financial incentive to ensure that
their man-made terrain park features and other runs are safe,” Bagley
testified. “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 man-made
equipment or enhancements to the slope or keeping runs open when they are too
dangerous and should be closed.”

In an interview with the Oregon
Journalism Project, David Byrd, the Denver-based director of risk and
regulatory affairs for the National Ski Areas Association, said Bagley’s case
made Oregon an outlier among other Western states.

“The Bagley decision made releases
largely unenforceable in Oregon,” he says. Byrd adds he believes the Bagley
ruling makes it easier for people to file lawsuits. Waivers are a valuable
educational tool, he says, encouraging participants to consider the risks they
are taking.

Leslie Frazee, an insurance broker who
specializes in recreation clients, told lawmakers that Oregon is a problem.
“Insurance companies that represent insureds in the outdoor recreation industry
will not underwrite an account that does not have a release or waiver that is
reviewed and signed by the trip participants,” she said. “Oregon’s lack of
protection for releases makes it a particularly challenging state to operate
in.”

But some of the most revealing testimony
came from a turncoat — Portland lawyer Gretchen Mandekor — who told lawmakers
that for the first 20 years of her career, she defended businesses and
insurance companies.

Now, Mandekor sues them. And she contends
that Oregon law already protects businesses against specious lawsuits.

“A person who files a lawsuit cannot
recover money if they are the majority at fault for their own injuries,”
Mandekor testified. “[And] under Oregon law, recreational facilities are
already immune from inherent risks. In other words, participants need to take
personal responsibility; skiers need to assess their skills and ski in areas
appropriate for their skill level; mountain bikers need to slow down when
taking sharp corners.”

HB 3140 moved out of the House Committee
on Economic Development last week and will next be heard by the House Judiciary
Committee and then on to Joint Ways and Means. It’s a long-running battle that
has cropped up a couple of times over the past decade and is a big topic
nationally.

In 2023, the Vanderbilt Law Review published an article, “Unenforceable
Waivers,” that examined practices across the country. The authors’ finding:
“Despite being unenforceable, liability waivers remain in widespread use.”

“So why do such waivers persist? Often
the simple answer is to hoodwink would-be plaintiffs,” the authors wrote.
“Either they dupe naïve victims into believing that their claims are barred, or
if not, the defendant is no worse off than before.”

Allison Hickey, a Bend physical therapist
whose shoulder was crushed when rodeo bull Party Bus landed on her last June,
wants lawmakers to focus on what she says is the real issue. “The rising cost
of insurance may be a problem,” Hickey says, “but taking away the rights of
injured parties is an unconscionable solution.”

—This story was produced by the Oregon Journalism Project, a nonprofit investigative newsroom for the state of Oregon. Learn more at oregonjournalismproject.org.

This article appears in The Source Weekly February 20, 2025.