By Doyice Cotten
Prior to this case, Oregon was one of about 20 states in which the courts had not ruled on the enforceability of parental waivers in a recreational setting. In Bagley v. Mt. Bachelor, Inc. (2013), Myles Bagley’s father signed a waiver and indemnity agreement on behalf of his son so that the 17 year-old, an expert snowboarder, could purchase a season pass to Mt. Bachelor. The waiver was signed two weeks before Myles’ 18th birthday.
The pertinent parts of the waiver follow:
“RELEASE AND INDEMNITY AGREEMENT
“IN CONSIDERATION OF THE USE OF A MT. BACHELOR PASS AND/OR MT. BACHELOR’S PREMISES, I/WE AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, [*393] INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES (HEREINAFTER ‘MT. BACHELOR, INC.’) FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH I/WE MAY SUFFER OR FOR WHICH I/WE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.
“* * * * *
“THE UNDERSIGNED(S) HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS ON BOTH SIDES OF THIS DOCUMENT. THIS INCLUDES, BUT IS NOT LIMITED TO, THE DUTIES OF SKIERS, SNOWBOARDERS, OR SNOWRIDERS. THE UNDERSIGNED(S) UNDERSTAND THAT THIS DOCUMENT IS AN AGREEMENT OF RELEASE AND INDEMNITY WHICH WILL PREVENT THE UNDERSIGNED(S) OR THE UNDERSIGNEDS’ ESTATE FROM RECOVERING DAMAGES FROM MT. BACHELOR, INC. IN THE EVENT OF DEATH OR INJURY TO PERSON OR PROPERTY. THE UNDERSIGNED(S), NEVERTHELESS, [***4] ENTER INTO THIS AGREEMENT FREELY AND VOLUNTARILY AND AGREE IT IS BINDING ON THE UNDERSIGNED(S) AND THE UNDERSIGNEDS’ HEIRS AND LEGAL REPRESENTATIVES.
“BY MY/OUR SIGNATURE(S) BELOW, I/WE AGREE THAT THIS RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH I/WE RENEW THIS SEASON PASS.
“SEE REVERSE SIDE OF THIS SHEET * * * FOR DUTIES OF SKIERS, SNOWBOARDERS, OR SNOW RIDERS WHICH YOU MUST OBSERVE.”
In addition, because Bagley was not yet 18, his father executed a “minor release and indemnity agreement” that read as follows:
“I HEREBY AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH [***5] THE MINOR(S) NAMED BELOW MAY SUFFER OR FOR WHICH HE OR SHE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY [**696] NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.
“BY MY SIGNATURE BELOW, I AGREE THAT THIS MINOR RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH THIS SEASON PASS IS RENEWED.
“I HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS.”
Subsequently, Myles began using the season pass and continued to use it after his 18th birthday. After his birthday, in the span of 26 days, he used the ski pass to ride the lifts at least 119 times. About four months after his birthday, he was seriously injured while going over a man-made jump.
Bagley filed suit alleging negligence on the part of Mt. Bachelor and the defendant responded by invoking the affirmative defense of release and moving for summary judgment. Bagley argued that the waiver was void and unenforceable. Specifically, he claimed the he timely disaffirmed the waiver by notifying Mt. Bachelor of the injury; by filing his complaint for negligence within the two-year statute of limitations; and by pleading infancy as a defense to the waiver executed while an infant.
The trial court agreed with Mt. Bachelor, reasoning that Bagley’s “use of the pass following his eighteenth birthday constituted an affirmation of the contract and release agreement each time the pass was used. The court also rejected arguments relating to public policy and unconscionability arguments since snow riding is not such an essential service which requires someone be forced to sign a release in order to obtain the service. The trial court granted summary judgment in Mt. Bachelor’s favor and denied Bagley’s cross-motion for partial summary judgment.
The major issue before the appellate court revolved around whether Bagley had disaffirmed the contract after the injury or whether his use of the slopes ratified the agreement, thereby prohibiting disaffirmation. Bagley argues that a jury could reasonably infer from the facts that merely turning 18 years old and continuing to snowboard was not conclusive evidence of his intent to affirm the release and agree to waive all prospective claims for negligence.
Mt. Bachelor argued that Bagley admittedly knew that he was snowboarding under the terms of a release agreement, was aware of the inherent risks of snowboarding, and made “an informed decision to execute the release agreement” and “an informed decision to honor the agreement after reaching the age of majority because he wanted to snowboard.”
Oregon law provides that a former minor may disaffirm a contract within a “reasonable time” after reaching the age of majority (Highland v. Tollisen, (1915)), or, conversely, may ratify a contract after reaching the age of majority by manifesting an intent to let the contract stand, (Haldeman v. Weeks, (1918)). Additionally, Williston on Contracts § 9:17, 166-70 (4th ed 2009) states that “If an infant after reaching the age of majority engages in any conduct that objectively manifests an intent to regard the bargain as binding, the former minor will be held as a matter of law to have ratified the contract.” Williston also states that if the infant voluntarily receives performance in whole or in part after attaining majority, this will amount to ratification.
Based on those principles, the appellate court agreed with Mt. Bachelor and concluded that no objectively reasonable juror could find that Bagley disaffirmed the release agreement within a reasonable time after turning 18. The court also rejected Bagley’s claim that he did not know that he had the power to disaffirm the contract upon turning 18, saying that such knowledge was not a necessary prerequisite to ratification – that ignorance of the law is not a basis for not enforcing a contract.
After rebuffing Bagley’s claims that the waiver was against public policy and unconscionable, the court ruled to uphold the trial court’s grant of summary judgment in favor of Mt. Bachelor.
Two major points to take away from this are:
- Oregon law provides that a former minor may disaffirm a contract within a “reasonable time” after reaching the age of majority – thus a parental waiver in Oregon that is disaffirmed in a timely manner by a minor injured prior to reaching the age of majority would not be enforceable.
- If an infant after reaching the age of majority engages in any conduct that objectively manifests an intent to regard the bargain as binding, the former minor will be held as a matter of law to have ratified the contract.
Photo Credit: Thanks to Trailsource.com at Flickr.
Search word: Adventure Sports