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 Mount 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.

The bill does not define “ordinary negligence,” but Black’s Legal 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 Mount 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.”

Myles 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 newsroom covering rural Oregon. OJP seeks to inform, engage, and empower readers with investigative and watchdog reporting that makes an impact. Our stories appear in partner newspapers across the state. Learn more at oregonjournalismproject.org.