Archive for the ‘Oregon’ Category

Out in the Cold – Claim for Injury to Snowmobiler Barred by Recreational Immunity Statute (OR)

July 31, 2015

Stringer v. U.S. Department of Agriculture (Oregon)
(trial court disposition)

A snowmobiler was injured in a national forest when he drove off an embankment.  He filed a lawsuit against the U.S. Forest Service under the Federal Tort Claims Act.  The Forest Service moved to dismiss the claim.  The U.S. District Court ruled that the Forest Service was entitled to statutory immunity.

The Court noted that as stated in the Oregon statutes, “it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes … by limiting their liability toward persons entering thereon for such purposes….” (citation omitted) advances this policy by granting “immunity to landowners who open their land to the public for recreational purposes.”  Referring to one of the exceptions to the immunity, the plaintiff argued that the Forest Service had waived the immunity by charging a fee for use of its lands.  Specifically, plaintiff cited that the Forest Service charged third parties for camping fees and ski-lift fees within the forest lands.  However, the Court disagreed, explaining “The Deschutes National Forest comprises approximately 1.8 million acres of land, including three independent ranger districts. (citation omitted)  A fee charged at one end of the Deschutes National Forest cannot, as a matter of public policy, waive immunity at the other end of the same forest, thousands of miles away, simply because the government made a charge.”

Out in the Cold – Ski Lift Ticket Release Agreement Contrary to Public Policy (OR)

April 27, 2015

Becker v. Hoodoo Ski Area (Oregon)

A skier was injured when she was struck by a moving chairlift.  She brought a negligence action against the ski area operator.  The defendant filed a motion for summary judgment arguing that it was entitled to judgment as a matter of law based on a “Release Agreement” that occupied approximately one-half of the face of the lift ticket purchased by the skier on the day in question.  The skier denied having noticed or read the release agreement document.  The skier filed a cross-motion for partial summary judgment, arguing that the waiver and release document that she signed was procedurally and substantively unconscionable.  The trial court granted the defendant’s motion and denied the plaintiff’s motion, and the plaintiff appealed.

On appeal, plaintiff renewed her argument that the waiver and release was unenforceable because it was contrary to public policy and was unconscionable.  The Court of Appeals of Oregon reversed the trial court and remanded the case to trial.  Relying on the Oregon Supreme Court decision in Bagley v. Mt. Bachelor (2014), the Court of Appeals held that the release agreement was unconscionable.  The Court discussed numerous factors that went into the analysis including the “superior bargaining strength” of the defendant, the release agreement being offered on a “take-it-or-leave-it basis,” and the lack of an “opportunity to negotiate for different terms or pay an additional fee for protection against defendant’s negligence.”  The Court further concluded that the “‘enforcement of the release would cause a harsh and inequitable result’ to befall the plaintiffs, and the Court noted that the “defendant’s business operation [was] sufficiently tied to the public interest as to require the performance of its private duties to patrons.”

Target Practice

September 20, 2012

Bukowski v. Clarkson University (New York)
(A university baseball pitcher was injured by a line drive while participating in a practice, and he sued the university and his head coach;  the court found that the pitcher had assumed the inherent risk of being hit by the baseball and affirmed the trial court’s directed verdit in favor of the defendants.)

The plaintiff was injured after throwing a fastball to a batter during “live” indoor practice without a protective screen.  The batter struck the ball which hit the plaintiff in the jaw and broker his tooth.  After the lawsuit was filed, the defendants filed a motion for summary judgment, which was denied.  At trial, plaintiff argued “that the risk of being hit by a batted ball was enhanced due to the multicolored pitching backdrop and low lighting at the indoor facility, which made it harder to see the white ball, and the failure to use an L-screen.”

At the close of evidence, the trial court granted defendants’ motion for a directed verdict “on the ground that plaintiff assumed the commonly appreciated risk in baseball of being hit by a line drive.”  Plaintiff appealed.

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Monkey Business

August 31, 2012

Howard v. Chimps, Inc. (Oregon)
(An intern at a chimpanzee sanctuary was injured when she was attacked by a chimpanzee;  she sued the sanctuary but the court dismissed her negligence and strict liability claims in light of the intern manual that she read and signed that included a waiver and release agreement;  the court also determined that there was no reasonable evidence of gross negligence.)

An intern at a chimpanzee sanctuary was injured just ten days after her start date.  A chimpanzee attacked her while she was cleaning a cage, and she brought an action against the sanctuary for negligence and strict liability.  Plaintiff thereafter moved for partial summary judgment, arguing that the waiver and release she signed was not enforceable.  The trial court denied that motion and later granted the defendant’s motion for summary judgment finding that the waiver and release precluded the plaintiff’s claims.  Plaintiff then appealed.

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