Snowboarder Myles Bagley was 18 in 2006 when he crashed on an expert jump at the Mt. Bachelor ski resort in Bend, Ore. He was left paralyzed from the waist down.
A lawsuit he filed against the resort has now made its way to the Oregon Supreme Court. At its heart is a fundamental question: Does the waiver that snowboarders and skiers usually have to sign absolve the resort of any responsibility for accidents?
Bagley's attorneys argue that Mt. Bachelor bears a responsibility for the jump's design, which they argue was flawed, and say the resort's waiver is "unconscionable." Attorneys for the resort reply that the snowboarder must take into account the inherently risky behavior of expert jumps.
The arguments Wednesday centered on the difference between the assumed risk that skiers and snowboarders take on dangerous jumps and the responsibility of a snow park operator to make sure its jumps and moguls are safe.
Bagley sought $21.5 million in Deschutes County Circuit Court in 2008. A judge threw out the lawsuit, and the court of appeals affirmed.
Bagley's case could have broad ramifications for release agreements that must be signed in order to take part in an activity. The Oregon Legislature has made specific rules for amusement parks, which include ski lifts, but the issue of broader recreational activity has not been defined.
One of Bagley's attorneys, Kathryn Clarke, argued that the waiver is contrary to public policy, saying that it protects Mt. Bachelor from activities that people have a right to engage in.
"It's a risky sport, and Myles Bagley knew that," Clarke said. "That's what he thought he was agreeing to, assuming the risks of the sport. But that's not what happened. This was a man-made jump, and it was designed, and it was designed defectively."
Andrew C. Balyeat, an attorney for Mount Bachelor, argued that skiing and snowboarding are activities in which the participants assume risk. To propose waivers for any activity would be excessive, he said, but in some cases, risk is assumed.
"Like it or not, for those of us who love to ski and love to snowboard, it's risky, it's dangerous, it's icy," Balyeat said.
Chief Justice Thomas Balmer asked Balyeat why Bagley's situation was different from American snowboarder Shaun White's decision to withdraw from the Olympic slopestyle contest in Russia over safety concerns.
"He chose not to participate because the course was unsafe," Balmer said. "Why should the owner of a course not be liable for an unsafely designed course?"
Balyeat replied that the jump is similarly, inherently risky. "Nowhere does it say," Balyeat said, "that a mogul or a tabletop jump isn't part of the risk."