This decision was just overturned by the Oregon Supreme Court in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 on December 18, 20014

The term is disaffirm, the minor must disaffirm the release or contract after reaching age 18 or the release or contract is valid.

Date of the Decision: September 5, 2013

Plaintiff: Myles A. Bagley, individually, Plaintiff-Appellant, and Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs

Defendant: Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort

Plaintiff Claims: (1) concluding that there was no genuine issue of material fact as to whether Bagley ratified, after reaching the age of majority, a release agreement entered into while he was a minor; (2) concluding that the release agreement was not contrary to public policy; and (3) concluding that the release agreement was neither substantively nor procedurally unconscionable.

Defendant Defenses: Release

Holding: for the defendant. The minor took advantage of the benefits of the contract (release) and did not disaffirm the contract upon reaching the age of majority (18).

This is a rare review of release or contract law because the odds are against it. A contract is voidable by the minor when the minor signs the contract. However, if the contract is in effect when the minor reaches the age of majority, the minor can either disaffirm the contract which puts the parties back in the position before the contract was signed or if he or she fails to do that he or she takes advantages of the benefits of the contract and continues to use it the contract is in force.

To determine the age of majority or the age a minor becomes an adult in each state see The age that minors become adults.

The minor signed a season pass release at the defendant ski area. His father signed a minor release and indemnity agreement. Two weeks later and before the plaintiff had started snowboarding he turned 18. Once he started snowboarding, after reaching age 18, he boarded at the defendant’s resort 26 different days and his pass was scanned 119 times.

Going through the terrain park where he seemed to spend most of his time, the plaintiff was injured on a jump which resulted in permanent paralysis.

The minor and his parents sued the resort. The trial court dismissed his complaints after the defendant filed a motion for summary judgment based on the release the minor had signed.

Summary of the case

The appellate court reviewed the facts and pointed several of the facts out repeatedly.

He was also an experienced snowboarder, had signed release agreements at other ski resorts in the past, and had purchased a season pass and signed a release agreement for each of the preceding three years that he spent snowboarding at Mt. Bachelor.

After reaching age 18 the plaintiff used the release 119 times over 26 days during a four month period. Once you affirm a contract, by using it and not disaffirming it, you cannot later disaffirm the contract. A contract is affirmed if the contract is not disaffirmed which requires an act on the part of the plaintiff. Meaning if the minor does not make an affirmative act to disaffirm the release then the release stands.

In Oregon, a former minor may disaffirm a contract within a “reasonable time” after reaching the age of majority, or, conversely, may ratify a contract after reaching the age of majority by manifesting an intent to let the contract stand, “[I]f 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.”).

In this case the only disaffirmance occurred two years later when the plaintiff started his lawsuit.

The plaintiff then argued that because he had no knowledge of the power to disaffirm this release he should not be held to his failure to disaffirm. However the court shot this down with the standard statement. “However, we have previously stated that “[i]gnorance of the law is not a basis for not enforcing a contract.“”

The court then reviewed the requirements for a valid release under Oregon law. “[W]hen one party seeks to contract away liability for its own negligence in advance of any harm, the intent to do so must be ‘clearly and unequivocally expressed.”

The public policy argument was also shot down in a very common sense manner.

“[T]here are no public policy considerations that prevent a diving school from limiting liability for its own negligence. The diving school does not provide an essential public service[.]”). A ski resort, like a diving school, primarily offers “recreational activities” (with possible exceptions that do not apply here, e.g., training for search-and-rescue personnel) and does not provide an “essential public service.

The release was also found to not be unconscionable.

[T]he doctrine of unconscionability does not relieve parties from all unfavorable terms that result from the parties’ respective bargaining positions; it relieves them from terms that are unreasonably favorable to the party with greater bargaining power. Oregon courts have been reluctant to disturb agreements between parties on the basis of unconscionability, even when those parties do not come to the bargaining table with equal power. In those rare instances in which our courts have declared contractual provisions unconscionable, there existed serious procedural and substantive unfairness

The court followed up the public policy quote with “…albeit in dictum and in the context of addressing public-policy arguments, suggested that standard-form release agreements in the context of recreational activities are not impermissibly adhesive.”

A recreational activity is not subject to public policy arguments because the signer can:

“…simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable”

“[T]he release from liability is not invalid as a contract of adhesion, because [the] plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services.”

Because it was the plaintiff’s choice to board at the defendants ski area the release did not violate public policy.

When an individual enters a ski shop to buy ski equipment, s/he does not have a need for those goods and services, merely a desire. Should the seller demand exculpation as a condition for the sale of the equipment, the purchaser is free to walk away.

The one misstatement in my opinion which the court also pointed out was language that exempted the release for intentional acts. “THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.” The capitalized print made this statement in the release even standout. The court, found this to be curious and probably was thinking the same way I did, why give the plaintiff’s a way out of the release.

The Oregon Court of Appeals upheld the release as a defense to the claims of the plaintiff.

So Now What?

When a guest enters their date of birth in the information form indicating they are under the age of majority, this always creates a problems because minor’s cannot sign releases. However, if the minor can read the release, even the release is voided by the minor, it can still be used to prove assumption of the risk by the minor.

If the minor is turning the age of majority during the term of the release you can have the minor reaffirm the release or sign a new release after his birthday.

The court repeatedly pointed out how many times the plaintiff had used the release, how many releases at this resort and other resorts the plaintiff had signed before and the experience of the plaintiff. Keep track of this information because it will be valuable in any case showing that the release was an accepted contract for the plaintiff.

Never write in your release the ways the plaintiff can sue you. Here the statement in the release that it was not effective for intentional misconduct is the same as telling the plaintiff to write their complaint to couch the injury as an intentional act on the part of the defendant.

On the good side, the ski area had the minor sign the release, even though the release at the time was of no value. A release signed by a minor might have value later as in this case or might be able to prove assumption of the risk.

The Oregon Supreme Court has just accepted this case for review of this decision. So please learn from this article but do not rely upon it yet. (http://rec-law.us/1jaw8g2)

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By Recreation Law            Rec-law@recreation-law.com   James H. Moss       #Authorrank

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