concluding that a waiver of "any claims for personal injuries” could reasonably be understood to apply only to claims relating to the identified inherent risks of skiing, which did not include the ski resort's negligence
How later courts described this case
- concluding that a waiver of "any claims for personal injuries” could reasonably be understood to apply only to claims relating to the identified inherent risks of skiing, which did not include the ski resort's negligence
- "When 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." (Internal quotation marks omitted.)
- where an arguable ambiguity in a contract is eliminated by applying a principle of contract construction, the contract’s meaning is not a question of fact precluding summary judgment, but instead is an issue to be resolved as a matter of law
- discussing application of analogous provision
Written by the judges who cited it.
The opinion
ARMSTRONG, J.,
concurring.
I agree with the majority’s conclusion that the contractual provision that purportedly released all claims against defendant for injuries sustained by Jameson is ambiguous and, as a consequence, inapplicable to plaintiffs claim. I write separately to highlight an issue about the enforceability of the provision that the parties raised but the majority does not reach.
In Illingworth v. Bushong, 297 Or 675, 692-93 , 688 P2d 379 (1984), the Supreme Court held that a Uniform Commercial Code (UCC) provision on the recovery of liquidated damages applies to non-UCC contracts. The court reasoned that the legislature’s preeminent role as a policy maker made it appropriate to look to it as a source of policy on common-law issues that historically have been resolved by the courts.
That approach appears to be particularly appropriate in resolving the common-law issue whether a provision in a consumer contract that limits liability for personal injuries is enforceable. The determination whether such a provision is enforceable often turns on whether its enforcement would offend public policy. See, e.g., Harmon v. Mt. Hood Meadows, Ltd., 146 Or App 215, 221-22 , 932 P2d 92 (1997). The UCC addresses that policy issue by providing that
“[cjonsequential damages may be limited or excluded [in contracts for the sale of goods] unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”
ORS 72.7190(3). Under Illingworth , the policy embodied in ORS 72.7190(3) should apply to consumer contracts that are not subject to the UCC, such as the contract at issue here. *282 Applying that policy to the exculpatory provision in the parties’ contract would lead me to conclude, on this record, that the provision could not be enforced against plaintiffs claim, but that policy would not necessarily prevent the enforcement of comparable provisions in other consumer contracts. The enforceability of such provisions presumably would turn on whether the evidence presented by the parties would persuade a court that enforcement would not be unconscionable. See ORS 72.3020. 1
The statutes enacted by the legislature on the liability of ski area operators for injuries caused by the inherent risks of skiing, ORS 30.970 to ORS 30.990, do not undercut the analysis. They insulate ski area operators from liability for inherent risks but not from liability for their own wrongful conduct. Hence, they do not raise any problem with the application of the Illingworth analysis to exculpatory provisions in contracts between ski area operators and people who use their facilities.