Appeal from the United States District Court for the District of Oregon. D.C. No. CV-93-00480-DCA. Donald C. Ashmanskas, Magistrate Judge, Presiding.
Before: Procter Hug, Jr., and Warren J. Ferguson, Circuit Judges, and William W Schwarzer, District Judge.*fn* Opinion by Judge Ferguson.
Anthony Farina sued defendant, Mt. Bachelor, Inc., in tort for personal injuries suffered while skiing at Mt. Bachelor's facility. The district court had diversity jurisdiction over the case. The district court granted summary judgment in favor of Mt. Bachelor on the basis that the release clause which was in Farina's signed application for a season pass was enforceable. Farina appealed. We reverse and remand for trial.
Farina's injury occurred when he was skiing downhill at Mt. Bachelor's facility on March 31, 1992. Farina claims that he ran into an unmarked boulder hidden below the crest of a hill which obstructed his view of the boulder as he approached it. His injuries included multiple fractures.
Prior to his accident, Farina had purchased a season ski pass at Mt. Bachelor's facility. To purchase the pass, Farina was required to complete a season pass application. The application is a two-sided document. On the back of the application is a notice to skiers entitled "Skiers Responsibility Code." The notice describes the "inherent risks of skiing" that skiers are deemed to have accepted under Oregon law, including changing weather conditions, varying terrain, and surface and subsurface conditions. The notice also describes the skiers' duties while skiing at Mt. Bachelor's facility.
The front of the application contains a list of prices and qualifications for obtaining a season pass. It also describes the legal effect of the season pass and the conditions upon which refunds will be granted. The application states that no refunds will be granted due to lack of snow or for reasons other than injuries. The application then incorporates the "Skiers Responsibility Code" from the back of the application and quotes some of the Code's description of the "inherent risks of skiing."
Towards the bottom of the front page of the application, beginning one and one-half inches above the line where Farina placed his signature, the following language appears:
In consideration of my participation in skiing, and use of this season pass and Mt. Bachelor's facilities, I agree to release from liability and to indemnify and hold harmless Mt. Bachelor, Inc., and their officers and directors, owners, agents, landowners, affiliated companies and employees, and any organizers or sponsors of skiing events, from any and all claims, losses, and liabilities (including costs and attorney fees) that I may now have or which I may hereafter have for injury or death to myself, or which I may be liable for to others, arising out of or in any way connected with my preparation or practice for, or my participation in, any ski races, ski training, skiing or any other use of the facilities at Mt. Bachelor, Inc. from October 1, 1991 to October 1, 1992. This release and indemnity agreement shall apply to claims based upon negligence and for any other theory of recovery.
I/we the undersigned, have carefully read and understood this agreement and all of its terms. I/we understand that this is an agreement of release and indemnity which will prevent me or my estate from recovering damages in the event of death or injury. I/we, nevertheless, enter into this agreement freely and voluntarily and agree that it will be binding upon me/us, my/our heirs, assigns, and my/our legal representatives.
This language is not set off under a different subheading, but rather is a continuation of the text preceding it which describes the "inherent risks of skiing." The text of the quoted language is of the same small size print as the rest of the text on the front page of the application. Each line of the printed form contains approximately 130 letters, making reading difficult and tedious.
Farina signed the season ski pass application, but contends that he did not realize that the application contained a release clause that would relieve Mt. Bachelor of liability in operating the facility.
Mt. Bachelor moved for summary judgment on the ground that Farina could not recover damages caused by Mt. Bachelor's negligence because he had signed an enforceable release clause when he purchased his season ski pass from Mt. Bachelor. The district court ...