Oregon Law, Ordinary Negligence, and Waivers

In Oregon there's a battle ongoing over Liability Waivers. The contestants are Oregon Recreation Industries and the Oregon Trial Lawyers Association. The Trial Lawyers say that Oregon law already protects businesses against spurious lawsuits. Operators of ski areas, climbing gyms, trail systems and rafting outfitters are hoping to have customers waive ordinary negligence to protect themselves from lawsuits and rising insurance costs.

Next Adventure shut down their paddling school after a 2021 lawsuit, and that is likely a factor in their closing in 2025. Skibowl on Mount Hood doesn’t offer mountain biking anymore because they can’t get insurance. Leaving the law as it is will result in a gradual loss of guiding businesses.

There is an attractive argument that businesses should protect public health, and not releasing them gives them a financial incentive to do better. There are times when we would like to have a jury of our peers decide on what happened, instead of throwing out a case just because you signed a waiver.

The Bagley case led to this. Myles Bagley was an 18 year old snowboarder who took a manmade jump at Mount Bachelor in 2006 and ended up paraplegic. In 2014 the Oregon Supreme Court ruled that enforcing the waiver Bagley signed would be “unconscionable” — that the ski area did have responsibility for making their terrain safer than it was. This in effect made waivers unenforceable in Oregon. In spite of this, everybody is still using them, because they’re mandated by insurance.

Oregon House Bill 3140/Senate Bill 754 is the recreation industry’s attempt to reverse this precedent. If passed this law would allow recreational businesses to require customers to release the operator from claims of *ordinary negligence* by signing a liability waiver. This is how it’s done in most Western states. The effect of passing it would be to protect outdoor guide services and terrain managers such that recreationists still have access.

Ordinary negligence is defined as failing to exercise *due care*, which includes being forgetful or distracted. None of us would ever be that, would we? Gross negligence requires a conscious disregard for others’ safety, and Criminal negligence is similar but creates a high risk of death or serious injury.

The bill that attempts to undo the Bagley decision (HB3140) passed in the Oregon house in March 2023. Its current status is “in House Committee”. The bill will go to the House Judiciary Committee next, but it’s not on their roster yet. After that it goes to Joint Ways and Means.

Regardless of the outcome of this legal battle, our goal as a club is to exercise due care, and to avoid any kind of negligence. We don’t want anyone to get hurt or killed, and we do what we can to protect ourselves and each other. Total safety on the river is impossible because there is inherent risk and more variables than anyone can manage, so we do our best and accept some risk. Even though we have insurance, we’d rather avoid both incidents and court.

In layman's terms, our goal is to do the things we say we will do. A good place to start is teaching The Big Four that AW is promoting: Dress for the swim, Boat with a team, Know before you go, and Sober is safer. Two of the four are covered by club policy. We always boat with a team because it’s not a club trip without 3 participants. And we don’t allow drug or alcohol use while paddling on a club trip.

Dressing for the swim is trickier because we might have to turn someone away if they don't have cold water immersion gear (wetsuit or drysuit). Turning people away is hard, and it has legal implications if we ever “fail” to turn someone away and then they get in trouble. As much as possible we keep the responsibility for being properly equipped on the participants.

*Know before you go* is a big task. Every participant should do their own due diligence. Often that involves asking the trip coordinator, and if the TC has done their homework they can answer questions about flow, weather, and such. There are always unknowns, and if you can say what they are, that’s good info too. TC's should call the trip “exploratory” if it's a new run, or they've not been there in years.