Emerson v. Mt. Bachelor, Inc.

In determining whether a defendant committed "grossly negligent" conduct, summary judgment is inappropriate where the plaintiff can show that the defendant has acted with indifference to the probable consequences of a dangerous instrumentality, that, with slight diligence should have been observed.

Plaintiff ("Emerson") appeals the trial court's grant of summary judgment in favor of Defendant, Mt. Bachelor, Inc. ("Mt. Bachelor"), arguing that the trial court erred in granting summary judgment on both issues: (1) that Mt. Bachelor was grossly negligent in its design of a skiing terrain park feature (the "bomb-drop", and (2) that Mt. Bachelor's waiver and release of liability was an unconscionable contract. Emerson was severely injured while snowboarding at Mt. Bachelor ski resort. While performing a jump on the "bomb-drop" terrain park feature, Emerson broke his femur, pelvis, clavicle, thumb, and several limbs, and punctured his lung. Mt. Bachelor moved for summary judgment, arguing that it was not reasonably on notice that such injury might occur, and therefore could not be grossly negligent; and further argued that because Emerson had signed the waiver when he purchased his season pass, Mt. Bachelor could not be held liable. On appeal, Emerson argued that the trial court erred by determining that no reasonable juror could find in Emerson's favor on either issue. Turning to the first issue, the Court addressed testimony presented at trial that showed that three other skiers had been injured on the "bomb-drop" in the six weeks prior to Emerson's injury. The Court disagreed with the trial court's decision on this issue, and held that a reasonable juror could believe that Mt. Bachelor had been grossly negligent in the design of the "bomb-drop," given the prior injuries on that same feature. Next, the Court summarily addressed the issue of Mt. Bachelor's liability waiver, and summarily determined that the waiver was identical to the waiver that the Oregon Supreme Court held to be unconscionable in Bagley v. Mt. Bachelor, Inc., 356 Or 543 (2014), and therefore, was unenforceable. Reversed and Remanded.