*1 denied, 30, petition rehearing Argued reversed March June submitted 241) 703,634 6,1981 (291 opinion P2d Or modified October BLAIR, Respondent, DEVELOPMENT MT. HOOD MEADOWS CORPORATION,
Petitioner. 27330) (CA 13331, SC *2 Johnson, Portland, Darrel L. argued peti- the cause for tioner. him Hunsaker, With on the briefs were I. Franklin and Bullivant, Leedy, Johnson, Wright, Hoffman, & Pendergrass Portland. Roberts, Kell,
Leslie M. Runstein, Alterman & Port- land, argued the cause and respondent. filed briefs for Denecke, Justice, Linde,
Before Chief Tongue, and Peter- son, Campbell, Tanzer and Justices.
CAMPBELL, J. J., Tongue, filed an opinion which concurred in part, dissented in part.
Peterson, J., specially filed a concurring opinion.
CAMPBELL, J. brought by plaintiff as This is an action in skiing injury defendant’s an he sustained while at a result of facility at ski Mt. Hood. 28-year-old experienced a com- skier, and
Plaintiff, a prepared morning skiing spent runs panion on a had day facility. on the The weather at its defendant accident was creating visibility poor causing mist, overcast with ability limiting person’s light” effect, a “flat depth or con- perceive other contrasts the variations injured he chose when was snow. Plaintiff tours by way lodge never skied. that he had run return to the lodge Canyon point starting run, the North From slope. straight However, the run down the ahead was visible lodge. path straight run The base of the not a right, sharply plateau run branched where formed left, point Corner,” and then to the as “Eric’s known at a lodge. crossing Plaintiff, unaware a culvert over a creek to lodge straight run, ahead toward skied of and ing curves separat- falling run, into the creek ravine off intended *3 lodge, injuring right his arm and from the the ski area shoulder. complaint alleged
The first amended that negligent: the defendant was failing plaintiff
1. by flags In warn other markers of the concealed creek-ravine.
2. creating by In a in plowing hazardous condition snow a directly that a run manner created ski into the hidden creek- ravine. failing promptly In
3. to mark the creek-ravine after receiv- ing from dangerous. notice other skiers that the ski run was failing 4. In to close the area in which the off was skiing. way by defendant,
The answer, of an affirmative defense in its alleged negligent keep that the was in that he did not proper skiing fast, lookout, a was too and did not use regular paths. and normal ski jury following special
The returned the verdict: negligent “1. in respects Was Defendant one more of the Complaint in claimed Plaintiffs damage which caused Plaintiff?
“ANSWER:_No_” Judgment defendant, was entered for the and the Appeals, appealed assigning giving of to the Court as error the following by of instruction the trial court:
“Sports Every person activities involve some risks. who part sport accepts takes and submits himself to the dangers sport.” that are inherent or a reasonable appeal
Plaintiff contended on
that the instruction
given
not
should
have
because it
been
was too broad
principle
statement of the
of risk.1
18.475(2)provides:
ORS
implied assumption of risk is abolished.”
“The doctrine of
Appeals
assump-
The Court of
held that
distinguishable
tion
risk involved
this case
from
was
18.475(2)
“implied assumption
of risk” abolished ORS
recognized
Oregon.
was therefore still a
doctrine
The Court
Appeals
reversed and remanded for a new trial because
given
principle
too broad a
statement
that it failed
inform the
risk in
participant
only
sports
those risks which are “neces-
assumes
sary
(Original
emphasis.)
are known to
him.”
operator petitioned
defendant
of this
ski
review
Appeals.2
decision. We reverse
Court of
proceed
any
We first
whether
consider
instruc-
concerning
participation
tion
assumed
risks
virtue
*4
1
The
second contention that
the instruction should not
been
have
given
appeal
by
was raised for the
time on
first
and therefore will not be considered
City
Co.,
789,
(1979).
this court.
Portland v.
Const.
286 Or
297 proper sports activities is since the 1975 enactment of ORS 18.475(2).3 18.475(2) relationship interpreted and its
We ORS (ORS 18.470) Thompson comparative fault scheme v. (1977). pointed Weaver, 299, 277 Or We out in 18.475(2) prior adoption that case that to the of ORS our recognized urged by Harper decisions had the distinction and “primary” “secondary” assumption James4 between 18.470, risk. We noted that an earlier version of ORS establishes the doctrine which comparative scheme, fault had abolished the only, secondary its sense species contributory negligence. suggested gener- as a We 18.475(2) ally that the later enactment of ORS was intended implied assumption to abolish of risk as distinct defense in (as primary counterpart duty) both its sense to no and in its (as secondary contributory negligence). sense See Apparatus, Inc., also Hornbeck v. Western States Fire (1977). 647, P2d 620 interpretation then limited
We our of the effects of 18.475(2) eliminating complete negligence, ORS bar to formerly imposed by implied assumption the doctrine of risk, to the situations described below:
“* * *
plain-
The statute makes no distinction whether a
implied regarded
tiffs
of risk is
as a form of
part
implied assumption
on his
or whether his
the risk is claimed to excuse defendant for risks that
be
would
persons
position.
his ‘fault’ vis-a-vis other
Implied assumption of the risk is abolished as a basis for
barring recovery
theory.” (Emphasis
supplied.)
on either
Weaver,
Thompson
supra
Applying interpretation Thomp- facts, this compara- son refused to allow a defendant to circumvent the tive fault scheme in ORS and the 18.470 effects of ORS 18.475(2) duty” a claim that he owed the “no due care under the circumstances due to conduct in voluntarily getting under a home had mobile which been improperly by jacks. raised An absence of on the Laws, 599, §
3 1975 Or ch 4. James, (1956). Harper 21.1 § The Law of Torts *5 formerly by defendant, raised the doctrine like the bar of the plain- completely assumption defeated risk, of would have of recovery negligence. held that since the enact- We tiffs 18.475(2) type of the this of conduct ment of ORS liability, may all, the relative fault formula if at under reduce complete only longer a defense to a and is no in ORS 18.470 negligence as an “absence” action even when recharacterized duty. upon limitation of or implications specifically left for the future
We 18.475(2) “plaintiff analysis for situations where of ORS our event) (such activity sporting join agreed in an as a has activity particular of the hazard is a known element which dangerous properly i.e., conduct conducted, when even when at all.” is not fault ‘fault’ in other contexts that would be supra Thompson Weaver, at 305. v. Apparatus, supra Fire v. Western States
In Hornbeck
651,
said:
at
this court
“ * * *
Thompson
According
Or
[277
applied assumption of risk leaves
(1977)], the elimination
knowing
or
consent
only
on some form
a defense based
parties,
perhaps based on
expressed
or
between
waiver
activity in
join
similar
plaintiffs agreement
activity
element of the
particular
risk is a known
which the
* * *”
properly conducted.
when
directly
involves
The case under consideration
Thompson
open
question
and Hornbeck.
left
statutory language
and to
now turn
We
18.475(2)
history
legislative
its effect
to determine
of ORS
was left
continued existence
defense whose
18.475(2)
Thompson
open
ORS
and Hornbeck cases.
comparative
amending
fault
of a bill
enacted as
Judici-
to the House
A memorandum
in ORS 18.470.
scheme
Frohnmayer explained
Representative
ary Committee from
18.475(2)
comparative
implications
fault
for the
of ORS
as follows:
scheme
implied assump-
the doctrine of
5 abolishes
“Section
Beals,
(1961)
subsumed
Ritter
under unreasonably voluntarily encoun- risk in which risk; assumption type this ters a known pleaded should be as unaffected section 5 and risk is contributory negligence. Plaintiffs reasonable ‘implied longer a defense. This the risk consent’ is present anomaly arguably possible under law that resolves recovery completely might bar reasonable conduct possibility partial unreasonable conduct leads to while (Footnotes omitted.) recovery.” 10, “Of course if defen-
The memorandum added in footnote liability.”5 is no has no toward the there dant 18.475(2) past analysis Our of ORS is confused our widely different lumped together decisions which have several of risk. The defenses under the common label *6 aspects also makes it difficult to determine which lack of label the intended to eliminate in abol- legislature of the doctrine of risk.6 ishing “implied” assumption 5 797, 28, Judiciary Committee, Hearings May Minutes on SB 1975 House of 2-3). (Appendix ppG at 18.475(2), Oregon the 1975 enactment of ORS case had defined the Prior to “implied assumption disagree term of risk.” Commentators as to fact situations to apply properly applied, although who utilize the it which the label is all label seem to risk, recognized types “express” assumption risk. all of of other than of controversy types among the the fact situations commentators centers around of (other risk) “assumption “express” assumption the the than of the to which label of (Second) Torts, 496C, appropriately example, § risk” is extended. For Restatement of b, c, d, e, f, situations, applies types and the label three of all of which comments voluntarily subsequent plaintiff encountering subjectively in involve conduct of the a defendant, comprehended by prior risk created “tortious” conduct of a known and implied. extends the label from which consent to assume the risk is Prosser specifically, designation he also includes under the to several similar situations. More voluntarily partici “implied” acceptance of risk the situation in which a event, participation pates sporting implying in his a from the voluntariness Prosser, “ordinary” game. consent to assume all the and “obvious” risks of the Law of (4th 1971). Restatement, 445-446, analysis n Like the Prosser’s also treats Torts ed activity prior “negligence” conducting in the as a form of on the defendant’s conduct contrast, part, plaintiff by the his In Professor Keeton his excused as to consent. concepts commonly applied “implied” separate the label of Liability identifies five assumption to which are Cases, Keeton, Assumption Risk in Products 22 La of the risk. 122, (1961). only this label not the fact situations L Rev He includes under Prosser, also more extreme forms labeled included the Restatement and but “imposed” assumption of risk. He concludes that these more “associational” or forms, phrase “implied” assumption simply “descriptive” of risk is of a extreme legal duty” has a has “no under the circumstances or not conclusion that defendant duty reference to manifestations of consent “breached” his often without causing particular appreciation risk or hazardous condition or association judicial given injury. case that a Keeton notes that statements upon generally rest one of these less consensual assumes risks that are “obvious” “implied” senses of of risk. 18.475(2),
Prior to the enactment of ORS
some of our
concept
implied assumption
decisions utilized the
analyzing
of risk in
involving
participation
cases
risks of
sports
dangerous
Thompson.
activities
described
See
26C,
Co.,
1,
Vendrell v. Sch. Dist.
(1962);
Malheur
We implied assumption legislature of risk” the intended to abolish concept plaintiffs assumption all use of risk in (other sense)8 “express” negligence cases than in its whether prior as a defense to defendant’s shorthand circumstances “tortious” conduct or as phrase for defendant’s lack of under the *7 duty.
or breach of
concept
plaintiff’s assumption
of
We used the
present
sports
prior
involving
in our
decisions
risks
in
risk
activities even when
properly
descriptive
conducted as a
duty
phrase
legal
that defendant had no
for the
conclusion
duty
under
the circumstances
or had breached
7 Comment,
Continuing Controversy
Comparative Negligence Legislation:
Over
(1973), published
Assumption
Oregon,
the Doctrine
the Risk in
L
53 Or Rev 79
of
of
18.475(2),
concept
assumption
before enactment of ORS
discusses utilization of the
of
previous
in
of the risk
our
decisions.
applicability
parameters
or
of a
We need not here determine
continued
“express” assumption
concept
see Restate
risk. For illustration of the
defense of
Assumption
comments,
Keeton,
(Second)
Torts,
explanatory
and
§
ment
496B and
Cases,
(1961).
Liability
122,124
Risk in Products
L
22 La Rev
precautions against
failing to take
in
under the circumstances
suggested
example,
For
in Vendrell we
the risk.
plaintiffs
negligence
being
on
established no
“tackled hard”
“expects”
no one
football
of the defendant because
game.
Smith,
In Franks v.
such risks from the
coach to remove
18.475(2), partici-
supra,
decided before enactment of ORS
negli-
motorcycle hillclimbing brought
pant
an action in
motorcycle
participant
gence against
whose
lost
a fellow
plaintiff.
suggestedthat the case
traction and collided into
We
strictly
plain-
gone
stated
in terms of
could have
prove “duty”
“negligence,”
approved
but
tiffs burden
“assumption
stating
problem in
an instruction
terms
fully
jury.
purpose
educating the
risk” for the
of more
proper
cases,
In these
or reasonable conduct of
require
activity
did not
under the circumstances
particular
precautions against
take
element
defendant to
causing
injury.
The defendant’s conduct had conformed
sports
governing
conducting
care
those
such a
standard of
duty
activity and therefore the defendant had breached no
Sunday
plaintiff.
Corp.,
See
v. Stratton
136Vt
owedto the
Due to the enactment of ORS the focus of analysis case has shifted Vendrell entirely to the defendant’s under the circumstances and longer in terms of the should no be discussed assumption of the risk. 18.475(2), adoption
Since the of ORS separate independent risk as a or defense is doctrine longer therefore no available to defendants in either the Thompson or Vendrell fact situations. The same facts which formerly analyzed utilizing were the doctrine of may reducing nevertheless continue to be relevant in eliminating recovery negligence. Conduct of the voluntarily unreasonably encountering risk created conduct, sometimes labeled “sec- the defendant’s which was ondary assumption” reality of risk but was in a form of may compared negligent contributory negligence, be now allocating relative fault and conduct of the defendant apportioning damages comparative under the fault scheme Hyster Co., 3, 9, ORS 18.470.Baccelleri (1979).
302 Footnote 10 Rep. Frohnmayer’s memo indicates that a may defendant still have a complete liability to defense for negligence independent of the now eliminated doctrine of implied assumption risk, if cannot establish the defendant breached a duty he owed under the circumstances. Thus, the fact that a sports participant’s injury results from a risk which is an sport element of a even when properly may conducted continue to defeat recovery for negligence because the duty defendant’s may context of the sport not extend to protecting against such risks. separate analysis leads us conclude
Our implied focusing upon the instruction actions because negligence in longer proper of the risk is every sense. 18.475(2) the doctrine has abolished ORS involving cases Instead, instructions sport (e.g., normal risks of from the resulting injuries burden case) focus should Vendrell the defendant’s (especially of negligence prove elements order to duty injury) in causing plaintiffs duty and breach liable. hold the defendant its is short question
Because instruction case, is this it necessary to result is interpretation repeated: Every person who risks.
“Sports involve some activities himself to the accepts and submits in a takes sport.” part of that a reasonable inherent or dangers that are “assume” not use the words does instruction Although the “assumption an it as have treated parties “assumption,” both attempted plead not has The defendant instruction. of risk” and unreasona- “voluntarily fault was at conduct. defendant’s encountering a risk created bly” if the instruction necessary to consider Therefore, it is not as “secondary sense” or its risk in assumption of with deals if it only proper is instruction The “contributory fault.” plaintiff. the defendant’s defines any argument which will defeat We here the term “defense” in the sense of use recovery, prove including the cause of an essential element of failure action. by the given been not have should implied upon the it focuses because judge trial in the terms It is not couched the risk. *9 duty. defendant’s to exception if the determined
It must be the trial the error to point to out sufficient instruction was the as follows: exception was The court. “* * * object to the Plaintiff would in the addition — instruction went I think the concerning the instruction not the risk. That was sports all include the effect that objectionable was part that was objectionable. The that was sport. in any risk inherent Plaintiff assumes that it, amounts, essence, jury in if the follows “I believe that question the Defendant. There is no verdict for the a directed I don’t think is an inherent risk. skiing into a creek-ravine Plaintiff assumes. legally that the those are the risks are the risks inherent which “I think he assumes those type that are type apparent or the type intended for the requested I that was the instruction obvious. think an point probably that is I think at that Defendant and law, I think the Court instructed statement of but accurate Plaintiff object instruction that the jury and we would sport. any in a risk inherent assumes a directed verdict “Again, I think that amounts to particular I that virtually way correct it. think there is any risk is, my understanding, to be it was instruction apparent intended. is inherent or which objected point I we would have “At this don’t think verdict.” I think it would be a directed leaving that out. The exception is: summary A fair instructed that jury was plaintiff objected because and should any sport” inherent “assumed only those assumed instructed that have been and “obvious.” “apparent” were risks which time January, 1979. At case was tried in This in provided, part:10 ORS 17.510 * * * jury in the circuit court given to a instruction “No error, if appeal its upon unless subject review
shall be 1, 59(H) January replaced by repealed as of ORCP and in effect was ORS 17.510 1980.
any, pointed judge gave was out to the who it and unless a exception in notation of an was made the circuit court.” point The did not out to the trial court instruction was error because it focused the plaintiffs implied assumption of risk and was not in the terms of the duty. plaintiffs exception defendant’s the wrong Brigham Co., reason. Southern 390 P2d Pacific (1964).
Reversed.
TONGUE, J., part. concurring part, dissenting analysis by majority leading I concur in the it to focusing upon “a separate the conclusion that longer proper of risk is no implied assumption negli- actions” and that “the instructions from normal gence involving personal injuries resulting cases * * * *10 plaintiffs the burden to sport risks of a should focus the defendant’s prove negligence (especially the elements of injury) in order to duty duty causing and breach of holding by in the the hold the defendant liable.” I also concur improper in this given that the instruction case was majority given. have been and should not however, by concur, holding in the further
I do not is not entitled to a new trial because majority plaintiff the the reason that of that instruction for giving of the error If not sufficient. exception to the instruction was settled, I law has well subject on which the been this were by opinion evident from the agree majority. with the As would on which the law however, subject this is not majority, the by decisions this contrary, On the even has been well settled. confus- of risk have been subject court on the ing, conflicting. if not least, very exception
At the was suffi- are question raise the whether the risks which cient are by assumed or which risks as either duty no to the must be risks which defendant owes are either obvious risks or risks which were known to the whih (as by plaintiff), or whether such contended by (as sport any contended “inherent” in the include risks giving by its instruc- the trial court as held defendant and case). in this tion trial, at the time contention with that
Consistent appeal primary to the Court on contention it Appeals in error “because was the instruction was that are risks which risks to inherent assumed failed to limit properly necessary sport are and which conducted as to the citing States Fire obvious,” Hornbeck Western known (1977), among Apparatus, other 647, 651, P2d 620 by primary the decision basis for authorities. The cases and participant Appeals assumes “the was also that the Court necessary sport only are are those risks which (48 113). Similarly, primary App at him.” Or known to petition the Court of review was that for basis for defendant’s operator Appeals holding area owes ski erred only protect duty that are not him from risks skier a inherent in the sport, unless he to the skier but obvious particular actually risk. knew of by a in terms of risks assumed Thus, stated whether operator has risks as to which a ski area skier or skier, exception by plaintiffs question at the time of raised by Appeals, by plaintiffs appeal trial, to the Court petition by review, for that court and defendant’s decision of question risks or risks must be obvious whether such was the (as by plaintiff), the skier contended risks known to inherent in the all risks which are such risks include whether defendant). (as contended parties question asked this which both This was the provided question which to decide court petition why primary allowed defendant’s reason this court opinion public importance. its because of review *11 question majority, this and decide however, refuses to address exception plaintiffs ground upon insufficient to majority to have been holds an instruction which erroneous. plain- previously stated, I believe that
For reasons question, exception must and I raise this was sufficient to tiffs by majority respectfully to decide from the refusal dissent question. this
PETERSON, J., specially concurring. majority opinion
I read the as follows: Implied assumption risk, 1. of plaintiffs as bar to recovery, recovery, independent to reduce comparative fault, 18.475(2). is abolished. ORS “* * *
2. A defendant
may still have a complete
liability
for negligence independent
of the now
defense
eliminated doctrine
implied assumption
risk,
if plaintiff
cannot
duty
establish
the defendant breached a
he owed
[that]
Thus,
under the circumstances.
the fact
sports partici-
that a
pant’s injury results from a risk
sport
which is an element of a
properly
even when
may
conducted
continue to defeat recov-
ery for negligence
duty
because the defendant’s
in the context
sport may
not extend to protecting against such risks.”
implied spite of the fact that same formerly facts which were analyzed utilizing the doctrine may of risk nevertheless continue to be relevant * * *” in reducing eliminating recovery for negligence. Or at 301. Any jury 4. relating plaintiffs “* * *
right to recover
injuries
resulting
for
from the normal
** *
upon
risks of a
should focus
burden to
prove
negligence (especially
the elements of
the defendant’s
duty
duty
and breach of
causing plaintiffs
injury)
order to
liable,”
hold the defendant
not
upon
assump-
tion of risk.
I have no with those I fear that but rule 4 may prove application. difficult of The reason is this. In many situations the boundaries of the duties to defendant’s and the boundaries of the own potential due care turn harm which a knowledge reasonably prudent person position would example, have under the same or similar circumstances. For Sales, Inc., Katter v. Jack’s Datsun (1977), of this instruction: approved giving we “ possessor subject liability physical ‘A of land is land if he first
harm to his invitee caused a condition of
307 the reasonable care would discover or the exercise of knows it an unreasonable should realize that involves condition and expect invitee; second, he should of harm to such and risk danger or to the will they will not discover or realize fail it; third, against to and fails exercise protect themselves ” protect against danger.’ invitee the to the reasonable care added.) (Emphasis Or at 166-67. injury for to invitees There, liability possessor’s the in part determined condition of land was from arising the or the danger realize “discover or the invitees would whether * * * way Another against it.” to themselves protect fail assume say the invitees thing the be to saying might same reasonably a from of which risk of harm conditions the to such or which are known person would be aware prudent in the majority opinion, an instruction Under the person.1 Katter, an be but supra, proper; would language would not in terms of be. expressed exists in “failure to case. The same situation a warn” Oregon State Bar Uniform No. 160.10 concerns Instruction “Duty Liability and Employer’s to Warn” an Act case provides: employer knowledge
“When or in an has actual the exer- knowledge cise of care have reasonable would had hazards dangers, employer duty warning or is then under the an employee dangers as apparent of such hazards or would not be employee an in the to exercise of reasonable care.” — case, In person such the same factor whether a — position danger would be aware (1) may well determine whether defendant had a warn, (2) whether would be contrib- utorily keep at for or for proper fault failure to lookout McHenry Howells, 697, 702, 272 Compare v. from P2d 210 this statement 35d): (1954) (quoting Negligence § from 65 CJS “ premises property he ‘A takes or on which he enters as mere licensee them, and, perils, although enjoys subject he finds the license to its concomitant premises, he necessarily injury by going does not assume all risk of on another’s ordinary dangers incident to condition does assume all risks ***,”(cid:127)
premises property, McHenry Howells, supra, prior Oregon was decided cases cited opinion. (cid:127)majority unreasonably exposing oneself hazards which were known or for failing recognize otherwise the risk of harm. bar,
In the case at responsible the defendant is not injuries from arising risks which are an inherent obvious risk of the For sport. example, skier who injury sustains because a is steep slippery hill or because snow is would recourse, normally be without because those factors are *13 among skiing possible. the factors which make They are an inherent sport. and obvious the majority Under opinion proper it is not to instruct the skier “submits to the dangers himself that are inherent” in the sport. Would it be to say operator incorrect is not liable for injuries arising from factors are an which inherent part of sport?
The extent to which
apparent
hazards are or are not
reasonably
(1)
prudent
may
skier
determine
the ski
operator’s
liability
specifications
under
of negligence
(see
charged
(2)
page
majority opinion)
295 of the
contributory
skier’s
fault. The articulation
instructions
which entirely
exclude such
of risk overtones as
possesses may
at bar
prove
to be difficult when
“* * *
facts
formerly
analyzed
the same
which
were
utilizing
* * *” (291
301)
the doctrine
Or at
“* * *
continue
relevant
in delineating
to be
the defendant’s
* *
duty in the
context