Oregon’s recreation industry wants more legal protection. An injured few are pushing back

In 2006, Myles Bagley was going down a run at Mt. Bachelor that changed his life forever. The snowboarder, then 18, went off a jump and landed badly, suffering injuries that have left him paralyzed.

His case, which led to a prolonged legal battle that wound up at the Oregon Supreme Court in 2014 and eventually was settled for an undisclosed sum, has reverberated across Oregon's outdoor recreation industry, creating a question that lawmakers are, once again, trying to answer: In what cases should the recreation industry be held accountable for injuries?

This year's House Bill 3140 is the third attempt in the last decade to settle the issue of recreation liability, as lawmakers have struggled to reconcile with the court's decision to invalidate broad liability waivers that would protect recreational businesses from negligence claims.

Those liability waivers, which have become the industry standard, are still used in Oregon. But recreation businesses, from large ski areas to small outfitters, have said the court's decision has made it much more expensive to operate in Oregon, with insurance costs soaring and livelihoods riding on the hopes that nobody gets hurt and sues.

Trial lawyers, alongside the injured parties they have represented, argue that people should have a right to restitution in cases of negligence. They also point out that insurance costs are rising across the board, not just for recreation companies, and not just in Oregon.

It's all added up to a big, emotional showdown at the Capitol over the question of who is at fault when something goes wrong.

Supporters assemble

Supporters have classified House Bill 3140 as somewhat unusual, not because of what it says but because of its broad support.

As written, the bill would remedy the Bagley decision by legally allowing anyone offering outdoor or indoor recreation to require participants to sign waivers releasing organizations from liability for "ordinary negligence," while still allowing people to sue for situations involving "greater than ordinary negligence."

By explicitly acknowledging the public's right to sue for greater negligence, the new bill goes a step further than a similar 2023 Senate bill that died in committee. It also has garnered support from more Oregon lawmakers. The new bill was introduced by a broad coalition of bipartisan sponsors: 10 Democrats and 6 Republicans from both the House and the Senate.

One of those, Republican Rep. Jeff Helrich of Hood River, said he believes there's been more appetite for the recreation liability law this year.

"It's a really good mix of people because they understand what's at stake," Helrich said of the bipartisan sponsors. "I don't have a crystal ball, but my gut says, I think we can get it across the finish line"

Helrich said, for him, the bill is all about people accepting personal responsibility and protecting businesses that might otherwise shut down or move out of state if costs get too high.

"We keep touting our recreational opportunities and if we're driving business away from Oregon, that doesn't do anybody any good," he said.

Rep. John Lively, a Democrat from Springfield and one of the lead sponsors, declined to be interviewed but said in an email that he supports "recreational liability and preserving recreational opportunities for all Oregonians."

HB 3140 also has support from a wide swath of the recreation and tourism industry, as well as the general public. Of the 114 members of the public who have testified or written a letter in response to the bill, 102 have offered support.

Supporters have ranged from small organizations to large businesses and industry leaders. They include river outfitters Orange Torpedo Trips and OARS Whitewater Rafting; advocacy groups such as the Oregon Trails Coalition and Oregon Outdoor Alliance; large ski areas Timberline and Mt. Bachelor; a wide range of affinity groups including the Oregon Nordic Club and Back Country Horsemen of Oregon; local tourism agencies from Ashland, Corvallis, Lane County and southern Oregon; as well as individual hikers, skiers, mountain bikers and other recreationalists.

Georgena Moran, is the founder of Access Recreation, a Portland-based nonprofit that helps hikers with disabilities. She said she testified in support of the bill on behalf of the nonprofits her group works with.

"These nonprofits rely on liability waivers, and the concern is that without this bill that the insurance costs could skyrocket, and it might sabotage some of their ability to run their trips," Moran said. "This one struck a chord, because it could affect the affordability and the access to some recreation services that a lot of the people I serve, people with disabilities, rely on for outdoor recreation."

The 2014 Oregon Supreme Court case has made liability waivers essentially meaningless, said Steve Kruger, executive director of Trailkeepers of Oregon, who also testified in support of the bill. A single lawsuit accusing an outfitter of negligence, even if unfounded, could destroy their business, he said.

"It's not about negligence," Kruger said. "It's the things that just happen."

Protect Oregon Recreation, an organization that has been lobbying lawmakers and whipping up support for recreation liability legislation, has argued that Oregon businesses are now at a significant disadvantage due to higher insurance premiums brought on by Oregon court rulings. Neighboring states have greater liability protections for businesses, the organization claims, which has led some outfitters out of Oregon.

Priscilla Macy-Cruser, a policy advocate for the Oregon Outfitters and Guides Association and a former river guide herself, has been working with Protect Oregon Recreation to push support for the bill. She said the current environment is "extraordinarily hostile" for local businesses. If they begin to leave, that could create a dangerous vacuum for opportunities to learn risky activities like whitewater rafting or rock climbing, she said.

"We think of these as places where people can receive guidance or mentorship," Macy-Cruser said. "If the environment becomes so risky that these opportunities are less offered, then we will see an increase in people trying to do these things on their own."

Protect Oregon Recreation could not identify widespread issues of recreation industry lawsuits in Oregon, but pointed to a case at Mt. Hood Skibowl, where a mountain biker in 2016 crashed into a signpost and became paralyzed from the waist down. The case was eventually settled for $10.6 million, and led to the closure of Mt. Hood Skibowl's mountain biking program.

Suits like that read as either major wins or dire consequences, depending on how they're viewed. Opponents of HB 3140, including several people who have faced serious injury or mourned a loved one's death in the outdoors, argue that the bill will make it too burdensome for people to sue recreation businesses for negligence. Proponents contend that the bill does enough by allowing suits for higher levels of negligence.

"We have great empathy and understanding for people that have suffered losses," said Jim Zupancic, Oregon Health and Fitness Alliance general counsel who has also worked with Protect Oregon Recreation. "Our hearts go out to those people, and we say to them that your situation would not be affected by this bill."

'Far-reaching and dangerous'

When state lawmakers opened testimony on HB 3140 on Feb. 19, a dozen people stepped forward to denounce it. Several made a trip to the Capitol to speak out, creating what several attendees have described as an emotional moment.

Public opponents of the legislation include four people who were injured at ski areas and the family of one who died; family members of one person who died rafting; and one person who was injured by a bull at a rodeo.

Among those testifying was Julia Clark, who spoke to the House Committee on Economic, Development, Small Business and Trade about her father's death on a guided fishing trip on the Rogue River in 2002.

Chapin Clark was with six other people in three boats on the river, Julia Clark said, when the boat he was on flipped over. The guide steering his boat was unable to rescue her father, she said, and he died of hypothermia while stuck in the frigid water. Julia said the outfitter did not follow safety protocols and did not have proper rescue equipment on board.

"When I saw my father off for his fishing trip, I had no idea it would be the last time I would see him alive. The next time I saw him was in the mortuary," Julia Clark said in her testimony. "This was a case of flagrant disregard for the safety and well-being of my father. He paid a good amount of money and trusted that the outfitter and his crew were skilled in basic whitewater safety and rescue."

Clark's story was one of many cited by the Oregon Trial Lawyers Association, which has led the opposition to the new bill.

The association, which did not make a spokesperson available for an interview, argued in a letter to lawmakers that the bill would be "far-reaching and dangerous" for Oregonians. While there is a carve-out in the bill that allows people to sue for "greater than ordinary" negligence, that only puts a higher burden of proof on the plaintiffs, they said. The trial lawyers also argued that efforts would be better focused on reforming the insurance industry that has been increasing rates on Oregon businesses.

Gretchen Mandekor, a Portland-based lawyer who represented the mountain biker on Mount Hood, argued that recreational facilities are already immune from issues of inherent risk, and shouldn't be immune to suits with a more serious claim of negligence. She accused supporters of being misled by "corporations wanting to make money at the expense of the consumer."

"They want a free pass," she said of the people behind Protect Oregon Recreation. "They don't understand that their own children could be maimed or die, and they would have no recourse if someone was negligent."

That point was echoed by Lauren Bagley, mother of Myles Bagley, who has been fighting for nearly two decades to hold the recreation industry accountable. She said while she understands there are always risks involved in outdoor recreation, not every accident is the user's fault.

In her son's case, the Bagleys alleged that the ski jump that led to his life-altering injury was so poorly designed that an Olympic snowboarder refused to take the course. In cases like that, it's important to be able to hold someone accountable, she said.

"Unregulated industries do not warrant state sponsored immunities. I think it's unfair to the citizens that they belong in that special class because they offer recreational opportunities," Bagley said. "All we're asking them is to exercise reasonable due care."