Bagley v Mt Bachelor Inc (2014) H&FLR 2015-4

Myles A. Bagley and Ors v Mt Bachelor Inc and ors (2014) H&FLR 2015-4

Supreme Court of Oregon

18 December 2014

Coram: Court en banc

Appearing for the Plaintiff: Arthur C Johnson (of Johnson Johnson & Schaller) and Kathryn H. Clarke.
Appearing for the Defendant: Arthur C. Balyeat (of Balyeat & Eager)
Appearing for the Oregon Association of Defence Counsel (amicus curiae): Michael J. Estok (of Lindsay Hart)
Appearing for the Oregon Trial Lawyers Association (amicus curiae): Kristian Roggendorf (of Roggendorf Law)

Catchwords: Oregon – skiing – injuries – liability – release – waiver – public policy – unconscionability.

Facts: The plaintiff was an experienced snowboarder. On 29 September 2005 he purchased a season pass from the defendant for use at its ski area. Purchase of the pass involved signing an extensive prospective release of liability, of which he was reminded while on site by wording on his pass and by signs. On 19 February 2006 the plaintiff sustained very serious injuries while going over a snowboard jump, allegedly because it had been negligently designed, constructed and maintained by the defendant.

The plaintiff brought proceedings against the defendant in Deschutes County Circuit Court, which were summarily dismissed based on the release signed by the plaintiff: Bagley v Mt Bachelor Inc (2010) The Bulletin, 6 September 2013. The plaintiff’s appeal to the Court of Appeals was dismissed: Bagley v Mt Bachelor Inc, 258 Or. App. 390, 310 P.3d 692 (2013). The plaintiff further appealed to the Supreme Court.

Held: allowing the appeal, that –

1. (a) The Courts will not enforce contracts which are illegal. An agreement will be illegal if it is (inter alia) contrary to public policy as expressed in constitutional provisions, statute or case law, or if it is unconscionable.

Uhlmann v Kin Daw, 97 Or. 681, 193 P. 435 (1920); Delaney v Taco Time International Inc, 297 Or. 10, 681 P.2d 114 (1984), followed.

(b) Quaere whether the concepts of public policy and unconscionability are separable.

2. A contract may be unconscionable on procedural or substantive grounds.

(a) Procedural unconscionability considers whether there was oppression or surprise when the contract was formed.  Oppression will exist when there is such an inequality of bargaining power between the parties that there is no real opportunity to negotiate the terms of the contract and there is no meaningful choice.  Suprise occurs when the terms are hidden or obscured (for example, by being in fine print or ambiguously worded) from the perspective of the party claiming unconscionability

Vasquez-Lopez v Beneficial Oregon Inc, 210 Or. App. 553, 152 P.3d 940 (2007); Acorn v Household International Inc, 211 F. Supp. 2d 1160 (ND Cal., 2002), followed

(b) Substantive unconscionability considers whether the terms of the contract contravene public interest or public policy.  It will be necessary for the court to consider whether enforcing the release will cause a harsh or inequitable result, whether the party claiming the benefit of the release serves an important public function, and whether the release absolved the releasee from more than ordinary negligence.

Commerce & Industry Insurance v Orth, 254 Or. 226, 458 P.2d 926 (1969); Estey v MacKenzie Engineering Inc, 324 Or. 372, 927 P.2d 86 (1996); Real Good Food v First National Bank, 276 Or. 1057, 557 P.2d 654 (1976), followed

(c) The factors listed as relevant to unconscionability are not exclusive, and no single factor is critical.  The determination that a release breaches public policy or is unconscionable reflects the totality of the circumstances as well as any other factor (including societal expectations).

Judgment

The Court’s judgement is available here.

Vincent Petit v French Republic (2014) H&FLR 2014-34

Vincent Petit v French Republic (2014) H&FLR 2014-34

Administrative Court of Appeal at Nantes (France)

21 July 2014

Coram: Not identified.

Appearing for the Plaintiff: Ms Corinne Lepage (of Huglo Lepage Associés Conseil)
Appearing for the Defendant: Not identified

Catchwords: France – horse riding – algae – gas – death of horse – failure to prevent contamination – liability

Facts: On 28 July 2009 the plaintiff rode his horse onto a beach at Saint-Michel-en-Greve. The beach was contaminated by an outbreak of green algae which was giving off hydrogen sulfide gas as it decomposed. A sign had been placed at the entrance to the beach advising the public to avoid the algae and warning of a threat to health. The plaintiff’s horse became bogged in a mudflat and the prolonged exposure to the gas caused the plaintiff to lose consciousness and the horse to die.

The plaintiff brought proceedings for the loss of his horse against the French state on the basis that it had failed to take proper steps to prevent an outbreak of green algae. The proceeding was dismissed by the Administrative Tribunal at Rennes: Vincent Petit v French Republic (2012), Le Figaro, 29 June 2012. The plaintiff appealed.

Held: Allowing the appeal, that –

1.  The state was responsible for the outbreak of algae because it had not adequately implemented national or European rules on preventing contamination of waters through agricultural activities. Such contamination was accepted as the cause of algal blooms.

2.  The plaintiff had failed to take adequate care, inasmuch as he had taken his horse into a part of the beach particularly exposed to algae. As such, liability was apportioned two-thirds against plaintiff and one third against the defendant.

Judgment

A written judgment has not been released. This report has been compiled based on the Court’s communiqué and on the reports in Le Figaro of 5 August 2009, 29 June 2012 and 21 July 2014, Le Télégramme of 21 July 2014 and La Voix du Nord of 21 July 2014.

Kalloponi Comércio de Alimentos v Unidentified Respondent (2010) H&FLR 2014-13

Kalloponi Comércio de Alimentos v Unidentified Respondent (2010) H&FLR 2014-13

Regional Labour Court of Rio Grande do Sul

26 October 2010

Coram: Not reported.

Appearing for the Appellant: Not reported
Appearing for the Respondent: Vilson Natal Arruda Martins

Catchwords: Brazil – workers compensation – McDonald’s – manager obesity – required to consume products – meal break – mystery shoppers – compensation – liability

Facts: The appellant operated a McDonald’s franchise in Brazil. It employed the respondent as manager of one of its restaurants over a twelve year period. It was alleged that over this time his weight increased from around 70 kilograms (154 pounds) to 105 kilograms (231 pounds), by which time he was classed as obese. The respondent alleged that this was caused by the appellant’s policy of using “mystery shoppers” to assess the cleanliness, quality and management of its stores, which resulted in him needing to taste hamburgers, fries, soft drinks and ice cream regularly. He further alleged that, during meal breaks, the appellant’s employees were provided with a meal consisting of a burger, fries and soft drink which could not be exchanged for cash or food stamps. He further asserted that his work required long and irregular hours with inadequate rest breaks.

The respondent sought compensation from the appellant for his obesity. The claim was upheld at first instance and compensation was awarded of R40,000 (Brazilian Reals). The employer appealed.

Held: allowing the appeal in part and rejecting it in part –

1. Although genetic factors and a sedentary lifestyle were possible causes of obesity, this did not relieve the employer of liability.

2. While it was the worker’s responsibility to adopt a healthy diet, the conditions of his employment had forced him to consume the employer’s products.

3. The compensation awarded was properly to be reduced from R48,000.00 to R30,000.00. However, the appellant was required to assist the respondent to cover the costs of medical treatment aimed at weight reduction.

The court appears to have had regard to the fact that master brewers and winemakers are regularly compensated for developing alcoholism as a result of their duties.

It appears dissenting judgments were entered but details are not available.

Judgment

A copy of the Court’s written reasons cannot be located. Details in this report were obtained from the press office of the Court, the website of the firm Barça & Associates, the accounts in the journals Zero Hora and Economia & Negócios, and the blogs Nosso Povo, and Blog da Saúde. Translations by Google.

An appeal was considered but appears not to have been pursued.