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Steele v. Mt. Hood Meadows Oregon3/17/1999
ppropriate in resolving the common-law issue whether a provision in a consumer contract that limits liability for personal injuries is enforceable. The determination whether such a provision is enforceable often turns on whether its enforcement would offend public policy. See, e.g., Harmon v. Mt. Hood Meadows, Ltd., 146 Or App 215, 221-22, 932 P2d 92 (1997). The UCC addresses that policy issue by providing that
" onsequential damages may be limited or excluded [in contracts for the sale of goods] unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not." ORS 72.7190(3). Under Illingworth, the policy embodied in ORS 72.7190(3) should apply to consumer contracts that are not subject to the UCC, such as the contract at issue here. Applying that policy to the exculpatory provision in the parties' contract would lead me to conclude, on this record, that the provision could not be enforced against plaintiff's claim, but that policy would not necessarily prevent the enforcement of comparable provisions in other consumer contracts. The enforceability of such provisions presumably would turn on whether the evidence presented by the parties would persuade a court that enforcement would not be unconscionable. See ORS 72.3020.
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