dissenting in part.
I concur in the disposition as to Wetter. However, I would also reverse and remand as to him and Horizon, because I believe that there is genuine issue of material fact as to when the agreement exempting either or both of them from liability for negligence was signed.
Although there are no Oregon cases directly in point, there are cases dealing with agreements to exempt a bailee from liability. A review of those cases leads me to conclude that a provision totally exempting a bailee from liability is not valid in Oregon, although a limitation on liability may be. In Pilson v. Tip-Top Auto Co., 67 Or 528, 136 P 642 (1913), the defendant, the bailee of the plaintiffs automobile, asserted that it had been agreed by the plaintiff and the defendant that the defendant assumed no liability whatever for the automobile’s safety, preservation or redelivery, except for its own wilful and intentional misconduct. The court, holding that the defendant could be held liable for its ordinary negligence, stated:
“It is the better rule that a bailee for hire cannot by contract so limit his responsibility to the bailor as not to be liable *190for his own negligence or the negligence of his agents and servants * * 67 Or at 535. (Citations omitted.)
That language was quoted with approval in Simms v. Sullivan, 100 Or 487, 493, 198 P 240 (1921).
In Voyt v. Bekins Moving & Storage, 169 Or 30, 119 P2d 586, 127 P2d 360 (1941), the court held that, although a bailee may not exempt himself from liability for his own negligence, he may limit his liability (for example, to $10 per 100 pounds), if such an agreement was “fairly and honestly made as the basis of the defendant’s charges and responsibility.” 169 Or at 52. The court concluded that no such agreement had been fairly and honestly made, because the bill of lading containing the limitation was not sent to the plaintiff until after her goods had been turned over to the defendant and the storage charges paid.
Irish & Swartz Stores v. First Nat’l Bk., 220 Or 362, 349 P2d 814 (1960), was thought to be a leading case on the subject, until it was, essentially, overruled by Real Good Food v. First National Bank, 276 Or 1057, 557 P2d 654 (1976). Both cases involved a night depository agreement with the defendant bank in which it was stated that the night depository was provided without compensation as a convenience to, and at the risk of, the depositor and that the bank would not be responsible for any loss. In Irish & Swartz, the court referred to the language quoted above from Pilson v. Tip-Top Auto Co., supra, and then stated:
“We do not think that the foregoing statement was intended as the pronouncement of a universal rule applicable to every bailment irrespective of its character.” 220 Or at 375.
The court went on to say that the parties are free to contract as they please, unless to permit them to do so would contravene the public interest. The court distinguished between a bailee who performs services for which the public has a substantial need and those who do not. It went on to say, however, that it was not necessary to decide into which category the business of furnishing a night depository falls, because of the “peculiar character of the bailment bargained for in the present case,” which warranted the recognition of an enforceable exculpatory clause. 220 Or at 377.
In Real Good Food v. First National Bank, supra, the *191court held that the exemption from liability recognized in Irish & Swartz was valid only to the point where the deposit bag has actually entered the chute of the depository so that it cannot be retrieved thereafter from the exterior of the depository. However, once the bag has been deposited, the relationship of bailor and bailee has been established and “the bank cannot contract away liability for loss as the result of negligence or dishonesty by its own employees and has the burden to prove that any loss was not the result of such negligence or dishonesty.” 276 Or at 1064.
From that cursory review, it appears that, with respect to bailments, at least, a total exemption from liability for negligence would be invalid, although a limitation of liability may be valid if it is fairly and honestly made at the time of the bailment, unless, perhaps, the bailee performs services for which the public has a substantial need.
I perceive no reason why those rules should not apply to the agreement in this case. The clause does not provide total immunity; rather, it limits the exemption from liability to negligence claims. However, I would hold that, in order for such a provision to be enforceable in a given case, it must have been “fairly and honestly made” at the time when the contract for services was made. Voyt v. Bekins Moving & Storage, supra. Here, there is evidence that plaintiff had paid for the scuba diving course in full and, apparently, had rented the scuba diving equipment from defendant and that it was not until some time later that he was presented with the agreement exempting defendant from liability. If those facts are found, the contract does not come within the requirement of Voyt. In other words, there would have been no consideration for the agreement, because, on the facts that we have before us, a jury could find that defendant had already agreed to provide the scuba diving lessons and there is no evidence that defendant offered to refund the amounts paid by plaintiff if plaintiff did not wish to sign the agreement exempting it from liability.1 There are, therefore, genuine issues of material fact, *192precluding the granting of summary judgment.
Accordingly, I would reverse and remand as to both defendants.
The majority is correct in stating that plaintiff frames her argument in terms of decedent’s having unequal bargaining power at the time he was asked to sign the release. It disposes of that argument by stating that there was no unequal bargaining power, because decedent could have walked away from the program. 100 Or App at 188. That is no answer; in fact, it demonstrates the inequality of bargaining power at that time: To avoid signing the release, decedent had to forfeit the money he had paid, and by signing it, he received nothing in addition to what he already had, i.e., there was no consideration for his signing. Therefore, it is not fair to say that the question is not raised.