Ski resort liability waivers returned to the Colorado Supreme Court this month, nearly two years after the high court ruled that the ubiquitous scroll-and-click agreements cannot always shield ski areas from all negligence claims.
That case, involving Annie Miller, an Oklahoma teenager who fell from a chairlift at Crested Butte Mountain Resort and was paralyzed, “expanded an injured guest’s ability to bring claims against a ski area,” said Trent Ongert, an attorney for a snowboarder struck by an employee-driven snowmobile at Breckenridge Ski Resort in December 2020. Ongert made the argument this month before the Colorado Supreme Court.
A Summit County District Court dismissed injured snowboarder John Litterer’s claims before the Miller decision, agreeing with resort owner Vail Resorts that the Texas man’s purchase of an Epic Pass roughly two years after the crash waived his right to sue.
After the Colorado Court of Appeals agreed with the lower court and dismissed Litterer’s lawsuit in January 2025, the Colorado Supreme Court accepted the case last fall, with new context following the Miller ruling.
“It is up to this court. The legislature is not going to act here,” Ongert told the court during an April 16 hearing at Holyoke High School. “The legislature has ignored every recent attempt to enact laws that enhance skier safety and ski area accountability.”
While Litterer argues that Vail Resorts and the snowmobile driver were negligent, displaying “extreme and outrageous conduct” and “reckless endangerment,” when he collided with the snowmobile at Breckenridge, the justices quickly focused their questions on the Epic Pass contract.
When Litterer signed the online purchase agreement for an Epic Pass in November 2022, he had already filed a lawsuit against Vail Resorts for injuries sustained in the collision two years earlier. In that contract, he agreed to “release and give up any and all claims and rights that (he) may have … including … anything which has happened up to now.”
Chief Justice Monica M. Márquez said the language in the release was “broad.”
But it also “is pretty plain language,” she said.
“How would that not put Mr. Litterer on notice? He certainly was aware of his own lawsuit,” Márquez said. “That he is giving that up when he signs this.”
Ongert agreed the language was broad but argued it was not plain. He said his client “clearly had no intention to waive the lawsuit.” Litterer contends he was unaware of the complexities of the six-page agreement when he clicked “agree” to secure his Epic Pass.
Justice Richard L. Gabriel asked whether the issue was that the language was not specific enough or that Litterer failed to read the entire agreement. Gabriel also questioned whether the case turned on the Miller ruling, which limited waivers that attempt to sidestep state-mandated safety requirements, or whether it was simply a contractual dispute over whether Litterer understood what he signed.
“I guess I’m wondering which horse you are riding here,” Gabriel said.
Ongert responded that any waiver “with this broad of language” should not be allowed to waive negligence claims tied to state laws requiring resort operators to maintain safety standards.
Justice Brian D. Boatright asked whether it was the Supreme Court’s role to craft policy when “we are not a policymaking branch of government.”
“Why do we dip our toes into that?” Boatright asked.
Ongert said the Litterer case presents “a chance to expand or clarify the Miller ruling.” Litterer, he said, is asking the court a question similar to the one raised by Miller.
“To extend that same reasoning that there are certain claims that we can’t waive,” Ongert said. He argued that Vail Resorts violated the Ski Safety Act and the Colorado Snowmobile Safety Act, resulting in the collision.
Vail Resorts attorney Michael Hofmann countered that Colorado is a “freedom of contract” state that relies on adults to read agreements before signing them. The Epic Pass agreement, he said, “is not too broad,” and does not release operators from claims involving gross negligence or violations of state safety laws.
Hofmann said it is “not the function of the court” to create policy, but to apply general contract law.
Justice William W. Hood III said it “seems fundamentally unfair” that a skier buying a season pass should anticipate a dense purchase agreement shifting from skiing’s inherent risks into clauses that waive claims for damages.
“I think most folks would say that feels like Vail pulling a fast one,” Hood said, while acknowledging that Litterer, who already had an active lawsuit, could have been more vigilant when signing the contract.
Hofmann pointed to Epic Pass contract language that uses all caps and yellow highlights at the top of the agreement, warning that pass and lift ticket buyers “will forfeit certain claims you may have against Vail Resorts … including a release of any claims for negligence.”
Hofmann said he could not identify any public policy that would require a business to sell access to people who are suing it. As a result, he argued, it should not be surprising that Vail Resorts requires skiers purchasing an Epic Pass to relinquish ongoing lawsuits.
Boatright asked Hofmann whether any part of the Epic Pass contract “has gone too far.”
“It just feels limitless,” Boatright said. “Is there any point where it becomes too much?”
Hofmann said Litterer is an electrical engineer in his 30s with an MBA who should have understood the contract he signed.
“We are going to let an adult out of his promise because maybe he did not read it? That will destabilize contract law. Where do you stop?” Hofmann said. He noted that Litterer could have chosen not to buy an Epic Pass and could have avoided returning to the resort where he was injured in a collision he alleges involved gross negligence. “He made a different choice and he should be held to it.”
Justice Carlos A. Samour Jr. asked Ongert whether other resorts use similar language in their ski pass contracts.
“It’s all the same. If you want to ski in Colorado, you better be comfortable giving up every right you have, not only to sue for things that have happened to you in the past but may happen to you in the future,” Ongert said.
Samour responded that the idea skiers can simply choose not to sign an Epic Pass contract and ski elsewhere “does not really hold water.”
Ongert said that without court intervention to rein in increasingly broad language in ski pass contracts and liability waivers, “nothing is going to change.”
“The legislature is not going to act in any way that diminishes the power of the ski areas, and that has been demonstrated again and again,” he said.
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