By Robert E. Freeman with Meredith A. Lipson, Sabrina Palazzolo and Alexander J. Amir, of Proskauer
Snowboarder John Litterer (“Litterer”) faceplanted in a Colorado state appeals court which affirmed a lower court ruling that found Breckenridge Ski Resort’s (the “Resort”) liability waiver was enforceable and barred Litterer from recovering damages after he collided with a snowmobile while traversing the slopes. (Litterer v. Vail Summer Resorts, Inc., No. 24CA0480 (Colo. App. Jan. 30, 2025)(unpublished)).
The background of the case began when Litterer purchased a season pass (an “Epic Pass”) at the Resort, owned by Vail Summit Resorts, Inc. (“VSRI”), for the 2020-2021 ski season. In December 2020, after Litterer turned his snowboard onto a trail that was approved for snowmobile traffic, he collided with a snowmobile driven by VSRI employee Dwight McClure (“McClure,” collectively with VSRI, “Defendants”). McClure claims that he “saw movement above him in the trees” moments before the collision. He attempted to move the snowmobile to the edge of the road to avoid colliding into Litterer, who said he “had no time to make any moves” in the “one second” before the collision. In May 2022, Litterer filed a complaint in Colorado state court against Defendants, lodging a litany of claims including negligence, negligence per se, extreme and outrageous conduct, willful and wanton conduct, and reckless endangerment.
At the lower court level, Defendants moved to dismiss on various grounds. Defendants were mostly successful, as the court ruled that the Colorado Premises Liability Act preempted Litterer’s claims pertaining to negligence and extreme and outrageous conduct, and that Litterer’s claims for willful and wanton conduct and reckless endangerment were not cognizable causes of action in Colorado. However, the trial court did permit a premises liability claim to proceed against VSRI and allowed Litterer to amend his complaint. The court also allowed a negligence per se and related tort claims against McClure to proceed. Nevertheless, Litterer’s run was soon over after Defendants later moved for summary judgment, asserting that Litterer’s remaining claims were barred by three liability waivers executed by Litterer. The lower court held that that the exculpatory language related to Litterer’s Epic Pass for the 2020-2021 ski season validly barred Litterer’s claim for negligence, negligence per se and premises liability. Furthermore, the court found that Litterer’s purchase of another Epic Pass for the 2022-2023 season contained an enforceable release of all his prior claims against the Defendants. The lower court also found that Defendants’ conduct was insufficient as a matter of law to support a claim for extreme and outrageous conduct.
On appeal, Litterer principally argued that the trial court erred by granting summary judgment on the negligence per se claim based on the Colorado Supreme Court’s recent Miller decision that held “ski resorts cannot use signed waivers to absolve itself of liability for per se negligence based on violations of statutory duties imposed by ski safety laws, as allowing ski resorts to escape liability from negligence claims based on violations of such laws ultimately frustrates lawmakers’ intent.” The Three Point Shot newsletter previously covered this decision in detail (do a 180 to that article now and then jump back here!). However, because the appellate court here concluded that Litterer’s claims were barred by the liability waivers and releases contained in the Epic Pass he purchased for the 2022-2023 season, it declined to even go down that trail.
The Epic Pass Litterer purchased online for the 2022-2023 ski season contained the following relevant provisions:
“WARNING: PLEASE READ CAREFULLY BEFORE SIGNING! THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION.
In consideration for allowing the Participant to participate in the Activity [defined to include snowboarding], I FURTHER RELEASE AND GIVE UP ANY AND ALL CLAIMS AND RIGHTS THAT I MAY NOW HAVE AGAINST ANY RELEASED PARTY AND UNDERSTAND THIS RELEASES ALL CLAIMS, INCLUDING THOSE OF WHICH I AM NOT AWARE, THOSE NOT MENTIONED IN THIS RELEASE AND THOSE RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO NOW.”
The Court noted that “the 2022 online waiver defined ‘Released Party’ to include ‘Vail Resorts, Inc., The Vail Corporation, . . . each of their affiliated companies and subsidiaries, the resort owner/operator, [and] all their res[pective] . . . affiliates, agents, employees, representatives, assignees, officers, directors, and shareholders’ and released those parties from all liability for ‘any injury’ arising ‘in whole or in part’ from Litterer’s participation in snowboarding, among other activities.”
Litterer’s counterarguments all hit the slush: (i) he did not assent to the 2022 online waiver, (ii) it is unconscionable and therefore unenforceable and (iii) it cannot bar his claims. Emphasizing Colorado’s policy of freedom of contract and using basic contract formation principles, the Court deemed that there was mutual assent by Litterer and VSRI in entering into the agreement. Litterer failed to develop an argument as to unconscionability “beyond a conclusory allegation that he is penalized by its enforcement,” so the Court did not address this point. Finally, the Court found that the 2022 wavier unambiguously released “any and all claims” by Litterer against Defendants up to that point of time. As explained by the Court, while the 2020 Epic Pass waiver he signed before his accident sought to limit future negligence claims against Defendants, the 2022 Epic Pass waiver and liability release required that Litterer release any and all claims against VSRI and its employees, including claims from past events (such as the vested claims stemming from his 2020 snowboarding accident). The Court ultimately affirmed the lower court’s finding that Litterer’s purchase, acceptance, and use of the 2022 Epic Pass was sufficient conduct to demonstrate his assent to the terms of the 2022 waiver such that a valid contract was formed.
While we previously wrote that the Colorado Supreme Court’s Miller decision was a “potentially landmark decision for future ski-related tort cases” in Colorado, we’ll have to wait to see the applicability of this precedent to other applicable state recreational statutes. In the meantime, skiers and snowboarders should perhaps read the terms of ski passes before purchase and definitely ski safely out on the slopes.
