Colorado Supreme Court weighs waiver fight after snowboarder hit at Breckenridge
The Colorado Supreme Court heard arguments in John Litterer v. Vail Resorts over whether a broad online liability waiver can undo an injury lawsuit—even after a second Epic Pass purchase.
A Colorado Supreme Court case is forcing the state to dig into a familiar ski-season ritual: the liability waiver customers click through before buying a pass.
The court heard oral arguments on April 16 in John Litterer v.. Vail Summit Resorts Inc.. where a Texas man says he was struck by a Vail Resorts employee driving a snowmobile at Breckenridge Ski Resort in 2020.. What makes the dispute go beyond the usual injury claim is that Litterer signed a second Epic Pass waiver after he recovered and while his lawsuit was still active—raising the question of whether a pass purchase can quietly erase ongoing claims.
At the center of the justices’ questions was the wording of that second waiver and what it should have meant to someone who already knew he was suing.. The court typically issues written opinions within nine months after oral arguments. but the arguments themselves offered a preview of how far Colorado may go in limiting broad waivers that resorts rely on.
Litterer’s lawsuit asserts that the employee’s snowmobile run violated Colorado’s Snowmobile Safety Act.. His lawyer. Trent Ongert. argued that when injuries result from legal violations. the reasoning from the Supreme Court’s earlier decision in Miller v.. Crested Butte should apply.. In Miller. the court ruled that blanket waivers do not automatically shield ski resorts in every situation—particularly when a resort is violating safety rules—and that decision reshaped expectations across Colorado’s ski industry.
Ongert tried to frame this case as a direct extension of Miller: if the underlying conduct violated a state safety law. then the waiver should not act like a protective shield.. Several justices pressed back, though, focusing on the court’s role versus the legislature’s role.. “We’re not a policy-making branch. ” Justice Brian Boatright said during arguments. questioning why courts should step in where lawmakers have not.
That “who decides” tension was echoed in the distinction the court appeared to draw between Miller and this case.. In Miller, the plaintiff signed the waiver before suing.. Here, Boatright pointed out, Litterer signed a second waiver while his legal fight was already underway.. Chief Justice Monica Marquez also zeroed in on the plain language problem: the waiver Litterer clicked through reportedly included language agreeing to give up “any and all claims and rights” against the resort. including claims resulting from anything that had happened up to that point.
Marquez asked how that broad language could fail to put Litterer on notice. particularly because he was already aware of his own lawsuit.. Justice Richard Gabriel similarly suggested the court should consider whether the case is really about lack of specificity—or whether. instead. the waiver is located in a document most people do not read closely. even though it is meant to govern legal rights.
For Vail Resorts, the argument is rooted in contract principles.. The company’s lawyer. Micahel Hofmann. emphasized that Colorado is a “freedom of contract state. ” where adults can voluntarily agree to contract terms without the state rewriting every deal.. Hofmann said the waiver language is clear: Litterer agreed to waive claims when he bought the pass again. and a contrary ruling could destabilize contract law well beyond ski resorts.
Hofmann also drew a line between claims that already exist and claims that “don’t exist yet.” In his view. Miller addressed situations involving certain kinds of claims connected to regulatory violations—but the waiver here should be understood as releasing existing claims the buyer knows about.. He argued that Litterer could make a decision with full awareness because he was already in litigation over the waiver’s meaning.
Even if the waiver is broad, Hofmann said it is not a trap.. The company pointed to warnings included at the top of the release. noting that it is a waiver of legal rights. including the right to sue.. He also argued that if a buyer does not want to accept those terms. they can decline the transaction—an option he said was available to Litterer since other ski companies operate in the region.
One of the sharpest exchanges came when Justice William Hood III suggested it feels fundamentally unfair to assume a ski pass buyer would not understand the waiver’s reach.. Hood described the concern that the waiver effectively “pulls a fast one. ” especially when it purports to dismiss both future and existing claims.. Hofmann responded by warning that undermining contract enforceability based on whether someone read or understood the text would have ripple effects through Colorado’s broader legal landscape.
Why this case is resonating beyond the ski slopes is simple: liability waivers are becoming a standard feature of modern consumer life.. Online “click-through” agreements appear for everything from recreational activities to service subscriptions. and people increasingly rely on them without reading every line.. The court is being asked to decide whether that reality should shift the legal balance—especially when a customer is actively suing and then chooses to keep participating.
There’s also a human-scale tension in the facts themselves.. A person gets injured. seeks treatment. returns to the sport. and then purchases another season pass—only to face the possibility that a second click could rewrite the meaning of their ongoing claim.. For families and injured customers. it’s not just a legal technicality; it’s a practical question of whether the justice system will treat waivers as binding agreements even when the buyer’s circumstances and intent evolve.
In the end. the Supreme Court’s decision may not only clarify how Miller should be applied. but it could also signal how Colorado views “notice. ” intent. and enforceability in the age of online waivers.. If the court narrows waiver protections, it could push resorts toward stronger safety practices and more tailored agreements.. If the court upholds Vail’s position. it may reinforce the idea that consumers who already know they’re litigating cannot later buy a pass—again—and expect the waiver to stop that litigation.
Either way, the justices’ questions suggest this will be more than a dispute about snowmobile traffic on a mountain.. It’s a test of how far a contract can reach when an injury claim is already in motion. and whether “clicking through” is enough to bind someone to give up rights they thought were still alive.