A lawsuit unfolding at the Colorado Supreme Court will test the ski resort industry’s already weakened reliance on liability waivers.
John Litterer, a Texas snowboarder who was struck and injured by an employee-driven snowmobile at Breckenridge in December 2020, argues resort owner Vail Resorts was negligent and reckless and did not follow state laws around snowmobiling at resorts. The continent’s largest resort operator says Litterer signed liability releases the month before the accident, and again when he recovered and bought another pass the following season, and those waivers immunize the company from lawsuits filed by injured skiers.
For the last few decades, the liability waiver defense has been used to swiftly dismiss lawsuits like Litterer’s. Today, every lift ticket and season pass sale in the state includes scroll-and-click contracts that release resorts from liability should a skier die or be injured.
But last year the Colorado Supreme Court upended decades of ski resort legal defense, ruling that liability waivers do not always protect ski areas from negligence lawsuits filed by injured skiers. The first test of that industry-rattling ruling by the high court came in September, when a Broomfield jury awarded paralyzed skier Annie Miller $12.4 million, finding lift attendants were negligent when the Oklahoma woman fell from a chairlift at Crested Butte Mountain Resort in 2022.
“The Miller rulings sent a seismic shockwave in Colorado ski law jurisprudence,” Litterer’s attorney Joseph Bloch said in a news release announcing the Colorado Supreme Court’s decision last month to hear his client’s case. “It allows injured skiers to get past liability waivers that ski areas have unfairly relied on for years to avoid all responsibility when their guests are badly injured as a direct result of their actions.”
The Miller case opened a long-locked door for injured skiers. How the Litterer case fares could reveal a new landscape for skiers arguing resort operators are responsible for their injuries. The 40-page opening brief filed last month in the Litterer case mentions the Miller case 58 times.
Litterer was injured Dec. 18, 2020, when he collided with a snowmobile driven by a Breckenridge employee heading uphill on a maintenance road near its intersection with the Wirepatch run on Peak 8. Litterer sued the resort operator and the snowmobile driver in May 2022 in Summit County District Court, arguing negligence as well as “extreme and outrageous conduct” and “reckless endangerment.” He is seeking punitive damages for gross negligence and is asking the Colorado Supreme Court to overturn a Colorado Court of Appeals decision and return the case to Summit County District Court.
The Summit County court dismissed some of his claims in 2023 as Vail Resorts argued that Litterer signed liability waivers when he purchased his 2020-21 Epic Pass.
Contracts for the sale of lift tickets and season passes include all-caps wording that requires the user to assume “the risk of any injury … resulting from any of the inherent dangers and risks of skiing and may not recover from the ski area operator and its employees for any injury.” The contracts list inherent dangers that include “the negligence of ski area employees” and employees using snowmobiles on the ski slopes.
“A straightforward contract matter”
Like most ski area operators that are sued by injured skiers, Vail Resorts argued that the liability waiver immunized the company from lawsuits. Litterer also bought an Epic Pass for the 2022-23 ski season, which, like almost every season pass agreement in the country, required the buyer to “further release and give up any and all claims and rights that I may now have … and understand this releases all claims … resulting from anything which has happened up to now.”
In January 2025, the Colorado Court of Appeals agreed with the Summit County court’s decision that liability waivers signed by Litterer were enough to dismiss his lawsuit.
Litterer’s appeal revolved around that Miller ruling, arguing that ski areas are not immune from all negligence claims just because a skier signed a liability waiver. The appeals court, however, argued that the 2022-23 ski pass waiver — signed by Litterer nearly two years after he was injured – released Vail Resorts from liability for “any injury.”
Litterer’s appeal argued that the 2022-23 contract for his Epic Pass lacked “mutual assent” and he did not understand he was waiving all past claims when he purchased the pass. He also did not intend to dismiss the lawsuit he filed a few months earlier against the resort and snowmobile driver, he said. Vail Resorts said the resort operator and the snowboarder agreed to a deal that would allow Litterer to ride at its ski areas and in exchange the snowboarder would “release and give up any and all claims and rights that I may now have,” including “those resulting from anything that has happened up to now.”
The appeals court ruled that a lack of understanding on the details of the ski pass, which Litterer used for a ski trip that season, did not automatically void the liability release.
“Absent an assertion of fraud, a party who signs a contract is presumed to know its contents and is bound by all the conditions within the contract, even if the party did not read the contract,” reads the appeals court’s January ruling written by Judge Pax L. Moultrie.
Vail Resorts, in its first brief filed with the Colorado Supreme Court this month, argued the Litterer case is “a straightforward contract matter.” When Litterer signed the liability waiver in November 2022, after he had filed a lawsuit against Vail Resorts for injuries sustained in the snowmobile collision in 2020, he agreed to “release and give up any and all claims and rights that (he) may now have against any released party … including … anything which has happened up to now.”
“At that time, Litterer knew the nature and extent of his injuries. He knew what his existing claims were, because he had filed a lawsuit months earlier. He had the release agreement in front of him. That release was clear as a bell,” reads the Vail Resort response filed earlier this month by attorneys Michael Hofmann and Kaitlin DeWulf with Bryan Cave Leighton Paisner law firm in Denver. “Colorado’s strong public policy favoring freedom of contract extends at least as far as allowing an adult to release his existing, known claims.”
The Miller case has fouled what was once a clear argument around signatures on waivers. Now, skiers can sue and argue that their injuries are a result of resort operator negligence by failing to follow state safety regulations for chairlifts or snowmobiles. And the resort will have to argue it was not negligent rather than simply pointing to the liability waiver.
Litterer is arguing that the snowmobile driver failed to follow the criminal Colorado Snowmobile Safety Statute that prohibits people from driving with a “wanton or willful disregard for the safety of persons” or in a “careless or imprudent manner.”
“It is nonsensical and contrary to public policy for a ski area snowmobile operator to be afforded complete immunity for colliding with and hurting a guest as a result of what could be considered criminal conduct,” reads Litterer’s brief filed with the Colorado Supreme Court.
Vail Resorts’ response, while leaning on the waiver Litterer signed, also argues the snowmobile driver was traveling under the speed limit and in the middle of an approved route for snowmobiles.
“Litterer was going so fast when when he turned onto the snowmobile’s road that he could not stop or change direction,” reads the resort company’s brief, noting that the Colorado Ski Safety Act requires all downhill skiers to be able and ready to avoid all objects and people in front of them when descending.