Ski resort liability waivers were back in front of the Colorado Supreme Court this month, nearly two years after the high court ruled 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 area in December 2020, during his oral 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 last fall accepted the case, with a fresh light from 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 is arguing 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 Colorado Supreme Court 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 with the snowmobile two years earlier. He agreed, in that contract, to “release and give up any and all claims and rights that (he) may have … including … anything which has happened up to now.”
“There are certain claims that we can’t waive.”
Supreme Court 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 that it was broad language but said it was not plain. His client “clearly had no intention to waive the lawsuit.” Litterer argues he was unaware of the complexities of the six-page agreement when he clicked “agree” to secure his Epic Pass.
So is this an issue that the language was not specific enough or that Litterer failed to read the entire agreement, asked Justice Richard L. Gabriel. Gabriel also questioned whether this was about the Miller ruling and resorts avoiding state-mandated safety requirements because skiers signed a liability waiver or whether this was a contractual issue involving whether Litterer knew what he was signing.
“I guess I’m wondering which horse you are riding here,” Gabriel said to Ongert.
Ongert said any kind of waiver “with this broad of language” should not be able to waive negligence when it comes to state laws requiring safety by resort operators.
Justice Brian D. Boatright asked if it was the Supreme Court’s role to craft policy when “we are not a policy-making branch of government.”
“Why do we dip our toes into that?” Boatright asked.
Ongert said the Litterer case is “a chance to expand or clarify the Miller ruling.” Litterer is asking the court a question similar to one asked by Annie Miller, Ongert said
“To extend that same reasoning that there are certain claims that we can’t waive,” said Ongert, who argues that Vail Resorts violated the Ski Safety Act and the Colorado Snowmobile Safety Act, resulting in the collision with Litterer.
“I think most folks would say that feels like Vail pulling a fast one.”
Vail Resorts’ attorney Michael Hofmann countered that Colorado is a “freedom of contract” state that relies on adults carefully reading agreements before they sign. The Epic Pass agreement “is not too broad,” Hofmann argued, saying that it does not release an operator from “gross negligence” claims or state laws regulating safety.
Hofmann said it was “not the function of the court” to make policy like a legislature but to apply general contract law in this case.
Justice William W. Hood, III, said it “seems fundamentally unfair” that a skier buying a ski pass should anticipate the end of a dense purchase contract to veer from the expected assumptions of 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,” said Hood, who acknowledged that Litterer, with an ongoing lawsuit, could have been more vigilant when signing his Epic Pass contract.
Hofmann pointed to the Epic Pass contract wording, which uses all caps and yellow highlights at the top of the agreement to note 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 can’t think of any public policy that would force a business to sell access to people who are suing them. So it should not be surprising that Vail Resorts’ asks skiers buying an Epic Pass to give up ongoing lawsuits.
Boatright asked Hofmann if there was any part of the Epic Pass contract “that has gone too far.”
“It just feels limitless,” Boatright said. “Is there any point where it becomes too much?”
“That will destabilize contract law.”
Hofmann said Litterer is an electrical engineer in his 30s with an MBA degree 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?” said Hofmann, who noted that Litterer could have chosen not to buy the Epic Pass and return to the ski area where he was injured in a collision he argues involved gross negligence. “He made a different choice and he should be held to it.”
Justice Carlos A. Samour, Jr., asked Ongert if other resorts have similar wording in their ski pass contracts and waivers.
“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.
So the idea that Colorado skiers can simply choose not to sign an Epic Pass contract and go ski elsewhere “does not really hold water,” Samour said.
Ongert said that if the court does not help contain 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,” Ongert said.