Background
John Litterer was injured in December 2020 when he collided with a snowmobile while snowboarding at Breckenridge Ski Resort. The resort is owned by Vail Summit Resorts, Inc., and the snowmobile was operated by Vail employee Dwight McClure. Litterer sued, and after several claims were dismissed, his remaining claims included negligence, negligence per se, extreme and outrageous conduct, and premises liability. He also received permission to seek exemplary damages.
While the lawsuit was pending, Litterer bought a five-day Epic Pass for the 2022–23 ski season. During the online purchase, he electronically signed an agreement stating that he released all claims he then had against Vail and its employees, including claims arising from anything that had already happened. The district court treated that language as a post-injury release, granted summary judgment to Vail and McClure, and dismissed the remaining claims with prejudice. The court of appeals affirmed.
The Court’s Holding
The Colorado Supreme Court affirmed. The majority held that the 2022 agreement operated as a release of vested claims, not merely as a prospective exculpatory agreement. Applying ordinary contract principles, the court found mutual assent and consideration: Litterer electronically signed the conspicuous release as a condition of obtaining the pass and then used the pass. His unexpressed intent not to surrender the pending claims, or any failure to read the agreement, did not defeat assent.
The court also held that willful and wanton conduct is not an independent Colorado tort and that exemplary damages are a remedy rather than a separate cause of action. Because the release eliminated every underlying claim, no claim remained to support exemplary damages. The court further held that Miller v. Crested Butte, LLC did not control because Miller addressed pre-injury exculpatory agreements, whereas Litterer signed the operative release after his injury and after commencing litigation.
Justice Gabriel, joined by Justices Hood and Samour, dissented. The dissent viewed the lengthy click-through agreement as largely exculpatory, concluded that its release language was unclear and unenforceable, and would have allowed Litterer’s negligence per se claim and related request for exemplary damages to proceed.
Key Takeaways
- A ski-pass agreement signed after an injury can release existing claims, including claims already being litigated, when its language and the purchaser’s conduct establish an enforceable contract.
- Colorado’s heightened scrutiny of pre-injury exculpatory agreements did not govern the release of Litterer’s vested claims.
- Willful and wanton conduct is not a freestanding cause of action in Colorado, and exemplary damages require a surviving underlying claim for actual damages.
Why It Matters
The decision draws a consequential distinction between prospective waivers of liability and releases executed after an injury. Under the majority’s reasoning, broadly written language in a later transaction may extinguish pending claims even when the transaction is not presented as a negotiated settlement.
The divided ruling also highlights the practical importance of reviewing click-through terms when an injured claimant later does business with a defendant. The dissent warned that embedding a release of existing litigation in standard ski-pass paperwork creates a risk that purchasers will unknowingly surrender valuable claims.