Colorado Supreme Court to consider Vail Resorts’ liability waiver in case involving snowboarder hit by snowmobile

The Colorado Supreme Court has agreed to hear a case that could further define the extent to which liability waivers protect ski resorts from negligence claims brought by customers who are injured at the resort.

John Litterer v. Vail Summit Resort Inc., a case involving negligence claims brought by a Texas snowboarder who collided with a snowmobile driven by an employee at Breckenridge Ski Resort in 2020, has been granted certiorari by the state’s highest court.

That means at least three of the seven justices on the Supreme Court have agreed to review the case, which had previously been dismissed by the Summit County District Court and Colorado Court of Appeals. Both lower courts had determined that Litterer gave up his claims to sue when he signed liability waivers when purchasing an Epic Pass.

Vail Summit Resort Inc. is a subsidiary of Vail Resorts, the company that owns the Epic Pass, six ski resorts in Colorado, and dozens of other resorts across the U.S., Canada, Australia, and Switzerland. A spokesperson for Breckenridge Ski Resort and Vail Resorts declined to comment on ongoing litigation.

Joseph Bloch, the attorney representing Litterer, said in a news release that the legal landscape for those injured at ski resorts has changed since the Colorado Supreme Court’s “groundbreaking” decision in Miller v. Crested Butte last year. The 5-2 decision determined that liability waivers that skiers and snowboarders must agree to when purchasing a pass do not protect resorts when they are violating state laws or regulations.

The Miller case involved a 16-year-old girl who was paralyzed after a 30-foot fall from a chairlift at Crested Butte Mountain Resort, which is also owned by Vail Resorts. A jury recently awarded Miller $20 million in damages after finding Crested Butte negligent for violating state regulations, including tramway safety rules.

“The Miller rulings sent a seismic shockwave in Colorado ski law jurisprudence. 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,” Bloch said. “No other industry that caters to guests — including amusement parks, white water rafting, and others — enjoys such immunity for their wrongful actions.”

Like the Miller case, Bloch said Litterer’s case asserts claims of negligence per se and willful and wanton gross negligence against a ski area. Negligence per se is a legal doctrine meaning that one is presumed to be negligent because they violated a law or regulation, and willful and wanton gross negligence requires that a person have a conscious disregard for others.

Bloch argues in documents filed with the Supreme Court that Litterer’s claim for negligence per se should be allowed to move forward because the employee on the snowmobile was violating Colorado’s Snowmobile Safety Statute by operating the vehicle carelessly around a “blind corner” when Litterer was struck.

Complicating the case is that Litterer entered into agreements not to sue Vail Resorts twice. First, when he purchased the Epic Pass in for the 2020-21 season, the year he was injured. Then, again, when he purchased an Epic Pass for the 2022-23 season, after he had recovered enough to snowboard and while his litigation was still ongoing.

According to court documents, the document Litterer signed when he purchased the Epic Pass for the 2022-23 season stated, “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 that has happened up to now.”

An attorney for Vail Summit Resorts has argued in court documents that Litterer signing the liability waiver for the Epic Pass he purchased in 2022-23 should bar him from bringing litigation for the collision that occurred in 2020.

Litterer’s attorney said that ski resorts have relied on “overly broad” waivers for years, and his case could help reshape how ski areas are held responsible for negligent conduct.

“Mr. Litterer, along with the millions of skiers who visit Colorado ski areas each year, seek assurance in their ability to recover for their injuries suffered at the hands of ski areas,” Bloch’s office wrote in its release. “Mr. Litterer and his attorneys are hopeful that Colorado’s highest court will hold ski areas accountable for their wrongful actions.”