On September 21, 2026, the Colorado Supreme Court issued a split decision in Litterer v. Vail Summit Resorts, Inc., 2026 CO 65. The majority held that a snowboarder—while in active litigation against a resort and its employee for injuries he sustained in a past snowmobile collision—released his existing claims after executing a liability waiver as part of the online purchase of an Epic Pass for a subsequent season. The majority reasoned that because the waiver concerned a post-injury release, it was not an exculpatory agreement subject to Miller v. Crested Butte, LLC, 2024 CO 30, which governs pre-injury exculpatory agreements. Further, the court held that willful and wanton conduct is not an independent tort in Colorado. This affirmed the judgment of the court of appeals.
Background
In December 2020, John Litterer was injured while snowboarding at Breckenridge Ski Resort—which is owned by Vail Summit Resorts, Inc. (“VSRI”)—in a collision with a snowmobile operated by a VSRI employee. Litterer subsequently filed suit against VSRI and its employee, asserting several claims, including one for willful and wanton conduct, and seeking exemplary damages. While his lawsuit was in active litigation, Litterer purchased an Epic Pass for the 2022–23 ski season online. As part of the purchase, he electronically executed a “Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement” (the “2022 online waiver”). The waiver stated in capitalized text that the signer would
FURTHER RELEASE AND GIVE UP ANY AND ALL CLAIMS AND RIGHTS THAT I MAY NOW HAVE AGAINST ANY RELEASED PARTY,” including “ALL CLAIMS, INCLUDING THOSE OF WHICH I AM NOT AWARE, THOSE NOT MENTIONED IN THIS RELEASE AND THOSE RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO NOW.
The definition of “Released Party” included VSRI and its employees.
Respondents moved for summary judgment, arguing that Litterer released all claims against them when he executed the 2022 online waiver. The district court agreed, characterizing the waiver as a release rather than an exculpatory agreement and concluding that adequate consideration supported the waiver. The court of appeals affirmed, and Litterer petitioned for certiorari review.
The Court’s Analysis
The majority of the Court—Justice Berkenkotter, Chief Justice Marquez, Justice Boatright, and Justice Blanco—made the following three holdings.
- The 2022 Online Waiver Operated as a Release, Not an Exculpatory Agreement.
The Court distinguished between a release—which is the relinquishment of a vested right or claim—and an exculpatory agreement, which attempts to insulate a party from liability for its own future negligence. Because Litterer executed the 2022 online waiver after his injury, after filing suit, and while litigation was ongoing, the Court concluded that it operated as a release of his existing claims, not as a forward-looking exculpatory agreement. The Court applied traditional rules of contract interpretation and found that Litterer demonstrated mutual assent through his conduct: Litterer electronically signed the waiver, purchased the pass, and used it to snowboard at Breckenridge. Litterer’s subjective, unexpressed intent not to release his claims was irrelevant when determining “the requisite meeting of the minds.”
The Court also rejected Litterer’s argument that the waiver was overly broad and unenforceable, declining to adopt the reasoning of Farina v. Mt. Bachelor, Inc., 66 F.3d 233 (9th Cir. 1995) (finding that release clause for “any and all claims that an injury skier might bring” violated Oregon public policy). Farina involved a pre-injury waiver and did not address whether a post-injury waiver of claims was an unenforceable exculpatory agreement.
2. Miller v. Crested Butte Does Not Apply.
The Court held that Miller v. Crested Butte, LLC, 2024 CO 30, which prohibits ski resorts from using exculpatory agreements to bar negligence per se claims based on certain statutory duties, was inapplicable because Miller governs pre-injury exculpatory agreements, not post-injury releases.
3. Willful and Wanton Conduct and Exemplary Damages Claims Were Properly Dismissed.
The Court held that “willful and wanton conduct” is not an independent tort in Colorado, but rather a descriptive standard used in the context of assessing exemplary damages under § 13-21-102, C.R.S. Because all of Litterer’s underlying claims were validly released when he purchased the Epic pass and electronically signed the waiver, there was no independent civil action to which exemplary damages could attach. Therefore, the Court affirmed the district court’s dismissal of those claims.
The Dissent
Justice Gabriel, joined by Justices Hood and Samour, dissented. The dissent found that the Release was predominantly an exculpatory agreement based on its actual language—which was largely forward-looking—regardless of when it was signed. Analyzing the fourth factor set forth in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981), the dissent concluded that the Release failed to express the parties’ intent in clear and unambiguous language due to its excessive legal jargon, length, complexity, and the likelihood that a reasonable purchaser would not recognize the scope of the Epic Pass’s release provisions.
The dissent further reasoned that the exculpatory provisions were void as against public policy because they facially purported to release claims for willful and wanton negligence and negligence per se in violation of Jones and Miller. The dissent would have held that the void exculpatory provisions could not be severed from the release provisions, rendering the entire Release unenforceable.
For questions about this legal alert, please contact a member of the Davis Graham Appellate Group.