Colorado Supreme Court hears case of snowboarder who visited Vail Resorts claiming he was struck by a snowmobile, then bought another Epic Pass

The Colorado Supreme Court had robust questions for legal professionals representing Vail Resorts and a Texas man suing the ski firm after he was hit by an employee on a snowmobile at Breckenridge Ski Resort.

The Supreme Court heard oral arguments in John Litterer v. Vail Summit Resorts Inc. on April 16 at a highschool in Holyoke. The case may additional check the bounds of the legal responsibility waivers ski resorts require prospects to signal when shopping for passes. It comes two years after the state’s highest court docket dominated in another case, Miller v. Crested Buttethat the blanket waivers don’t defend resorts in all instances when a buyer is injured.

Litterer sued Vail Summit Resorts Inc., a subsidiary of Vail Resorts, which owns the Epic Pass, six ski resorts in Colorado and dozens throughout the US and the world. He claims he was hit by an worker driving a snowmobile round a “blind corner” at Breckenridge in 2020.

Complicating the case is that Litterer twice clicked by on-line waivers agreeing he wouldn’t sue Vail Resorts: first, when he bought the Epic Pass for the 2020-21 season, the yr he was injured; then, when he bought an Epic Pass for the 2022-23 season after he had recovered sufficient to snowboard and whereas his litigation was nonetheless ongoing.

The Supreme Court agreed to listen to Litterer’s case after the Summit County District Court and Colorado Court of Appeals had each dismissed it, figuring out that Litterer gave up his claims to Sue when he signed the legal responsibility waiver throughout his second cross buy.

During oral arguments, the Supreme Court justices centered many of their questions on the second legal responsibility waiver Litterer signed and the extent to which he ought to have identified what he was signing.

Trent Ongert, an lawyer representing Litterer, argued his shopper didn’t intend to dismiss his energetic lawsuit when he bought the second Epic Pass and that the language of the legal responsibility waiver was “too broad” to be enforced.

Vail Resorts’ lawyer Micahel Hofmann, nonetheless, mentioned the language of the waiver was clear that Litterer agreed to waive his current lawsuit when he bought a cross — and ruling in any other case may create points for contract legislation in Colorado.

The Supreme Court sometimes points written opinions inside 9 months of oral arguments.

Case may ‘develop or make clear’ landmark Miller v. Crested Butte ruling

Ongert opened his argument by noting that the Supreme Court in 2024 dominated within the case Miller v. Crested Butte that a ski resort’s blanket legal responsibility waivers can not defend resorts when they’re violating state legal guidelines or rules.

In Miller, a jury discovered Crested Butte negligent for violating state rules, together with chairlift security guidelines, after a 16-year-old lady was paralyzed after a 30-foot fall from a chairlift on the Vail Resorts-owned ski space. The case upended a decadeslong understanding that legal responsibility waivers protected ski resorts from primarily all injury-related lawsuits in Colorado.

Similar to the Miller case, Ongert argued that the Breckenridge worker was in violation of the state’s Snowmobile Safety Act when he hit Litterer, which means the legal responsibility waivers Litterer signed can not defend Vail Resorts from the “negligence per se” claims the lawsuit asserts.

“It is up to the court. The legislature is not going to act here,” Ongert mentioned. “The legislature has ignored every recent attempt to enact laws that enhance skier safety and ski area accountability.”

Several justices questioned whether or not it was the function of the courts to weigh in the place the legislature has not.

“We’re not a policy-making branch,” Justice Brian Boatright mentioned. “Why? Why do we dip our toes into that, then?”

Ongert mentioned this case is a probability for the court docket to “expand or clarify” the Miller ruling. He mentioned the court docket may “extend the same reasoning” that claims alleging somebody was injured as a outcome of legislation violations aren’t lined by the waivers.

But Boatright mentioned “that’s different” as a result of in Miller the plaintiff signed the legal responsibility waiver earlier than suing, whereas on this case Litterer signed a second legal responsibility waiver whereas his litigation was ongoing.

The legal responsibility waiver reportedly said that the client agrees to “give up any and all claims and rights I may now have against” Vail Resorts or the ski resort, “including those not mentioned in this release and those resulting from anything which has happened up to now.”

Chief Justice Monica Marquez mentioned that whereas language is “extremely broad,” it’s also “pretty plain language.”

“How could that not put Mr. Litterer on notice?” Marquez requested. “He’s certainly aware of his own lawsuit.”

Justice Richard Gabriel added, “Is it just a lack of specificity, or is it also that it’s contained in a document that most people don’t read carefully and expect to be more about assumption of risk by skiing?”

Ongert mentioned that he does not know whether or not or not Litterer learn the settlement earlier than “clicking through” to signal it, however argued that the court docket’s ruling in Miller implies that legal responsibility waivers cannot protect ski resorts from the kinds of claims made on this case.

“The entire release is invalid as far as we’re concerned,” Ongert mentioned. “It’s too broad, it releases the wrong types of claims, and there’s no severity clause — and it’s been that way for quite some time.”

Vail Resorts’ lawyer involved about ‘destabilizing’ contract legislation

Hoffman famous that Colorado is a “freedom of contract state,” which means state legislation permits events to voluntarily create contract phrases with out authorities interference, and that “the rights of adults to enter into contracts is well established.”

The waiver “is not that broad” and is supposed to “honor” the ruling in Miller by stating that it applies solely to the “greatest extent permitted by the law,” Hoffman mentioned. He added that he interprets the Miller ruling to imply that legal responsibility waivers cannot dismiss sure authorized claims that “don’t exist yet,” not that waivers wouldn’t apply to current claims.

“Those are two different things,” Hoffman mentioned. “I think the law allows people more freedom to release existing claims, because at that point, you know what has happened, you know what the injuries are, you know the merits and demerits of your claim, you know what you’re getting in exchange, and the person can make a fully informed decision.”

Justice William Hood III mentioned it “seems fundamentally unfair” to count on somebody shopping for a ski cross to anticipate that the waiver covers greater than the idea of danger the client undertakes when partaking within the sport. Pointing to the waiver’s language that the client agrees to dismiss any future or current claims, Hood mentioned “I think most folks would say that feels like Vail pulling a fast one.”

But Hoffman mentioned nothing within the legal responsibility waiver ought to have caught Litterer by shock, since he was already telling Vail Resorts concerning the particular problem of the legal responsibility waiver and its language.

“Who would know better that there’s a release and what it provides than someone who’s already sued us over it?” he mentioned.

Vail Resorts is not making an attempt to “trick people” to signal its legal responsibility waiver with out studying it, Hoffman mentioned, noting there’s a warning on the prime of the waiver that states “this is a release of liability waiver of certain legal rights, including the right to sue.”

He added that almost all firms “can decline to do business with someone who’s doing it” and Litterer had different ski firms to select from.

If the Supreme Court have been to rule that the waiver did not apply to Litterer as a result of he did not learn it or was unaware of the phrases it contained, Hoffman argued that it may have ripple results on how contract legislation works in Colorado past simply the ski trade.

“I think it is destabilizing the contract law — and this is a contract — to say, we’re going to adopt a rule that adults don’t need to read things, we expect them not to read things, and we’re going to let them walk away because they haven’t read it,” he mentioned.