Skiers at a resort
DENVER - Click-through waivers and releases of liability that come with buying a ski pass can kill past claims against a ski resort, even claims that already have been filed in court.
That’s the effect of the Colorado Supreme Court’s ruling earlier this week when it upheld the dismissal of a personal injury suit against Vail Summit Resorts based on the fact that the plaintiff, after filing a lawsuit against Vail for injuries he sustained while skiing at a Vail-owned resort, bought a ski pass containing boilerplate language releasing Vail of liability for prior claims.
Plaintiff John Litterer sued Vail for injuries he sustained while snowboarding at Breckenridge in December 2020 after colliding with a snowmobile operated by a Vail employee. According to its website, Breckenridge is one of a number of ski areas owned by Vail, which operates across the U.S. and in Canada, Australia and Europe.
Litterer bought his 2020-21 ski pass in March 2020, and as part of his purchase, he electronically signed a release of claims and waiver of liability. In addition, the back of the ski pass had a similar release of liability and assumption of risk agreement.
After his accident at Breckenridge the following December, Litterer sued Vail and the snowmobile operator based on several theories of negligence, willful and wonton conduct, and extreme and outrageous conduct.
While his case was pending, Litterer decided to go snowboarding again and purchased a Vail 2022-23 ski pass that contained releases and waivers similar to those he agreed to when he bought the 2020-21 pass. Specifically, the waiver stated, in conspicuous all caps, that Litterer agreed to “GIVE UP ANY AND ALL CLAIMS AND RIGHTS THAT [HE] MAY NOW HAVE AGAINST” Vail and its employees and to release all claims, including “THOSE RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO NOW.”
Based on this ski pass waiver, the trial court dismissed Litterer’s claims and the court of appeals affirmed.
Litterer took his case to the Colorado Supreme Court, and in a 4-3 split, the high court agreed with the lower courts that Litterer had effectively waived any claims he had against Vail when he bought the 2022-23 ski pass.
“’A release is the relinquishment of a vested right or claim to a person against whom the claim is enforceable,’” Justice Maria Berkenkotter wrote for the majority.
Applying traditional rules of contract interpretation to the waiver and release of claims on the 2022-23 ski pass, the court found that Litterer had validly agreed to the terms of the release and, therefore, its terms were enforceable against him.
Notably, the Court didn’t address the effect, if any, of the waiver and release of claims contained in the ski pass Litterer purchased for the 2020-21 season and which preceded his injury. Because the 2022-23 ski pass was purchased after Litterer’s injury and after filing his lawsuit against Vail, the court held other precedent concerning the effect of future releases of claims did not apply to Litterer’s case.
Justice Richard Gabriel filed a dissent, joined by justices William Hood and Carlos Samour, and argued that the release was an exculpatory agreement and should be void as against public policy. Exculpatory agreements attempt to release future claims as opposed to past claims and, as noted by the dissent, are closely scrutinized by courts.
The majority found that the release was not an exculpatory agreement. “[T]he 2022 online waiver operates as a release, not an exculpatory agreement, because it was executed after the injury,” the majority ruled.
Gabriel’s dissent focused on the lengthy, take-it-or-leave-it nature of the waiver and release agreement and noted that the language on which the majority relied to deny Litterer’s claims was one sentence among four single-spaced pages of a release containing 17 paragraphs “replete with legal terminology.”
For the dissent, the simple act of buying an online ski pass “should not become a game of ‘gotcha’ for unsuspecting ski pass purchasers, but that is precisely what the majority condones today.”
The majority rejected the invitation to establish public policy concerning releases of claims, however. “[T]o the extent the operation of the 2022 online waiver here, as it relates to post-injury waiver of claims, may seem draconian to some, that is a public policy matter best left to the General Assembly,” Berkenkotter declared.
As to Litterer’s claim for willful and wanton conduct, the majority ruled that such claims are not an independent tort in Colorado. Proof of willful and wanton conduct can support a claim for exemplary damages, the court found, but it does not establish a separate and distinct cause of action.
In any event, the court held, the waiver and release of claims in the 2022-23 ski pass waived all claims, including any claim based on willful and wanton conduct.
Litterer was represented by the firm Bloch Ongert, LLC, which bills itself as the “premier ski injury law firm in Colorado.”
