Colorado Supreme Court justices on April 16 pressed a Texas man’s claim that Vail Resorts cannot use an Epic Pass agreement to wipe out his lawsuit over a Breckenridge ski area snowmobile crash. John Litterer, who says he was struck by an employee-driven snowmobile in December 2020, is asking the court to revive claims that lower courts already dismissed.
The case turns on what Litterer signed in November 2022, after he had already filed suit over the crash. The online Epic Pass purchase agreement said he agreed to “release and give up any and all claims and rights that (he) may have … including … anything which has happened up to now.” The Summit County District Court accepted Vail Resorts’ argument that the later pass purchase waived his right to sue, and the Colorado Court of Appeals agreed in January 2025.
That makes the high court’s review especially important now: the justices are deciding whether a recreational waiver can reach back and extinguish a pending injury case. The court accepted the matter last fall and heard oral argument at Holyoke High School, where the panel’s questions suggested deep skepticism about Litterer’s position and little appetite for turning the dispute into a broader policy fight.
Chief Justice Monica M. Márquez called the release language “broad” and “pretty plain language,” then asked, “How would that not put Mr. Litterer on notice? He certainly was aware of his own lawsuit.” She added, “That he is giving that up when he signs this.” Attorney Trent Ongert, arguing for Litterer, said his client “clearly had no intention to waive the lawsuit.” Ongert also told the court, “It is up to this court. The legislature is not going to act here,” and said lawmakers have ignored recent attempts to strengthen skier safety and ski area accountability.
Justice Richard L. Gabriel pushed back, asking whether the problem was that the waiver was not specific enough or whether Litterer simply failed to read the entire agreement. “I guess I’m wondering which horse you are riding here,” Gabriel said. Justice Brian D. Boatright also questioned whether the court should be making policy, saying “we are not a policy-making branch of government.”
The dispute sits against an earlier Supreme Court ruling that scroll-and-click agreements cannot always shield ski areas from every negligence claim. That earlier case involved Annie Miller, an Oklahoma teenager who fell from a chairlift at Crested Butte Mountain Resort and was paralyzed. Litterer says Vail Resorts and the snowmobile driver were negligent and engaged in “extreme and outrageous conduct” and “reckless endangerment,” but the justices’ questions on April 16 suggested the harder issue may be whether his later pass purchase erased a lawsuit that was already on file.
That question now appears to be the one that will decide the case.
