Post-Injury Click-Through Waivers Release Pending Claims Under Ordinary Contract Law

Introduction

Litterer v. Vail Summit Resorts, Inc. addresses whether a skier can unintentionally release claims already being litigated by accepting a later online ski-pass agreement. John Litterer was injured in a December 2020 collision between his snowboard and a snowmobile operated by Dwight McClure, an employee of Vail Summit Resorts, Inc. (“VSRI”), at Breckenridge Ski Resort.

After filing suit, Litterer bought a five-day Epic Pass for the 2022–23 season. As part of the online transaction, he electronically accepted an agreement stating that he released “ANY AND ALL CLAIMS” he then had against VSRI and its employees, including claims arising from anything that had happened “UP TO NOW.” VSRI and McClure relied on that language to obtain summary judgment.

By a 4–3 vote, the Colorado Supreme Court affirmed. The majority held that the agreement, as applied to Litterer’s existing claims, was a post-injury release governed by ordinary contract law—not a pre-injury exculpatory agreement subject to heightened public-policy scrutiny.

Summary of the Opinion

The Court’s Holdings

1. The 2022 online waiver operated as an enforceable release of Litterer’s existing claims because it was executed after the injury and expressly covered claims he already possessed.
2. Litterer objectively assented by electronically signing the agreement, purchasing the Epic Pass, and using it. His undisclosed intention to preserve his lawsuit was legally irrelevant.
3. “Willful and wanton conduct” is not an independent Colorado tort. It is ordinarily a circumstance supporting exemplary damages on a valid underlying claim.
4. Exemplary damages are a remedy, not a separate cause of action. Because all underlying claims had been released, no claim remained to support such damages.
5. Miller v. Crested Butte, LLC governs pre-injury exculpatory agreements and does not prevent parties from releasing or settling vested post-injury claims.

The Court therefore affirmed the court of appeals and the entry of summary judgment for VSRI and McClure.

Analysis

1. The Controlling Distinction: Release Versus Exculpatory Agreement

The central issue was how to classify the 2022 agreement. A release relinquishes an existing, vested claim. An exculpatory agreement prospectively attempts to protect a party from liability for future negligence.

This classification determined the applicable legal framework. Exculpatory agreements receive close scrutiny under the four-factor test announced in Jones v. Dressel. Releases, by contrast, are interpreted under ordinary rules of contract formation and construction.

The majority focused on the status of the claims being relinquished. When Litterer signed the 2022 agreement, his injury had already occurred and his lawsuit was pending. The agreement expressly released all claims he “may now have,” including unknown claims and claims arising from anything that had happened up to that time. As applied to the 2020 collision, therefore, the agreement was a release.

The decision establishes that a document may contain prospective exculpatory provisions while also operating as an ordinary release of existing claims. The legal treatment depends on which provision and which claims are at issue.

2. Objective Assent Controlled

Litterer argued that he never intended to dismiss his lawsuit. The Court rejected that position because Colorado contract law measures assent objectively. Litterer electronically signed the agreement, completed the purchase, and used the pass. Those actions manifested acceptance regardless of his unexpressed subjective intention.

The agreement also contained conspicuous capitalized warnings that it released liability and legal rights. The Court reiterated that a person generally cannot avoid contractual obligations by claiming not to have read the agreement.

The lack of individual negotiation did not invalidate the release. Litterer could have declined the agreement or purchased access to another Colorado resort not owned by VSRI. The Court viewed that practical choice as sufficient to defeat his bargaining-power argument.

3. Consideration and Freedom of Contract

VSRI supplied consideration by granting Litterer access to its resorts for the 2022–23 season. In return, Litterer accepted the contractual terms, including the release of existing claims. The Court relied on Colorado’s strong policy favoring freedom of contract and enforcement of voluntarily made agreements.

The majority also rejected the contention that such claims are categorically incapable of release. A contrary rule would prevent parties from settling post-injury claims, including claims alleging aggravated misconduct. Although the result might appear harsh, the Court stated that broader restrictions are a policy matter for the General Assembly.

4. Willful and Wanton Conduct and Exemplary Damages

Litterer relied on the principle that an exculpatory agreement cannot prospectively shield a defendant from willful and wanton misconduct. That principle did not preserve his pleading for two reasons.

First, the governing agreement was a post-injury release rather than a pre-injury exculpatory agreement. Second, “willful and wanton conduct” is not an independent Colorado cause of action. It describes a degree of misconduct that may justify exemplary damages when liability exists on an underlying tort claim.

Exemplary damages likewise do not constitute an independent claim. Once the negligence, negligence per se, premises-liability, and other substantive claims were released, there was no underlying civil action to which exemplary damages could attach.

5. Why Miller v. Crested Butte, LLC Did Not Apply

In Miller v. Crested Butte, LLC, the Court held that a ski resort could not use a pre-injury exculpatory agreement to avoid liability for violations of statutory and regulatory duties supporting negligence per se. That rule prevents a party from contracting away its obligation to perform statutory duties before an injury occurs.

The majority confined Miller v. Crested Butte, LLC to that setting. Litterer’s 2022 agreement relinquished claims after the injury and after litigation had begun. The distinction preserves Miller’s protection against prospective evasion of statutory duties while allowing parties to settle vested claims after those duties have allegedly been violated.

Precedents Cited

Authorities Central to the Majority

Jones v. Dressel

Established the four factors used to assess exculpatory agreements: public duty, nature of the service, fairness of contract formation, and clarity of the parties’ intent. It also states that exculpatory agreements cannot shield willful and wanton negligence. The majority found this framework inapplicable to Litterer’s vested claims because the 2022 agreement functioned as a post-injury release.

Neves v. Potter and CMCB Enters., Inc. v. Ferguson

Defined a release as the relinquishment, for consideration, of an existing enforceable claim. Once released, the injured party may not obtain further recovery.

Bunnett v. Smallwood

Supplied the rule that releases are interpreted according to ordinary principles of contract construction rather than the heightened rules governing prospective exculpation.

French v. Centura Health Corp.

Established that mutual assent is determined from the parties’ objective words, conduct, and surrounding circumstances—not from undisclosed subjective intent.

Univ. of Denv. v. Doe

Confirmed that a release is enforceable when supported by mutual assent and legal consideration.

Ravenstar, LLC v. One Ski Hill Place, LLC, Marquardt v. Perry, and Allstate Ins. Co. v. Avis Rent-A-Car Sys., Inc.

Supported Colorado’s policy of contractual freedom, objective acceptance through conduct, and construction of contracts to preserve the parties’ bargain.

Macasero v. ENT Credit Union

Supported the principle that a contracting party generally cannot escape an agreement by asserting that the party failed to read it.

Miller v. Crested Butte, LLC

Prohibited ski resorts from prospectively avoiding certain statutory and regulatory duties through pre-injury exculpatory agreements. The majority distinguished it because Litterer released a vested claim after injury.

Farina v. Mt. Bachelor, Inc.

Invalidated an overbroad pre-injury ski release under Oregon law. The majority declined to follow it because it was nonbinding, involved prospective exculpation, and did not address the release of pending post-injury claims.

Compass Ins. Co. v. City of Littleton

Confirmed that Colorado courts are not bound by federal circuit decisions such as Farina v. Mt. Bachelor, Inc..

Qwest Servs. Corp. v. Blood, Ferrer v. Okbamicael, Mortg. Fin., Inc. v. Podleski, and Palmer v. A.H. Robins Co.

Established that willful and wanton conduct describes circumstances supporting exemplary damages, while exemplary damages are derivative of a successful underlying claim and are not an independent cause of action.

W. Elk Ranch, L.L.C. v. United States and Fed. Deposit Ins. Corp. v. Fisher

Supplied de novo review for summary judgment and contract interpretation.

Authorities Emphasized by the Dissent

Chadwick v. Colt Ross Outfitters, Inc.

Explained that clarity under the fourth Jones factor depends on legal jargon, length, complexity, and the likelihood that the signer would fail to understand the release’s scope. The dissent believed each consideration favored Litterer.

Heil Valley Ranch, Inc. v. Simkin

Addressed bargaining power in recreational-service agreements. The dissent accepted that the first three Jones factors generally do not invalidate recreational waivers but considered the fourth factor decisive.

Reilly v. Korholz, CapitalValue Advisors, LLC v. K2D, Inc., John v. United Advert., Inc., and United States v. Bethlehem Steel Corp.

Provided severability principles. The dissent concluded that the invalid prospective provisions could not be separated from the purported release of existing claims because the document lacked a severability clause and appeared to embody one integrated bargain.

Rosen v. LTV Recreational Dev., Inc.

Supported strict construction of a one-sided ski-area agreement drafted to exclude liability.

The Dissent

Justice Gabriel characterized the ruling as granting the ski industry an “extraordinary perpetual pass.” In his view, the agreement had to be evaluated as a whole. Most of its language was prospective, resembled ordinary ski-pass assumption-of-risk language, and did not reasonably alert purchasers that they were releasing claims in pending litigation.

Applying the fourth Jones v. Dressel factor, the dissent found the four-page, single-spaced agreement too lengthy, complex, and saturated with legal terminology to express the release of pending litigation clearly and unambiguously.

The dissent further reasoned that the prospective exculpatory provisions were void under Jones v. Dressel and Miller v. Crested Butte, LLC because they purported to cover willful misconduct and statutory-duty claims. Those invalid provisions could not be severed from the purported release of existing claims. The dissent would therefore have restored Litterer’s negligence per se claim and related request for exemplary damages.

Importantly, the dissent did not dispute that parties may knowingly settle post-injury claims. Its objection was to accomplishing that result through buried click-through language rather than an express settlement negotiation.

Complex Concepts Simplified

• Release: An agreement giving up a claim that already exists.
• Exculpatory agreement: A contract attempting to excuse someone in advance from liability for a future injury.
• Vested claim: A legal claim that has already arisen because the relevant injury or event has occurred.
• Mutual assent: Objective agreement to contractual terms, shown through words or conduct.
• Consideration: The value exchanged to support a contract; here, resort access in exchange for acceptance of the agreement.
• Negligence per se: Negligence based on violation of a statute or regulation designed to protect against the type of harm suffered.
• Willful and wanton conduct: Aggravated misconduct showing conscious disregard for safety; it is not itself an independent Colorado tort.
• Exemplary damages: Punitive damages awarded in addition to actual damages when the statutory standard is met.
• Severability: Whether an invalid contractual provision can be removed while leaving the rest enforceable.
• De novo review: Appellate review without deference to the lower court’s legal conclusions.

Potential Impact

• Colorado courts will classify provisions relinquishing already accrued claims as releases governed by ordinary contract law, even when they appear inside documents containing prospective waivers.
• Electronic acceptance, purchase, and use may establish assent to the release of pending or unknown claims without separate settlement negotiations.
• Parties with active claims must carefully review later transactions with defendants because new click-through agreements may extinguish those claims.
• Miller v. Crested Butte, LLC remains important but is limited to prospective attempts to avoid statutory duties; it does not prohibit post-injury settlements or releases.
• Future disputes may focus on fraud, duress, unconscionability, inadequate consideration, insufficiently clear language, or whether a particular claim had accrued when the agreement was signed.
• The close division and forceful dissent may encourage legislative regulation of recreational click-through agreements, especially agreements purporting to release pending litigation.

Conclusion

Litterer v. Vail Summit Resorts, Inc. draws a consequential line between prospective exculpation and post-injury release. Colorado’s heightened scrutiny of agreements excusing future negligence does not govern the relinquishment of claims that have already accrued. When clear language covers existing claims and the signer objectively accepts it for consideration, the release may extinguish even pending litigation.

The decision strengthens freedom of contract in the post-injury setting but raises substantial concerns about informed consent in lengthy online agreements. Its practical lesson is direct: accepting a later commercial agreement with an opposing party may have the same legal effect as signing a settlement release.