Case could \u2018expand or clarify\u2019 landmark Miller v. Crested Butte ruling<\/strong><\/h2>\nOngert opened his argument by noting that the Supreme Court in 2024 ruled in the case Miller v. Crested Butte that a ski resort\u2019s blanket liability waivers cannot protect resorts when they are violating state laws or regulations.\u00a0<\/p>\n
In Miller, a jury found Crested Butte negligent for violating state regulations, including chairlift safety rules, after a 16-year-old girl was paralyzed after a 30-foot fall from a chairlift at the Vail Resorts-owned ski area. The case upended a decadeslong understanding that liability waivers protected ski resorts from essentially all injury-related lawsuits in Colorado.<\/p>\n
Similar to the Miller case, Ongert argued that the Breckenridge employee was in violation of the state\u2019s Snowmobile Safety Act when he hit Litterer, meaning the liability waivers Litterer signed cannot protect Vail Resorts from the \u201cnegligence per se\u201d claims the lawsuit asserts.<\/p>\n
\u201cIt is up to the court. The legislature is not going to act here,\u201d Ongert said. \u201cThe legislature has ignored every recent attempt to enact laws that enhance skier safety and ski area accountability.\u201d<\/p>\n
Several justices questioned whether it was the role of the courts to weigh in where the legislature has not.\u00a0<\/p>\n
\u201cWe\u2019re not a policy-making branch,\u201d Justice Brian Boatright said. \u201cWhy? Why do we dip our toes into that, then?\u201d<\/p>\n
Ongert said this case is a chance for the court to \u201cexpand or clarify\u201d the Miller ruling. He said the court could \u201cextend the same reasoning\u201d that claims alleging someone was injured as a result of law violations aren\u2019t covered by the waivers.<\/p>\n
But Boatright said \u201cthat\u2019s different\u201d because in Miller the plaintiff signed the liability waiver before suing, while in this case Litterer signed a second liability waiver while his litigation was ongoing.<\/p>\n
The liability waiver reportedly stated that the customer agrees to \u201cgive up any and all claims and rights I may now have against\u201d Vail Resorts or the ski resort, \u201cincluding those not mentioned in this release and those resulting from anything which has happened up to now.\u201d<\/p>\n
Chief Justice Monica Marquez said that while language is \u201cextremely broad,\u201d it is also \u201cpretty plain language.\u201d<\/p>\n
\u201cHow could that not put Mr. Litterer on notice?\u201d Marquez asked. \u201cHe\u2019s certainly aware of his own lawsuit.\u201d<\/p>\n
Justice Richard Gabriel added, \u201cIs it just a lack of specificity, or is it also that it\u2019s contained in a document that most people don\u2019t read carefully and expect to be more about assumption of risk by skiing?\u201d<\/p>\n
Ongert said that he doesn\u2019t know whether or not Litterer read the agreement before \u201cclicking through\u201d to sign it, but argued that the court\u2019s ruling in Miller means that liability waivers can\u2019t shield ski resorts from the types of claims made in this case.<\/p>\n
\u201cThe entire release is invalid as far as we\u2019re concerned,\u201d Ongert said. \u201cIt\u2019s too broad, it releases the wrong types of claims, and there\u2019s no severability clause \u2014 and it\u2019s been that way for quite some time.\u201d<\/p>\n
Vail Resorts\u2019 lawyer concerned about \u2018destabilizing\u2019 contract law<\/strong><\/h2>\nHoffman noted that Colorado is a \u201cfreedom of contract state,\u201d\u00a0 meaning state law allows parties to voluntarily create contract terms without government interference, and that \u201cthe rights of adults to enter into contracts is well established.\u201d<\/p>\n
The waiver \u201cis not that broad\u201d and is meant to \u201chonor\u201d the ruling in Miller by stating that it applies only to the \u201cgreatest extent permitted by the law,\u201d Hoffman said. He added that he interprets the Miller ruling to mean that liability waivers can\u2019t dismiss certain legal claims that \u201cdon\u2019t exist yet,\u201d not that waivers would not apply to existing claims.<\/p>\n
\u201cThose are two different things,\u201d Hoffman said. \u201cI 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\u2019re getting in exchange, and the person can make a fully informed decision.\u201d<\/p>\n
Justice William Hood III said it \u201cseems fundamentally unfair\u201d to expect someone buying a ski pass to anticipate that the waiver covers more than the assumption of risk the customer undertakes when partaking in the sport. Pointing to the waiver\u2019s language that the customer agrees to dismiss any future or existing claims, Hood said \u201cI think most folks would say that feels like Vail pulling a fast one.\u201d\u00a0<\/p>\n
But Hoffman said nothing in the liability waiver should have caught Litterer by surprise, since he was already suing Vail Resorts over the specific issue of the liability waiver and its language.<\/p>\n
\u201cWho would know better that there\u2019s a release and what it provides than someone who\u2019s already sued us over it?\u201d he said.<\/p>\n
Vail Resorts isn\u2019t trying to \u201ctrick people\u201d to sign its liability waiver without reading it, Hoffman said, noting there is a warning at the top of the waiver that states \u201cthis is a release of liability waiver of certain legal rights, including the right to sue.\u201d\u00a0<\/p>\n
He added that most companies \u201ccan decline to do business with someone who\u2019s suing it\u201d and Litterer had other ski companies to choose from.<\/p>\n
If the Supreme Court were to rule that the waiver didn\u2019t apply to Litterer because he didn\u2019t read it or was unaware of the terms it contained, Hoffman argued that could have ripple effects on how contract law works in Colorado beyond just the ski industry.<\/p>\n
\u201cI think it is destabilizing the contract law \u2014 and this is a contract \u2014 to say, we\u2019re going to adopt a rule that adults don\u2019t need to read things, we expect them not to read things, and we\u2019re going to let them walk away because they haven\u2019t read it,\u201d he said.<\/p>\n<\/div>\n