A claimant sues your company. While the case is pending, the claimant makes another purchase and accepts online terms releasing existing claims. In Litterer v. Vail Summit Resorts, Inc., the Colorado Supreme Court held 4–3 that those terms barred claims already being litigated.
The Epic Pass Agreement
In 2020, John Litterer was injured in a collision with a snowmobile operated by a Vail Summit Resorts employee at Breckenridge Ski Resort. Litterer later sued the resort and the employee.
While that lawsuit was pending, Litterer purchased a five-day Epic Pass for the 2022–23 ski season. As part of the online transaction, he accepted a release stating that he gave up any claims he currently had against Vail and its employees, including claims arising from events that had already occurred.
Vail eventually moved for summary judgment based on that language. The trial court dismissed Litterer’s remaining claims, and the Colorado Court of Appeals affirmed.
On September 21, 2026, the Colorado Supreme Court affirmed in Litterer v. Vail Summit Resorts, Inc., 2026 CO 65. The official decision is available here: https://www.coloradojudicial.gov/system/files/opinions-2026-09/25SC134.pdf
Timing and Contract Formation
The court distinguished between two types of agreements.
A pre-injury exculpatory agreement attempts to protect a business from liability for future conduct. Colorado courts scrutinize those agreements closely, particularly when they purport to excuse statutory violations or willful and wanton conduct.
A post-injury release gives up an existing claim. The majority concluded that the Epic Pass agreement operated as this second type of contract because Litterer signed it after the accident and while his lawsuit was pending.
That distinction allowed the court to apply ordinary contract principles. Litterer electronically accepted the agreement, purchased the pass, and used it. His unexpressed intention to preserve his lawsuit did not overcome those objective actions.
An ordinary online purchase therefore released claims already in litigation.
The court also held that willful and wanton conduct, as pleaded, was not an independent cause of action and that exemplary damages could not survive without an underlying claim. It distinguished Miller’s restrictions on pre-injury waivers from releases of accrued claims.
The Dissent
Justice Richard Gabriel, joined by Justices William Hood and Carlos Samour, dissented.
The dissent emphasized that the release was a four-page, single-spaced document containing 17 paragraphs and substantial legal terminology. Most of it addressed the future risks of skiing and snowboarding. The language concerning existing claims appeared later in the agreement, after extensive assumption-of-risk provisions.
In the dissent’s view, a reasonable purchaser would not expect an online ski-pass transaction to settle pending litigation. Justice Gabriel described the result as a “game of ‘gotcha’” and argued that Vail should have negotiated a conventional settlement if it intended to resolve Litterer’s lawsuit.
The dissent’s objection was not that accrued claims could never be settled. It concluded that this predominantly forward-looking agreement failed the standards governing exculpatory clauses and that its invalid provisions could not be severed to preserve the release of existing claims.
The dissent shows why relying on standard consumer terms to resolve known litigation can create avoidable risk, even when a court ultimately enforces them.
Practical Considerations
1. Review Later Transactions
A dispute does not always remain confined to the legal department. A claimant may continue buying products, accessing online platforms, renewing memberships, or entering new agreements with the business.
Companies and their counsel should identify whether those later transactions contain language that could affect existing claims. Claimants and their counsel should conduct the same review before accepting new terms.
2. Address Existing Claims Expressly
The agreement did not merely address future injuries. It expressly covered claims the purchaser already possessed and events that had already occurred.
Where claims are legally releasable and applicable release requirements are satisfied, businesses seeking to release existing claims should use clear, conspicuous, and unmistakably backward-looking language. General language about future risk may not accomplish that objective.
3. Use a Conventional Settlement When Possible
Vail prevailed, but the dissent highlights the potential reputational and litigation costs of relying on standardized consumer terms to resolve a known dispute.
When a business actually intends to settle pending litigation, a negotiated release remains the cleaner approach. It can document the parties’ understanding, define the claims being resolved, and reduce later arguments about surprise, ambiguity, or unfairness.
4. Coordinate Legal and Operations
Online contracting systems are often managed by operational, sales, or technology teams. Those systems may continue interacting with a claimant after litigation begins.
Counsel should understand what agreements those systems present and how those terms might affect the dispute. At the same time, operational teams should know when a transaction involving a litigant requires legal review.
Limits of the Decision
Litterer does not establish that every click-through agreement can extinguish every claim. The majority emphasized express backward-looking language, capitalized warnings, consideration, the purchaser’s electronic acceptance and subsequent use of the pass, and the availability of other resorts. Those facts supported objective assent, but the court did not announce a universal checklist.
Litterer involved recreational-injury claims, including statute-based negligence allegations. It did not decide the enforceability of employment releases. Employment claims may carry separate statutory release requirements or nonwaiver rules that ordinary contract assent cannot displace. Employers should not treat routine checkout, renewal, or platform terms as a substitute for a claim-specific settlement.
Routine transactions with an existing claimant may affect the dispute and should be reviewed accordingly. Businesses should draft their agreements clearly and avoid confusing an enforceable provision with a well-managed settlement process.
This article provides general information and does not constitute legal advice.