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A Colorado appellate panel raised doubts on Tuesday about whether a recent decision limiting ski resort waivers could be extended to a case involving a snowboarding accident caused by a snowmobile driver. The case, brought by John Litterer against Vail Summit Resorts Inc. and snowmobile driver Dwight McClure, challenges the enforceability of waivers on ski passes in light of a snowmobile safety statute.

Litterer, who was struck by a snowmobile at the Breckenridge Ski Area in 2020, argues that his lawsuit should be reinstated because the resort’s waiver cannot absolve the company of liability under the snowmobile safety law. The resort’s ski passes include a waiver acknowledging the risks of injury related to skiing and snowboarding, which visitors are required to sign before using the facilities.

At oral arguments on Tuesday, Litterer's attorney, Trenton J. Ongert, sought to apply the Colorado Supreme Court's May 2024 ruling in Miller v. Crested Butte, which held that ski resorts cannot use waivers to absolve themselves from statutory duties under the Ski Safety Act and the Passenger Tramway Safety Act. Ongert argued that the same reasoning should apply to the snowmobile safety statute.

Judge Lino S. Lipinsky de Orlov questioned whether the Miller decision, which specifically addressed the Ski Safety Act, could be expanded to cover snowmobiles, noting that the snowmobile safety statute lacks a provision for a private right of action, unlike the laws involved in Miller. "Is that a significant distinction?" Lipinsky asked Ongert, who countered by asserting that the two statutes are "interrelated" and that the Miller ruling did not limit its holding to just the two statutes in that case.

Judge Pax L. Moultrie similarly suggested that expanding the ruling to the snowmobile statute could be a policy decision better left to the legislature, emphasizing that the Miller court did not address whether the snowmobile safety statute could allow such claims. Ongert argued that the snowmobile statute was the type of law that could allow for the waiver to be pierced, but Moultrie reiterated that the matter may be best left to lawmakers.

The case centers on an incident in which Litterer, snowboarding on an open ski trail, was struck by a snowmobile operated by McClure. Litterer’s legal team contends that the waivers he signed in connection with his Epic Pass do not bar claims of negligence under the snowmobile safety statute, as negligence claims are specifically allowed under the Ski Safety Act.

Vail Summit Resorts has argued that the waivers Litterer signed should protect the company from liability and that Miller only prohibits waivers for claims related to statutory violations under the Ski Safety Act and the Passenger Tramway Safety Act. The resort’s counsel, Michael J. Hofmann, pointed out that the snowmobile safety statute does not mention civil liability or negligence and lacks any provision about waivers or competing laws, unlike the Ski Safety Act.

The case is significant because it tests whether Miller's holding can be applied beyond the ski resort context to the snowmobile safety law. Litterer's attorney, Ongert, noted that the Colorado Supreme Court’s decision came after the state legislature had adjourned for the year, suggesting that the General Assembly could act to address the ruling in future sessions if necessary.

The appellate panel’s ruling on this case could have broader implications for the enforceability of waivers in similar accident cases involving ski resorts and other recreational activities. Ongert further emphasized that Litterer’s claim for willful and wanton conduct, which is exempt from waivers, should also be reinstated, regardless of the waiver issue.

Judges Lino S. Lipinsky de Orlov, Pax L. Moultrie, and Sueanna P. Johnson are presiding over the appeal. Litterer is represented by Joseph D. Bloch and Trenton J. Ongert of Bloch & Chapleau Cates Ongert LLC, while Vail Summit Resorts and McClure are represented by Michael J. Hofmann and Kaitlin M. DeWulf of Bryan Cave Leighton Paisner LLP.

The case is John Litterer v. Vail Summit Resorts Inc. et al., case number 2024CA480, in the Colorado Court of Appeals.