26CO65 | Omnilex

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prayer for exemplary damages could attach, plaintiff’s prayer was also properly
dismissed.
Finally, the court distinguishes this case from Miller v. Crested Butte, LLC,
2024 CO 30, 549 P.3d 228. Miller governs the validity of exculpatory agreements
executed prior to an injury, while this case concerns a post-injury release.
Accordingly, the court affirms the dismissal of plaintiff’s claims.

The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2026 CO 65
Supreme Court Case No. 25SC134
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 24CA480
Petitioner:
John Litterer,
v.
Respondents:
Vail Summit Resorts, Inc., a corporation, and Dwight McClure.
Judgment Affirmed
en banc
September 21, 2026
Attorneys for Petitioner:
Bloch Ongert, LLC
Joseph D. Bloch
Trenton J. Ongert
Elan Z. Goldstein
Denver, Colorado
Attorneys for Respondents:
Bryan Cave Leighton Paisner LLP
Michael J. Hofmann
Kaitlin M. DeWulf
Denver, Colorado

2
JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which
CHIEF JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, and JUSTICE
BLANCO joined.
JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE
SAMOUR, dissented.

3
JUSTICE BERKENKOTTER delivered the Opinion of the Court.
¶1 This case requires us to decide whether a division of the court of appeals
erred in concluding that John Litterer released the claims he alleged against Vail
Summit Resorts, Inc. (“VSRI”) and Dwight McClure (collectively “respondents”)
when he purchased a five-day Epic Pass for the 2022–23 ski season.
¶2 Litterer sustained injuries in a snowboarder-snowmobile collision at
Breckenridge Ski Resort (“Breckenridge”) in December 2020. Breckenridge is
owned by VSRI. McClure, the snowmobile driver, is a VSRI employee. Litterer
subsequently brought multiple claims against respondents. While his case was in
active litigation, Litterer decided to return to Breckenridge for a ski trip, so he
purchased an Epic Pass for the 2022–23 ski season.
¶3 During the online purchasing process, Litterer executed a “Release of
Liability, Waiver of Claims, Assumption of Risks[,] and Indemnity Agreement”
(“the 2022 online waiver”). It provided that “[i]n consideration for allowing the
Participant to participate in the Activity [defined to include snowboarding], I
FURTHER RELEASE AND GIVE UP ANY AND ALL CLAIMS AND RIGHTS
THAT I MAY NOW HAVE AGAINST ANY RELEASED PARTY.” The term
“Released Party” is defined as including VSRI and its employees.
¶4 After respondents filed a motion for summary judgment, arguing that
Litterer waived his claims against them, the district court agreed and dismissed all

4
of Litterer’s then-remaining claims with prejudice. Litterer v. Vail Summit Resorts,
Inc., No. 22CV30043, at 23 (Dist. Ct., Summit Cnty., Jan. 16, 2024) (unpublished
order). Litterer appealed, and a division of the court of appeals affirmed the
judgment. Litterer v. Vail Summit Resorts, Inc., No. 24CA480, ¶ 1 (Jan. 30, 2025).
¶5 We granted certiorari.1 We now conclude that (1) the 2022 online waiver
operates as a release, not an exculpatory agreement; (2) Litterer’s claims for willful
and wanton conduct and his prayer for exemplary damages were properly
dismissed; and (3) the division did not err in declining to address whether Miller v.
Crested Butte, LLC, 2024 CO 30, ¶ 49, 549 P.3d 228, 237, is applicable here because
that case concerns pre-injury exculpatory agreements, not post-injury releases.
Accordingly, we affirm the division’s judgment.
1 We granted certiorari to review the following three issues:
1. Whether the court of appeals erred when it held all of petitioner’s
claims against respondents were waived when he purchased a
2022–2023 Epic Pass.
2. Whether the court of appeals erred when it upheld the dismissal
of petitioner’s willful and wanton conduct and exemplary
damages claim.
3. Whether the court of appeals erred when it failed to address
whether Vail’s exculpatory agreements bar petitioner’s claim for
negligence per se under this court’s decision in Miller v. Crested
Butte, LLC, 2024 CO 30, 549 P.3d 228 . . . .

5
I. Facts and Procedural History
¶6 Litterer was injured in December 2020, while snowboarding at
Breckenridge, when he and a snowmobile operated by McClure collided. The
parties’ characterization of the collision is not particularly relevant to the legal
questions before us. Suffice it to say, the parties see things quite differently.
¶7 Prior to his injury, Litterer had executed two online agreements in
connection with his purchase of a 2020–21 Epic Pass. He electronically signed a
“Release of Liability, Waiver of Claims, Assumptions of Risk Warning[,] and
Indemnification Agreement” in March 2020. He also agreed to a “Release of
Liability & Assumption of Risks Agreement,” which was on the back of the Epic
Pass.2
¶8 Litterer filed several claims against respondents after the collision, which
respondents sought to dismiss. The district court dismissed Litterer’s common
law tort claims against VSRI, finding that the Colorado Premises Liability Act
(“PLA”), § 13-21-115, C.R.S. (2025), preempted them. Litterer v. Vail Summit
Resorts, Inc., No. 22CV30043, at 12 (Dist. Ct., Summit Cnty., Nov. 14, 2022)
(unpublished order). It also dismissed Litterer’s willful and wanton conduct and
reckless endangerment claims against respondents, concluding that they are not
2 For simplicity, we refer to the two 2020 agreements as “the 2020 online waivers.”

6
cognizable causes of action in Colorado. Four claims then remained: three against
McClure (negligence, negligence per se, and “extreme and outrageous conduct”)
and one against VSRI (negligence to an invitee under the PLA). The trial court
later permitted Litterer to amend his complaint to include a prayer for exemplary
damages against respondents.
¶9 After he filed the lawsuit, Litterer purchased an Epic Pass for the 2022–23 ski
season online. In connection with that purchase, he executed an online form,
which stated in part:
WARNING: PLEASE READ CAREFULLY BEFORE SIGNING! THIS
IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL
RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM
COMPENSATION[.]
. . . .
In consideration for allowing the Participant to participate in the
Activity, I FURTHER RELEASE AND GIVE UP ANY AND ALL
CLAIMS AND RIGHTS THAT I MAY NOW HAVE AGAINST ANY
RELEASED PARTY AND UNDERSTAND THIS RELEASES ALL
CLAIMS, INCLUDING THOSE OF WHICH I AM NOT AWARE,
THOSE NOT MENTIONED IN THIS RELEASE AND THOSE
RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO
NOW.
As noted, the 2022 online waiver defined the term “Released Party” to include
VSRI and its employees.
¶10 Respondents moved for summary judgment, arguing that Litterer released
all claims against them when he purchased an Epic Pass for the 2022–23 ski season

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and executed the 2022 online waiver. The district court agreed, emphasizing that
the 2022 online waiver—which Litterer signed after the collision, after he filed suit,
and while his claims continued to be litigated—operated as a release agreement,
not an exculpatory agreement.
¶11 Consequently, the court concluded that the factors set forth in Jones v.
Dressel, 623 P.2d 370, 376 (Colo. 1981), concerning the validity of an exculpatory
agreement, did not apply. Instead, the district court looked to contract principles
and determined that adequate consideration supported the waiver. Therefore, it
concluded that Litterer validly released all his claims against respondents and
granted their motion for summary judgment.
¶12 Litterer appealed, asserting that the district court erred in (1) granting
summary judgment on his negligence per se claim against McClure because of this
court’s decision in Miller, ¶ 2, 549 P.3d at 231; (2) concluding that Litterer released
all his claims when he purchased the 2022–23 Epic Pass; (3) dismissing his claim
for willful and wanton conduct against both respondents; and (4) rejecting what
he characterized as his “claim” for exemplary damages.
¶13 The division disagreed. To begin, it declined to address whether this court’s
decision in Miller “announced a blanket rule prohibiting ski resorts from using
exculpatory agreements to bar negligence per se claims based on any statute.”

8
Litterer, ¶ 10. It did so after concluding that Litterer’s claims were barred by the
liability waiver he signed when he purchased the 2022–23 Epic Pass. Id.
¶14 Turning to the 2022 online waiver, the division agreed with respondents
that Litterer had released his existing claims against them because he executed the
liability waiver with his purchase of the 2022–23 Epic Pass. Id. at ¶ 26. The
division was unpersuaded by Litterer’s contentions that he did not agree to the
waiver because there was no mutual assent, that the waiver was unconscionable,
and that it could not bar all his claims. Id. at ¶ 21. In reaching its decision, the
division first distinguished the 2022 online waiver from the 2020 online waivers,
which sought to limit future negligence claims against VSRI and its employees.3
See id. at ¶ 24. The 2020 online waivers thus constituted exculpatory agreements
that “must be closely scrutinized.” Id. at ¶ 23 (quoting Jones, 623 P.2d at 376).
¶15 The 2022 online waiver, which limited past claims, was a different matter.
The division concluded that it was a release, rather than an exculpatory agreement,
with respect to Litterer’s claims against respondents arising out of his 2020
collision with the snowmobile. Id. at ¶¶ 24–25. As a release, the division
3 The pertinent language in the 2020 online waivers provides: “In consideration for
allowing the pass holder to participate in the Activity, I AGREE, to the greatest
extent permitted by law, TO WAIVE ANY AND ALL CLAIMS AGAINST AND
TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE [the
Released Party].”

9
determined that the 2022 online waiver should be analyzed according to “general
contractual rules of interpretation and construction.” Id. at ¶ 23 (quoting
Bunnett v. Smallwood, 793 P.2d 157, 159 (Colo. 1990)).
¶16 Accordingly, the division turned to address mutual assent and determined
that Litterer’s “purchase, acceptance, and use of the 2022–23 Epic Pass was
sufficient conduct to demonstrate his assent to the terms of the 2022 online
waiver.” Id. at ¶ 25. Litterer electronically signed the waiver, which was a
condition of using the ski pass at a VSRI resort. Id. at ¶ 26. In doing so, Litterer
unambiguously agreed to “waive any and all claims” to access VSRI resorts during
the 2022–23 ski season. Id. What’s more, because a party who signs a contract is
presumed to know its contents, Litterer could not avoid his contractual obligations
by claiming that he didn’t read the agreement. Id. at ¶ 27.
¶17 The division also briefly discussed the alleged unconscionability of the 2022
online waiver. Id. at ¶ 28. It determined that Litterer’s argument was conclusory
and underdeveloped and thus declined to resolve the argument. Id. As such, the
division ultimately held that the 2022 online waiver was enforceable and released
all of Litterer’s claims against respondents. Id. at ¶ 29.
¶18 The division then examined Litterer’s contention that the district court erred
by dismissing his claim against respondents for willful and wanton conduct. Id.
at ¶ 32. It disagreed, reasoning that Litterer’s arguments regarding his claim for

10
willful and wanton conduct were moot because the 2022 online waiver barred his
claims against respondents. Id. at ¶ 38.
¶19 Next, the division rejected Litterer’s assertion that the district court erred by
dismissing his prayer for exemplary damages. Id. at ¶ 39. It opined that Litterer’s
claim for exemplary damages could not stand because it does “not present a
separate, distinct cause of action,” and is not, in the alternative, synonymous with
a gross negligence claim. Id. at ¶ 47 (quoting Ferrer v. Okbamicael, 2017 CO 14M,
¶ 44, 390 P.3d 836, 848).
¶20 The division thus affirmed the district court’s entry of summary judgment
in favor of McClure and VSRI. Id. at ¶ 49.
¶21 Litterer then petitioned this court for certiorari review, which we granted.
II. Analysis
¶22 We begin by outlining the standard of review before discussing the law
governing post-injury releases and exculpatory agreements. We then apply those
principles and conclude that the 2022 online waiver operated as an enforceable
release agreement that barred Litterer’s remaining claims. Next, we explain that
the district court did not err in dismissing Litterer’s willful and wanton conduct
claim because, as pled, it is not a separate, cognizable claim upon which relief may
be granted. Thus, the court correctly concluded that since all his claims for relief
were dismissed, there was no claim for relief to which Litterer’s prayer for

11
exemplary damages could attach. Finally, we address this court’s recent decision
in Miller and explain that the division did not err in declining to address it here
because Miller governs the validity of waivers that are signed and executed before
the injury. We therefore affirm the judgment of the court of appeals.
A. Standard of Review
¶23 We review a district court’s decision granting summary judgment de novo
as it is ultimately a question of a law. W. Elk Ranch, L.L.C. v. United States, 65 P.3d
479, 481 (Colo. 2002). Questions concerning the interpretation of a contract are also
questions of law, and thus also subject to de novo review. Fed. Deposit Ins. Corp. v.
Fisher, 2013 CO 5, ¶ 9, 292 P.3d 934, 937.
1. The 2022 Online Waiver Released Litterer’s Claims
Against Respondents
¶24 Litterer challenges the lower courts’ characterization of the 2022 online
waiver as a release. In his view, the waiver operated as an exculpatory agreement
even though he executed the waiver after he filed his lawsuit. He additionally
contends that the 2022 online waiver is unenforceable because he never intended
to dismiss his claims and the terms of the waiver were overly broad. We are
not convinced.
¶25 “A release is the relinquishment of a vested right or claim to a person against
whom the claim is enforceable.” Neves v. Potter, 769 P.2d 1047, 1049 (Colo. 1989).
Through a release, “one party relinquishes all its claims against another for

12
consideration.” CMCB Enters., Inc. v. Ferguson, 114 P.3d 90, 96 (Colo. App. 2005).
“Once a claim is released, the release bars the injured party from seeking further
recovery.” Id.
¶26 Traditional rules of contract interpretation and construction apply to
releases. Bunnett, 793 P.2d at 159. To be enforceable, a release requires “mutual
assent to an exchange between competent parties for legal consideration.”
French v. Centura Health Corp., 2022 CO 20, ¶ 26, 509 P.3d 443, 449. The parties’
acts, conduct, and words, along with the attendant circumstances, establish assent.
Id. at ¶ 27, 509 P.3d at 449. It is well-settled that the “subjective, unexpressed intent
by either party” is irrelevant when determining whether the parties mutually
assented to the agreement. Id.
¶27 A release is enforceable when there is “mutual assent to the terms . . . and
legal consideration.” Univ. of Denv. v. Doe, 2024 CO 27, ¶ 47, 547 P.3d 1129, 1139.
Colorado, with its “strong policy of freedom of contract,” Ravenstar, LLC v. One Ski
Hill Place, LLC, 2017 CO 83, ¶ 12, 401 P.3d 552, 555, recognizes the existence of an
implied contract through “words or conduct that, when objectively viewed,
manifests an intent to accept an offer,” Marquardt v. Perry, 200 P.3d 1126, 1129
(Colo. App. 2008).
¶28 To that end, contracts must be construed in a way that reflects the “intent of
the parties and allows each party to receive the benefit of the bargain.” Ravenstar,

13
¶ 12, 401 P.3d at 555 (quoting Allstate Ins. Co. v. Avis Rent-A-Car Sys., Inc., 947 P.2d
341, 346 (Colo. 1997)). “Contracts between competent parties, voluntarily and
fairly made, should be enforceable according to the terms to which they freely
commit themselves.” Id. (quoting Keller v. A.O. Smith Harvestore Prods., Inc.,
819 P.2d 69, 75 (Colo. 1991) (Rovira, C.J., dissenting)).
¶29 In contrast, exculpatory agreements attempt to insulate parties from their
own negligence. Miller, ¶ 45, 549 P.3d at 237. Such agreements warrant close
scrutiny. Id. We must, therefore, begin any analysis of exculpatory agreements by
considering whether they are valid and enforceable. To do so, we analyze the four
factors that we outlined in Jones: “(1) the existence of a duty to the public; (2) the
nature of the service performed; (3) whether the contract was fairly entered into;
and (4) whether the intention of the parties is expressed in clear and unambiguous
language.” 623 P.2d at 376.
¶30 Applying all these principles, we conclude that the 2022 online waiver
operates as a release. As the division noted, Litterer had vested claims pending in
this case when he agreed to the 2022 online waiver. That is, the 2022 online waiver
was electronically executed by Litterer post-injury, well after he commenced this
litigation against VSRI and McClure. The waiver was spelled out in great detail in
large capital letters. It warned him to “PLEASE READ CAREFULLY BEFORE
SIGNING[]” because the agreement was “A RELEASE OF LIABILITY WAIVER

14
OF CERTAIN LEGAL RIGHTS.” A conspicuous reminder placed roughly
halfway through the agreement once again alerted Litterer in all capital letters to
the legal ramifications of signing the document. By agreeing to its terms, Litterer
“FURTHER RELEASE[D] AND [GAVE] UP ANY AND ALL CLAIMS” that he had
against respondents.
¶31 Litterer doesn’t dispute that he purchased the 2022–23 Epic Pass, completed
the 2022 online waiver, and then used the pass to snowboard at Breckenridge. But
he nonetheless contends that the 2022 online waiver is not an enforceable contract
because he did not assent to it. This is so, he explains, because he did not intend
to release his claims against respondents, and because he lacked negotiating
power. We are unpersuaded.
¶32 We need look only at Litterer’s actions to determine that he demonstrated
his assent to the terms of the 2022 online waiver. His subjective and unexpressed
intent or understanding of the waiver is irrelevant to the issue of assent. The
requisite meeting of the minds is established by the parties’ acts, conduct, and
words, along with the attendant circumstances, and not by any subjective,
unexpressed intent by either party. French, ¶ 27, 509 P.3d at 449.
¶33 And here, as we already explained, Litterer electronically signed the 2022
online waiver, which warned him to “PLEASE READ CAREFULLY BEFORE
SIGNING[]” because the agreement was “A RELEASE OF LIABILITY WAIVER

15
OF CERTAIN LEGAL RIGHTS.” If what Litterer means is that he did not assent
because he did not read the electronic form, we note simply that one generally
cannot avoid contractual obligations by claiming they did not read the contract.
Macasero v. ENT Credit Union, 2023 COA 40, ¶ 18, 533 P.3d 982, 988. And while
Litterer may have lacked the ability to negotiate the terms of the release when
obtaining the 2022–23 Epic Pass after his injury, he had options. He could have
purchased a ski pass that would have allowed him to snowboard at any of
Colorado’s many other ski resorts that are not owned by VSRI. Instead, he chose
to sign the waiver so he could snowboard at Breckenridge again.
¶34 We also reject Litterer’s argument that the 2022 online waiver is overly
broad and unenforceable. In so doing, we decline to adopt the reasoning of the
sole case he cites in support, Farina v. Mt. Bachelor, Inc., 66 F.3d 233 (9th Cir. 1995).
There, the petitioner sued a ski resort after he sustained multiple fractures from
skiing into an unmarked boulder. Id. at 234. Prior to the accident, Farina completed
a season pass application, which included the following language:
In consideration of my participation in skiing, and use of this season
pass and Mt. Bachelor’s facilities, I agree to release from liability and
to indemnify and hold harmless Mt. Bachelor, Inc., and their officers
and directors, owners, agents . . . and employees . . . from any and all
claims, losses, and liabilities . . . that I may now have or which I may
hereafter have for injury or death to myself . . . .
Id.

16
¶35 Applying Oregon law, the Ninth Circuit held that the release clause violated
public policy and was unenforceable because it sought to exculpate Mt. Bachelor
from liability “for more than ordinary negligence, including gross negligence and
wanton or [willful] misconduct,” and for “any and all claims that an injured skier
might bring against it.” Id. at 235–36 (emphasis added). And because the parties
did not manifest an intent that the release provision be severable, the court held
that the entire release was invalid. Id. at 236.
¶36 We are not bound by the law of any federal circuit court, see Compass Ins.
Co. v. City of Littleton, 984 P.2d 606, 617 n.11 (Colo. 1999), and we decline to extend
Farina’s reasoning here because it is materially distinguishable from this case.
There, the Ninth Circuit held that the waiver at issue was overbroad because Mt.
Bachelor sought to exculpate itself for any and all claims that an injured participant
might bring against it, including gross negligence and willful misconduct, even
though the Oregon Supreme Court had previously concluded that an exculpatory
clause is only legal if it seeks to exempt liability for ordinary negligence. Farina,
66 F.3d at 236.
¶37 That logic does not extend, however, to the exculpatory clause in the 2022
online waiver, the one that concerns prospective claims against released parties.
That waiver, we emphasize, is limited by its express terms “to the greatest extent

17
permitted by law.”4 That is, the waiver applies only to prospective claims to the
extent allowed under Miller. And notably, Farina involved a pre-injury waiver.
Unlike here, the Farina court was not asked to answer whether a post-injury waiver
of claims constitutes an exculpatory agreement.
¶38 Litterer’s position with respect to the settlement of post-injury claims is also
untenable as a practical matter. At oral argument, counsel argued that no party
should be able to release these types of post-injury claims. When pressed about
the sweeping and problematic consequences of such a rule, which would prevent
parties from ever settling claims, counsel was unable to draw a line that wouldn’t
wipe out all waivers and thus all settlements. Unsurprisingly, there is no law to
support that position.
¶39 Finally, Litterer urges this court to reverse the division because, in his view,
the General Assembly has repeatedly been unwilling to enact laws that enhance
skier safety and ski resort accountability. That, of course, is not a reason for us to
act. Such policy decisions are within the province of the legislature, not this court.
So, to the extent the operation of the 2022 online waiver here, as it relates to
4 The pertinent language in the 2022 online waiver provides: “In consideration for
allowing the pass holder to participate in the Activity, I AGREE, to the greatest
extent permitted by law, TO WAIVE ANY AND ALL CLAIMS AGAINST AND TO
HOLD HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE [the
Released Party].” (Emphasis added.)

18
post-injury waiver of claims, may seem draconian to some, that is a public policy
matter best left to the General Assembly.
¶40 For these reasons, we conclude that the 2022 online waiver released
Litterer’s claims against respondents.
2. Litterer’s Claims for Willful and Wanton Conduct and
Exemplary Damages Are Not Cognizable
¶41 Litterer contends that the division erred in upholding the district court’s
dismissal of his willful and wanton conduct and exemplary damages claims. In
particular, he relies on settled Colorado law regarding exculpatory agreements:
“In no event will an [exculpatory] agreement provide a shield against a claim for
willful and wanton negligence.” Jones, 623 P.2d at 376. Said differently, because a
release may not bar a claim for willful and wanton conduct, Litterer asserts that
his claim for exemplary damages should also be reinstated. Like the division, we
are unconvinced.
¶42 “Willful and wanton conduct” is not an independent tort in Colorado or
elsewhere. 3 Stuart M. Speiser et al., American Law of Torts § 10:3, Westlaw
(database updated Feb. 2026); see also Carani v. Meisner, No. 08-cv-02626-MSK-CBS,
2009 WL 2762719, at *4 (D. Colo. Aug. 26, 2009) (explaining that the court could
not identify a single case that “recognizes and defines a separate, actionable claim
based simply on a party engaging in willful and wanton conduct towards
another”). “[W]illful and wanton conduct” as used here is not a separate claim for

19
relief, but rather a descriptive phrase “nested within subsection 13-21-102(1)(b),
[C.R.S. (2025)].” Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1085 (Colo. 2011). It
thus tends to operate as a circumstance, setting forth the standard by which courts
assess the allocation of exemplary damages. § 13-21-102(1)(a) (showing that the
underlying civil action must be accompanied “by circumstances of . . . willful and
wanton conduct”) (emphasis added); CJI-Civ. 9:30 (2026) (defining “willful and
wanton conduct” and explaining that it should be used with the jury instructions
governing exemplary damages); CJI-Civ. 5:4 (2026) (explaining that an exemplary
damages claim requires proof that the defendant acted in a “willful and wanton
manner” beyond a reasonable doubt); see also Qwest Servs. Corp., 252 P.3d at 1092.
¶43 That is to say, rather than functioning as an independent claim, proof of
“willful and wanton conduct” may support a claim for exemplary damages when
a party prevails on an underlying claim for damages. Ferrer, ¶ 44, 390 P.3d at 848
(concluding that section 13-21-102 has no application without a successful
underlying claim for actual damages). Likewise, an award of exemplary damages
“is not a separate and distinct cause of action,” so it must attach to “an underlying
and independent ‘civil action’ in which actual damages are assessed for a legal
wrong done to the injured party.” Mortg. Fin., Inc. v. Podleski, 742 P.2d 900, 903
(Colo. 1987) (quoting Palmer v. A.H. Robins Co., 684 P.2d 187, 213 (Colo. 1984)).

20
¶44 For these reasons, the district court properly dismissed Litterer’s claim for
willful and wanton conduct. Additionally, even if we accepted Litterer’s
contention that he properly pled a claim for gross negligence because it is
“synonymous” with willful and wanton conduct, the 2022 online waiver operates
as a release, barring all of Litterer’s claims. That is to say, there is no independent
action to which the exemplary damages may be attached. Ferrer, ¶ 44, 390 P.3d
at 848.
¶45 Ultimately, Litterer’s willful and wanton conduct claim fails as a matter of
law because it is not a separate, cognizable cause of action. And because the
district court correctly concluded that the 2022 online waiver released all of
Litterer’s claims, there is no “underlying and independent ‘civil action’” to which
exemplary damages may attach. Mortg. Fin., Inc., 742 P.2d at 903 (quoting Palmer,
684 P.2d at 213). Accordingly, the district court did not err in dismissing Litterer’s
claim for willful and wanton conduct and his prayer for exemplary damages.
3. Miller Does Not Apply to the 2022 Online Waiver
¶46 Litterer next argues that the division erred in failing to consider Miller.
According to Litterer, Miller’s scope was not limited to exculpatory agreements
because it explicitly stated that ski resorts “may not absolve [themselves], by way
of private release agreements, of liability for violations of the statutory and

21
regulatory duties on which [a] negligence per se claim is based.” ¶ 55, 549 P.3d
at 238.
¶47 We disagree. Miller does not apply here. There, Miller signed two
agreements, one for himself and another on behalf of his daughter, when
purchasing Epic passes. Id. at ¶¶ 6–8, 549 P.3d at 231–32. Miller’s daughter
subsequently sustained major injuries after falling from a chair lift. Id. at ¶ 9,
549 P.3d at 232. Miller sued the ski resort for negligence per se based on violations
of the Ski Safety Act of 1979, §§ 33-44-101 to -114, C.R.S. (2023), the Passenger
Tramway Safety Act, §§ 12-150-101 to -120, C.R.S. (2023), and regulations
promulgated thereunder. Miller, ¶ 11, 549 P.3d at 232. This court held that ski
areas may not absolve themselves of liability for claims related to certain statutory
duties by way of exculpatory agreements executed pre-injury. Id. at ¶¶ 36–37,
549 P.3d at 235–36.
¶48 Litterer misreads Miller in two regards. First, by claiming that Miller applies
to post-injury release agreements, Litterer detaches the holding from the reasoning
on which it is based, including that “settled precedent from this court has
established that a party cannot discharge its obligation to perform a statutory duty
by way of an exculpatory agreement.” ¶ 36, 549 P.3d at 235–36 (emphasis added).
Second, Miller arises from a factual scenario that does not apply here. Miller
considers the validity of waivers that are signed and executed before the injury. See

22
id. at ¶¶ 7–10, 549 P.3d at 231–32. As we observed above, the 2022 online waiver
operates as a release, not an exculpatory agreement, because it was executed after
the injury. For these reasons, Miller does not apply, and the division below did
not err in declining to address it.
III. Conclusion
¶49 We conclude that (1) the 2022 online waiver operates as a release, not an
exculpatory agreement; (2) Litterer’s claim for willful and wanton conduct and
prayer for exemplary damages were properly denied; and (3) Miller is inapplicable
here because it governs pre-injury exculpatory agreements, not post-injury
releases. Accordingly, we affirm the judgment of the court of appeals.
JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE
SAMOUR, dissented.

1
JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE SAMOUR,
dissenting.
¶50 In this action arising from John Litterer’s purchase of a ski pass, the majority,
purporting to apply settled principles of contract law, provides the ski industry
with an extraordinary perpetual pass of its own. Under today’s ruling, the ski
industry may avoid a limitless range of liability—including liability for damages
caused by its gross negligence and willful and wanton conduct and for causes of
action that injured parties do not even know that they have—by burying
exceptionally broad release language in the click-through, lengthy boilerplate
document that unwitting patrons check off when they buy their ski passes.
¶51 Because I believe that under settled principles of law regarding exculpatory
agreements, the release at issue is void as against public policy, and because I
further believe that the majority’s decision is unjust to Litterer and will result in
manifest injustice to innumerable unsuspecting ski pass purchasers like him, I
respectfully dissent.
I. Factual and Procedural Background
¶52 I need not repeat the majority’s recitation of the facts of this case. Instead, I
highlight the facts that are most pertinent to my analysis.
¶53 In December 2020, while snowboarding at the Breckenridge Ski Area,
Litterer collided with a snowmobile operated by an employee of Vail Summit
Resorts, Inc. (“Vail Resorts”). He subsequently sued Vail Resorts and the

2
employee (collectively, “Defendants”), alleging multiple claims, including a
premises liability claim against Vail Resorts and a claim for negligence per se
against the employee based on alleged violations of section 33-14-116, C.R.S.
(2025), of the Colorado Snowmobile Safety Act. In the latter claim, Litterer alleged,
as pertinent here, that the employee had operated the snowmobile in such a
manner as to indicate a wanton or willful disregard for the safety of persons and
property. Litterer also sought exemplary damages from both Vail Resorts and the
employee.
¶54 While his lawsuit was pending, Litterer, who had recovered sufficiently
from his injuries, purchased a new Epic Pass online. His purchase required him
to agree to, among other things, a click-through Release of Liability, Waiver of
Claims, Assumption of Risks and Indemnity Agreement (“Release”). This Release
was four single-spaced pages long, comprising seventeen paragraphs, and was
replete with legal terminology.
¶55 As the majority points out, Maj. op. ¶ 9, the Release begins by stating, in
block capital letters, “WARNING: PLEASE READ CAREFULLY BEFORE
SIGNING! THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL
RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION.”
¶56 Immediately following that forward-looking “RELEASE OF LIABILITY
WAIVER” are several paragraphs acknowledging that skiing and snowboarding

3
can be dangerous and requiring a signatory to assume “ALL INHERENT
DANGERS AND RISKS” of “the Activity” (as defined in the Release). Then,
following two paragraphs regarding Hunter Mountain in New York and
COVID-19, the Release provides a lengthy paragraph requiring the signatory to
“acknowledge and assume all additional risks and dangers that may result in
property damage, physical injury and/or death, which may be above and beyond
the inherent dangers and risks of the Activity,” after which the paragraph sets out
a sixteen-line-long list of such risks.
¶57 Following an intervening paragraph stating that a participant assumes
responsibility for maintaining control while engaging in the activity, the signer
finally arrives at paragraph 7, on the bottom half of the second page of the Release,
which is the language on which the majority relies to conclude that Litterer validly
released his existing claims against Vail Resorts and its employee. That language
reads, in full, as follows:
7. In consideration for allowing the Participant to participate in the
Activity, I AGREE, to the greatest extent permitted by law, TO
WAIVE ANY AND ALL CLAIMS AGAINST AND TO HOLD
HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE
Vail Resorts, Inc., The Vail Corporation, Trimont Land Company,
Heavenly Valley, Limited Partnership, VR US Holdings, Inc., VR US
Holdings II, LLC, VR CPC Holdings, Inc., VR NW Holdings, Inc., VR
NE Holdings, LLC, Whistler Blackcomb Holdings Inc., Blackcomb
Skiing Enterprises Limited Partnership, Whistler Mountain Resort
Limited Partnership, Vail Holdings, Inc., Peak Resorts, Inc., VR PA
Holdings, Inc., Andermatt-Sedrum Sport AG, each of their affiliated
companies and subsidiaries, the resort owner/operator inclusive of

4
any partner resort owner/operator, land owner, activity operator, the
equipment manufacturer, The Burton Corporation, Beaver Creek
Resort Company, TSG Ski Golf, LLC, the family of companies
operating Resorts of the Canadian Rockies, Inc., the United States, His
Majesty the King In Right Of The Province Of British Columbia and
all their respective insurance companies, successors in interest,
commercial corporate sponsors, affiliates, agents, employees,
representatives, assignees, officers, directors, and shareholders (each
a Released Party) FOR ANY INJURY, INCLUDING DEATH, LOSS,
PROPERTY DAMAGE OR EXPENSE, WHICH I OR PARTICIPANT
MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF
PARTICIPANTS [sic] PARTICIPATION IN THE ACTIVITY,
INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON
ANY RELEASED PARTYS [sic] ALLEGED OR ACTUAL
NEGLIGENCE OR BREACH OF ANY EXPRESS OR IMPLIED
WARRANTY OR BREACH OF ANY STATUTORY OR OTHER
DUTY OF CARE, INCLUDING IN BRITISH COLUMBIA ANY DUTY
OF CARE UNDER THE OCCUPIERS [sic] LIABILITY ACT. I
UNDERSTAND THAT NEGLIGENCE INCLUDES FAILURE ON
THE PART OF ANY RELEASED PARTY TO TAKE REASONABLE
STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS,
DANGERS AND HAZARDS OF THE ACTIVITY.
In consideration for allowing the Participant to participate in the
Activity, I FURTHER RELEASE AND GIVE UP ANY AND ALL
CLAIMS AND RIGHTS THAT I MAY NOW HAVE AGAINST ANY
RELEASED PARTY AND UNDERSTAND THIS RELEASES ALL
CLAIMS, INCLUDING THOSE OF WHICH I AM NOT AWARE,
THOSE NOT MENTIONED IN THIS RELEASE AND THOSE
RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO
NOW.
¶58 The Release then proceeds for ten additional paragraphs, but those are not
pertinent to my analysis.
¶59 Notably, the paragraphs of the Release preceding paragraph 7, which
comprise the first one and a half pages of the document, would have looked to any

5
reasonable person like the form assumption of risk language that is on the back of
every ski pass and, therefore, would not have alerted a reasonable purchaser that
by agreeing to the Release, they would be surrendering claims in pending
litigation. The following chart is illustrative:
RELEASE SKI PASS
RELEASE OF LIABILITY, WAIVER OF
CLAIMS, ASSUMPTION OF RISKS
AND INDEMNITY AGREEMENT
RELEASE OF LIABILITY &
ASSUMPTION OF RISKS
AGREEMENT
1. . . . I understand that . . . skiing [and]
snowboarding . . . can be
HAZARDOUS AND INVOLVE THE
RISK OF PHYSICAL INJURY
AND/OR DEATH.
HOLDER AGREES AND
UNDERSTANDS THAT SKIING,
SNOWBOARDING AND USING A
SKI AREA, INCLUDING LIFTS,
CAN BE HAZARDOUS AND
INVOLVE THE RISK OF PHYSICAL
INJURY AND/OR DEATH.
2. I understand the dangers and risks of
the Activity and that the Participant
ASSUMES ALL INHERENT
DANGERS AND RISKS of the Activity,
including those of a skier (as may be
defined by statute or other applicable
law) or other winter sports participant.
Under the law, the Holder of this pass
assumes the risk of any injury to
person or property resulting from any
of the inherent dangers and risks of
skiing.
7. . . . I AGREE, to the greatest extent
permitted by law, TO WAIVE ANY
AND ALL CLAIMS AGAINST AND
TO HOLD HARMLESS, RELEASE,
INDEMNIFY, AND AGREE NOT TO
SUE [ski areas and their employees,
among others].
HOLDER AGREES NOT TO SUE and
to hold the ski area and its employees
harmless for claims to person or
property.
¶60 When ski pass purchasers finally reach paragraph 7 of the Release, they first
read a lengthy exculpatory clause, purporting to agree, “to the greatest extent

6
permitted by law, TO WAIVE ANY AND ALL CLAIMS AGAINST AND TO
HOLD HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE” Vail
Resorts, its employees, and many others for injuries arising out of the participant’s
participation in the Activity. This forward-looking exculpatory clause is followed
by a separate paragraph purporting to release all claims that the participant may
have against any released party, including “ALL CLAIMS, INCLUDING THOSE
OF WHICH I AM NOT AWARE, THOSE NOT MENTIONED IN THIS RELEASE
AND THOSE RESULTING FROM ANYTHING WHICH HAS HAPPENED UP
TO NOW.”
¶61 Approximately one year after Litterer purchased his Epic Pass, and
notwithstanding the fact that the parties had actively litigated this case throughout
that year-long period, Defendants, for the first time, asserted that the second part
of the above-quoted paragraph 7 of the Release operated to release the claims that
Litterer was asserting in his pending litigation. Defendants moved for summary
judgment, the district court granted that motion, a division of our court of appeals
affirmed, and the case is now before us.
II. Analysis
¶62 I begin by addressing the majority’s fundamental premise that the Release
did not operate as an exculpatory agreement because Litterer purchased his Epic
Pass after and not before he was injured. Maj. op. ¶¶ 5, 24–30, 49. After

7
concluding that this premise finds no support in the law and that the Release was,
in fact, largely an exculpatory agreement, I discuss the settled legal principles
concerning exculpatory agreements that are pertinent to my analysis. I then apply
those principles to the facts before us.
A. Nature of the Release
¶63 The majority concludes that the Release did not operate as an exculpatory
agreement because Litterer purchased his Epic Pass after and not before he was
injured. Id. I respectfully disagree with this fundamental premise of the majority’s
opinion.
¶64 To reach its conclusion that the Release did not operate as an exculpatory
agreement, the majority ignores much, if not most, of the language of the Release.
As discussed at length above, the bulk of the Release’s language was
forward-looking and purported to exculpate Vail Resorts, its employees, and
many others for injuries arising out of a participant’s participation in ski or
snowboard activities. The release language on which Defendants and the majority
rely comprised one sentence following the Release’s lengthy exculpatory
provisions.
¶65 Rather than focusing on what the Release actually said, the majority focuses
on the timing of Litterer’s injury. Specifically, the majority concludes that the
Release did not operate as an exculpatory agreement because it was entered into

8
after Litterer was injured. Id. In so concluding, the majority appears to agree with
the division’s determination that the timing of Litterer’s injury distinguished the
Release from the 2020 online waivers, which were entered into before Litterer’s
injury and thus rendered them exculpatory in nature. Id. at ¶¶ 14–15.
¶66 I am aware of no applicable authority supporting the majority’s premise that
the meaning of contract language changes depending on when a contract is signed,
and the majority cites no such authority. To the contrary, in my view, the
contract’s language controls, and identical language should be construed the same
way, regardless of when the contract is signed. See French v. Centura Health Corp.,
2022 CO 20, ¶ 25, 509 P.3d 443, 449 (noting that in interpreting a contract our
primary goal is to effectuate the intent of the parties and that “[t]he parties’ intent
is primarily determined from the language of the instrument itself”).
¶67 Accordingly, I would conclude that the Release was in large part an
exculpatory agreement, and I would analyze Litterer’s claims based on that
premise.
B. Pertinent Legal Principles
¶68 The sufficiency and validity of an exculpatory agreement presents a
question of law for a court’s determination. Jones v. Dressel, 623 P.2d 370, 376
(Colo. 1981).

9
¶69 In Jones, we said that exculpatory agreements that attempt to insulate a party
from liability for their own negligence must be closely scrutinized and that “in no
event will such an agreement provide a shield against a claim for willful and
wanton negligence.” Id. We have further concluded that a party may not absolve
itself, by way of a private release agreement, from liability for violations of
statutory and regulatory duties on which a negligence per se claim may be based.
Miller v. Crested Butte, LLC, 2024 CO 30, ¶¶ 2, 36, 549 P.3d 228, 231, 235–36.
¶70 In Jones, 623 P.2d at 376, we identified four factors that a court must consider
in determining the validity of an exculpatory agreement that is not void under the
above-described legal principles: “(1) the existence of a duty to the public; (2) the
nature of the service performed; (3) whether the contract was fairly entered into;
and (4) whether the intention of the parties is expressed in clear and unambiguous
language.”
¶71 We have made clear, however, that the first Jones factor generally does not
invalidate or render unenforceable exculpatory agreements involving recreational
activities. See Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004);
Jones, 623 P.2d at 376–77. Similarly, we have concluded that recreational services
like those at issue here are not practically necessary and do not involve matters in
which the service providers owe special duties to the public, which would
implicate the second Jones factor. Chadwick, 100 P.3d at 467. And, as to the third

10
Jones factor, we have at least implicitly discerned no unfair disparity in bargaining
power in contracts with businesses providing recreational services. See Heil Valley
Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Accordingly, those three
factors are not pertinent to my analysis.
¶72 As to the fourth Jones factor, however, we have said, “To determine whether
the intent of the parties is clearly and unambiguously expressed, we have
previously examined the actual language of the agreement for legal jargon, length
and complication, and any likelihood of confusion or failure of a party to recognize
the full extent of the release provisions.” Chadwick, 100 P.3d at 467.
¶73 Finally, we have observed that when a contract contains multiple
provisions, some of which are unenforceable, we must determine whether the
contract is severable. See Reilly v. Korholz, 320 P.2d 756, 760 (Colo. 1958); accord
CapitalValue Advisors, LLC v. K2D, Inc., 2013 COA 125, ¶ 22, 321 P.3d 602, 606. To
determine whether a contract is severable, our primary objective is to ascertain the
contracting parties’ intent, looking not only to the terms and provisions of their
contract but also to the surrounding circumstances and the parties’ conduct before
a dispute has arisen. John v. United Advert., Inc., 439 P.2d 53, 56 (Colo. 1968);
CapitalValue Advisors, ¶ 24, 321 P.3d at 606. “[W]hether a number of promises
constitute one contract, or more than one, is to be determined by inquiring
‘whether the parties assented to all the promises as a single whole, so that there

11
would have been no bargain whatever, if any promise or set of promises were
struck out.’” John, 439 P.2d at 56 (quoting United States v. Bethlehem Steel Corp.,
315 U.S. 289, 298 (1942)); accord CapitalValue Advisors, ¶ 24, 321 P.3d at 606–07.
¶74 With these principles in mind, I turn to the facts now before us, addressing
the fourth Jones factor and then the issue of the Release’s validity and severability.
C. The Fourth Jones Factor
¶75 As noted above, the fourth Jones factor requires a court to consider whether
the parties’ contractual intentions in an exculpatory agreement were expressed in
clear and unambiguous language. Jones, 623 P.2d at 376. To determine whether
contractual language was so expressed, we have examined the actual language
used, including the extent of its legal jargon, the agreement’s length and
complication, and the likelihood that a contracting party would be confused or fail
to recognize the extent of the agreement’s release provisions. Chadwick, 100 P.3d
at 467. Here, I believe that each of these considerations weighs against the
Release’s validity.
¶76 First, the most cursory review of the above-quoted language of the Release
reveals that it is replete with excessive legal jargon. Paragraph 7 of the Release,
the provision on which Defendants principally rely, begins with language like
“WAIVE,” “HOLD HARMLESS,” “RELEASE,” and “INDEMNIFY.” That

12
paragraph then proceeds to discuss concepts of negligence, express or implied
warranties, and breaches of statutory or other duties of care.
¶77 Second, the Release is long and complex. It comprises four single-spaced
pages rife with legalese and covering eighteen named entities, all of their unnamed
affiliated companies and subsidiaries, “His Majesty the King,” and all of the
foregoing people’s and entities’ insurers, successors-in-interest, corporate
sponsors, affiliates, agents, employees, representatives, assignees, officers,
directors, and shareholders. And the lengthy document features numerous
portions in block capital letters, the extent of which ironically tends to minimize
the importance of any of them.
¶78 Third, in my view, the Release’s length, complexity, and legal jargon create
a high likelihood of confusion or a failure on the part of a party to recognize the
full extent of the Release’s provisions. As noted above, the bulk of the six
paragraphs that precede paragraph 7 of the Release substantially replicate the
form of assumption of risk language that appears on the back of every ski pass and
with which most skiers and snowboarders are likely familiar. As a result, I believe
that most people buying a ski pass, if they reviewed the Release at all, would
reasonably assume that it was simply the standard assumption of risk language.
Moreover, much of the Release’s language is forward-looking (i.e., it suggests that
a party is foregoing rights to sue for future injuries resulting from the inherent

13
risks of skiing). As a result, I do not expect that reasonable ski pass purchasers
would recognize that the Release also purports to exonerate Vail Resorts, its
employees, and many others from liability for past conduct, and especially claims
being pursued in then-pending litigation. My view in this regard finds further
support in the fact that the allegedly operative language of the Release does not
appear until the bottom of page two of that document, after over ninety lines of
single-spaced text.
¶79 For all of these reasons, I would conclude, contrary to the majority, that the
Release does not bar Litterer’s existing claims against Defendants, and for this
reason alone, I would reverse the judgment of the division below.
D. The Release’s Validity and Severability
¶80 Even were I to agree, however, that the Release was not rendered
unenforceable under the fourth Jones factor, I would still conclude that the Release
is unenforceable because I believe that it is void as against public policy.
¶81 As noted above, in Jones, 623 P.2d at 376, we made clear that in no event will
an exculpatory agreement provide a shield against claims for willful and wanton
negligence. We then more recently extended this principle to conclude that a party
may not absolve itself, by way of a private release agreement, from liability for
violations of statutory and regulatory duties on which negligence per se claims
may be based. Miller, ¶¶ 2, 36, 549 P.3d at 231, 235–36.

14
¶82 The portion of the Release at issue that comprises an exculpatory agreement
facially violates these principles. Specifically, the Release purports to release any
and all claims against Vail Resorts, its employees, and many others, including
claims that the ski pass purchasers do not even know that they have. The Release
nowhere expressly exempts claims for willful and wanton negligence or those, like
the claim at issue here, arising from violations of statutory and regulatory duties
on which a negligence per se claim is based. Accordingly, I would conclude that
this portion of the Release is void as against public policy.
¶83 In reaching this conclusion, for several reasons, I am not persuaded by
Defendants’ assertion, which the majority embraces, Maj. op. ¶ 37, that the
operative language of the Release applies only “to the greatest extent permitted by
law” and therefore exempts claims for willful and wanton negligence and claims
arising from violations of statutory and regulatory duties.
¶84 First, if Vail Resorts’ intent was to create such an exemption, I do not believe
that this intent was set forth in clear, unambiguous, and unequivocal language.
Indeed, in my view, this language does not read as language limiting the release
purportedly given to Vail Resorts. To the contrary, it reads as language expanding
the breadth of that purported release to the greatest extent possible.

15
¶85 Second, the fact that this language appears only once and in the middle of a
lengthy document, after a reader wades through extensive assumption of risk
language, tends to diminish its significance to the reader.
¶86 Third, I note that the very same language appeared in the exculpatory
agreement at issue in Miller, ¶ 7, 549 P.3d at 231, a case involving Crested Butte
Mountain Resort, which is owned by Vail Resorts. We did not deem the “to the
greatest extent permitted by law” language sufficient to save the exculpatory
agreement in that case, and I would reach the same conclusion here.
¶87 Accordingly, I would conclude that the portion of the Release purporting to
comprise an exculpatory agreement is void. This does not end my analysis,
however, because the fact that the Release’s exculpatory provision is void does not
necessarily invalidate the portion of the Release at issue here, which purports to
release Defendants from the claims that Litterer asserted in his lawsuit against
them. I thus turn to that provision’s validity.
¶88 As an initial matter, I reject Litterer’s contention that our decision in Miller
precluded a party from releasing existing claims for willful and wanton negligence
or claims arising from statutory or regulatory duties and asserted through
negligence per se claims. Nothing in Miller went so far. Indeed, if Litterer were
correct, then no party would ever be able to settle a claim for willful and wanton

16
negligence or negligence per se (based on an alleged violation of a statutory or
regulatory duty). That, of course, is not the law.
¶89 The validity of the release provision at issue turns on the question of
whether the void portion of the Release may be severed, such that the release
provision on which Defendants rely may still be operative. I would conclude that,
on the facts of this case, it may not so be severed.
¶90 As noted above, to determine whether a contract is severable, we must
ascertain the contracting parties’ intent, and we do so by considering the terms
and provisions of the contract, the surrounding circumstances, and the parties’
conduct before a dispute has arisen. John, 439 P.2d at 56; CapitalValue Advisors,
¶ 24, 321 P.3d at 606. In particular, we look to whether the parties assented to all
of the contract’s promises as a single whole. John, 439 P.2d at 56.
¶91 Here, for several reasons, I do not believe that the void exculpatory
language may be severed from the Release, so as to save the release provision on
which Defendants seek to rely.
¶92 First, the language of the Release does not expressly state that any
provisions deemed void are severable. Nor do I perceive any language of the
Release that implicitly suggests such an intent. To the contrary, the bulk of the
Release’s language focuses on its forward-looking exculpatory provisions, not on
language suggesting a release of past or then-existing claims. As a result, I

17
perceive no basis in the Release’s language that would allow me to conclude that
the release provisions are severable from the void exculpatory provisions. To the
contrary, the record demonstrates that the parties purported to assent to all of the
Release’s provisions as a single whole. And this is particularly true given that the
Release is a one-sided liability exclusion that we construe strictly in considering
the rights of the party that drafted it. See Rosen v. LTV Recreational Dev., Inc.,
569 F.2d 1117, 1122 (10th Cir. 1978) (“The kind of agreement we have here . . .
differs from the contract which results from negotiations on both sides. Here the
rules and regulations, Exhibit E, was drafted by the ski area so as to exclude
liability. Because of its one-sidedness, it is to be interpreted strictly in considering
the rights of the party who has prepared it.”).
¶93 Second, the surrounding circumstances suggest to me that the Release is not
severable. In their arguments before us, Defendants made clear that this Release
is critically important to them and that Litterer, who chose to sue them, could have
opted to ski elsewhere. As a result, I perceive no basis for concluding that
Defendants would have contracted with Litterer without obtaining this Release.
Conversely, Litterer has made abundantly clear that he did not interpret this
click-through Release to have released his existing claims, and the record
demonstrates that he would not have signed a contract with Defendants had he
known that it contained such a release. These circumstances reveal an absence of

18
mutual intent that the Release be severable, so as to save the release provisions at
issue.
¶94 Third, regarding the parties’ course of conduct, I note that Defendants
litigated this case for approximately one year after Litterer signed the Release
before moving for summary judgment. This suggests to me that Defendants did
not initially view the release provision on which they now rely as a stand-alone
term that effectively barred Litterer’s claims but rather developed that position as
a litigation strategy much later. Had Defendants viewed the release provision as
applicable to Litterer’s pending claims, there would have been no reason for them
to delay raising that defense. For this reason as well, I perceive no basis to
conclude that the release provisions at issue could properly be severed from the
void exculpatory provisions.
¶95 Accordingly, I would conclude that the release provisions of the Release
may not be severed from that document’s void exculpatory provisions and,
therefore, the Release is void and unenforceable.
¶96 In this regard, I view the Ninth Circuit’s reasoning in Farina v. Mt. Bachelor,
Inc., 66 F.3d 233, 235–36 (9th Cir. 1995), to be persuasive. There, as here, an
exculpatory provision in a ski area’s season pass application was unenforceable
because it purported to exculpate the ski area from liability for gross negligence
and willful misconduct. Id. The court then determined that because the ski area

19
had “made an unenforceable bargain in trying to escape liability for gross
negligence and willful misconduct, the entire release provision in the season pass
application, including the limitation of liability for ordinary negligence, is
unenforceable.” Id. at 236. The court explained:
In contrast to other release clauses, the language of the release
provision in this case does not manifest an intention by [the ski area]
or by [the plaintiff] that the provision be severable. In one simple,
broad sentence, [the ski area] sought to exculpate itself for any and all
claims that an injured skier might bring against it. This attempt
rendered [the ski area’s] entire release clause invalid. It is not our role
to enforce only part of the release clause where it is not obvious from
the language of the clause that the parties intended the clause to be
severable.
Id. (citation omitted).
¶97 In my view, Colorado law mandates that the same reasoning should apply
here.
III. Conclusion
¶98 Winter sports like skiing and snowboarding are, of course, essential to
Colorado’s tourism industry and economy. People from around the United States,
indeed the world, routinely purchase ski passes online. This simple transaction
should not become a game of “gotcha” for unsuspecting ski pass purchasers, but
that is precisely what the majority condones today.
¶99 If Defendants wished to settle Litterer’s claims against them, then the proper
way to proceed would have been to make an offer and engage in negotiations, not

20
to hide release language in a lengthy, one-sided, legalese-laden document that a
purchaser is required to click through to purchase a ski pass and in which no
reasonable purchaser would expect to find a release of pending litigation.
¶100 Although today will undoubtedly be a day of celebration for Colorado’s ski
industry, I believe that it is a sad day for the rights of many thousands of
unsuspecting ski pass purchasers who are the lifeblood of that industry.
¶101 For the reasons discussed above, I would conclude that the Release is void
as against public policy and that, therefore, Litterer’s negligence per se and
attendant exemplary damages claims survive. Accordingly, I would reverse the
division’s judgment upholding the district court’s grant of summary judgment to
Defendants and remand this case for further proceedings on Litterer’s negligence
per se and exemplary damages claims.
¶102 I therefore respectfully dissent.

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
September 21, 2026

2026 CO 65

No. 25SC134, Litterer v. Vail Summit Resorts Inc. - Waiver and Release-
Recreational Activity - Post-Injury Release Agreement

In this case, the supreme court considers whether a plaintiff released claims
against a ski resort and its employee when, after commencing litigation, the
plaintiff purchased a ski pass from the resort and executed a waiver containing a
release of liability covering both defendants. The court further considers whether
the plaintiff's claim for willful and wanton conduct and prayer for exemplary
damages were properly dismissed.

The court first concludes that the executed waiver operated as an
enforceable release agreement. Consequently, the waiver barred the plaintiff's
claims against the defendants.

The court next concludes that the plaintiff's willful and wanton conduct
claim was properly dismissed because it is not a separate, cognizable claim upon
which relief may be granted, but that in any event, plaintiff's claim was released
by the waiver. Further, since there is no independent claim for relief to which the

prayer for exemplary damages could attach, plaintiff's prayer was also properly
dismissed.

Finally, the court distinguishes this case from Miller v. Crested Butte, LLC,
2024 CO 30, 549 P.3d 228. Miller governs the validity of exculpatory agreements
executed prior to an injury, while this case concerns a post-injury release.

Accordingly, the court affirms the dismissal of plaintiff's claims.

# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 65

Supreme Court Case No. 25SC134
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 24CA480

Petitioner:
John Litterer,

Respondents:

Vail Summit Resorts, Inc., a corporation, and Dwight McClure.

Judgment Affirmed
en banc
September 21, 2026

Attorneys for Petitioner:

Bloch Ongert, LLC

Joseph D. Bloch

Trenton J. Ongert

Elan Z. Goldstein

Denver, Colorado

Attorneys for Respondents:

Bryan Cave Leighton Paisner LLP

Michael J. Hofmann

Kaitlin M. DeWulf

Denver, Colorado

JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which
CHIEF JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, and JUSTICE
BLANCO joined.

JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE
SAMOUR, dissented.

JUSTICE BERKENKOTTER delivered the Opinion of the Court.

T1
This case requires us to decide whether a division of the court of appeals
erred in concluding that John Litterer released the claims he alleged against Vail
Summit Resorts, Inc. ("VSRI") and Dwight McClure (collectively "respondents")
when he purchased a five-day Epic Pass for the 2022-23 ski season.

12 Litterer sustained injuries in a snowboarder-snowmobile collision at
Breckenridge Ski Resort ("Breckenridge") in December 2020. Breckenridge is
owned by VSRI. McClure, the snowmobile driver, is a VSRI employee. Litterer
subsequently brought multiple claims against respondents. While his case was in
active litigation, Litterer decided to return to Breckenridge for a ski trip, so he
purchased an Epic Pass for the 2022-23 ski season.

T3
3 During the online purchasing process, Litterer executed a "Release of
Liability, Waiver of Claims, Assumption of Risks[,] and Indemnity Agreement"
("the 2022 online waiver"). It provided that "[i]n consideration for allowing the
Participant to participate in the Activity [defined to include snowboarding], I
FURTHER RELEASE AND GIVE UP ANY AND ALL CLAIMS AND RIGHTS
THAT I MAY NOW HAVE AGAINST ANY RELEASED PARTY." The term
"Released Party" is defined as including VSRI and its employees.

14 After respondents filed a motion for summary judgment, arguing that
Litterer waived his claims against them, the district court agreed and dismissed all

of Litterer's then-remaining claims with prejudice. Litterer v. Vail Summit Resorts,
Inc., No. 22CV30043, at 23 (Dist. Ct., Summit Cnty., Jan. 16, 2024) (unpublished
order). Litterer appealed, and a division of the court of appeals affirmed the
judgment. Litterer v. Vail Summit Resorts, Inc., No. 24CA480, 1 1 (Jan. 30, 2025).
15 We granted certiorari.1 We now conclude that (1) the 2022 online waiver
operates as a release, not an exculpatory agreement; (2) Litterer's claims for willful
and wanton conduct and his prayer for exemplary damages were properly
dismissed; and (3) the division did not err in declining to address whether Miller v.
Crested Butte, LLC, 2024 CO 30, 1 49, 549 P.3d 228, 237, is applicable here because
that case concerns pre-injury exculpatory agreements, not post-injury releases.
Accordingly, we affirm the division's judgment.

1 We granted certiorari to review the following three issues:

1\. Whether the court of appeals erred when it held all of petitioner's
claims against respondents were waived when he purchased a
2022-2023 Epic Pass.

2\. Whether the court of appeals erred when it upheld the dismissal
of petitioner's willful and wanton conduct and exemplary
damages claim.

3\. Whether the court of appeals erred when it failed to address
whether Vail's exculpatory agreements bar petitioner's claim for
negligence per se under this court's decision in Miller v. Crested
Butte, LLC, 2024 CO 30, 549 P.3d 228 . . ..

## I. Facts and Procedural History

16 Litterer was injured in December 2020, while snowboarding at
Breckenridge, when he and a snowmobile operated by McClure collided. The
parties' characterization of the collision is not particularly relevant to the legal
questions before us. Suffice it to say, the parties see things quite differently.

17 Prior to his injury, Litterer had executed two online agreements in
connection with his purchase of a 2020-21 Epic Pass. He electronically signed a
"Release of Liability, Waiver of Claims, Assumptions of Risk Warning[,] and
Indemnification Agreement" in March 2020. He also agreed to a "Release of
Liability & Assumption of Risks Agreement," which was on the back of the Epic
Pass.2

18 Litterer filed several claims against respondents after the collision, which
respondents sought to dismiss. The district court dismissed Litterer's common
law tort claims against VSRI, finding that the Colorado Premises Liability Act
("PLA"), § 13-21-115, C.R.S. (2025), preempted them. Litterer v. Vail Summit
Resorts, Inc., No. 22CV30043, at 12 (Dist. Ct., Summit Cnty., Nov. 14, 2022)
(unpublished order). It also dismissed Litterer's willful and wanton conduct and
reckless endangerment claims against respondents, concluding that they are not

2 For simplicity, we refer to the two 2020 agreements as "the 2020 online waivers."

cognizable causes of action in Colorado. Four claims then remained: three against
McClure (negligence, negligence per se, and "extreme and outrageous conduct")
and one against VSRI (negligence to an invitee under the PLA). The trial court
later permitted Litterer to amend his complaint to include a prayer for exemplary
damages against respondents.

19
After he filed the lawsuit, Litterer purchased an Epic Pass for the 2022-23 ski
season online. In connection with that purchase, he executed an online form,
which stated in part:

WARNING: PLEASE READ CAREFULLY BEFORE SIGNING! THIS
IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL
RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM
COMPENSATION[.]

....

In consideration for allowing the Participant to participate in the
Activity, I FURTHER RELEASE AND GIVE UP ANY AND ALL
CLAIMS AND RIGHTS THAT I MAY NOW HAVE AGAINST ANY
RELEASED PARTY AND UNDERSTAND THIS RELEASES ALL
CLAIMS, INCLUDING THOSE OF WHICH I AM NOT AWARE,
THOSE NOT MENTIONED IN THIS RELEASE AND THOSE
RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO
NOW.

As noted, the 2022 online waiver defined the term "Released Party" to include
VSRI and its employees.

110 Respondents moved for summary judgment, arguing that Litterer released
all claims against them when he purchased an Epic Pass for the 2022-23 ski season

and executed the 2022 online waiver. The district court agreed, emphasizing that
the 2022 online waiver - which Litterer signed after the collision, after he filed suit,
and while his claims continued to be litigated -operated as a release agreement,
not an exculpatory agreement.

111 Consequently, the court concluded that the factors set forth in Jones v.
Dressel, 623 P.2d 370, 376 (Colo. 1981), concerning the validity of an exculpatory
agreement, did not apply. Instead, the district court looked to contract principles
and determined that adequate consideration supported the waiver. Therefore, it
concluded that Litterer validly released all his claims against respondents and
granted their motion for summary judgment.

112 Litterer appealed, asserting that the district court erred in (1) granting
summary judgment on his negligence per se claim against McClure because of this
court's decision in Miller, 1 2, 549 P.3d at 231; (2) concluding that Litterer released
all his claims when he purchased the 2022-23 Epic Pass; (3) dismissing his claim
for willful and wanton conduct against both respondents; and (4) rejecting what
he characterized as his "claim" for exemplary damages.

113 The division disagreed. To begin, it declined to address whether this court's
decision in Miller "announced a blanket rule prohibiting ski resorts from using
exculpatory agreements to bar negligence per se claims based on any statute."

Litterer, 1 10. It did so after concluding that Litterer's claims were barred by the
liability waiver he signed when he purchased the 2022-23 Epic Pass. Id.

114 Turning to the 2022 online waiver, the division agreed with respondents
that Litterer had released his existing claims against them because he executed the
liability waiver with his purchase of the 2022-23 Epic Pass. Id. at 1 26. The
division was unpersuaded by Litterer's contentions that he did not agree to the
waiver because there was no mutual assent, that the waiver was unconscionable,
and that it could not bar all his claims. Id. at [ 21. In reaching its decision, the
division first distinguished the 2022 online waiver from the 2020 online waivers,
which sought to limit future negligence claims against VSRI and its employees.3
See id. at [ 24. The 2020 online waivers thus constituted exculpatory agreements
that "must be closely scrutinized." Id. at "[ 23 (quoting Jones, 623 P.2d at 376).
115 The 2022 online waiver, which limited past claims, was a different matter.
The division concluded that it was a release, rather than an exculpatory agreement,
with respect to Litterer's claims against respondents arising out of his 2020
collision with the snowmobile. Id. at 11 24-25. As a release, the division

3 The pertinent language in the 2020 online waivers provides: "In consideration for
allowing the pass holder to participate in the Activity, I AGREE, to the greatest
extent permitted by law, TO WAIVE ANY AND ALL CLAIMS AGAINST AND
TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE [the
Released Party]."

determined that the 2022 online waiver should be analyzed according to "general
contractual rules of interpretation and construction." Id. at 1 23 (quoting
Bunnett v. Smallwood, 793 P.2d 157, 159 (Colo. 1990)).

116 Accordingly, the division turned to address mutual assent and determined
that Litterer's "purchase, acceptance, and use of the 2022-23 Epic Pass was
sufficient conduct to demonstrate his assent to the terms of the 2022 online
waiver." Id. at [ 25. Litterer electronically signed the waiver, which was a
condition of using the ski pass at a VSRI resort. Id. at [ 26. In doing so, Litterer
unambiguously agreed to "waive any and all claims" to access VSRI resorts during
the 2022-23 ski season. Id. What's more, because a party who signs a contract is
presumed to know its contents, Litterer could not avoid his contractual obligations
by claiming that he didn't read the agreement. Id. at | 27.

117 The division also briefly discussed the alleged unconscionability of the 2022
online waiver. Id. at | 28. It determined that Litterer's argument was conclusory
and underdeveloped and thus declined to resolve the argument. Id. As such, the
division ultimately held that the 2022 online waiver was enforceable and released
all of Litterer's claims against respondents. Id. at | 29.

118 The division then examined Litterer's contention that the district court erred
by dismissing his claim against respondents for willful and wanton conduct. Id.
at 1 32. It disagreed, reasoning that Litterer's arguments regarding his claim for

willful and wanton conduct were moot because the 2022 online waiver barred his
claims against respondents. Id. at 1 38.

119 Next, the division rejected Litterer's assertion that the district court erred by
dismissing his prayer for exemplary damages. Id. at [ 39. It opined that Litterer's
claim for exemplary damages could not stand because it does "not present a
separate, distinct cause of action," and is not, in the alternative, synonymous with
a gross negligence claim. Id. at 1 47 (quoting Ferrer v. Okbamicael, 2017 CO 14M,
1 44, 390 P.3d 836, 848).

120 The division thus affirmed the district court's entry of summary judgment
in favor of McClure and VSRI. Id. at 1 49.

121 Litterer then petitioned this court for certiorari review, which we granted.

## II. Analysis

122 We begin by outlining the standard of review before discussing the law
governing post-injury releases and exculpatory agreements. We then apply those
principles and conclude that the 2022 online waiver operated as an enforceable
release agreement that barred Litterer's remaining claims. Next, we explain that
the district court did not err in dismissing Litterer's willful and wanton conduct
claim because, as pled, it is not a separate, cognizable claim upon which relief may
be granted. Thus, the court correctly concluded that since all his claims for relief
were dismissed, there was no claim for relief to which Litterer's prayer for

exemplary damages could attach. Finally, we address this court's recent decision
in Miller and explain that the division did not err in declining to address it here
because Miller governs the validity of waivers that are signed and executed before
the injury. We therefore affirm the judgment of the court of appeals.

## A. Standard of Review

123 We review a district court's decision granting summary judgment de novo
as it is ultimately a question of a law. W. Elk Ranch, L.L.C. v. United States, 65 P.3d
479, 481 (Colo. 2002). Questions concerning the interpretation of a contract are also
questions of law, and thus also subject to de novo review. Fed. Deposit Ins. Corp. v.
Fisher, 2013 CO 5, 1 9, 292 P.3d 934, 937.

## 1. The 2022 Online Waiver Released Litterer's Claims Against Respondents

124 Litterer challenges the lower courts' characterization of the 2022 online
waiver as a release. In his view, the waiver operated as an exculpatory agreement
even though he executed the waiver after he filed his lawsuit. He additionally
contends that the 2022 online waiver is unenforceable because he never intended
to dismiss his claims and the terms of the waiver were overly broad. We are
not convinced.

125 "A release is the relinquishment of a vested right or claim to a person against
whom the claim is enforceable." Neves v. Potter, 769 P.2d 1047, 1049 (Colo. 1989).
Through a release, "one party relinquishes all its claims against another for

consideration." CMCB Enters., Inc. v. Ferguson, 114 P.3d 90, 96 (Colo. App. 2005).
"Once a claim is released, the release bars the injured party from seeking further
recovery." Id.

126 Traditional rules of contract interpretation and construction apply to
releases. Bunnett, 793 P.2d at 159. To be enforceable, a release requires "mutual
assent to an exchange between competent parties for legal consideration."
French v. Centura Health Corp., 2022 CO 20, 1 26, 509 P.3d 443, 449. The parties'
acts, conduct, and words, along with the attendant circumstances, establish assent.
Id. at [ 27, 509 P.3d at 449. It is well-settled that the "subjective, unexpressed intent
by either party" is irrelevant when determining whether the parties mutually
assented to the agreement. Id.

127 A release is enforceable when there is "mutual assent to the terms .. . and
legal consideration." Univ. of Denv. v. Doe, 2024 CO 27, 1 47, 547 P.3d 1129, 1139.
Colorado, with its "strong policy of freedom of contract," Ravenstar, LLC v. One Ski
Hill Place, LLC, 2017 CO 83, 1 12, 401 P.3d 552, 555, recognizes the existence of an
implied contract through "words or conduct that, when objectively viewed,
manifests an intent to accept an offer," Marquardt v. Perry, 200 P.3d 1126, 1129
(Colo. App. 2008).

128 To that end, contracts must be construed in a way that reflects the "intent of
the parties and allows each party to receive the benefit of the bargain." Ravenstar,

[ 12, 401 P.3d at 555 (quoting Allstate Ins. Co. v. Avis Rent-A-Car Sys., Inc., 947 P.2d
341, 346 (Colo. 1997)). "Contracts between competent parties, voluntarily and
fairly made, should be enforceable according to the terms to which they freely
commit themselves." Id. (quoting Keller v. A.O. Smith Harvestore Prods., Inc.,
819 P.2d 69, 75 (Colo. 1991) (Rovira, C.J., dissenting)).

129 In contrast, exculpatory agreements attempt to insulate parties from their
own negligence. Miller, 1 45, 549 P.3d at 237. Such agreements warrant close
scrutiny. Id. We must, therefore, begin any analysis of exculpatory agreements by
considering whether they are valid and enforceable. To do so, we analyze the four
factors that we outlined in Jones: "(1) the existence of a duty to the public; (2) the
nature of the service performed; (3) whether the contract was fairly entered into;
and (4) whether the intention of the parties is expressed in clear and unambiguous
language." 623 P.2d at 376.

130 Applying all these principles, we conclude that the 2022 online waiver
operates as a release. As the division noted, Litterer had vested claims pending in
this case when he agreed to the 2022 online waiver. That is, the 2022 online waiver
was electronically executed by Litterer post-injury, well after he commenced this
litigation against VSRI and McClure. The waiver was spelled out in great detail in
large capital letters. It warned him to "PLEASE READ CAREFULLY BEFORE
SIGNING[]" because the agreement was "A RELEASE OF LIABILITY WAIVER

OF CERTAIN LEGAL RIGHTS." A conspicuous reminder placed roughly
halfway through the agreement once again alerted Litterer in all capital letters to
the legal ramifications of signing the document. By agreeing to its terms, Litterer
"FURTHER RELEASE[D] AND [GAVE] UP ANY AND ALL CLAIMS" that he had
against respondents.

131 Litterer doesn't dispute that he purchased the 2022-23 Epic Pass, completed
the 2022 online waiver, and then used the pass to snowboard at Breckenridge. But
he nonetheless contends that the 2022 online waiver is not an enforceable contract
because he did not assent to it. This is so, he explains, because he did not intend
to release his claims against respondents, and because he lacked negotiating
power. We are unpersuaded.

132 We need look only at Litterer's actions to determine that he demonstrated
his assent to the terms of the 2022 online waiver. His subjective and unexpressed
intent or understanding of the waiver is irrelevant to the issue of assent. The
requisite meeting of the minds is established by the parties' acts, conduct, and
words, along with the attendant circumstances, and not by any subjective,
unexpressed intent by either party. French, 1 27, 509 P.3d at 449.

133 And here, as we already explained, Litterer electronically signed the 2022
online waiver, which warned him to "PLEASE READ CAREFULLY BEFORE
SIGNING[]" because the agreement was "A RELEASE OF LIABILITY WAIVER

OF CERTAIN LEGAL RIGHTS." If what Litterer means is that he did not assent
because he did not read the electronic form, we note simply that one generally
cannot avoid contractual obligations by claiming they did not read the contract.
Macasero v. ENT Credit Union, 2023 COA 40, 1 18, 533 P.3d 982, 988. And while
Litterer may have lacked the ability to negotiate the terms of the release when
obtaining the 2022-23 Epic Pass after his injury, he had options. He could have
purchased a ski pass that would have allowed him to snowboard at any of
Colorado's many other ski resorts that are not owned by VSRI. Instead, he chose
to sign the waiver so he could snowboard at Breckenridge again.

134 We also reject Litterer's argument that the 2022 online waiver is overly
broad and unenforceable. In so doing, we decline to adopt the reasoning of the
sole case he cites in support, Farina v. Mt. Bachelor, Inc., 66 F.3d 233 (9th Cir. 1995).
There, the petitioner sued a ski resort after he sustained multiple fractures from
skiing into an unmarked boulder. Id. at 234. Prior to the accident, Farina completed
a season pass application, which included the following language:

In consideration of my participation in skiing, and use of this season
pass and Mt. Bachelor's facilities, I agree to release from liability and
to indemnify and hold harmless Mt. Bachelor, Inc., and their officers
and directors, owners, agents . . . and employees . .. from any and all
claims, losses, and liabilities ... that I may now have or which I may
hereafter have for injury or death to myself . . . .

Id.

135 Applying Oregon law, the Ninth Circuit held that the release clause violated
public policy and was unenforceable because it sought to exculpate Mt. Bachelor
from liability "for more than ordinary negligence, including gross negligence and
wanton or [willful] misconduct," and for "any and all claims that an injured skier
might bring against it." Id. at 235-36 (emphasis added). And because the parties
did not manifest an intent that the release provision be severable, the court held
that the entire release was invalid. Id. at 236.

136 We are not bound by the law of any federal circuit court, see Compass Ins.
Co. v. City of Littleton, 984 P.2d 606, 617 n.11 (Colo. 1999), and we decline to extend
Farina's reasoning here because it is materially distinguishable from this case.
There, the Ninth Circuit held that the waiver at issue was overbroad because Mt.
Bachelor sought to exculpate itself for any and all claims that an injured participant
might bring against it, including gross negligence and willful misconduct, even
though the Oregon Supreme Court had previously concluded that an exculpatory
clause is only legal if it seeks to exempt liability for ordinary negligence. Farina,
66 F.3d at 236.

137 That logic does not extend, however, to the exculpatory clause in the 2022
online waiver, the one that concerns prospective claims against released parties.
That waiver, we emphasize, is limited by its express terms "to the greatest extent

permitted by law."4 That is, the waiver applies only to prospective claims to the
extent allowed under Miller. And notably, Farina involved a pre-injury waiver.
Unlike here, the Farina court was not asked to answer whether a post-injury waiver
of claims constitutes an exculpatory agreement.

138 Litterer's position with respect to the settlement of post-injury claims is also
untenable as a practical matter. At oral argument, counsel argued that no party
should be able to release these types of post-injury claims. When pressed about
the sweeping and problematic consequences of such a rule, which would prevent
parties from ever settling claims, counsel was unable to draw a line that wouldn't
wipe out all waivers and thus all settlements. Unsurprisingly, there is no law to
support that position.

139 Finally, Litterer urges this court to reverse the division because, in his view,
the General Assembly has repeatedly been unwilling to enact laws that enhance
skier safety and ski resort accountability. That, of course, is not a reason for us to
act. Such policy decisions are within the province of the legislature, not this court.
So, to the extent the operation of the 2022 online waiver here, as it relates to

4 The pertinent language in the 2022 online waiver provides: "In consideration for
allowing the pass holder to participate in the Activity, I AGREE, to the greatest
extent permitted by law, TO WAIVE ANY AND ALL CLAIMS AGAINST AND TO
HOLD HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE [the
Released Party]." (Emphasis added.)

post-injury waiver of claims, may seem draconian to some, that is a public policy
matter best left to the General Assembly.

140
For these reasons, we conclude that the 2022 online waiver released
Litterer's claims against respondents.

## 2. Litterer's Claims for Willful and Wanton Conduct and Exemplary Damages Are Not Cognizable

141 Litterer contends that the division erred in upholding the district court's
dismissal of his willful and wanton conduct and exemplary damages claims. In
particular, he relies on settled Colorado law regarding exculpatory agreements:
"In no event will an [exculpatory] agreement provide a shield against a claim for
willful and wanton negligence." Jones, 623 P.2d at 376. Said differently, because a
release may not bar a claim for willful and wanton conduct, Litterer asserts that
his claim for exemplary damages should also be reinstated. Like the division, we
are unconvinced.

142 "Willful and wanton conduct" is not an independent tort in Colorado or
elsewhere. 3 Stuart M. Speiser et al., American Law of Torts § 10:3, Westlaw
(database updated Feb. 2026); see also Carani v. Meisner, No. 08-cv-02626-MSK-CBS,
2009 WL 2762719, at *4 (D. Colo. Aug. 26, 2009) (explaining that the court could
not identify a single case that "recognizes and defines a separate, actionable claim
based simply on a party engaging in willful and wanton conduct towards
another"). "[W]illful and wanton conduct" as used here is not a separate claim for

relief, but rather a descriptive phrase "nested within subsection 13-21-102(1)(b),
[C.R.S. (2025)]." Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1085 (Colo. 2011). It
thus tends to operate as a circumstance, setting forth the standard by which courts
assess the allocation of exemplary damages. § 13-21-102(1)(a) (showing that the
underlying civil action must be accompanied "by circumstances of .. . willful and
wanton conduct") (emphasis added); CJI-Civ. 9:30 (2026) (defining "willful and
wanton conduct" and explaining that it should be used with the jury instructions
governing exemplary damages); CJI-Civ. 5:4 (2026) (explaining that an exemplary
damages claim requires proof that the defendant acted in a "willful and wanton
manner" beyond a reasonable doubt); see also Qwest Servs. Corp., 252 P.3d at 1092.
143 That is to say, rather than functioning as an independent claim, proof of
"willful and wanton conduct" may support a claim for exemplary damages when
a party prevails on an underlying claim for damages. Ferrer, 1 44, 390 P.3d at 848
(concluding that section 13-21-102 has no application without a successful
underlying claim for actual damages). Likewise, an award of exemplary damages
"is not a separate and distinct cause of action," so it must attach to "an underlying
and independent 'civil action' in which actual damages are assessed for a legal
wrong done to the injured party." Mortg. Fin., Inc. v. Podleski, 742 P.2d 900, 903
(Colo. 1987) (quoting Palmer v. A.H. Robins Co., 684 P.2d 187, 213 (Colo. 1984)).

144 For these reasons, the district court properly dismissed Litterer's claim for
willful and wanton conduct. Additionally, even if we accepted Litterer's
contention that he properly pled a claim for gross negligence because it is
"synonymous" with willful and wanton conduct, the 2022 online waiver operates
as a release, barring all of Litterer's claims. That is to say, there is no independent
action to which the exemplary damages may be attached. Ferrer, 1 44, 390 P.3d
at 848.

145 Ultimately, Litterer's willful and wanton conduct claim fails as a matter of
law because it is not a separate, cognizable cause of action. And because the
district court correctly concluded that the 2022 online waiver released all of
Litterer's claims, there is no "underlying and independent 'civil action"" to which
exemplary damages may attach. Mortg. Fin., Inc., 742 P.2d at 903 (quoting Palmer,
684 P.2d at 213). Accordingly, the district court did not err in dismissing Litterer's
claim for willful and wanton conduct and his prayer for exemplary damages.

## 3. Miller Does Not Apply to the 2022 Online Waiver

146 Litterer next argues that the division erred in failing to consider Miller.
According to Litterer, Miller's scope was not limited to exculpatory agreements
because it explicitly stated that ski resorts "may not absolve [themselves], by way
of private release agreements, of liability for violations of the statutory and

regulatory duties on which [a] negligence per se claim is based." 1 55, 549 P.3d
at 238.

147 We disagree. Miller does not apply here. There, Miller signed two
agreements, one for himself and another on behalf of his daughter, when
purchasing Epic passes. Id. at 11 6-8, 549 P.3d at 231-32. Miller's daughter
subsequently sustained major injuries after falling from a chair lift. Id. at 19,
549 P.3d at 232. Miller sued the ski resort for negligence per se based on violations
of the Ski Safety Act of 1979, §§ 33-44-101 to -114, C.R.S. (2023), the Passenger
Tramway Safety Act, §§ 12-150-101 to -120, C.R.S. (2023), and regulations
promulgated thereunder. Miller, 1 11, 549 P.3d at 232. This court held that ski
areas may not absolve themselves of liability for claims related to certain statutory
duties by way of exculpatory agreements executed pre-injury. Id. at 11 36-37,
549 P.3d at 235-36.

148 Litterer misreads Miller in two regards. First, by claiming that Miller applies
to post-injury release agreements, Litterer detaches the holding from the reasoning
on which it is based, including that "settled precedent from this court has
established that a party cannot discharge its obligation to perform a statutory duty
by way of an exculpatory agreement." 1 36, 549 P.3d at 235-36 (emphasis added).
Second, Miller arises from a factual scenario that does not apply here. Miller
considers the validity of waivers that are signed and executed before the injury. See

id. at TT 7-10, 549 P.3d at 231-32. As we observed above, the 2022 online waiver
operates as a release, not an exculpatory agreement, because it was executed after
the injury. For these reasons, Miller does not apply, and the division below did
not err in declining to address it.

## III. Conclusion

149 We conclude that (1) the 2022 online waiver operates as a release, not an
exculpatory agreement; (2) Litterer's claim for willful and wanton conduct and
prayer for exemplary damages were properly denied; and (3) Miller is inapplicable
here because it governs pre-injury exculpatory agreements, not post-injury
releases. Accordingly, we affirm the judgment of the court of appeals.

JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE
SAMOUR, dissented.

JUSTICE GABRIEL, joined by JUSTICE HOOD and JUSTICE SAMOUR,
dissenting.

150 In this action arising from John Litterer's purchase of a ski pass, the majority,
purporting to apply settled principles of contract law, provides the ski industry
with an extraordinary perpetual pass of its own. Under today's ruling, the ski
industry may avoid a limitless range of liability -including liability for damages
caused by its gross negligence and willful and wanton conduct and for causes of
action that injured parties do not even know that they have-by burying
exceptionally broad release language in the click-through, lengthy boilerplate
document that unwitting patrons check off when they buy their ski passes.

151 Because I believe that under settled principles of law regarding exculpatory
agreements, the release at issue is void as against public policy, and because I
further believe that the majority's decision is unjust to Litterer and will result in
manifest injustice to innumerable unsuspecting ski pass purchasers like him, I
respectfully dissent.

## I. Factual and Procedural Background

152 I need not repeat the majority's recitation of the facts of this case. Instead, I
highlight the facts that are most pertinent to my analysis.

153 In December 2020, while snowboarding at the Breckenridge Ski Area,
Litterer collided with a snowmobile operated by an employee of Vail Summit
Resorts, Inc. ("Vail Resorts"). He subsequently sued Vail Resorts and the

employee (collectively, "Defendants"), alleging multiple claims, including a
premises liability claim against Vail Resorts and a claim for negligence per se
against the employee based on alleged violations of section 33-14-116, C.R.S.
(2025), of the Colorado Snowmobile Safety Act. In the latter claim, Litterer alleged,
as pertinent here, that the employee had operated the snowmobile in such a
manner as to indicate a wanton or willful disregard for the safety of persons and
property. Litterer also sought exemplary damages from both Vail Resorts and the
employee.

154 While his lawsuit was pending, Litterer, who had recovered sufficiently
from his injuries, purchased a new Epic Pass online. His purchase required him
to agree to, among other things, a click-through Release of Liability, Waiver of
Claims, Assumption of Risks and Indemnity Agreement ("Release"). This Release
was four single-spaced pages long, comprising seventeen paragraphs, and was
replete with legal terminology.

155 As the majority points out, Maj. op. 19, the Release begins by stating, in
block capital letters, "WARNING: PLEASE READ CAREFULLY BEFORE
SIGNING! THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL
RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION."

156 Immediately following that forward-looking "RELEASE OF LIABILITY
WAIVER" are several paragraphs acknowledging that skiing and snowboarding

can be dangerous and requiring a signatory to assume "ALL INHERENT
DANGERS AND RISKS" of "the Activity" (as defined in the Release). Then,
following two paragraphs regarding Hunter Mountain in New York and
COVID-19, the Release provides a lengthy paragraph requiring the signatory to
"acknowledge and assume all additional risks and dangers that may result in
property damage, physical injury and/or death, which may be above and beyond
the inherent dangers and risks of the Activity," after which the paragraph sets out
a sixteen-line-long list of such risks.

157 Following an intervening paragraph stating that a participant assumes
responsibility for maintaining control while engaging in the activity, the signer
finally arrives at paragraph 7, on the bottom half of the second page of the Release,
which is the language on which the majority relies to conclude that Litterer validly
released his existing claims against Vail Resorts and its employee. That language
reads, in full, as follows:

7\. In consideration for allowing the Participant to participate in the
Activity, I AGREE, to the greatest extent permitted by law, TO
WAIVE ANY AND ALL CLAIMS AGAINST AND TO HOLD
HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE
Vail Resorts, Inc., The Vail Corporation, Trimont Land Company,
Heavenly Valley, Limited Partnership, VR US Holdings, Inc., VR US
Holdings II, LLC, VR CPC Holdings, Inc., VR NW Holdings, Inc., VR
NE Holdings, LLC, Whistler Blackcomb Holdings Inc., Blackcomb
Skiing Enterprises Limited Partnership, Whistler Mountain Resort
Limited Partnership, Vail Holdings, Inc., Peak Resorts, Inc., VR PA
Holdings, Inc., Andermatt-Sedrum Sport AG, each of their affiliated
companies and subsidiaries, the resort owner/operator inclusive of

any partner resort owner/ operator, land owner, activity operator, the
equipment manufacturer, The Burton Corporation, Beaver Creek
Resort Company, TSG Ski Golf, LLC, the family of companies
operating Resorts of the Canadian Rockies, Inc., the United States, His
Majesty the King In Right Of The Province Of British Columbia and
all their respective insurance companies, successors in interest,
commercial corporate sponsors, affiliates, agents, employees,
representatives, assignees, officers, directors, and shareholders (each
a Released Party) FOR ANY INJURY, INCLUDING DEATH, LOSS,
PROPERTY DAMAGE OR EXPENSE, WHICH I OR PARTICIPANT
MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF
PARTICIPANTS [sic] PARTICIPATION IN THE ACTIVITY,
INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON
ANY RELEASED PARTYS [sic] ALLEGED OR ACTUAL
NEGLIGENCE OR BREACH OF ANY EXPRESS OR IMPLIED
WARRANTY OR BREACH OF ANY STATUTORY OR OTHER
DUTY OF CARE, INCLUDING IN BRITISH COLUMBIA ANY DUTY
OF CARE UNDER THE OCCUPIERS [sic] LIABILITY ACT. I
UNDERSTAND THAT NEGLIGENCE INCLUDES FAILURE ON
THE PART OF ANY RELEASED PARTY TO TAKE REASONABLE
STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS,
DANGERS AND HAZARDS OF THE ACTIVITY.

158 The Release then proceeds for ten additional paragraphs, but those are not
pertinent to my analysis.

159 Notably, the paragraphs of the Release preceding paragraph 7, which
comprise the first one and a half pages of the document, would have looked to any

reasonable person like the form assumption of risk language that is on the back of
every ski pass and, therefore, would not have alerted a reasonable purchaser that
by agreeing to the Release, they would be surrendering claims in pending
litigation. The following chart is illustrative:

RELEASE

SKI PASS

RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISKS AND INDEMNITY AGREEMENT

RELEASE OF LIABILITY &amp; ASSUMPTION OF RISKS AGREEMENT

1. ... I understand that ... skiing [and] snowboarding ... can be HAZARDOUS AND INVOLVE THE RISK OF PHYSICAL INJURY AND/OR DEATH.

HOLDER AGREES AND UNDERSTANDS THAT SKIING, SNOWBOARDING AND USING A SKI AREA, INCLUDING LIFTS, CAN BE HAZARDOUS AND INVOLVE THE RISK OF PHYSICAL INJURY AND/OR DEATH.

2. I understand the dangers and risks of the Activity and that the Participant ASSUMES ALL INHERENT DANGERS AND RISKS of the Activity, including those of a skier (as may be defined by statute or other applicable law) or other winter sports participant.

Under the law, the Holder of this pass assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing.

7. ... I AGREE, to the greatest extent permitted by law, TO WAIVE ANY AND ALL CLAIMS AGAINST AND TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE [ski areas and their employees, among others].

HOLDER AGREES NOT TO SUE and to hold the ski area and its employees harmless for claims to person or property.

160 When ski pass purchasers finally reach paragraph 7 of the Release, they first
read a lengthy exculpatory clause, purporting to agree, "to the greatest extent

permitted by law, TO WAIVE ANY AND ALL CLAIMS AGAINST AND TO
HOLD HARMLESS, RELEASE, INDEMNIFY, AND AGREE NOT TO SUE" Vail
Resorts, its employees, and many others for injuries arising out of the participant's
participation in the Activity. This forward-looking exculpatory clause is followed
by a separate paragraph purporting to release all claims that the participant may
have against any released party, including "ALL CLAIMS, INCLUDING THOSE
OF WHICH I AM NOT AWARE, THOSE NOT MENTIONED IN THIS RELEASE
AND THOSE RESULTING FROM ANYTHING WHICH HAS HAPPENED UP
TO NOW."

161 Approximately one year after Litterer purchased his Epic Pass, and
notwithstanding the fact that the parties had actively litigated this case throughout
that year-long period, Defendants, for the first time, asserted that the second part
of the above-quoted paragraph 7 of the Release operated to release the claims that
Litterer was asserting in his pending litigation. Defendants moved for summary
judgment, the district court granted that motion, a division of our court of appeals
affirmed, and the case is now before us.

## II. Analysis

162 I begin by addressing the majority's fundamental premise that the Release
did not operate as an exculpatory agreement because Litterer purchased his Epic
Pass after and not before he was injured. Maj. op. 115, 24-30, 49. After

concluding that this premise finds no support in the law and that the Release was,
in fact, largely an exculpatory agreement, I discuss the settled legal principles
concerning exculpatory agreements that are pertinent to my analysis. I then apply
those principles to the facts before us.

## A. Nature of the Release

163 The majority concludes that the Release did not operate as an exculpatory
agreement because Litterer purchased his Epic Pass after and not before he was
injured. Id. I respectfully disagree with this fundamental premise of the majority's
opinion.

164 To reach its conclusion that the Release did not operate as an exculpatory
agreement, the majority ignores much, if not most, of the language of the Release.
As discussed at length above, the bulk of the Release's language was
forward-looking and purported to exculpate Vail Resorts, its employees, and
many others for injuries arising out of a participant's participation in ski or
snowboard activities. The release language on which Defendants and the majority
rely comprised one sentence following the Release's lengthy exculpatory
provisions.

165 Rather than focusing on what the Release actually said, the majority focuses
on the timing of Litterer's injury. Specifically, the majority concludes that the
Release did not operate as an exculpatory agreement because it was entered into

after Litterer was injured. Id. In so concluding, the majority appears to agree with
the division's determination that the timing of Litterer's injury distinguished the
Release from the 2020 online waivers, which were entered into before Litterer's
injury and thus rendered them exculpatory in nature. Id. at [[ 14-15.

166 I am aware of no applicable authority supporting the majority's premise that
the meaning of contract language changes depending on when a contract is signed,
and the majority cites no such authority. To the contrary, in my view, the
contract's language controls, and identical language should be construed the same
way, regardless of when the contract is signed. See French v. Centura Health Corp.,
2022 CO 20, 1 25, 509 P.3d 443, 449 (noting that in interpreting a contract our
primary goal is to effectuate the intent of the parties and that "[t]he parties' intent
is primarily determined from the language of the instrument itself").

167 Accordingly, I would conclude that the Release was in large part an
exculpatory agreement, and I would analyze Litterer's claims based on that
premise.

## B. Pertinent Legal Principles

168 The sufficiency and validity of an exculpatory agreement presents a
question of law for a court's determination. Jones v. Dressel, 623 P.2d 370, 376
(Colo. 1981).

169 In Jones, we said that exculpatory agreements that attempt to insulate a party
from liability for their own negligence must be closely scrutinized and that "in no
event will such an agreement provide a shield against a claim for willful and
wanton negligence." Id. We have further concluded that a party may not absolve
itself, by way of a private release agreement, from liability for violations of
statutory and regulatory duties on which a negligence per se claim may be based.
Miller v. Crested Butte, LLC, 2024 CO 30, 11 2, 36, 549 P.3d 228, 231, 235-36.

170 In Jones, 623 P.2d at 376, we identified four factors that a court must consider
in determining the validity of an exculpatory agreement that is not void under the
above-described legal principles: "(1) the existence of a duty to the public; (2) the
nature of the service performed; (3) whether the contract was fairly entered into;
and (4) whether the intention of the parties is expressed in clear and unambiguous
language."

171 We have made clear, however, that the first Jones factor generally does not
invalidate or render unenforceable exculpatory agreements involving recreational
activities. See Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004);
Jones, 623 P.2d at 376-77. Similarly, we have concluded that recreational services
like those at issue here are not practically necessary and do not involve matters in
which the service providers owe special duties to the public, which would
implicate the second Jones factor. Chadwick, 100 P.3d at 467. And, as to the third

Jones factor, we have at least implicitly discerned no unfair disparity in bargaining
power in contracts with businesses providing recreational services. See Heil Valley
Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Accordingly, those three
factors are not pertinent to my analysis.

172 As to the fourth Jones factor, however, we have said, "To determine whether
the intent of the parties is clearly and unambiguously expressed, we have
previously examined the actual language of the agreement for legal jargon, length
and complication, and any likelihood of confusion or failure of a party to recognize
the full extent of the release provisions." Chadwick, 100 P.3d at 467.

173 Finally, we have observed that when a contract contains multiple
provisions, some of which are unenforceable, we must determine whether the
contract is severable. See Reilly v. Korholz, 320 P.2d 756, 760 (Colo. 1958); accord
Capital Value Advisors, LLC v. K2D, Inc., 2013 COA 125, 1 22, 321 P.3d 602, 606. To
determine whether a contract is severable, our primary objective is to ascertain the
contracting parties' intent, looking not only to the terms and provisions of their
contract but also to the surrounding circumstances and the parties' conduct before
a dispute has arisen. John v. United Advert., Inc., 439 P.2d 53, 56 (Colo. 1968);
Capital Value Advisors, 1 24, 321 P.3d at 606. "[W]hether a number of promises
constitute one contract, or more than one, is to be determined by inquiring
'whether the parties assented to all the promises as a single whole, so that there

would have been no bargain whatever, if any promise or set of promises were
struck out."" John, 439 P.2d at 56 (quoting United States v. Bethlehem Steel Corp.,
315 U.S. 289, 298 (1942)); accord Capital Value Advisors, 1 24, 321 P.3d at 606-07.

174 With these principles in mind, I turn to the facts now before us, addressing
the fourth Jones factor and then the issue of the Release's validity and severability.

## C. The Fourth Jones Factor

175 As noted above, the fourth Jones factor requires a court to consider whether
the parties' contractual intentions in an exculpatory agreement were expressed in
clear and unambiguous language. Jones, 623 P.2d at 376. To determine whether
contractual language was so expressed, we have examined the actual language
used, including the extent of its legal jargon, the agreement's length and
complication, and the likelihood that a contracting party would be confused or fail
to recognize the extent of the agreement's release provisions. Chadwick, 100 P.3d
at 467. Here, I believe that each of these considerations weighs against the
Release's validity.

176 First, the most cursory review of the above-quoted language of the Release
reveals that it is replete with excessive legal jargon. Paragraph 7 of the Release,
the provision on which Defendants principally rely, begins with language like
"WAIVE," "HOLD HARMLESS," "RELEASE," and "INDEMNIFY." That

paragraph then proceeds to discuss concepts of negligence, express or implied
warranties, and breaches of statutory or other duties of care.

177 Second, the Release is long and complex. It comprises four single-spaced
pages rife with legalese and covering eighteen named entities, all of their unnamed
affiliated companies and subsidiaries, "His Majesty the King," and all of the
foregoing people's and entities' insurers, successors-in-interest, corporate
sponsors, affiliates, agents, employees, representatives, assignees, officers,
directors, and shareholders. And the lengthy document features numerous
portions in block capital letters, the extent of which ironically tends to minimize
the importance of any of them.

178 Third, in my view, the Release's length, complexity, and legal jargon create
a high likelihood of confusion or a failure on the part of a party to recognize the
full extent of the Release's provisions. As noted above, the bulk of the six
paragraphs that precede paragraph 7 of the Release substantially replicate the
form of assumption of risk language that appears on the back of every ski pass and
with which most skiers and snowboarders are likely familiar. As a result, I believe
that most people buying a ski pass, if they reviewed the Release at all, would
reasonably assume that it was simply the standard assumption of risk language.
Moreover, much of the Release's language is forward-looking (i.e., it suggests that
a party is foregoing rights to sue for future injuries resulting from the inherent

risks of skiing). As a result, I do not expect that reasonable ski pass purchasers
would recognize that the Release also purports to exonerate Vail Resorts, its
employees, and many others from liability for past conduct, and especially claims
being pursued in then-pending litigation. My view in this regard finds further
support in the fact that the allegedly operative language of the Release does not
appear until the bottom of page two of that document, after over ninety lines of
single-spaced text.

179 For all of these reasons, I would conclude, contrary to the majority, that the
Release does not bar Litterer's existing claims against Defendants, and for this
reason alone, I would reverse the judgment of the division below.

## D. The Release's Validity and Severability

180
Even were I to agree, however, that the Release was not rendered
unenforceable under the fourth Jones factor, I would still conclude that the Release
is unenforceable because I believe that it is void as against public policy.

181 As noted above, in Jones, 623 P.2d at 376, we made clear that in no event will
an exculpatory agreement provide a shield against claims for willful and wanton
negligence. We then more recently extended this principle to conclude that a party
may not absolve itself, by way of a private release agreement, from liability for
violations of statutory and regulatory duties on which negligence per se claims
may be based. Miller, TT 2, 36, 549 P.3d at 231, 235-36.

182 The portion of the Release at issue that comprises an exculpatory agreement
facially violates these principles. Specifically, the Release purports to release any
and all claims against Vail Resorts, its employees, and many others, including
claims that the ski pass purchasers do not even know that they have. The Release
nowhere expressly exempts claims for willful and wanton negligence or those, like
the claim at issue here, arising from violations of statutory and regulatory duties
on which a negligence per se claim is based. Accordingly, I would conclude that
this portion of the Release is void as against public policy.

183 In reaching this conclusion, for several reasons, I am not persuaded by
Defendants' assertion, which the majority embraces, Maj. op. 137, that the
operative language of the Release applies only "to the greatest extent permitted by
law" and therefore exempts claims for willful and wanton negligence and claims
arising from violations of statutory and regulatory duties.

184 First, if Vail Resorts' intent was to create such an exemption, I do not believe
that this intent was set forth in clear, unambiguous, and unequivocal language.
Indeed, in my view, this language does not read as language limiting the release
purportedly given to Vail Resorts. To the contrary, it reads as language expanding
the breadth of that purported release to the greatest extent possible.

185 Second, the fact that this language appears only once and in the middle of a
lengthy document, after a reader wades through extensive assumption of risk
language, tends to diminish its significance to the reader.

186 Third, I note that the very same language appeared in the exculpatory
agreement at issue in Miller, 17, 549 P.3d at 231, a case involving Crested Butte
Mountain Resort, which is owned by Vail Resorts. We did not deem the "to the
greatest extent permitted by law" language sufficient to save the exculpatory
agreement in that case, and I would reach the same conclusion here.

187 Accordingly, I would conclude that the portion of the Release purporting to
comprise an exculpatory agreement is void. This does not end my analysis,
however, because the fact that the Release's exculpatory provision is void does not
necessarily invalidate the portion of the Release at issue here, which purports to
release Defendants from the claims that Litterer asserted in his lawsuit against
them. I thus turn to that provision's validity.

188 As an initial matter, I reject Litterer's contention that our decision in Miller
precluded a party from releasing existing claims for willful and wanton negligence
or claims arising from statutory or regulatory duties and asserted through
negligence per se claims. Nothing in Miller went so far. Indeed, if Litterer were
correct, then no party would ever be able to settle a claim for willful and wanton

negligence or negligence per se (based on an alleged violation of a statutory or
regulatory duty). That, of course, is not the law.

189 The validity of the release provision at issue turns on the question of
whether the void portion of the Release may be severed, such that the release
provision on which Defendants rely may still be operative. I would conclude that,
on the facts of this case, it may not so be severed.

190 As noted above, to determine whether a contract is severable, we must
ascertain the contracting parties' intent, and we do so by considering the terms
and provisions of the contract, the surrounding circumstances, and the parties'
conduct before a dispute has arisen. John, 439 P.2d at 56; Capital Value Advisors,
T 24, 321 P.3d at 606. In particular, we look to whether the parties assented to all
of the contract's promises as a single whole. John, 439 P.2d at 56.

191 Here, for several reasons, I do not believe that the void exculpatory
language may be severed from the Release, so as to save the release provision on
which Defendants seek to rely.

192 First, the language of the Release does not expressly state that any
provisions deemed void are severable. Nor do I perceive any language of the
Release that implicitly suggests such an intent. To the contrary, the bulk of the
Release's language focuses on its forward-looking exculpatory provisions, not on
language suggesting a release of past or then-existing claims. As a result, I

perceive no basis in the Release's language that would allow me to conclude that
the release provisions are severable from the void exculpatory provisions. To the
contrary, the record demonstrates that the parties purported to assent to all of the
Release's provisions as a single whole. And this is particularly true given that the
Release is a one-sided liability exclusion that we construe strictly in considering
the rights of the party that drafted it. See Rosen v. LTV Recreational Dev., Inc.,
569 F.2d 1117, 1122 (10th Cir. 1978) ("The kind of agreement we have here ...
differs from the contract which results from negotiations on both sides. Here the
rules and regulations, Exhibit E, was drafted by the ski area so as to exclude
liability. Because of its one-sidedness, it is to be interpreted strictly in considering
the rights of the party who has prepared it.").

193 Second, the surrounding circumstances suggest to me that the Release is not
severable. In their arguments before us, Defendants made clear that this Release
is critically important to them and that Litterer, who chose to sue them, could have
opted to ski elsewhere. As a result, I perceive no basis for concluding that
Defendants would have contracted with Litterer without obtaining this Release.
Conversely, Litterer has made abundantly clear that he did not interpret this
click-through Release to have released his existing claims, and the record
demonstrates that he would not have signed a contract with Defendants had he
known that it contained such a release. These circumstances reveal an absence of

mutual intent that the Release be severable, so as to save the release provisions at
issue.

194 Third, regarding the parties' course of conduct, I note that Defendants
litigated this case for approximately one year after Litterer signed the Release
before moving for summary judgment. This suggests to me that Defendants did
not initially view the release provision on which they now rely as a stand-alone
term that effectively barred Litterer's claims but rather developed that position as
a litigation strategy much later. Had Defendants viewed the release provision as
applicable to Litterer's pending claims, there would have been no reason for them
to delay raising that defense. For this reason as well, I perceive no basis to
conclude that the release provisions at issue could properly be severed from the
void exculpatory provisions.

195 Accordingly, I would conclude that the release provisions of the Release
may not be severed from that document's void exculpatory provisions and,
therefore, the Release is void and unenforceable.

196 In this regard, I view the Ninth Circuit's reasoning in Farina v. Mt. Bachelor,
Inc., 66 F.3d 233, 235-36 (9th Cir. 1995), to be persuasive. There, as here, an
exculpatory provision in a ski area's season pass application was unenforceable
because it purported to exculpate the ski area from liability for gross negligence
and willful misconduct. Id. The court then determined that because the ski area

had "made an unenforceable bargain in trying to escape liability for gross
negligence and willful misconduct, the entire release provision in the season pass
application, including the limitation of liability for ordinary negligence, is
unenforceable." Id. at 236. The court explained:

In contrast to other release clauses, the language of the release
provision in this case does not manifest an intention by [the ski area]
or by [the plaintiff] that the provision be severable. In one simple,
broad sentence, [the ski area] sought to exculpate itself for any and all
claims that an injured skier might bring against it. This attempt
rendered [the ski area's] entire release clause invalid. It is not our role
to enforce only part of the release clause where it is not obvious from
the language of the clause that the parties intended the clause to be
severable.

Id. (citation omitted).

197 In my view, Colorado law mandates that the same reasoning should apply
here.

## III. Conclusion

198
Winter sports like skiing and snowboarding are, of course, essential to
Colorado's tourism industry and economy. People from around the United States,
indeed the world, routinely purchase ski passes online. This simple transaction
should not become a game of "gotcha" for unsuspecting ski pass purchasers, but
that is precisely what the majority condones today.

199 If Defendants wished to settle Litterer's claims against them, then the proper
way to proceed would have been to make an offer and engage in negotiations, not

to hide release language in a lengthy, one-sided, legalese-laden document that a
purchaser is required to click through to purchase a ski pass and in which no
reasonable purchaser would expect to find a release of pending litigation.

1100 Although today will undoubtedly be a day of celebration for Colorado's ski
industry, I believe that it is a sad day for the rights of many thousands of
unsuspecting ski pass purchasers who are the lifeblood of that industry.

1101 For the reasons discussed above, I would conclude that the Release is void
as against public policy and that, therefore, Litterer's negligence per se and
attendant exemplary damages claims survive. Accordingly, I would reverse the
division's judgment upholding the district court's grant of summary judgment to
Defendants and remand this case for further proceedings on Litterer's negligence
per se and exemplary damages claims.

1102 I therefore respectfully dissent.

26CO65, 25SC134 Litterer, John v. Vail Summit Resorts, Inc.

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