Clicking "I Agree" While Suing: Litterer v. Vail Resorts and What a Click-Through Waiver Can Cost You

In 2010, a UK video game retailer called GameStation added a clause to its online checkout terms and conditions claiming ownership of customers' immortal souls. The clause was buried in the agreement, but it came with an opt-out link. On April 1 of that year — April Fool's Day — roughly 7,500 customers clicked through without noticing. Only about 12% found the opt-out and indeed opted out, thankfully saving their souls (just kidding).

GameStation was making a point: nobody reads these things. And they were right.

That was a joke. The following case is not.

The Facts

In December 2020, a Texas man named John Litterer was snowboarding down Wirepatch trail at Breckenridge Ski Resort in Colorado. Turning onto Peak 8 Road — a catwalk approved for snowmobile traffic — he was struck and injured by a resort employee operating a snowmobile uphill around a blind corner. He sued Vail Resorts, the resort's owner.

So far, a straightforward personal injury case. Then it gets interesting.

Nearly two years later, in November 2022, while his lawsuit against Vail Resorts was actively pending, Litterer purchased an Epic Pass for the coming ski season. To do so, he clicked through a six-page online purchase agreement. That agreement, highlighted in all caps and yellow at the top, warned that pass buyers "will forfeit certain claims you may have against Vail Resorts… including a release of any claims for negligence." Buried deeper in the agreement was a release of "any and all claims and rights that [he] may have… including… anything which has happened up to now."

He clicked "I Agree."

Both the Summit County District Court and the Colorado Court of Appeals dismissed Litterer's lawsuit, concluding that the second click-through had released his claims — including the ones he was already actively litigating. The Colorado Supreme Court accepted the case, and heard oral arguments on April 16, 2026 — just a few weeks ago.

What the Court Is Wrestling With

The justices' questions during oral argument were pointed, and in several places, skeptical of Vail's position.

Chief Justice Márquez noted that the language was "broad" but also "pretty plain," and asked: "How would that not put Mr. Litterer on notice? He certainly was aware of his own lawsuit." That's the hard question for Litterer — he can't claim he didn't know he had a pending case.

Litterer's attorney argued that his client "clearly had no intention to waive the lawsuit" and was unaware of the complexities of the agreement when he clicked through. He also argued that the waiver is unenforceable to the extent it purports to release claims arising from Vail's violation of the Colorado Ski Safety Act and the Colorado Snowmobile Safety Act — a theory rooted in the court's 2024 ruling in Miller v. Crested Butte, which held that ski resort waivers cannot always shield resorts from liability when they are violating state safety laws.

Justice Hood was more direct: "I think most folks would say that feels like Vail pulling a fast one." He acknowledged that Litterer, with an active lawsuit, could have been more careful — but questioned whether a routine ski pass purchase should be expected to secretly terminate pending litigation.

Justice Boatright asked Vail's attorney whether there was any point at which the Epic Pass contract had gone "too far." "It just feels limitless," Boatright said. "Is there any point where it becomes too much?"

Vail's attorney pushed back firmly: Litterer is an electrical engineer with an MBA. He read — or should have read — what he signed. "We are going to let an adult out of his promise because maybe he did not read it? That will destabilize contract law. Where do you stop?"

He also made a pointed business argument: no public policy requires a company to sell access to people who are actively suing them. Litterer could have chosen not to buy the Epic Pass.

Litterer's attorney had an answer for that too: "If you want to ski in Colorado, you better be comfortable giving up every right you have." The choice to ski elsewhere, he argued, does not really hold water when all major Colorado ski resorts use similar language.

Why This Matters for Haunt Operators

The ski industry and the haunt industry share a lot of legal DNA — both involve inherent physical risk, both rely heavily on liability waivers, and both have increasingly moved those waivers online, where a click substitutes for a signature.

Litterer raises questions that any operator using click-through waivers should be paying attention to:

First, can a click-through waiver with broad "any and all claims" language actually release existing, pending claims — not just future ones? Courts have generally been willing to enforce prospective waivers of negligence claims where the language is clear and the risk is inherent to the activity. Retroactive releases of pending litigation are a different and more difficult (and frankly interesting) question.

Second, what does "knowing and voluntary" mean in the context of a routine online purchase? The Epic Pass agreement apparently had caps and yellow highlighting at the top — that's better than most. If your waiver is buried on page three of a checkout flow with no visual emphasis, you may be in a weaker position than Vail.

Third, the Miller issue — whether state safety law violations can void a waiver entirely — is something haunt operators should watch carefully. If the Colorado Supreme Court expands that principle, it could have implications wherever haunt operators are regulated by state fire codes, OSHA standards, or other safety regulations.

The decision is pending. We will keep you apprised as it develops.

Litterer v. Vail Resorts, Colorado Supreme Court, oral argument April 16, 2026.

This post is general legal information, not legal advice. Waiver law is jurisdiction-specific and fact-dependent. Consult a licensed attorney in your state before relying on any of the above for your business.