Litterer v. Vail

24CA0480 Litterer v Vail 01-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0480
Summit County District Court No. 22CV30043
Honorable Reed W. Owens, Judge

John Litterer,

Plaintiff-Appellant,

v.

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

Defendants-Appellees.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE MOULTRIE
Lipinsky and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 30, 2025

Bloch & Chapleau, LLC, Joseph D. Bloch, Trenton J. Ongert, Denver, Colorado,
for Plaintiff-Appellant

Bryan Cave Leighton Paisner LLP, Michael J. Hofmann, Kaitlin M. DeWulf,
Denver, Colorado, for Defendants-Appellees
¶1 Plaintiff, John Litterer, appeals the district court’s judgment in

favor of defendants, Vail Summit Resorts, Inc. (VSRI), and Dwight

McClure (jointly, the Defendants). We affirm.

I. Background

¶2 In December 2020, Litterer was injured in a snowboarder-

snowmobile collision (the collision) at Breckenridge Ski Resort

(Breckenridge). Litterer snowboarded down the Wirepatch trail and

turned left onto Peak 8 Road, a catwalk1 approved for snowmobile

traffic. Dwight McClure, a VSRI employee, was operating a

snowmobile owned by VSRI on Peak 8 Road. He and Litterer

collided at the intersection of the Wirepatch trail and Peak 8 Road.

¶3 An incident summary that VSRI prepared reported that, in the

moments before the collision, McClure “saw movement above him in

the trees,” attempted to move the snowmobile to the edge of the

road to avoid a collision, and began to bring the snowmobile to a

stop. At the time, McClure was driving the snowmobile at eighteen

1 A “catwalk” is a trail, often used by maintenance or equipment

vehicles, that winds down the entirety of a mountain or joins one
slope to another. Anderson v. Vail Corp., 251 P.3d 1125, 1126 n.2
(Colo. App. 2010).

1
miles per hour — seven miles under the catwalk’s twenty-five-mile-

per-hour speed limit.

¶4 According to the incident summary, Litterer made a “high

speed turn onto and across the [catwalk]” before impacting

McClure’s snowmobile. Litterer’s speed “was such that he could not

stop or change direction.” In a later deposition, Litterer said he was

only “one second” away from impact before he saw McClure and

“had no time to make any moves” before the collision.

¶5 In May 2020, Litterer filed a complaint asserting claims

against the Defendants for negligence, negligence per se, extreme

and outrageous conduct, willful and wanton conduct, and reckless

endangerment. Litterer also asserted claims against VSRI for

respondeat superior, negligent entrustment and/or supervision,

negligent hiring, and premises liability.

¶6 The Defendants moved for partial dismissal of Litterer’s

claims, arguing that Colorado’s Premises Liability Act (PLA)

provided the exclusive remedy for Litterer’s common law claims;

Litterer failed to state a claim for extreme and outrageous conduct;

Colorado does not recognize tort claims for willful and wanton

conduct or reckless endangerment; and Litterer failed to allege

2
sufficient facts to support his claims for negligent entrustment

and/or supervision and negligent hiring. The court dismissed

Litterer’s claims against VSRI for negligence, negligence per se,

respondent superior, negligent entrustment and/or supervision,

negligent hiring, and extreme and outrageous conduct because it

concluded that the PLA preempted those claims. The court also

dismissed Litterer’s claims for willful and wanton conduct and

reckless endangerment on the grounds that they are not cognizable

causes of action in Colorado. However, the court declined to

dismiss Litterer’s premises liability claim against VSRI or Litterer’s

claims against McClure for negligence and extreme and outrageous

conduct. And the court allowed Litterer to amend his complaint to

include a claim against McClure alone for negligence per se.

Following this ruling, Litterer sought leave to amend his complaint

to include a claim for exemplary damages against the Defendants,

which the court granted.

¶7 The Defendants then moved for summary judgment, asserting

that Litterer’s claims were barred by three liability waivers Litterer

executed related to his purchase and use of resort season passes —

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each otherwise known as an “Epic Pass”2 — and that Litterer’s

claims for negligence per se and extreme and outrageous conduct

failed as a matter of law.

¶8 The court determined that the exculpatory agreements related

to Litterer’s Epic Pass for the 2020-21 ski season were valid and

enforceable and, therefore, barred Litterer’s claims for negligence,

negligence per se, and premises liability. The court further

determined that (1) Litterer released all his claims against the

Defendants when he purchased an Epic Pass for the 2022-23 ski

season; (2) VSRI and McClure’s conduct was insufficient as a

matter of law to support a claim for extreme and outrageous

conduct; and (3) Litterer’s claim for exemplary damages could not

stand without an underlying claim for damages.

¶9 On appeal, Litterer asserts the court erred by (1) granting

summary judgment on his negligence per se claim against McClure

because under Miller v. Crested Butte, LLC, 2024 CO 30 — which

2 Vail Resorts Management Company (VRMC) — of which VSRI is a

subsidiary — sells season passes for its resorts through
www.EpicPass.com. After a customer purchases a season pass on
that website, VRMC sends the customer a physical Epic Pass,
“which is required to access Breckenridge Resort (and other resorts)
for skiing.”

4
the supreme court decided while this appeal was pending —

negligence per se claims cannot be barred by exculpatory

agreements; (2) finding that he released all his claims against the

Defendants when he purchased the 2022-23 Epic Pass;

(3) dismissing his claim for willful and wanton conduct against the

Defendants; and (4) rejecting his claim for exemplary damages.

¶ 10 Because we conclude that Litterer’s claims are barred by the

liability waiver he signed when he purchased the 2022-23 Epic

Pass, we do not reach his contention that the supreme 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, not just the two statutes — the Ski Safety Act

of 1979 and the Passenger Tramway Safety Act — at issue in that

case. But we address — and reject — his remaining contentions in

turn.

II. The 2022 Online Waiver Bars Litterer’s Claims

¶ 11 The Defendants contend that Litterer released any existing

claims against them when he executed the liability waiver included

with his purchase of a 2022-23 Epic Pass. We agree.

5
A. Additional Facts

¶ 12 Litterer agreed to three liability waivers when he purchased

season passes and obtained a season pass card from VSRI in 2020

and 2022. First, Litterer purchased an Epic Pass for the 2020-21

ski season through www.EpicPass.com. When he purchased that

pass, Litterer executed a “Release of Liability, Waiver of Claims,

Assumptions of Risk Warning and Indemnification Agreement” on

March 10, 2020 (the 2020 online waiver). Second, VSRI sent

Litterer a physical pass card that he was required to scan before

boarding any chairlifts at Breckenridge. The back of the card

contained a “Release of Liability & Assumption of Risk Notice” (the

2020 physical waiver). Third, Litterer purchased another Epic Pass

for the 2022-23 ski season through www.EpicPass.com. When he

purchased the 2022-23 Epic Pass, Litterer executed a “Release of

Liability, Waiver of Claims, Assumptions of Risk Warning and

Indemnification Agreement” on November 20, 2022 (2022 online

waiver).

¶ 13 The 2022 online waiver contained the following relevant

provisions:

6
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 [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 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.

¶ 14 The 2022 online waiver defined “Released Party” to include

“Vail Resorts, Inc., The Vail Corporation, . . . each of their affiliated

companies and subsidiaries, the resort owner/operator, [and] all

their res[pective] . . . affiliates, agents, employees, representatives,

assignees, officers, directors, and shareholders” and released those

parties from all liability for “any injury” arising “in whole or in part”

from Litterer’s participation in snowboarding, among other

activities.

¶ 15 In its order granting summary judgment in favor of the

Defendants, the court found that Litterer surrendered his right to

sue the Defendants and released all claims against them when he

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purchased an Epic Pass for the 2022-23 ski season and agreed to

the 2022 online waiver.

B. Standard of Review and Preservation

¶ 16 We review de novo a district court’s ruling on a motion for

summary judgment. Gibbons v. Ludlow, 2013 CO 49, ¶ 11; see

C.R.C.P. 56(c). Summary judgment is appropriate when there is no

genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. C.R.C.P. 56(c). The moving

party bears the burden of establishing the lack of a triable factual

issue. Gibbons, ¶ 11. We further review a district court’s

interpretation of a contract de novo. French v. Centura Health

Corp., 2022 CO 20, ¶ 14.

¶ 17 VSRI asserts that Litterer did not preserve his arguments that

he did not agree to the 2022 online waiver or that the 2022 online

waiver is unconscionable. We disagree.

¶ 18 In his response to the Defendants’ motion for summary

judgment, Litterer argued that the 2022 online waiver was not fairly

entered into and that the intention to release the Defendants from

liability was not expressed in clear and unambiguous language.

And in ruling on the Defendants’ motion for summary judgment,

8
the court had an opportunity to interpret the language of the 2022

online waiver. Therefore, we conclude that the issue was

adequately preserved. See In re Estate of Owens, 2017 COA 53,

¶ 21 (“Where an issue was brought to the district court’s attention

and the court ruled on it, it is preserved for appellate review; no

talismanic language is required to preserve an issue.”).

C. Applicable Law

¶ 19 Colorado recognizes a strong policy of freedom of contract.

Ravenstar, LLC v. One Ski Hill Place, LLC, 2017 CO 83, ¶ 12.

“Contracts between competent parties, voluntarily and fairly made,

should be enforceable according to the terms to which they freely

commit themselves.” Id. (citation omitted). To be enforceable, a

contract requires “mutual assent to an exchange between

competent parties for legal consideration.” French, ¶ 26.

¶ 20 In interpreting a contract, our primary goal is to give effect to

the parties’ intent. Id. at ¶ 25. The parties’ intent is primarily

determined from the language of the contract. Id. “When a written

contract is complete and free from ambiguity, we will deem it to

express the parties’ intent and enforce it according to its terms.” Id.

9
D. Analysis

¶ 21 Litterer contends that he did not agree to the 2022 online

waiver, that it is unconscionable and therefore enforceable, and

that it cannot bar all his claims. We are not persuaded.

1. Litterer Agreed to the 2022 Online Waiver

¶ 22 Litterer contends that the 2022 online waiver is unenforceable

because there was no “mutual assent” to its terms. Specifically,

Litterer argues that the waiver lacked mutual assent because “he

did not testify as to his intent or understanding of the potential

ramifications of his purchase of the ski pass,” including whether he

read and understood its terms.

¶ 23 We first note that the 2022 online waiver operates as a release

rather than an exculpatory agreement with respect to Litterer’s

claims against the Defendants arising from his 2020 collision with

the snowmobile. An exculpatory agreement “attempts to insulate a

party from liability from his own negligence” and therefore “must be

closely scrutinized.” Jones v. Dressel, 623 P.2d 370, 376 (Colo.

1981). “[I]n no event will [an exculpatory] agreement provide a

shield against a claim for willful and wanton negligence.” Id.

However, “[a] release is the relinquishment of a vested right or claim

10
to a person against whom the claim is enforceable.” Neves v. Potter,

769 P.2d 1047, 1049 (Colo. 1989). “Once a claim is released, the

release bars the injured party from seeking further recovery.”

CMCB Enters., Inc. v. Ferguson, 114 P.3d 90, 96 (Colo. App. 2005).

When questions about a release’s scope or enforceability arise,

Colorado courts answer them with “general contractual rules of

interpretation and construction.” Bunnett v. Smallwood, 793 P.2d

157, 159 (Colo. 1990).

¶ 24 When Litterer agreed to the 2022 online waiver, he had vested

claims stemming from the injuries he sustained from the 2020

snowboarding collision. Accordingly, we apply the general

principles of contract construction in considering the enforceability

of the 2022 online waiver. While the 2020 online waiver and the

2020 physical waiver each sought to limit future negligence claims

against VSRI and its employees, the 2022 online waiver required

that Litterer release any and all claims against VSRI or its

employees, including claims resulting from past events.

¶ 25 To form a valid contract, there must be an offer, an

acceptance, and consideration that supports the agreement.

Marquardt v. Perry, 200 P.3d 1126, 1129 (Colo. App. 2008).

11
Colorado recognizes the existence of a contract implied by the

conduct of the parties. Id. (noting acceptance of an offer may be

established through a party’s “words or conduct that, when

objectively viewed, manifests an intent to accept an offer”)

(emphasis added); see also I.M.A., Inc. v. Rocky Mountain Airways,

Inc., 713 P.2d 882, 888 (Colo. 1986) (upholding a jury instruction

that mutual assent “may be inferred from the conduct and

declarations of the parties”). 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 such that a valid

contract was formed. See Marquardt, 200 P.3d at 1129. Indeed,

Litterer does not dispute that he purchased a 2022-23 Epic Pass in

November 2022, completed the online waiver at that time, and then

used that Epic Pass during a family ski trip.

¶ 26 Further — as Litterer concedes — his subjective and

unexpressed intent or understanding of the 2022 online waiver is

irrelevant to his assent to the agreement. Rather, “[t]he 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.

12
Litterer electronically signed the 2022 online waiver, which advised

him that the agreement was a condition of using the ski pass to

snowboard at VSRI-owned resorts. As consideration for VSRI’s

promise to permit Litterer to access its resorts during the 2022-

2023 ski season, Litterer unambiguously agreed to “waive any and

all claims” against any party released by the agreement. See

Hudgeons v. Tenneco Oil Co., 796 P.2d 21, 23 (Colo. App. 1990)

(“‘All’ is an unambiguous term and means the whole of, the whole

number or sum of, or every member or individual component of,

and is synonymous with ‘every’ and ‘each.’”). The 2022 online

waiver expressly and unambiguously listed VSRI and its employees

as released parties pursuant to the terms of the agreement.

¶ 27 Finally, “Colorado law recognizes that ‘one generally cannot

avoid contractual obligations by claiming that he or she did not

read the agreement.’” Macasero v. ENT Credit Union, 2023 COA 40,

¶ 18 (citation omitted). Absent an assertion of fraud, a party who

signs a contract is presumed to know its contents and is bound by

all the conditions within the contract, even if the party did not read

the contract. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 n.5

(Colo. 1998). As Litterer did not allege fraud and there is no

13
evidence of fraud in the record, he is bound by the entire content of

the 2022 online waiver.

2. Alleged Unconscionability of the 2022 Online Waiver

¶ 28 Litterer also contends that the 2022 online waiver is

unconscionable. See, e.g., Lincoln Gen. Ins. Co. v. Bailey, 224 P.3d

336, 341 (Colo. App. 2009) (noting that a court may find a contract

“unconscionable” when enforcement of its terms would result in a

“profound sense of injustice”) (citation omitted), aff’d, 255 P.3d

1039 (Colo. 2011). However, Litterer’s argument is undeveloped

because he doesn’t explain how the 2022 online waiver is

unconscionable beyond a conclusory allegation that he is penalized

by its enforcement. Therefore, we decline to address this

contention. See Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582,

604 (Colo. App. 2007) (declining to address underdeveloped

arguments).

3. The 2022 Online Waiver Is Enforceable

¶ 29 Under the 2022 online waiver’s clear and unambiguous

language, Litterer released “any and all claims” he had against the

Defendants related to his 2020 injuries.

14
¶ 30 “If a release agreement is valid, dismissal of claims

encompassed by the agreement is proper.” Arline v. Am. Fam. Mut.

Ins. Co., 2018 COA 82, ¶ 12; see also C.R.C.P. 8(c) (a release is an

affirmative defense to a complaint). We therefore conclude that the

court did not err by granting summary judgment to the Defendants

on Litterer’s claims for negligence, negligence per se, extreme and

outrageous conduct, and premises liability.

4. The 2020 Waivers

¶ 31 Litterer also asserts that the 2020 online waiver and 2020

physical waiver are void because they are vague and ambiguous.

Because we have determined that the court did not err by granting

summary judgment on the basis that Litterer’s claims are barred

under the 2022 online waiver, we decline to address these

arguments. See Stor-N-Lock Partners # 15, LLC v. City of Thornton,

2018 COA 65, ¶ 38 (“An issue is moot when the relief sought, if

granted, would have no practical effect on an existing

controversy.”).

15
III. The Court Did Not Err by Dismissing Litterer’s Claim for
Willful and Wanton Conduct

¶ 32 Litterer also asserts that the district court erred by dismissing

his claim for willful and wanton conduct against the Defendants.

We are not persuaded.

A. Additional Facts

¶ 33 After the court granted the Defendants’ motion for summary

judgment, Litterer moved for amendment of the judgment under

C.R.C.P. 59(a)(4). Litterer sought to amend the judgment with

respect to the court’s dismissal of his claim for willful and wanton

conduct, arguing that a jury “should determine whether [the]

Defendants’ conduct rose to the level of willful and wanton conduct,

as the Court had already ruled [Litterer] had established a triable

issue for the jury’s determination.” The court denied Litterer’s

motion, determining, as relevant here, that the court had dismissed

that claim in November 2022, when it ruled on the Defendants’

motion for partial dismissal of Litterer’s claims.

B. Standard of Review

¶ 34 “We review a C.R.C.P. 12(b)(5) motion to dismiss de novo and

apply the same standards as the trial court.” Norton v. Rocky

16
Mountain Planned Parenthood, Inc., 2018 CO 3, ¶ 7. “We accept all

factual allegations in the complaint as true, viewing them in the

light most favorable to the plaintiff, but we are not required to

accept bare legal conclusions as true.” Id. “We will uphold the

grant of a C.R.C.P. 12(b)(5) motion only when the plaintiff’s factual

allegations do not, as a matter of law, support the claim for relief.”

Id.

C. Applicable Law

¶ 35 Willful and wanton conduct is “purposeful conduct committed

recklessly that exhibits an intent consciously to disregard the safety

of others.” Forman v. Brown, 944 P.2d 559, 564 (Colo. App. 1996).

Such conduct extends beyond mere unreasonableness. Id.

Exculpatory agreements will not bar actions for willful and wanton

negligence. Jones, 623 P.2d at 376.

¶ 36 “[T]he issue of whether a defendant’s conduct is purposeful or

reckless is ordinarily a question of fact,” but “if the record is devoid

of sufficient evidence to raise a factual issue, then the question may

be resolved by the court as a matter of law.” Forman, 944 P.2d at

564.

17
D. Analysis

¶ 37 Litterer asserts that an exculpatory contract could not waive

his claim for willful and wanton conduct. As already noted, the

2022 online waiver was a release, not an exculpatory agreement.

This argument is misplaced, however, because the court did not

dismiss Litterer’s claim on this basis. Instead, the court determined

that Colorado law does not recognize willful and wanton conduct as

an independent cause of action.

¶ 38 The court alternatively determined that Litterer’s claim for

willful and wanton conduct duplicated his claim for negligence per

se under the snowmobile safety statute, section 33-14-116(2),

C.R.S. 2024, because both claims were premised on Litterer’s

argument that a violation of the statute, which prohibits operation

of snowmobile in a manner that demonstrates a “wanton or willful

disregard” for the safety of others, constitutes per se negligence.

Moreover, we (like the district court) concluded that the 2022 online

waiver barred Litterer’s claims against the Defendants. Because we

affirm on that basis, Litterer’s arguments regarding his claim for

willful and wanton conduct are moot, and we decline to address

them further. See Stor-N-Lock Partners, ¶ 38; see also Rush Creek

18
Sols., Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 406 (Colo. App.

2004) (appellate courts may affirm on any basis supported by the

record).

IV. The Court Properly Dismissed Litterer’s Claim for
Exemplary Damages

¶ 39 Litterer next asserts that the court erred by dismissing his

claim for exemplary damages. We disagree.

A. Additional Facts

¶ 40 In granting the Defendants’ motion for summary judgment,

the court also dismissed Litterer’s claim for exemplary damages,

noting it could not stand without an underlying claim for actual

damages. Litterer challenged this ruling in his C.R.C.P. 59 motion

by seeking to amend the portion of the judgment dismissing his

claim for exemplary damages. The court denied Litterer’s motion,

determining that “exemplary damages do not present a separate,

distinct cause of action, but rather, depend on an underlying claim

for actual damages.”

B. Standard of Review and Applicable Law

¶ 41 As mentioned, we review de novo a district court’s ruling on a

motion for summary judgment. Gibbons, ¶ 11.

19
¶ 42 Exemplary damages are only available by statute. Qwest

Servs. Corp. v. Blood, 252 P.3d 1071, 1081 (Colo. 2011). An award

of exemplary damages is permitted in civil actions in which an

injury is attended by circumstances of “fraud, malice, or willful and

wanton conduct.” § 13-21-102(1)(a), C.R.S. 2024. “[W]illful and

wanton conduct” means conduct “purposefully committed which

the actor must have realized as dangerous, done heedlessly and

recklessly,” without regard to the safety of others, particularly the

plaintiff. § 13-21-102(1)(b).

¶ 43 “A claim for exemplary damages . . . may not be included in

any initial claim for relief” but “may be allowed by amendment to

the pleadings only after the exchange of initial disclosures pursuant

to [C.R.C.P. 26] and the plaintiff establishes prima facie proof of a

triable issue.” § 13-21-102(1.5)(a).

C. Analysis

¶ 44 Litterer first contends that we must reinstate his claim for

exemplary damages if we determine that Miller does not bar his

negligence per se claim because his claim for exemplary damages

could attach to that claim.

20
¶ 45 Alternatively, Litterer contends that a claim for willful and

wanton conduct is analogous to a claim for gross negligence. See,

e.g., Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 954 (Colo.

App. 2011) (recognizing “gross negligence” as “willful and wanton

conduct,” otherwise described as “action committed recklessly, with

conscious disregard for the safety of others”). He argues that a

claim for exemplary damages is “synonymous with [a] willful and

wanton gross negligence claim.” Accordingly, he argues his claim

for exemplary damages should be reinstated because the court

provided him with “no opportunity whatsoever to assert a claim

against [the] Defendants for willful and wanton conduct — either as

a gross negligence claim in his [c]omplaint or as an exemplary

damages claim.”

¶ 46 We reject both arguments.

¶ 47 First, because we do not reach Litterer’s argument that Miller

permits his negligence per se claim to proceed, we decline to

reinstate Litterer’s claim for exemplary damages on that basis.

Second, “[e]xemplary damages do not present a separate, distinct

cause of action, but rather, depend on an underlying claim for

actual damages.” Ferrer v. Okbamicael, 2017 CO 14M, ¶ 44,

21
superseded by statute on other grounds, Ch. 147, sec. 1, § 13-21-

111.5(1.5)(c), 2021 Colo. Sess. Laws 863; see also Harding Glass

Co. v. Jones, 640 P.2d 1123, 1127 (Colo. 1982) (“[B]y its own terms

section 13-21-102 has no application in the absence of a successful

underlying claim for actual damages.”). Litterer did not assert a

claim for gross negligence in his original or amended complaint,

and we will not rewrite his pleadings. See People v. Cali, 2020 CO

20, ¶ 24.

¶ 48 And, as already discussed, the court appropriately granted

summary judgment on the remainder of his claims. Therefore,

Litterer did not have an underlying claim for actual damages to

which exemplary damages could be tied. Accordingly, the court did

not err by determining that Litterer could not independently pursue

a claim for exemplary damages.

V. Disposition

¶ 49 The judgment is affirmed.

JUDGE LIPINSKY and JUDGE JOHNSON concur.

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