Mother Doe v. Wellbridge Club Management LLC.
2022 COA 137. No. 21CA1299. Contracts—Exculpatory Agreements—Premises Liability—Negligence.
December 1, 2022
Jane Doe was sexually abused while a minor by a tennis-instructor employee of defendant Wellbridge Club Management LLC, d/b/a Colorado Athletic Club-Monaco (the Club). Mother Doe brought various negligence-based claims and a Premises Liability Act (PLA) claim against the Club on behalf of her daughter alleging that the abuse happened both on and off the Club’s premises. The court dismissed (1) the PLA claim insofar as it alleged abuse that occurred off the Club’s premises, (2) the negligence-based claims insofar as they alleged abuse that occurred on the Club’s premises, and (3) the negligent hiring and respondeat superior claims. The district court granted summary judgment for the Club on the remaining claims and awarded it costs, concluding the claims were barred by the exculpatory provision in the Club’s membership agreement (the provision). The court then denied the Does’ motions for reconsideration.
On appeal, the Does argued that the district court erred because there was no evidence that they understood the provision or intended it to extend to extinguish the Club’s responsibility for its employee’s grooming and sexual assault of Jane Doe. Here, the provision’s dominant focus is on the risks of athletic activities associated with using the Club’s facilities; the provision does not mention the risk of sexual assault or of activities raising such a risk. Accordingly, the provision does not bar the negligence-based and PLA claims because it does not express the parties’ intention to waive such claims in clear, unambiguous, and unequivocal language. Therefore, the district court erred.
The court of appeals declined to consider the Club’s request to affirm the summary judgment on grounds that the claims fail on the merits, because the district court did not reach this issue.
The judgment was reversed, the costs order was vacated, and the case was remanded for further proceedings.