DENVER (Legal Newsline) - A tennis club may be liable for the sexual assault of a minor girl by one of its instructors, even though she joined under a broad waiver agreement that barred negligence lawsuits of any kind.
The waiver language focused on athletic risks and a lay reader wouldn’t assume it also covered the risk of sexual assault, the Colorado Court of Appeals ruled in a Dec. 1 decision it said addressed “a novel issue.”
The minor girl, identified only as Jane Doe, was assaulted in 2016 and 2017 by Milos Koprivica, a tennis pro at the Colorado Athletic Club Monaco who later pled guilty to criminal charges of child abuse over the matter. Doe’s mother sued the club but a trial judge dismissed the case and awarded costs to the club, citing the waiver Doe’s grandfather signed on her behalf when she joined the club.
The waiver said she assumed “all risks of injuries that I or my minor children may suffer” including “any athletic activities, showers, steam room, or other Club usage.” The agreement also released the club from any claims based on the negligence of owners, managers or employees.
Colorado has a rich history of litigation over such waivers, particularly because its ski industry is considered vital to the state’s economy. But judges tend to interpret such agreements narrowly, citing “public policy.” Following that trend, the Court of Appeals reversed the trial judge’s decision, saying the waiver agreement wasn’t specific enough.
“When read as a whole, the `dominant focus’ of the exculpatory provision is on the risks of athletic activities associated with the use of the Club’s facilities,” the appeals court ruled. “The provision makes no mention of the risk of sexual assault or of activities raising such a risk.”
The court cited a landmark Colorado case in which a skydiver was injured when the airplane crashed. Before the trip, the skydiver had signed a broad release of negligence claims, including “while upon the aircraft,” which was ruled to be included in the waiver. But in another widely cited case, a child was able to sue over injuries from being pulled in an innertube on a frozen lake because the waiver didn’t specify that particular activity.
Finally, the court cited a case where a waiver didn’t apply to a fitness-club member who tripped on a blow dryer cord in the locker room.
Should the issue come up again, plaintiffs will have an easier time prevailing. Colorado this year amended its law making any waiver of liability for sexual misconduct void.