Mother Doe v. Wellbridge Club Management LLC

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
December 1, 2022

2022COA137

No. 21CA1299, Mother Doe v. Wellbridge Club Management —
Contracts — Exculpatory Agreements; Torts — Premises
Liability — Negligence

A division of the court of appeals considers whether an

exculpatory provision in a membership agreement is valid as

applied to negligence-related claims against an athletic club based

on the sexual abuse of a minor on and off the club’s premises by a

club employee. The division holds that the provision is not valid as

applied to these claims because the provision does not express the

parties’ intention to waive such claims in clear, unambiguous, and

unequivocal language. As a result, the provision does not bar the

plaintiff’s negligence and Premises Liability Act claims. The division

reverses the district court’s grant of summary judgment in favor of

the defendant and vacates an associated costs order.
COLORADO COURT OF APPEALS 2022COA137

Court of Appeals No. 21CA1299
City and County of Denver District Court No. 20CV31185
Honorable J. Eric Elliff, Judge

Mother Doe and Jane Doe,

Plaintiffs-Appellants,

v.

Wellbridge Club Management LLC, d/b/a Colorado Athletic Club-Monaco
a/k/a Club Monaco,

Defendant-Appellee.

JUDGMENT REVERSED, ORDER VACATED,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE NAVARRO
Welling and Johnson, JJ., concur

Announced December 1, 2022

Burg Simpson Eldredge Hersh Jardine, P.C., D. David Batchelder, Nelson
Boyle, Jessica B. Prochaska, Alyssa C.E. Hill, Englewood, Colorado, for
Plaintiffs-Appellants

Chipman Glasser, LLC, Mark T. Barnes, Jennifer M. Osgood, Denver, Colorado,
for Defendant-Appellee
¶1 Plaintiffs, Mother Doe and Jane Doe (together, the Does),

appeal the judgment entered in favor of defendant, Wellbridge Club

Management LLC, d/b/a Colorado Athletic Club-Monaco, a/k/a

Club Monaco (the Club), on Mother Doe’s negligence claims and

Premises Liability Act (PLA) claim. The Does also appeal the order

requiring Mother Doe to pay costs. Mother Doe brought the claims

on behalf of her daughter, Jane Doe, who was sexually abused

while a minor by a Club employee.1 The district court concluded

that Mother Doe’s claims were barred by the exculpatory provision

of the Club’s membership agreement. Addressing a novel issue in

Colorado, we hold that the exculpatory provision does not bar

Mother Doe’s claims related to the sexual abuse of her daughter.

Therefore, we reverse the judgment, vacate the costs order, and

remand the case for further proceedings.

I. Factual and Procedural History

¶2 Jane Doe was a minor at all times relevant to this case. In

July 2014, she became a member of the Club when her grandfather

1Mother Doe filed the complaint as parent and legal guardian of
Jane Doe. Jane Doe has joined Mother Doe’s notice of appeal and
appellate briefs.

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 signed a membership agreement on her behalf. In the fall of 2015,

Jane Doe began taking tennis lessons from Milos Koprivica, an

employee of the Club. From August 2016 to February 2017,

Koprivica sexually abused Jane Doe. In her complaint, Mother Doe

alleged that the abuse happened both on and off the Club’s

premises. The Club terminated Koprivica’s employment in

February 2017. He later pleaded guilty to criminal charges of child

abuse and sexual exploitation of a child as a result of his abuse of

Jane Doe.

¶3 Mother Doe sued the Club, asserting the following claims:

(1) liability under the PLA, § 13-21-115, C.R.S. 2016;2 (2) negligent

hiring and retention; (3) negligent supervision; (4) negligence;

(5) negligent infliction of emotional distress; and (6) respondeat

superior liability. On the Club’s motion, the district court

dismissed the PLA claim insofar as it alleged abuse that occurred

off the Club’s premises. The court also dismissed the negligence-

based claims insofar as they alleged abuse that occurred on the

2 Because the PLA has since been amended, we rely on the version
in effect at the time of the incidents alleged in this case.

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 Club’s premises. Finally, the court dismissed the negligent hiring

and respondeat superior claims.

¶4 The Club moved for summary judgment on the remaining

claims. The Club advanced two arguments: (1) the exculpatory

provision in the membership agreement barred the claims; and

(2) no evidence showed that the Club knew, or should have known,

that Koprivica was sexually abusing Jane Doe.

¶5 The membership agreement contained the following

exculpatory provision:

WAIVER AND RELEASE OF PERSONAL
INJURY – I recognize, acknowledge, and agree
that athletic activities and the use of the Club
may result in personal injuries, including
serious bodily injury or death. By accepting
this agreement in using the [Club’s] facilities,
I assume all risks of injuries that I or my
minor children may suffer and all
responsibilities associated with the use of the
Club’s athletic facilities, including any athletic
activities, showers, steam rooms, or other Club
usage. I agree, waive, and release [the Club],
its owners, managers, and any of their
subsidiaries, assigns, successors, attorneys,
and insurers (the [Club] Parties) from any and
all claims, damages, liabilities, expenses, and
costs arising out of, or relating to (a) the
negligence of [the Club], its owners, managers,
and employees, (b) any another member’s [sic],
guest’s or invitee’s conduct, (c) the condition of
[the Club’s] facilities, or (d) my or my Guests’

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 use of [the Club’s] facilities and activities,
including without limitation, my or my Guests’
use of [the Club’s] parking lot, athletic
facilities, athletic equipment, pool, sauna,
steam room, showers, or any other facilities
and activities associated with [the Club].
Further, I agree to indemnify and defend the
[Club] Parties against any and all claims,
damages, costs, [and] expenses, arising from
my and my Guests[’] or Invitees[’] use of [the
Club’s] facilities.

¶6 In a written order, the district court decided that this provision

barred Mother Doe’s claims. Specifically, the court concluded,

“Plaintiff waived all injuries in connection with using the Club’s

facilities. Separately, she waived all negligence claims against the

Club.” The court continued, “Even if the negligence claim cannot be

separated from the waiver regarding use of the Club (which is a

strained reading), surely Plaintiff’s injuries did arise from the fact

that she availed herself of the Club’s tennis coaching services.”

Thus, the court granted summary judgment in the Club’s favor

without addressing the Club’s second argument.

¶7 Mother Doe filed two motions to reconsider. In the first

motion, filed under C.R.C.P. 59, she argued that “the sexual

grooming and sexual assault of a child is not contemplated by the

membership agreement.” In the second motion, filed under

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 C.R.C.P. 60, she argued that a new Colorado law — section 13-20-

1204, C.R.S. 2022 — voided the exculpatory provision at issue.

¶8 The court denied both motions. As to the first, the court ruled

that Mother Doe simply repeated arguments the court had already

considered and rejected. As to the second motion, the court gave

three reasons for its ruling: (1) “the [new] law was not in effect at

the time of the [c]ourt’s ruling, and indeed is still not in effect

today”; (2) “the law clearly reflects the legislature’s intent that it

apply prospectively”; and (3) “the new law does not affect the law

relied on by the [c]ourt in its summary judgment order.”

¶9 On appeal, the Does contend that the district court erred

because “[t]here is no evidence that the Does understood or

intended that the waiver would extend to extinguish the Club’s

responsibility for its employee’s grooming and sexual assault of

Jane Doe.” Alternatively, the Does contend that reversal is required

because section 13-20-1204 “declared the exculpatory clause void

as contrary to public policy.” Finally, the Does ask us to vacate the

court’s costs order if we reverse the summary judgment order.

¶ 10 Because we conclude that the exculpatory provision does not

bar Mother Doe’s claims, we reverse the summary judgment, vacate

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 the costs order, and remand the case for further proceedings on

Mother Doe’s claims. As a result, we do not address the Does’

arguments based on section 13-20-1204.

II. Validity of the Exculpatory Provision
as Applied to Mother Doe’s Claims

¶ 11 The Does contend that the exculpatory provision does not bar

Mother Doe’s claims because Jane Doe’s grandfather “could not

[have] fathom[ed]” that he was releasing the right to bring claims

based on Jane Doe’s injuries resulting from a Club employee’s

sexual abuse of her. We agree that the exculpatory provision is not

valid as applied to those claims.

A. Standard of Review and General Principles

¶ 12 Summary judgment is appropriate if the pleadings and

supporting documents establish that no genuine issue of material

fact exists and judgment should be entered as a matter of law.

Redden v. Clear Creek Skiing Corp., 2020 COA 176, ¶ 12. We review

a summary judgment ruling de novo. Id. Here, the district court

granted summary judgment based solely on the exculpatory

provision. Whether this provision is valid is a question of law that

we review de novo. Id. at ¶ 13.

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¶ 13 “Generally, exculpatory agreements have long been

disfavored.” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo.

1998); Stone v. Life Time Fitness, Inc., 2016 COA 189M, ¶ 14

(quoting B & B Livery, 960 P.2d at 136). In no event will an

exculpatory agreement be permitted to shield against a claim of

willful and wanton conduct. Chadwick v. Colt Ross Outfitters, Inc.,

100 P.3d 465, 467 (Colo. 2004).

¶ 14 An exculpatory agreement attempting to insulate a party from

liability for its own simple negligence, however, “is not necessarily

void as against the public policy” of Colorado. Id. We strictly

construe such an exculpatory agreement against the party seeking

to limit its liability. Hamill v. Cheley Colo. Camps, Inc., 262 P.3d

945, 952 (Colo. App. 2011); see Heil Valley Ranch, Inc. v. Simkin,

784 P.2d 781, 784 (Colo. 1989). We also “closely scrutinize[]” an

exculpatory agreement under four factors (the Jones factors) to

determine whether it is valid: (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 parties’

intention was expressed in clear and unambiguous language.

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 Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981); see Redden,

¶ 16.3

B. Analysis

¶ 15 The question presented is whether the exculpatory provision

bars Jane Doe’s right (or Mother Doe’s right, on Jane Doe’s behalf)

to pursue negligence claims against the Club related to the risk that

a Club employee would sexually abuse Jane Doe. We conclude that

the provision does not bar these claims because it does not express

the parties’ intention to waive such claims in clear, unambiguous,

3 In the context of a parent’s purported waiver of a child’s claims,
the General Assembly has prescribed an additional requirement.
See Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d
1260, 1264 (Colo. App. 2010). Section 13-22-107(3), C.R.S. 2022,
provides that “[a] parent of a child may, on behalf of the child,
release or waive the child’s prospective claim for negligence.” But
see § 13-22-107(4) (“Nothing in this section shall be construed to
permit a parent acting on behalf of his or her child to waive the
child’s prospective claim against a person or entity for a willful and
wanton act or omission, a reckless act or omission, or a grossly
negligent act or omission.”). To be valid and enforceable, however,
the parent’s decision to sign a waiver must be “voluntary and
informed.” § 13-22-107(1)(a)(V). Because the Does rely primarily
on the test from Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981),
and the application of that test is sufficient to resolve this appeal,
we do not address whether the exculpatory provision runs afoul of
section 13-22-107(1)(a)(V).

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 and unequivocal language. Therefore, with respect to these claims,

the exculpatory provision is not enforceable.

¶ 16 Because the Does contend only that the provision fails to

satisfy the fourth Jones factor, we confine our analysis to that

factor. See Jones, 623 P.2d at 376. To reiterate, when determining

the validity of an exculpatory agreement under the fourth Jones

factor, we must closely scrutinize “the agreement to ensure that the

intent of the parties is expressed in clear, unambiguous, and

unequivocal language.” Stone, ¶ 14; see Chadwick, 100 P.3d at

467. The question is not whether a detailed textual analysis would

lead a court to determine that the language, even if ambiguous,

would ultimately bar the plaintiff’s claims. Stone, ¶ 22. Instead, we

examine 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.

¶ 17 The exculpatory provision in this case begins by

acknowledging that “athletic activities and the use of the Club may

result in personal injuries, including serious bodily injury or death.”

The provision then identifies the “risks of injuries” that the signer

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 “assume[s]” — those “associated with the use of the Club’s athletic

facilities, including any athletic activities, showers, steam rooms, or

other Club usage.” The ensuing waiver and release of claims

correspond to those assumed risks:

I agree, waive, and release [the Club Parties]
from any and all claims, damages, liabilities,
expenses, and costs arising out of, or relating
to (a) the negligence of [the Club], its owners,
managers, and employees, (b) any another
member’s [sic], guest’s or invitee’s conduct,
(c) the condition of [the Club’s] facilities, or
(d) my or my Guests’ use of [the Club’s]
facilities and activities, including without
limitation, my or my Guests’ use of [the Club’s]
parking lot, athletic facilities, athletic
equipment, pool, sauna, steam room, showers,
or any other facilities and activities associated
with [the Club].

¶ 18 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. Stone, ¶ 27. The provision makes no

mention of the risk of sexual assault or of activities raising such a

risk. Although a release “need not contain any magic words to be

valid,” it must contain “some reference to waiving personal injury

claims based on the activity being engaged in.” Wycoff v. Grace

Cmty. Church of Assemblies of God, 251 P.3d 1260, 1265 (Colo.

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 App. 2010) (emphasis added). On its face, the exculpatory provision

does not indicate that the signer releases claims associated with

sexual abuse or with the Club’s alleged negligence in failing to

protect its members from sexual abuse by its employees.

¶ 19 Even so, the Club argues that the provision’s reference to “any

and all claims,” including those related to its “negligence,”

necessarily encompasses the type of claims alleged here. The Club

says this reference is dispositive because all of Mother Doe’s claims

are rooted in negligence theories. We cannot, however, consider the

reference to negligence in isolation from the rest of the agreement.

As noted, we must examine the agreement as a whole to assess

whether it creates reflects a “likelihood” that a party would fail to

recognize that the release provision extended to Mother Doe’s

particular claims. See Chadwick, 100 P.3d at 467.

¶ 20 The relevant case law illustrates this point. For instance, in

the seminal Jones case, the supreme court considered a plaintiff

who was injured during a skydiving trip when the airplane crashed.

See 623 P.2d at 372-73. Before the trip, the plaintiff had signed an

agreement releasing the defendant, the skydiving facilities operator,

from “any and all liability [and] claims,” including those resulting

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 from the defendant’s “negligence.” Id. at 372. The plaintiff sued the

defendant, alleging negligence as the cause of the crash. See id. at

373. The supreme court concluded that the exculpatory agreement

clearly and unambiguously expressed the parties’ intention to

release the defendant from the plaintiff’s claim. See id. at 378. But

the court did not rely solely on the fact that the agreement “used

the word ‘negligence.’” Id. Instead, the court also emphasized that

the agreement “specifically included injuries sustained ‘while upon

the aircraft of the [defendant].’” Id. In other words, the agreement

referred to the type of injury (and risk of injury) at issue in the

plaintiff’s claim.

¶ 21 Similarly, in Wycoff, a child attending a church-sponsored

event was injured while being pulled behind an all-terrain vehicle

on an inner tube over a frozen lake. 251 P.3d at 1264. Although

an exculpatory agreement signed by the child’s mother said the

child would participate in “all activities associated with” the event,

the agreement did not describe those activities and “certainly d[id]

not suggest” the particular activity that led to the child’s injuries.

Id. The division concluded that the agreement did “not pass muster

. . . under Jones” because it did not provide information allowing

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 the mother “to assess the degree of risk and the extent of possible

injuries from any activity.” Id. at 1265.

¶ 22 Other Colorado decisions confirm that a court must consider

the entire agreement — including its description of the risks

assumed and the activities envisioned — when assessing whether

the parties’ intent to extinguish liability for the claim at issue was

clearly, unambiguously, and unequivocally expressed. See

Chadwick, 100 P.3d at 468-69 (considering the entire agreement

and concluding that, although it did not use the term “negligence,”

the agreement’s applicability depended on “whether [the plaintiff]

was injured while participating in the activities described in the

contract”); Heil, 784 P.2d at 784 (explaining that, while the release

did not mention “negligence,” the release “specifically addressed a

risk that adequately described the circumstances of [the plaintiff’s]

injury”); Redden, ¶¶ 27-34 (looking beyond the agreement’s

reference to “negligence” and noting that the agreement

unambiguously encompassed the specific risk at issue).

¶ 23 In particular, and in respectful disagreement with the district

court, we find the reasoning of the Stone decision instructive here.

In Stone, ¶ 3, a member of a fitness club tripped on a blow dryer

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 cord that hung to the floor beneath a sink in the club’s locker room.

The division concluded that the exculpatory clause in the

membership agreement did not clearly and unambiguously apply to

the member’s PLA claim against the club. Id. at ¶ 13. The division

reached this conclusion even though the exculpatory clause

expressly included the member’s waiver of any and all claims

“resulting from the negligence” of the club. See id., app. at 2.

Rather than focus solely on this aspect of the membership

agreement, the division considered the agreement as a whole.

¶ 24 The Stone division explained that the agreement (1) was

written in dense fine print; (2) was replete with legal jargon;

(3) referred to unidentified “chapters,” which made it “ambiguous

and confusing”; (4) focused on the risks associated with exercise

and the use of exercise equipment, not on the risks associated with

use of the locker room; (5) used the phrase “inherent risk of injury”

in the assumption of the risk section, which traditionally

“address[es] waivers of liability only for activities that are dangerous

or potentially dangerous”; (6) contained a “release of liability”

provision whose scope could be determined only by reference to the

assumption of risk clause; and (7) repeatedly used the phrases

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 “includes, but is not limited to,” “including and without limitation,”

as well as simply “including,” which appellate courts had

interpreted to have conflicting meanings. Id. at ¶¶ 24-33.

¶ 25 Several of the circumstances present in Stone are present in

this case. First, the membership agreement, including the

exculpatory provision, is written in very dense fine print. See also

Monitronics Int’l, Inc. v. Veasley, 746 S.E.2d 793, 802-03 (Ga. Ct.

App. 2013) (concluding that, because an exculpatory clause was not

explicit and prominent, it did not bar a homeowner’s negligence

claim against her home security company related to her sexual

assault by an intruder). Second, the agreement uses much of the

same legal jargon used in the agreement at issue in Stone:

“subsidiaries, assigns, successors”; “including without limitation”;

“I assume all risks of injuries”; and “I agree to indemnify and

defend” the Club. As indicated in Stone, ¶ 25, “The use of such

technical legal language militates against the conclusion that the

release of liability was clear and simple to a lay person.”

¶ 26 Third, the exculpatory provision focuses on the risks of

engaging in athletic activities and using the Club’s athletic facilities.

Hence, a lay person could sensibly conclude that the provision

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 released only those claims associated with these “types of risks.”

Id. at ¶ 27. Indeed, as in Stone, the exculpatory provision here

followed a clause that advised members to “consult with a physician

prior to engaging in exercise,” further evincing an intention to

encompass claims related to injuries arising out of strenuous

exercise and exercise equipment. See id.4

¶ 27 Fourth, the exculpatory provision here used both “including

without limitation” and “including” — which, as the Stone division

explained, left the reader “to guess whether the phrases have

different meanings” and was ambiguous in light of conflicting

appellate decisions on whether such phrases are expansive or

restrictive. Id. at ¶ 32; compare Maehal Enters., Inc. v. Thunder

Mountain Custom Cycles, Inc., 313 P.3d 584, 590 (Colo. App. 2011)

(declining to treat the phrase “including, but not limited to” as

restrictive), with Ridgeview Classical Schs. v. Poudre Sch. Dist., 214

P.3d 476, 483 (Colo. App. 2008) (concluding that this phrase did

not exempt the statute from the limiting rule of ejusdem generis).

4We acknowledge that, unlike the agreement in Stone v. Life Time
Fitness, Inc., 2016 COA 189M, ¶ 33, the exculpatory provision here
also referred to the risks of using showers and steam rooms. Still,
we find Stone’s analysis useful overall.

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 Like in Stone, this ambiguity — expansive versus restrictive — is

“critical” because nothing in the membership agreement refers to

risks of being sexually abused by an employee or the Club’s

negligence leading to such abuse. Stone, ¶ 33 (reasoning that this

ambiguity was “critical because nothing in the Agreement refers to

risks of using sinks or locker rooms”).

¶ 28 Considering these circumstances in combination, we conclude

that the exculpatory provision in this case created a substantial

likelihood that a reader would fail to recognize the full extent of the

release provision — specifically, that it could apply to the risk of a

Club employee’s sexual abuse of a Club member due, in part, to the

Club’s alleged negligence or failure to exercise reasonable care. See

id. at ¶ 35. Relatedly, while we recognize that the exculpatory

provision released claims based on use of the Club and “activities

associated with” the Club, we reject the notion that the sexual

abuse was an activity associated with the Club’s tennis coaching

services.

¶ 29 Consequently, the membership agreement (1) does not clearly,

unambiguously, and unequivocally bar Mother Doe’s negligence

and PLA claims against the Club based on Jane Doe’s alleged

17
 injuries sustained as a result of a Club employee’s sexual abuse;

and (2) is not valid as applied to those claims. See id. at ¶ 2; see

also Wycoff, 251 P.3d at 1265 (“The form is legally insufficient to

release plaintiff’s personal injury claims.”).

III. The Club’s Alternative Argument to Affirm

¶ 30 In the event we conclude, as we have, that the exculpatory

provision does not bar Mother Doe’s claims, the Club asks us to

affirm the summary judgment nonetheless because the claims fail

on the merits. The district court did not reach this issue. So our

reversal of the judgment does not mean that the Club must

necessarily go to trial on Mother Doe’s claims; rather, the court on

remand may address the Club’s alternative argument for summary

judgment. If the district court grants summary judgment on that

ground, this court could then review that ruling, with the benefit of

the district court’s reasoning, if a party seeks review.

¶ 31 Therefore, although cognizant that an appellate court

ordinarily may affirm on any ground supported by the record,

Taylor v. Taylor, 2016 COA 100, ¶ 31, we decline to consider the

Club’s alternative argument for summary judgment in the first

instance. See Colo. Pool Sys., Inc. v. Scottsdale Ins. Co., 2012 COA

18
 178, ¶ 51 (declining to consider alternative ground for summary

judgment “because the trial court did not consider [that ground] in

its order granting summary judgment” (citing Greystone Constr.,

Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1290 (10th Cir.

2011) (“[T]he better practice on issues raised [below] but not ruled

on by the district court is to leave the matter to the district court in

the first instance.”) (citation omitted))); Estes Park Chamber of Com.

v. Town of Estes Park, 199 P.3d 11, 15-16 (Colo. App. 2007)

(remanding for further proceedings, including the district court’s

assessment of whether material facts were undisputed and whether

summary judgment was appropriate). After all, we are a court of

review, not of first view. See PDR Network, LLC v. Carlton & Harris

Chiropractic, Inc., ___ U.S. ___, ___, 139 S. Ct. 2051, 2056 (2019).

IV. Costs Order

¶ 32 Because we reverse the summary judgment, we vacate the

order requiring Mother Doe to pay costs.

V. Conclusion

¶ 33 The judgment is reversed, the costs order is vacated, and the

case is remanded for further proceedings consistent with this

opinion.

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JUDGE WELLING and JUDGE JOHNSON concur.

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