A child who was sexually abused by her tennis coach may sue the athletic club where he was employed, even though a liability waiver purportedly immunized the club from “any and all claims,” Colorado’s second-highest court ruled this month.

Plaintiffs “Jane Doe” and her mother sued Wellbridge Club Management LLC, which operates Colorado Athletic Club-Monaco in Denver, after her tennis instructor allegedly sexually assaulted her on and off the club’s premises. The club initially succeeded in having a trial judge dismiss the lawsuit based on a waiver that released all claims, damages and liability for the “activities associated with the club.”

But a three-judge panel of the Court of Appeals reinstated the lawsuit, determining the language did not clearly express an intent to immunize Wellbridge for allegations of negligently permitting its employee to sexually assault a minor.

“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 provision makes no mention of the risk of sexual assault or of activities raising such a risk,” wrote Judge Anthony J. Navarro in the panel’s Dec. 1 opinion.

Last year, the General Assembly voided pre-incident waivers of liability as being contrary to public policy in cases of child sexual abuse. But when Doe’s grandfather signed a membership agreement on her behalf in 2014, the club’s waiver indicated that members would assume “all risks of injuries” that they may suffer from use of the facilities and activities.

Between August 2016 and February 2017, tennis instructor Milos Koprivica allegedly sexually assaulted Doe at the club and on out-of-state trips. Court records show Koprivica pleaded guilty in 2017 to child abuse and sexual exploitation of a child, receiving 10 years in prison.

Doe and her mother then sued Wellbridge, largely alleging the company was negligent. In response, the club argued the waiver in the membership agreement prohibited their claims. Denver District Court Judge J. Eric Elliff agreed with Wellbridge, finding Doe had released the club from liability for injuries in connection with athletic activities and facilities.

“Plaintiff’s injuries did arise from the fact that she availed herself of the Club’s tennis coaching services,” he wrote.

On appeal, Doe contended the waiver did not specifically address the risk of sexual assault by club employees.

“Sexual assault is not an activity related to tennis. Tennis is an activity related to tennis,” attorney Dean Batchelder told the appellate panel.

The judges, in turn, were sympathetic to that argument.

“A sprained ankle or some other tennis-related injury,” observed Judge Craig R. Welling, “is the sort of thing you would expect to be within the scope of the risk.”

“Are you stating on behalf of the club that sexual abuse is an activity associated with tennis lessons?” Navarro pressed Wellbridge’s attorney.

Mark T. Barnes, representing Wellbridge, responded that the only allegation of misconduct at the club itself was Koprivica kissing Doe.

“That is a sexual assault on the premises,” interjected Judge Sueanna P. Johnson. “The question is – is that a foreseeable risk that when you get tennis lessons at the athletic club, you might be kissed by your coach unwantedly?”

“I think there’s a difference between knowing that a risk exists, no matter how small, and being foreseeable in terms of the likelihood of it happening,” Barnes told her, adding that Doe had taken tennis lessons elsewhere for years before coming to the Monaco facility.

“And had she been sexually abused at those clubs like she was at Wellbridge?” asked Navarro.

She had not, said Barnes.

The panel ultimately concluded the waiver did not unambiguously express an intent to extinguish sex abuse-related claims against the club. Clear intent is one of the factors the Colorado Supreme Court has recognized for determining if liability waivers are valid.

Wellbridge “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,” Navarro explained.

The panel returned the lawsuit to the trial court for further proceedings.

The case is Mother Doe et al. v. Wellbridge Club Management LLC.