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July 15, 2019

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Claremont Club Case: It's Not Just Dodgeball Re: Club Liability

Lotz vs. Claremont Club, Court of Appeals, Division 2, California (August 15, 2013)

This decision illustrates both the general risk of club liability when liability waivers are unclear and when a club does not follow its written management policies and the unique risk of club liability when a club offers child care. In this case, a member's child was injured playing dodgeball in the club's childcare program. The trial court ruled that (i) a release signed by his father barred the claims, (ii) there was no evidence showing the club's conduct amounted to gross negligence, and (iii) the injuries were an inherent risk in dodgeball. A finding of gross negligence was relevant because in California, a liability release for gross negligence is generally unenforceable. In an unpublished opinion, the Court of Appeals reversed and held that there were triable issues of material fact regarding each of the trial court's findings.

1. Releases

The appeals court believed that there were triable issues of fact related to the release, because it was unclear whether the father released claims related only to the father's facilities use or also the family's facilities use and whether a release of liability for personal injury from "Club activities" included dodgeball, which was not among the list of activities in the membership information form. The appeals court also believed that there were triable issues of fact as to whether a release with respect to child care was void against public policy.

2. Gross Negligence

The appeals court believed that there were triable issues of fact as to whether the club was guilty of gross negligence when (i) club employees knew racquetball courts were being used for dodgeball against club policy, (ii) the club did not implement safety rules for the game, (iii) the children were supervised by an 18-year old front desk clerk with no childcare training, and (iv) the 18-year old participated in the dodgeball game and played in an aggressive way.

3. Inherent Risk of Game

The appeals court believed that there were triable issues of fact as to whether the child assumed the risk in participating in an inherently risky activity because the club increased the risk normally associated with dodgeball by allowing the game to be played in an enclosed area not intended for dodgeball, allowed it to be played with a hard rubber ball and allowed an adult untrained in childcare to participate in the game and play aggressively.

The lessons of this case for club managers are to enforce club policies designed to protect members, especially children, and to review release provisions with legal counsel.

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About this Author

Glenn Gerena, Greeberg Traurig Law Firm, Boca Raton, Real Estate and Hospitality Attorney

Glenn A. Gerena is a community development and hospitality attorney, whose practice focuses on structuring and documentation for recreational club membership programs and community governance. Glenn has significant experience in a variety of transactions and agreements involving recreational facilities, resorts and residential and mixed use communities.


  • Club, marina and resort

  • Community development