Featured Article:

Sexual Assault: Tennessee YMCA Waiver was Moot, but No Negligence Found

By Doyice Cotten

In Boswell v. YMCA of Middle Tennessee (2019), the plaintiff, Adam Boswell, a health club member, sought damages from the health club based on its alleged failure to protect him from sexual assaults in the locker room by another club member. The complaint alleges that the a man assaulted him on three occasions in the health club, of which he reported the last two partially because he was on parole. The club denied knowledge of previous sexual assaults by the man, Dabney.  The YMCA claimed protection from the exculpatory provision in its membership agreement, which released the club from liability for injuries “resulting from” the plaintiff’s “use of [the] facilities.”

The trial court found the exculpatory provision was unambiguous and dismissed the claims. Prior to the appeal, the Tennessee Supreme Court revised the standards by which the enforceability of an exculpatory agreement should be determined. The appellate court determined that the plaintiff failed to present competent evidence that the health club knew or should have known of prior assaults by the assailant or anyone else. The court ruled that there was no genuine dispute of fact, the health club is entitled to judgment as a matter of law, and the issue regarding the enforceability of the exculpatory clause is moot. Accordingly, the court affirmed the grant of summary judgment, albeit on other grounds than found by the trial court, and remand with instructions to dismiss the complaint.

The Complaint

Adam Boswell (“Plaintiff”) alleges that Jack Dabney sexually assaulted him by groping his genitals on three occasions in the men’s locker room of the YMCA’s Maryland Farms facility in 2015 and 2016.Defendant denied the action. The issue was whether the health club was aware of a previous record of assaults by Dabney.

After the first incident, Boswell failed to report and and refused to identify the perpetrator on the video. He reported the second incident, but still refused to identify the man because he didn’t want his parole officer to know about it.

The second incident occurred one week later, on July 17, 2015. While Plaintiff was using the steam room, the same man who assaulted Plaintiff on July 10 entered the steam room, approached Plaintiff and put his hand on Plaintiff’s genitals. Plaintiff jumped up and left the steam room but, this time, Plaintiff reported the incident to the YMCA’s membership greeter, Erin Hill. Although Plaintiff still did not know the identity of the man who groped him, he described the man to Ms. Hill; however, Plaintiff declined to review video footage in order to identify the man or otherwise assist in an investigation. According to Plaintiff’s deposition, Ms. Hill requested that Plaintiff “go through the videotape” to identify the individual who groped him, but Plaintiff refused. The relevant colloquy on this point reads:

In his deposition, Plaintiff stated that he was on federal probation at the time and did not want to have to inform his probation officer about the incidents.

A third incident occurred seven months later and the plaintiff did identify Dabney. Boswell claimed that the YMCA had taken no action. Ms. Schroer immediately notified her supervisor of Plaintiff’s report and the supervisor advised Ms. Schroer to obtain the exact dates and times of the alleged incidents. Ms. Schroer then called Plaintiff to obtain more information. Apparently, Dabney continued to attend the YMCA.

Later Boswell filed a complaint alleging assault and that the YMCA had not acted. He did not allege gross negligence.

The Waiver

The YMCA filed a Motion for Partial Summary Judgment on Plaintiffs’ claims for negligence and negligent infliction of emotional distress. The YMCA asserted that Plaintiff waived his right to sue the YMCA for injuries resulting from his use of the YMCA’s facilities by signing a Membership Application that included an exculpatory clause that provided:

In consideration for gaining membership and/or being allowed to participate in the activities and programs of the YMCA of Middle Tennessee (“YMCA”) and to use its facilities (whether owned or leased), equipment and machinery, I do hereby waive, release and forever discharge the YMCA and its officers, agents, employees, volunteers, representatives, directors and all other from any and all responsibility or liability for injuries or damages resulting from my participation in such activities or programs or my use of such facilities, equipment or machinery, even if such damage or injury results from a negligent act or omission.

Boswell contended the exculpatory provision did not apply because his injuries did not “result from” his use of the YMCA’s facilities. In addition, Plaintiff argued that public policy prevented the YMCA from relying on the exculpatory provision because the Complaint alleged gross negligence.

On July 12, 2017, the trial court granted the YMCA’s Motion for Partial Summary Judgment based on the language of the exculpatory provision. The court found the language was unambiguous and that Plaintiff’s injuries resulted from Plaintiff’s “use of” the facilities. As a result, the court dismissed Plaintiff’s claims for negligence and negligent infliction of emotional distress.

The issues before this court, as we have restated them, are as follows:

(1) Whether the record demonstrates gross negligence on the part of the YMCA, such that the exculpatory clause, no matter how broadly construed, cannot operate to excuse the YMCA from liability;

(2) Whether Plaintiff presented competent evidence sufficient to create a question of fact on his claim that the YMCA is liable for its negligence in failing to protect Plaintiff from “a sexual assault perpetrated by another member of the YMCA known to have engaged in similar conduct in the past;” and, if so,

(3) Whether the exculpatory clause precludes Plaintiff from “suing the YMCA for its negligence in failing to protect [Plaintiff] from a sexual assault perpetrated by another member of the YMCA known to have engaged in similar conduct in the past.”

Gross Negligence

Plaintiff contended YMCA was grossly negligent in failing to take timely and appropriate measures to prevent the sexual assaults by Mr. Dabney because it shows that the YMCA knew or should have known of Mr. Dabney’s conduct prior to his assaults on Plaintiff. He also contends the exculpatory clause, no matter how broadly construed, cannot operate to bar such a claim. The YMCA insists Plaintiff did not state a claim for gross negligence in the Complaint and the record does not demonstrate such a claim. The court agreed with the YMCA.

Ordinary Negligence

Plaintiff contends the trial court erred by dismissing his ordinary negligence claims based on the exculpatory clause in the membership agreement. The YMCA counters by insisting the trial court’s decision was correct, even under the new standard established in Copeland vHealthsouth/Methodist Rehabilitation HospitalLP565 S.W.3d 260 (Tenn. 2018). The YMCA also contends “[t]here are no facts from which it would be reasonable to conclude that it [was] reasonably foreseeable that a crime would be committed on the YMCA’s premises,” and “[t]here are no facts in the record  from which the trial court, or this Court, could conclude that the YMCA was . . . negligent at all.”

The Waiver

Because Plaintiff failed to create a dispute of a material fact concerning his negligence claims and all such claims were dismissed, the issue of whether the exculpatory clause is enforceable is now moot.


The YMCA was granted summary judgment and the case was dismissed.

Risk Management Take Away

The defendant may be fortunate that the waiver turned out to be moot because ” and to use its facilities” might be construed as being too narrow. Some courts might rule that “facilities” does not include sexual assault.

Photo Credit: Thanks to BCC  Centres via Flickr.

Read the Article

Recent Articles:

Seven Misconceptions Regarding Liability Waivers

By Doyice Cotten President Ronald Reagan once said that his Democrat friends knew a lot, but that what they knew was wrong. Even if you don’t agree with the President, it is true that people signing waivers and people running sport/recreation-related businesses today know a lot more about waivers today than they did 25 years ago. That is true, but a lot of what they know is not accurate. Here are a few frequently-held misconceptions about waivers.... [read more]

Minnesota Negligence/Gross Negligence Law Examined in a Rugged Races Case

By Doyice Cotten In 2016, Jeanne Anderson was injured while participating in a Rugged Races event (Anderson v. Rugged races LLC, 2020). The event at which the injury occurred required the participant “To jump off a platform, strike a gong while in midair, land in the pit of water, climb out of the pit, and continue to the next obstacle.” When Anderson landed in the pit, one of her feet stuck a hard object causing instant pain and injury.... [read more]

Texas Waiver Fails to protect against an intentional act

By Doyice Cotten Samuel Brennan and Matthew Kaufman were competing against each other in a soccer match when Brennan was seriously injured when their heads collided. Brennan claimed the action by Kaufman was an intentional assault and sued Kaufman.(Brennan v. Kaufman, 2021) Kaufman claims the action was a part of the game – an inherent risk. During the trial Brennan provided two witness statements in which the witnesses recalled the incident and “averred that appellee acted intentionally and that the move was not an accident stating “[appellee] did not appear to be trying to use his head to intercept the soccer ball,... [read more]

Pennsylvania Waiver Fails Because Injury was not Caused by the Sport

By Doyice Cotten David Martin participated in a charitable clay shooting event at HFC in Andover, New Jersey. The event had “multiple starting stations at which the charity participants would begin their shooting activities. Some participants at certain locations walked to those locations;” Martin and others were transported to their starting location in wagons pulled by vehicles. Mr. Sparling, one of the defendants, drove the vehicle which pulled the wagon in which Martin rode. Going to one station,... [read more]

Who Signed the Waiver? … Can You Prove the Client Signed It?

By  Alexander “Sandie” Pendleton Alexander Pendleton is a practicing attorney in Milwaukee, Wisconsin. He has a strong interest in sport and recreation waivers. Are you sure you know who is signing your waivers?  The perils of not knowing were emphasized in a 2021 Pennsylvania federal court decision in which the court refused to enforce a signed waiver. Bonnen v. Pocono, (Pennsylvania, 2022) arose out of whitewater rafting trip in which one of the participants drowned after his foot became lodged in a rock,... [read more]

Minnesota Parental Waiver Prevents Claim by an Adult who was injured as a Minor

By Doyice Cotten When Carter Justice was 7 years old, he fell off an inflatable obstacle course and hit his head on the floor in an indoor amusement park. Prior to his participation, his mother signed a parental waiver of liability which stated: (Justice v. Marvel, LLC, 2021) In consideration of being allowed to enter into the play area and/or participate in any party and/or program at Pump It Up of Plymouth,... [read more]