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Club Liability Regarding Childcare Programs

By Doyice Cotten

Health clubs and other sport-, recreation-, and fitness-related businesses or organizations often provide child care programs for pre-school or older children in order to better accommodate the parent. They often require the parent to sign a liability waiver. Of course, such parental waivers are not enforceable in many states; in fact, they are commonly enforced in only about 15 states.

Management should consult their local attorney for two reasons: first, to learn if parental waivers are enforceable in that state, and secondly, to find out if waivers for participants in programs for young children violate the public interest in that state – thereby, making the waiver useless.

Cases Involving Childcare Programs

A waiver was at issue in two cases involving California childcare programs (Gavin v. YMCA of Metropolitan Los Angeles, 2003; Lotz v. The Claremont Club, 2013). The Gavin court ruled that waivers signed by parents in the YMCA childcare program were unenforceable as against public policy.  The court stated that permitting a childcare provider to contract away its duty of ordinary care is antithetical to the very nature of such services. In Lotz, the appellate court failed to enforce a parental waiver relating to a child in a childcare program. The father had purchased a family membership to a sports club. Ten-year-old Nicholas was left in the club’s childcare department and suffered injury during a dodge ball game. The court cited Gavin and ruled the waiver void as against public policy; it remanded the case for trial. Likewise, in R.N. v. United States of America (2019), a waiver signed by the mother of a child injured in a Childcare Development Center was not enforced according to California law prohibiting the enforcement of waivers for child care facilities.

In a Utah case (K.N. v. Lifetime Fitness, Inc., 2018), a three-year-old was left in childcare during the mother’s workout. The child was found in the boys’ restroom half naked. She had been molested. The mother sued for negligent infliction of emotional distress. The issue was whether the standard of care for health clubs should apply, or the standard of care of childcare centers. The court applied the childcare center standard and said the waiver was a matter of public interest and denied Lifetime’s motion for summary judgment based on the waiver.

In Perry v. Town of East Haddam (2016), the mother signed a waiver of liability and entered her son into an afterschool recreation program for children. The Connecticut court likened the program to a childcare program (even referring to the Gavin case) and noted that such care is a practical necessity for many working parents. The court analyzed the waiver using the Tunkl factors (Tunkl v. Regents of University of California, 1963) and concluded the matter involved the public interest. The defendant’s motion for summary judgment based on the waiver was denied.

In contrast, Maryland’s highest court ruled to enforce a waiver signed by a mother to allow her five-year-old son to play in a free supervised play area while she shopped (BJ’s Wholesale Club, Inc,, v. Rosen, 2013). While most of the discussion regarded the right of a parent to waive the rights of the child, the court considered whether the waiver for such a program was against the public interest. The court declined “to adopt the Tunkl factors, determining that the ‘fluid nature of the public interest’ renders strict reliance on ‘the presence or absence of six fixed factors’ arbitrary and inappropriate.” It stated that the “ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.”


Management of clubs providing childcare (whether for preschool youngsters or for older children) needs to be aware of the importance of this issue. If the program is deemed to be childcare, it is likely that your business or organization will be held to a higher standard of care, which means your waiver is unlikely to protect you.

Photo Credit: Thanks to Emma Forsberg via Flickr.

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