2017 IL App (3d) 160378
Opinion filed August 23, 2017 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
C.H., ) ) Plaintiff-Appellant, ) ) v. ) Appeal from the Circuit Court ) of the 14th Judicial Circuit, PLA-FIT FRANCHISE, LLC, a New ) Rock Island County, Illinois. Hampshire Limited Liability Company, and PF ) EAST MOLINE, LLC, an Illinois Limited ) Liability Company, d/b/a Planet Fitness, ) ) Defendants-Appellees. ) _____________________________________ ) Appeal No. 3-16-0378 ) Circuit Nos. 14-L-151 and 15-L-31 KELLY OTTERNESS, Individually and on ) consol. Behalf of All Others Similarly Situated, ) ) Plaintiff-Appellant, ) ) v. ) ) The Honorable PLA-FIT FRANCHISE, LLC, a New ) Clarence M. Darrow, Hampshire Limited Liability Company, and PF ) Judge, presiding. EAST MOLINE, LLC, an Illinois Limited ) Liability Company, d/b/a Planet Fitness, ) ) Defendants-Appellees. ) ____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion. Justices O’Brien and Schmidt concurred in the judgment and opinion. ____________________________________________________________________________ OPINION
¶1 Plaintiffs C.H. and Kelly Otterness were secretly videotaped in Planet Fitness’s tanning
rooms. Plaintiffs filed a second amended complaint against defendants Pla-Fit Franchise, LLC,
and PF East Moline, LLC, alleging defendants’ failure to ensure members’ privacy in the tanning
rooms caused plaintiffs’ severe emotional distress. Defendants filed separate motions to dismiss
the complaint, and the trial court granted the motions, determining plaintiffs had no cause of
action for emotional distress damages. Plaintiffs appealed, arguing that (1) defendants are liable
in negligence for the criminal or tortious acts committed by a third party, and (2) defendants
failed to exercise reasonable care in violation of section 2 of the Premises Liability Act (740
ILCS 130/2 (West 2014)). We affirm.
¶2 FACTS
¶3 Pla-Fit, a franchisor that owned the trademark name “Planet Fitness,” and PF East
Moline, a franchisee, entered into a franchise agreement in which PF East Moline would own,
operate, and do business under the Planet Fitness name in Moline, Illinois. In the agreement, PF
East Moline was to operate the gym under business formats, methods, procedures, designs,
layouts, standards, and specifications created and distributed by Pla-Fit and Pla-Fit reserved the
right to improve, develop, and modify the terms of the agreement.
¶4 Plaintiffs were members of the Moline gym. They upgraded their memberships to “Black
Card” status in which the plaintiffs paid an extra fee to utilize the tanning rooms. Each tanning
room contained a single tanning bed, and members gained access to the rooms by placing their
names on a sign-in sheet before entering.
¶5 Between August and November 2014, plaintiffs disrobed and used the tanning beds in the
tanning rooms. During this time, plaintiffs were secretly video recorded. On November 5, a PF
2 East Moline employee discovered a hidden video camera in one of the tanning rooms. The police
were called and conducted a search throughout the club. The next day, PF East Moline
discovered a second hidden video camera in a different tanning room. Again, the police were
notified. Eventually, a member of the gym, Trent Hamer, was arrested for the crime.
¶6 Mary Barnhill filed the original complaint against Pla-Fit and MBM Fitness Management
LLC (case No. 14-L-149), alleging defendants failed to exercise a duty of care to protect its
members’ privacy in the tanning rooms. Barnhill filed a subsequent first amended complaint
removing MBM Fitness Management and adding PF East Moline as a defendant. C.H.’s and
Otterness’s cases (case No. 15-L-31 and case No. 14-L-151, respectively) were later
consolidated with Barnhill’s lawsuit. Ultimately, Barnhill and defendants filed a stipulation to
dismiss wherein Barnhill dismissed her lawsuit against defendants with prejudice. The surviving
plaintiffs, C.H. and Otterness, filed a joint second amended complaint against defendants. Under
count I of the second amended complaint, C.H.’s allegations against Pla-Fit were the following:
“COUNT I
C.H. vs. Pla-Fit Franchise, LLC
63. Plaintiff, C.H., repeats, re-alleges, and adopts
paragraphs 1-16 above with the same force and effect as though
fully set forth herein.
64. Defendant PLA-FIT, before up to and including
November 2015, had control or partial control of their franchisee’s
(including PF EM) on information and belief and included, but not
limited to, marketing the services of PF EM, providing rules and
regulations as to security of the facilities, and providing
3 instructions to the franchisees as to how and under what
circumstances to clean and inspect the tanning booths.
65. Defendant PLA-FIT knew or in the exercise of due care
should have known that certain persons would attempt to secretly
video record people in the tanning rooms in various states of
undress through access to various franchise business journals and
trade associations memoranda and the fact that they knew that
people had engaged in this type of behavior in other franchises
other than the one in Moline.
66. The cost of engaging in activity to minimize or
completely prevent the risk of people secretly recording people in
the tanning rooms would be minimal and would involve nothing
more than educating employees what to look for and how to
inspect the premises.
67. At all relevant times complained of herein, Defendant
PLA-FIT had a duty to exercise ordinary care to provide their
franchisees with appropriate policies, procedures, and directions to
prevent or minimize the risk of their members being secretly video
recorded while using tanning rooms.
68. Defendant digressed from the aforementioned duty and
as such was negligent in one or more of the following respects:
a. Did not create or adequately create and provide to
the franchisees sufficient policies and procedures designed
4 to protect the privacy and security of Plaintiff while they
used the tanning rooms at the Planet Fitness Gym.
b. Did not engage in adequate inspection of the
tanning rooms at the Planet Fitness Gym for products or
devices that could be used to secretly video record the
tanning rooms.
c. Did not provide adequate warning materials to
franchisees to give members to advise them of the risk of
being secretly videotaped while using tanning rooms at the
Planet Fitness Gym.
69. One or more of the aforementioned acts and omissions
by Defendant proximately caused the Plaintiff to suffer severe,
significant, and permanent emotional distress.”
¶7 Under count II, C.H.’s allegations against PF East Moline were the following:
“COUNT II
C.H. vs. PF EM
70. Plaintiff repeats and re-alleges paragraphs 1-16 above
with the same force and effect as though fully set herein.
71. Defendant PF EM knew or in the exercise of due care
should have known that certain persons would attempt to secretly
video record people in the tanning rooms because they had access
to various PLA-FIT franchise literature and knew or should have
known that at Planet Fitness locations other than the facility in
5 Moline, customers of Planet Fitness were secretly video recorded
in tanning rooms before November of 2014.
72. The cost of engaging in activity to minimize or
completely prevent the risk of people secretly recording people in
the tanning rooms would have been minimal and would have
involved nothing more than educating employees what to look for
and how to inspect the premises.
73. At all relevant times complained of herein, Defendant
PF EM had a duty to exercise ordinary care to protect their
members’ privacy and security during their use of the tanning
rooms at the Planet Fitness Gym at 3624 Avenue of the Cities,
Moline, Illinois 61265.
74. At all relevant times complained of herein, Defendant
PLA-FIT had a duty to exercise ordinary care to provide their
franchisee with appropriate policies, procedures, and directions to
prevent or minimize the risk of their members being secretly video
75. Defendant digressed from the aforementioned duty and
as such was negligent in one or more of the following respects:
a. Did not create, implement and/or enforce
adequate policies or procedures designed to protect the
privacy and security of Plaintiff’s while they used the
tanning rooms at the Planet Fitness Gym.
6 b. Did not inspect or adequately inspect the tanning
rooms at the Planet Fitness Gym for items or devices used
for purposes of videotaping Plaintiff while in tanning
rooms.
c. Did not adequately train their employees to
search for and identify hidden devices that would include
video recording equipment in the tanning rooms.
76. One or more of the aforementioned acts or omissions
directly and proximately caused the Plaintiff to suffer severe,
¶8 Aside from paragraph 74 in count II, Otterness’s claims mirror C.H.’s allegations in
counts III against Pla-Fit and IV against PF East Moline. Defendants filed separate motions to
dismiss the complaint, and the trial court granted the motions, determining plaintiffs did not state
a cause of action for emotional distress damages. Plaintiffs appealed.
¶9 ANALYSIS
¶ 10 The record presents three complaints: Barnhill filed the original and first amended
complaint and C.H. and Otterness filed the second amended complaint, which is the operative
pleading in this appeal. In the second amended complaint, plaintiffs bring the following four
counts: (1) C.H. brings a claim against Pla-Fit in count I, (2) C.H. brings a claim against PF East
Moline in count II, (3) Otterness brings a claim against Pla-Fit in count III, and (4) Otterness
brings a claim against PF East Moline in count IV. Section 2-603(a) of the Code of Civil
Procedure (735 ILCS 5/2-603(a) (West 2014)) states “[a]ll pleadings shall contain a plain and
concise statement of the pleader’s cause of action.” However, the complaint is unclear as to the
7 specific causes of action plaintiffs allege against defendants. On appeal, plaintiffs contend, and
defendants concede, that the issues are limited to two causes of action: (1) common law
negligence for the criminal or tortious acts committed by a third party and (2) premises liability.
Accordingly, we focus our review on these two issues.
¶ 11 Plaintiffs claim (1) defendants are negligently liable for the criminal or tortious acts
committed by a third party and (2) defendants failed to exercise reasonable care to ensure the
privacy of its members in violation of section 2 of the Premises Liability Act (Act) (740 ILCS
130/2 (West 2014)). They seek damages for emotional distress allegedly caused by defendants’
tortious conduct.
¶ 12 A motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS
5/2-615 (West 2014)) challenges the legal sufficiency of the complaint by alleging defects on the
face of the complaint. Clark v. Children’s Memorial Hospital, 2011 IL 108656, ¶ 21. In ruling on
a section 2-615 motion, the reviewing court accepts as true all well-pleaded facts in the
complaint and all reasonable inferences therefrom. Id. The reviewing court must determine
whether the allegations of the complaint, when construed in a light most favorable to the
plaintiff, are sufficient to state a cause of action upon which relief may be granted. Id. We review
an order granting a section 2-615 motion to dismiss de novo. Id.
¶ 13 I. PF East Moline
¶ 14 A. Criminal or Tortious Acts Committed by Third Persons
¶ 15 Plaintiffs bring a claim of negligence, contending that defendants are liable for the
criminal or tortious acts committed by a third party. Specifically, plaintiffs argue that PF East
Moline had a duty as business invitor to protect plaintiffs as business invitees from the criminal
acts committed by a third party and breached its duty when it failed to exercise reasonable care
8 to (1) conduct adequate inspection of the tanning rooms for hidden cameras, (2) train employees
on conducting searches and identifying hidden cameras, and (3) create policies and procedures to
search for cameras in the tanning rooms when it knew members had been secretly recorded at a
different Planet Fitness facility. Plaintiffs claim Pla-Fit’s failure to exercise reasonable care
caused them to suffer emotional distress.
¶ 16 To state a cause of action for negligence, the plaintiff must allege a duty upon the
defendant, breach of the duty, and an injury proximately caused by the breach. Marshall v.
Burger King Corp., 222 Ill. 2d 422, 430 (2006). Generally, a possessor of land does not have a
duty to protect invitees from the criminal acts committed by a third party. Hills v. Bridgeview
Little League Ass’n, 195 Ill. 2d 210, 242 (2000). One exception to this rule is when there is a
special relationship between the parties, such as (1) common carrier and passenger, (2) innkeeper
and guest, (3) custodian and ward, and (4) business invitor and invitee. Id. at 243-44; Dearing v.
Baumgardner, 358 Ill. App. 3d 540, 542 (2005). Illinois courts have relied on section 344 of the
Restatement (Second) of Torts in determining whether a possessor of land is liable for the
wrongful acts of third parties. Marshall, 222 Ill. 2d at 437. Section 344 states:
“A possessor of land who holds it open to the public for
entry for his business purposes is subject to liability to members of
the public while they are upon the land for such a purpose, for
physical harm caused by accidental, negligent, or intentionally
harmful acts of third persons or animals, and by the failure of the
possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be
done, or
9 (b) give a warning adequate to enable the visitors to avoid
the harm, or otherwise to protect them against it.” (Emphasis
added.) Restatement (Second) of Torts § 344 (1965).
¶ 17 Plaintiffs cite several cases in which the reviewing court found the complaint stated a
cause of action. None of these cases, however, involves damages for emotional distress. See
Marshall, 222 Ill. 2d at 425 (decedent was struck by a car and fatally injured); Rowe v. State
Bank of Lombard, 125 Ill. 2d 203, 208 (1988) (one victim died and the other victim sustained
serious personal injuries); Duncavage v. Allen, 147 Ill. App. 3d 88, 92 (1986) (plaintiff seeking
to recover damages for personal injuries and death); Cross v. Wells Fargo Alarm Services, 82 Ill.
2d 313, 314 (1980) (plaintiff severely beaten and injured); Stribling v. Chicago Housing
Authority, 34 Ill. App. 3d 551, 553 (1975) (plaintiff sought to recover damages for loss of
property); Mims v. New York Life Insurance Co., 133 Ill. App. 2d 283, 284 (1971) (same); Ney v.
Yellow Cab Co., 2 Ill. 2d 74, 76 (1954) (same).
¶ 18 We believe Lewis v. Heartland Food Corp., 2014 IL App (1st) 123303, is instructive in
our review of this issue. In Lewis, the plaintiffs filed a claim of negligence against several
corporations after his iPhone was allegedly stolen by other customers at a Burger King
restaurant. Id. ¶ 2. The court adhered to the physical-harm limitation contained in section 344 of
the Restatement, noting even when a special relationship exists “the landowner may only be held
liable for physical harm caused by acts of third persons.” (Emphasis omitted.) Id. ¶ 9. As a result,
the court refused to extend the duty to cases not involving physical harm. Id. ¶ 12.
¶ 19 Similarly in the instant case, although plaintiffs established PF East Moline owed them a
duty as business invitor under the special relationship exception, they failed to sufficiently state a
claim for negligence because they do not have a redressible injury. In the complaint, the
10 plaintiffs allege that they seek damages solely for emotional distress as an element of negligence.
Plaintiffs affirmatively state that they are not bringing a claim for either intentional or negligent
infliction of emotional distress. We decline, as did the Lewis court, to extend a duty under
section 344 of the Restatement to cases not involving physical harm. Therefore, we find
plaintiffs failed to state a cause of action that PF East Moline was to them liable in negligence for
the criminal or tortious acts committed by a third party.
¶ 20 B. Premises Liability
¶ 21 Plaintiffs argue the complaint states a cause of action that PF East Moline is liable for the
emotional distress they suffered due to conditions on the premises because (1) it knew or had
reason to know that there were dangerous conditions, i.e., two video cameras, on the premises,
(2) plaintiffs were unaware of the danger, and (3) it failed to exercise reasonable care to protect
plaintiffs against the danger.
¶ 22 Section 2 of the Act imposes a duty on an owner or occupier to exercise reasonable care
for “the state of the premises or the acts done or omitted on them.” 740 ILCS 130/2 (West 2014).
To determine whether a duty of care exists under section 2, the court must consider: (1)
foreseeability, (2) likelihood of injury, (3) magnitude of the burden on the defendant to guard
against the injury, and (4) consequences of placing a burden on the defendant. Kotecki v. Walsh
Contruction Co., 333 Ill. App. 3d 583, 589 (2002) (citing LaFever v. Kemlite Co., 185 Ill. 2d
380, 389 (1998)). The foreseeability prong is determined under the provisions in section 343 of
the Restatement (Second) of Torts. Id. Section 343 states:
“A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land if, but only
if, he
11 (a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against
the danger.” (Emphasis added.) Restatement (Second) of Torts
§ 343 (1965).
¶ 23 Plaintiffs do not have a redressible injury under section 343 of the Restatement. As with
section 344, we find the language in section 343 also limits liability to physical harm, and we
decline to extend its reach to claims that allege only emotional harm. Plaintiffs only seek in their
complaint to recover emotional distress damages. They have, therefore, failed to state a cause of
action under the premises liability theory.
¶ 24 II. Pla-Fit
¶ 25 A. Criminal or Tortious Acts Committed by Third Persons
¶ 26 1. Special Relationship
¶ 27 Plaintiffs also argue the complaint states a negligence cause of action that Pla-Fit is liable
for the criminal acts of a third party because it failed to exercise reasonable care to (1) conduct
adequate inspection of the tanning rooms for hidden cameras and create policies and procedures
to search for cameras in the tanning rooms when it knew members had been secretly recorded at
a different Planet Fitness facility and (2) warn customers that it discovered hidden cameras in the
tanning room on November 5-6 to enable the customers to avoid harm. Consequently, plaintiffs
contend Pla-Fit’s failure to exercise reasonable care caused plaintiffs to suffer emotional distress.
12 ¶ 28 As stated above, a possessor of land does not owe a duty to protect invitees from the
criminal acts of a third party unless there is a special relationship such as a business invitor and
invitee. Hills, 195 Ill. 2d at 242; Dearing, 358 Ill. App. 3d at 542.
¶ 29 It is, however, well-established in Illinois that no such relationship exists between a
franchisor and a franchisee’s invitee. Lewis, 2014 IL App (1st) 123303, ¶ 14 (no legal duty under
the special relationship exception exists between a franchisor and a business invitee).
Furthermore, Pla-Fit is not a possessor of land as stated in section 344 of the Restatement.
Rather, a possessor of land is “a person who is in occupation of the land with intent to control it.”
Restatement (Second) of Torts § 328E (1965). Pla-Fit is not in occupation of the land with intent
to control it because, as the complaint states, Pla-Fit only owned the trademark name “Planet
Fitness” and allowed franchisees to use the trademark. Instead, PF East Moline is the possessor
of the premises because it owned, operated, and did business at the Planet Fitness gym. Lastly, as
we found in supra ¶ 19, Pla-Fit is not liable for emotional distress damages under section 344 of
the Restatement. Thus, we hold plaintiffs failed to state a cause of action that Pla-Fit was liable
in negligence for the criminal or tortious acts committed by a third party.
¶ 30 2. Voluntary Undertaking
¶ 31 Plaintiffs allege Pla-Fit voluntarily undertook a role in ensuring that PF East Moline was
protecting its members’ right to privacy in the tanning rooms when Pla-Fit reserved its right to
perform on-site inspections of PF East Moline under the franchise agreement.
¶ 32 Another exception to the rule that an individual is not liable for the criminal acts
committed by a third party is created when there is a voluntary undertaking. Under the voluntary-
undertaking theory, a duty of care is imposed on a person who voluntarily agrees to perform a
service necessary for the protection of another person. Claimsone v. Professional Property
13 Management, LLC, 2011 IL App (2d) 101115, ¶ 21. “[T]he duty of care to be imposed upon a
defendant is limited to the extent of the undertaking.” Bell v. Hutsell, 2011 IL 110724, ¶ 12. Our
supreme court adopted section 324A of the Restatement (Second) of Torts in reviewing
voluntary-undertaking claims. Id. Section 324A states:
“One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as necessary
for the protection of a third person or his things, is subject to
liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk
of such harm, or
(b) he has undertaken to perform a duty owed by the other
to the third person, or
(c) the harm is suffering because of reliance of the other or
the third person upon the undertaking.” (Emphasis added.)
Restatement (Second) of Torts § 324A (1965).
¶ 33 In Illinois, a franchisor is not liable under the voluntary-undertaking theory if the
franchisee retains control of the day-to-day operations of the business. See Castro v. Brown’s
Chicken & Pasta, Inc., 314 Ill. App. 3d 542, 551-52 (2000). In Castro, several individuals
entered Brown’s in Palatine and murdered seven people. Id. at 543-44. Emmanuel Castro, an
administrator for the estate of his deceased son, filed a claim against Brown’s, claiming, among
other things, Brown’s, as the franchisor, voluntarily undertook to provide security at the Palatine
14 restaurant. Id. at 544. Brown’s filed a motion for summary judgment, which the trial court
granted, and Castro appealed. Id. at 545-46.
¶ 34 Relying on Coty v. U.S. Slicing Machine Co., 58 Ill. App. 3d 237 (1978), the First District
noted Illinois courts refuse to impose liability on franchisors when the franchisee has retained
total control over its day-to-day operations. It then determined that there was no evidence in the
record that Brown’s controlled the Palatine restaurant’s day-to-day operations. Specifically, the
court found, among other things, that Brown’s “did not implement mandatory security measures
to be followed by the franchisee, it did not follow up to make sure that security recommendations
were followed, it did not provide security for the Palatine restaurant or engage in routine security
checks, and it did not set a security hotline or a committee to review security measures.” Further,
there was no provision within the franchise agreement regarding security or Brown’s
responsibility for such security. As a result, the First District affirmed the trial court’s grant of
the motion for summary judgment, holding that Brown’s did not voluntarily undertake to provide
security to the Palatine restaurant.
¶ 35 Similar to the ruling in Castro, we find the complaint in this case does not sufficiently
demonstrate Pla-Fit controlled the day-to-day operations of PF East Moline to constitute a
voluntary undertaking to protect members’ privacy. The complaint alleges that Pla-Fit exercised
complete and substantial control over PF East Moline by providing rules and regulations as to
security of the facilities and providing instructions on cleaning and inspecting the tanning booths.
The complaint does not state whether the rules and regulations were mandatory or
recommendations, that on-site inspections were conducted, or that the on-site inspections were
for the purpose of protecting members’ privacy. In fact, the complaint states Pla-Fit did not
create, implement, or enforce policies and procedures designed to protect the privacy and
15 security of plaintiffs and that Pla-Fit did not inspect or adequately inspect tanning rooms for
items or devices used to videotape members.
¶ 36 Also, we must follow the language within section 324A of the Restatement that limits
injury to physical harm as the court did in Lewis and decline to extend a duty under section
324A. Plaintiffs solely seek to recover damages for emotional distress in their complaint.
Therefore, we find plaintiffs did not state a cause of action against Pla-Fit pursuant to section
324A.
¶ 37 B. Premises Liability
¶ 38 Plaintiffs bring the same premises liability argument against Pla-Fit as it did against PF
East Moline that (1) Pla-Fit knew or had reason to know that dangerous conditions, i.e., two
video cameras, were on the premises; (2) plaintiffs were unaware of the danger; and (3) it failed
to exercise reasonable care to protect plaintiffs against the danger.
¶ 39 As stated previously, under section 2 of the Act, the court must consider: (1)
foreseeability, (2) likelihood of injury, (3) magnitude of the burden on the defendant to guard
against the injury, and (4) consequences of placing a burden on the defendant. Kotecki, 333 Ill.
App. 3d at 589 (citing LaFever, 185 Ill. 2d at 389). The foreseeability prong is determined under
the provisions in section 343 of the Restatement, which states a possessor of land is subject to
liability for physical harm caused to his invitees by a condition on the land if he (1) knows or by
exercising reasonable care would discover the condition, (2) should expect the invitee will not
discover the danger, and (3) fails to exercise reasonable care to protect invitee from the danger.
Id.; Restatement (Second) of Torts § 343 (1965).
¶ 40 We determined in supra ¶ 29 that Pla-Fit is not a possessor of land as defined in section
328E of the Restatement. Also, as we found in supra ¶ 23, liability under section 343 of the
16 Restatement does not extend to injuries other than physical harm. Therefore, we hold plaintiffs
did not state a cause of action against Pla-Fit under the premises liability theory.
¶ 41 CONCLUSION
¶ 42 The judgment of the circuit court of Rock Island County is affirmed.
¶ 43 Affirmed.