2015 IL App (1st) 133716 No. 1-13-3716 Opinion filed March 4, 2015 Third Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
) Appeal from the Circuit Court ) MICHAEL HAWKINS, of Cook County. ) ) Plaintiff-Appellant, ) No. 10 L 10072 ) v. ) ) CAPITAL FITNESS, INC., d/b/a X-Sport Fitness, The Honorable ) William E. Gomolinski, ) Defendant-Appellee. Judge, presiding. )
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
OPINION
¶1 Michael Hawkins was at fitness club working out with hand weights when suddenly a
nearby mirror fell from the wall and struck him, causing injuries. Hawkins sued the fitness club,
Capital Fitness, Inc., alleging it negligently failed to secure the mirror or warn patrons about the
mirror and failed to cordon off the area around the mirror. Capital Fitness sought and obtained
summary judgment on the basis of the exculpatory clause in its membership agreement. Hawkins
argues the trial court erred in holding that the exculpatory clause bars his personal injury claim.
Hawkins asserts that the incident is not within the scope of possible dangers ordinarily 1-13-3716
accompanying the use of a fitness club and a genuine issue of material fact exists as to whether
his injury related to exercise. We agree and reverse.
¶2 BACKGROUND
¶3 Michael Hawkins purchased a membership with X-Sport Fitness, owned and operated by
Capital Fitness. (In his brief, Hawkins states that at the time of the incident, he had a seven-day
trial membership, but the record indicates Hawkins purchased a full membership and signed a
membership agreement on January 5, 2010.) The membership agreement, under "Additional
Terms and Conditions," included a clause entitled, “Disclaimers, Waiver, Release, and
Indemnification." This clause, in bolded capital lettering, provided in relevant part:
"MEMBER ACKNOWLEDGES THAT EXERCISE, TANNING AND USE OF THE EQUIPMENT AND FACILITIES OF THE COMPANY OR OF THEIR AFFILIATES NATURALLY INVOLVES THE RISK OF INJURY AND MEDICAL DISORDERS, INCLUDING DEATH, WHETHER MEMBER, SOMEONE ELSE, SOME ACTIVITY OR SOMETHING CAUSES IT. MEMBER AGREES THAT MEMBER ENGAGES IN ALL EXERCISE *** AND USES ALL FACILITIES AND SERVICES OF THE COMPANY AND THEIR FACILITIES, AT SUCH PERSON'S OWN RISK. SUCH ENGAGEMENT AND USE INCLUDES, WITHOUT LIMITATION, USE OF THE EQUIPMENT ***. YOU AGREE THAT YOU ARE VOLUNTARILY (A) PARTICIPATING IN THESE ACTIVITIES AND USING THE EQUIPMENT AND FACILITIES BASED ON SUCH PERSON'S OWN ASSESSMENT OF THE RISKS AND BENEFITS *** AND (B) ASSUMING ALL RISK OF INJURY ***.
*** MEMBER SHALL HOLD COMPANY AND THEIR AFFILIATES *** HARMLESS FROM ANY AND ALL LOSS, CLAIM, INJURY, DAMAGE AND LIABILITY SUSTAINED OR INCURRED BY MEMBER FROM OR ARISING OUT OF THE NEGLIGENT ACTS AND OMISSIONS AND ALLEGED NEGLIGENT ACT AND OMISSIONS AND OTHER ACTS AND
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OMISSIONS, OF ANY OF THE RELEASED PARTIES, ANY PERSON AT THE FACILITY OR ANYONE ELSE, OR ANY OCCURRENCE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ARISING OUT OF OR IN ANY WAY RELATED TO MEMBER'S PRESENCE AT OR USE OF THIS FACILITY *** WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE *** TO RELEASE AND DISCHARGE RELEASED PARTIES FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION, AND DO HEREBY WAIVE ALL RIGHTS THAT YOU MAY HAVE *** TO BRING A LEGAL ACTION OR ASSERT A CLAIM, FOR INJURY OR LOSS OF ANY KIND AGAINST ANY OF THE RELEASED PARTIES ARISING OUT OF THE NEGLIGENT ACTS OR OMISSIONS OR OTHER ACTS OR OMISSIONS OF ANY OF THE RELEASED PARTIES OR ANYONE ELSE AT THE FACILITY *** OR ARISING OUT OF OR RELATING TO PARTICIPATION BY YOU IN ANY OF THE ACTIVITIES, OR YOUR USE OF THE EQUIPMENT, FACILITIES OR SERVICES ***. THIS HOLD HARMLESS FROM AND WAIVER AND RELEASE OF ALL LIABILITY INCLUDES, WITHOUT LIMITATION, (i) INJURIES, DAMAGES OR DISEASES WHICH MAY OCCUR AS A RESULT OF (A) YOUR USE OF ANY FACILITY OR ITS IMPROPER MAINTENANCE, (B) YOUR USE OF ANY EXERCISE *** EQUIPMENT, (C) IMPROPER MAINTENANCE OF ANY EXERCISE *** EQUIPMENT OR FACILITIES *** AND (ii) INJURIES OR MEDICAL DISORDERS RESULTING FROM EXERCISE, OR USE OF EQUIPMENT OR FACILITIES, AT THE FACTILITY OR ANY OF THE OTHER FACILITIES ***."
¶4 Hawkins did not read the agreement before signing it. Instead, he relied only on what a
sales associate told him. According to Capital Fitness, however, sales associates lack sufficient
familiarity with the contents of the agreement to explain it to members and, in any event, are
instructed not to do so. Hawkins was given a copy of the agreement.
¶5 On January 27, 2010, Hawkins was working out at X-Sport's Logan Square gym
(Hawkins's brief states the injury occurred on January 19, but the record indicates January 27).
During his workout, Hawkins sat on a bench in front of a three-foot by eight-foot mirror hanging
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from a protruding portion of a wall. As Hawkins performed arm curls with free weights, a
patron bumped into the mirror, dislodging it. Hawkins tried jumping out of the way, but his feet
hit some weights scattered on the floor and he landed on a weight rack at which point the mirror
hit his head.
¶6 An unidentified fitness club patron or employee told Hawkins that a maintenance crew
had been working on the mirror before the accident. Hawkins then noticed a hole in the wall with
supporting wire mesh pulled out and several missing tiles from the wall.
¶7 Hawkins filed a one-count complaint against Capital Fitness alleging negligent conduct
in failing to adequately secure the mirror, failing to warn patrons that the mirror was loose and
likely to fall, and failing to cordon off the area around the mirror. Capital Fitness moved for
summary judgment, arguing that (i) the exculpatory language of the membership agreement
barred Hawkins's claim for personal injury damages and (ii) Capital Fitness could not be held
liable without proof of notice of an actual defect in the premises that proximately caused
Hawkins's accident.
¶8 After a hearing, the trial court granted Capital Fitness's motion for summary judgment.
The trial court enforced the exculpatory clause, finding (i) no substantial disparity in bargaining
power between the parties; (ii) no public policy bar to enforcement; and (iii) nothing in the social
relationship between the parties that would militate against upholding the clause. The trial court
further held that Hawkins failed to provide evidence that Capital Fitness had actual or
constructive notice of any defect concerning the mirror.
¶9 STANDARD OF REVIEW
¶ 10 "Summary judgment is appropriate where the pleadings, depositions, admissions, and
affidavits show that there is no genuine issue of material fact and that the moving party is
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entitled to judgment as a matter of law." Direct Auto Insurance Co. v. Beltran, 2013 IL App (1st)
121128, ¶ 43. A triable issue of fact exists "where there is a dispute as to material facts, or where,
the material facts being undisputed, reasonable persons might draw different inferences from the
facts." (Internal quotation marks omitted.) Wolfram Partnership, Ltd. v. LaSalle National Bank,
328 Ill. App. 3d 207, 215 (2001). The movant for summary judgment has the initial burden of
proof. Beltran, 2013 IL App (1st) 121128, ¶ 43. An appellate court reviews a disposition of
summary judgment de novo. Id.
¶ 11 ANALYSIS
¶ 12 Execution of Membership Agreement
¶ 13 Hawkins initially claims the sales associates were unfamiliar with the language of the
membership agreement and failed to point out or explain the exculpatory clause. Hawkins
concedes that he did not read the agreement before signing it but suggests Capital Fitness
employees had a duty to explain the release. Hawkins appears to argue that the circumstances
surrounding the execution of the membership agreement should invalidate the exculpatory
clause.
¶ 14 Generally, absent fraud, the act of signing legally signifies that the individual had an
opportunity to become familiar with and comprehend the terms of the document he or she
signed. An individual "who has had an opportunity to read a contract before signing, but signs
before reading, cannot later plead lack of understanding.” Breckenridge v. Cambridge Homes,
Inc., 246 Ill. App. 3d 810, 819 (1993). See also, e.g., Urban Sites of Chicago, LLC v. Crown
Castle USA, 2012 IL App (1st) 111880, ¶ 40 (a person may not avoid legal consequences of an
executed contract on the ground that the signing was done without knowledge of its contents);
State Bank of Geneva v. Sorenson, 167 Ill. App. 3d 674, 681 (1988) (“[f]ailure to read a
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[contract] before signing it is normally no excuse for a party who signs it”); Miller v. Wines, 197
Ill. App. 3d 447, 452 (1990) (same).
¶ 15 Hawkins had a duty to read the membership agreement before he signed it. He did not
ask for more time to review the document and no Capital Fitness employee prevented him from
reading the agreement. Hawkins also received a copy of the agreement. There is no evidence,
and Hawkins did not contend otherwise, that the sales associates made false representations to
get him to enter the agreement or about its terms. Hence, nothing is raised by the circumstances
of Hawkins' signing the agreement that would render the exculpatory clause unenforceable.
¶ 16 Scope of Exculpatory Clause
¶ 17 Hawkins primarily argues a question of fact exists as to whether his injury falls within the
contractual limits of the exculpatory clause. Specifically, Hawkins asserts that his injury resulted
from a possible danger beyond the ordinary risks accompanying the use of a fitness club
membership.
¶ 18 A party may contract to avoid liability for his own negligence. Garrison v. Combined
Fitness Centre, Ltd., 201 Ill. App. 3d 581, 584 (1990). Absent fraud or willful and wanton
negligence, a contract's exculpatory clause will be valid and enforceable unless (1) the
bargaining position of the parties reflects a substantial disparity, (2) enforcement violates public
policy, or (3) the social relationship between the parties militates against upholding the clause.
Id. Absent any of these factors, "the question of whether or not an exculpatory clause will be
enforced depends upon whether or not defendant's conduct and the risk of injury inherent in said
conduct was of a type intended by the parties to fall within the scope of the clause." Masciola v.
Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313, 317 (1993).
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¶ 19 Because liability release clauses are highly disfavored, courts closely scrutinize them and
they are strictly construed against the party seeking to rely on them. Cox v. US Fitness, LLC,
2013 IL App (1st) 122442, ¶ 14; Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407,
412 (2007). While usually worded broadly, an exculpatory clause "should contain clear, explicit,
and unequivocal language referencing the types of activities, circumstances, or situations that it
encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care."
Garrison, 201 Ill. App. 3d at 585. At the time of contract formation, the parties do not have to
contemplate the precise occurrence that later results in injury. Id. Nevertheless, the defendant
must put the plaintiff on notice of the range of dangers for which the plaintiff assumes the risk of
injury. Id. ("It should only appear that the injury falls within the scope of possible dangers
ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.");
Johnson v. Salvation Army, 2011 IL App (1st) 103323, ¶ 36 (danger causing injury must
ordinarily accompany activity covered by release).
¶ 20 The scope of the exculpatory clause depends on the foreseeability of a specific danger.
Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 577 (1984). "The relevant inquiry ***
is not whether plaintiff foresaw defendants' exact act of negligence, but whether plaintiff knew or
should have known the accident was a risk encompassed by his [or her] release." (Internal
quotation marks omitted.) Cox, 2013 IL App (1st) 122442, ¶ 14. Whether the particular injury
ordinarily accompanies a certain activity and whether the plaintiff understands and assumes the
risk associated with the activity often is a question of fact. Hellweg v. Special Events
Management, 2011 IL App (1st) 103604, ¶ 6.
¶ 21 The membership agreement provided that "MEMBER ACKNOWLEDGES THAT
EXERCISE, TANNING AND USE OF THE EQUIPMENT AND FACILITIES ***
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NATURALLY INVOLVES THE RISK OF INJURY ***." IT FURTHER PROVIDES THAT
"MEMBER ENGAGES IN ALL EXERCISE *** AND USES ALL FACILITIES AND
SERVICES *** AT SUCH PERSON'S OWN RISK." The agreement lists some uses of the
facility covered by the agreement, including: the use of the equipment, locker room, showers,
pool, basketball court, whirlpool, spa, spa services, sauna, steam room, tanning facilities, rock
climbing wall, parking area, and sidewalk. The agreement holds Capital Fitness harmless from
injury sustained or incurred from negligent acts or omissions "ARISING OUT OF OR IN ANY
WAY RELATED TO MEMBER'S PRESENCE AT OR USE OF THIS FACILITY." The
release includes a member's "USE OF ANY FACILITY OR ITS IMPROPER MAINTENANCE
*** USE OF ANY EXERCISE [EQUIPMENT] *** OR FACILITIES WHICH MAY
MALFUNCTION OR BREAK *** [AND] IMPROPER MAINTENANCE OF ANY
EXERCISE *** EQUIPMENT OR FACILITIES."
¶ 22 A literal reading of the membership agreement reveals that Hawkins released Capital
Fitness of all liability from injury, no matter the source, cause, or circumstance. For example,
the agreement includes injury caused by a patron's use of the exercise equipment itself, such as a
weight machine breaking. Because an exculpatory clause is strictly construed against the party it
benefits (Evans, 373 Ill. App. 3d at 412), the clause must identify the range of dangers for which
risk of injury is being assumed. See Larsen, 130 Ill. App. 3d at 578 (“A plaintiff’s decision to
assume the risk of injury resulting from a defendant’s conduct attains efficacy only in a context
in which the plaintiff may foresee the range of possible dangers to which he subjects himself
***.”).
¶ 23 To be sure, at the time the membership agreement was signed, Hawkins and Capital
Fitness did not contemplate that Hawkins might be struck by a mirror. The record indicates that
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the Logan Square X-Sport facility had a number of mirrors. Indeed, two longer mirrors were on
each side of the protruding portion of the wall. Should Hawkins have known a mirror falling off
a wall as within the range of danger ordinarily accompanying the use of a fitness facility?
Nothing in the record shows that Hawkins knew or should have known that this particular danger
accompanied his working out at the facility.
¶ 24 Larsen v. Vic Tanny International, 130 Ill. App. 3d 574 (1984), is instructive. In Larsen,
the plaintiff sustained injuries after inhaling gaseous vapors emitted from the health club's
cleaning compounds. Larsen, 130 Ill. App. 3d at 575. Before joining the health club, the
plaintiff read and signed a broad exculpatory agreement, releasing the health club from any
damages arising from personal injury sustained " 'on or about the premises.' " Id. at 575-76. The
court held that a genuine issue of fact remained as to whether a member's exposure to gaseous
vapors was a danger intended by the parties to be excused by the exculpatory clause. Id. at 577-
78. The court explained that an exculpatory clause "attains efficacy only in a context in which
the plaintiff may foresee the range of possible danger to which [the plaintiff] subjects himself [or
herself]." Id. at 578. The court then found the assertion that a plaintiff could contemplate the
danger of combustible cleaning compounds in a health club, and thereby alter one's behavior
"untenable according to the standards of common experience." Id.
¶ 25 Like Larsen, we are unable to hold, as a matter of law, that a falling mirror is a danger
within the scope of the exculpatory clause. As the court in Larsen explained, "[f]oreseeability of
a specific danger is *** an important element of the risk which a party assumes, and, for this
reason, serves to define the scope of an exculpatory clause. *** No agreement to assume
unknown risks shall be inferred." Id. at 577. As the record illustrates, the Logan Square X-Sport
contains a number of mirrors. If Hawkins foresaw the possible danger of a mirror coming
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unhinged, he would need to exercise a proportionately higher degree of caution around them,
which would prevent him, or any member for that matter, from fully using portions of the facility
near a mirror. Should Hawkins have worn protective equipment, like a helmet, to militate
against the risk? Is Hawkins (and every member) expected, for safety purposes, to conduct a
personal, comprehensive investigation of all aspects of the facility, including the quality and fit
of every mirror? Like Larsen, the assertion that Hawkins would necessarily contemplate the
danger of a mirror detaching from the wall and accordingly follow a more rigid standard of
caution, either by avoiding certain areas or in some other way altering habits while present in
those areas, is "untenable according to the standards of common experience." Id. at 578.
¶ 26 Moreover, Hawkins's injury is distinguishable from those suffered in Garrison v.
Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581 (1990), Kubisen v. Chicago Health Clubs,
69 Ill. App. 3d 463 (1979), and Owen v. Vic Tanny's Enterprises, 48 Ill. App. 2d 344 (1964). In
Garrison, the plaintiff's trachea was crushed when a weighted bar fell from a bench press
apparatus the plaintiff was preparing to use. Garrison, 201 Ill. App. 3d at 583. In Kubisen, the
plaintiff suffered injuries after she fell in a steam room within the athletic club. Kubisen, 69 Ill.
App. 3d 463. In Owen, the plaintiff injured her wrist when she slipped and fell as she left the
club's swimming pool. Owen, 48 Ill. App. 2d at 345. In each of these cases, the injuries
occurred while the plaintiffs engaged in activities ordinarily associated with, engaged in, and
performed at the facility at which they were injured. Hence, the plaintiffs could reasonably
contemplate the possibility of injury resulting from a weight lifting apparatus or slippery surfaces
in the steam room and around the swimming pool.
¶ 27 Capital Fitness's reliance on Schlessman v. Henson, 83 Ill. 2d 82 (1980), and Maness v.
Santa Fe Park Enterprises, Inc., 298 Ill. App. 3d 1014 (1998), does not necessitate a contrary
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result. In Schlessman, the plaintiff, an experienced amateur stock-car racer, crashed his race car
after a portion of the upper track embankment collapsed. Schlessman, 83 Ill. 2d at 84. Before
the race, the plaintiff signed a release agreeing not to hold the track liable for any injuries
suffered as a result of its negligence or otherwise. Id. The Illinois Supreme Court concluded
that, by adopting the broad language of the release, it was reasonable that the parties
"contemplated the similarly broad range of accidents which occur in auto racing." Id. at 86. The
court reasoned that the racing at high speeds in limited areas gives rise to a "myriad of factors,"
obvious or unknown, which may result in unexpected and freakish accidents. Id. The court
explained that "[e]xperienced race drivers, such as plaintiff, are obviously aware of such
occurrences and the risks attendant to the sport of auto racing." Id. Although the parties may not
have contemplated the precise occurrence, this alone did not render the exculpatory clause
inoperable. Id. Finally, the court noted that as designed, the release encompassed all claims
against the defendant based on its negligence or otherwise because "[t]he very nature of the
parties' activity requires this result." Id.
¶ 28 In Maness, the decedent, a 51-year-old experienced racer, suffered a fatal heart attack
while participating in a stock car race. Maness, 298 Ill. App. 3d at 1016. Before the race, the
decedent signed three broad releases, discharging the defendants "from all liability for his injury
or death whether caused by the negligence or gross negligence of defendants or otherwise." Id.
The court, relying on Schlessman, found that the releases designed to cover all claims against the
defendants based on their negligence, "including their alleged negligent delay in providing
medical assistance." Id. at 1020. The court concluded that the risk of requiring medical attention
during a race ordinarily accompanies the "dangerous sport of auto racing." Id. The court then
reasoned that incidents requiring medical attention are common at racetracks. Id. Thus, the
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decedent, "as an experienced racer, expected prompt and adequate medical care at every race.
Likewise, he should have expected that negligence on the part of defendants regarding the
medical care provided was possible and could result in serious injury or death to participants in
the race." Id. Ultimately the court concluded that "[t]he risk of requiring medical attention during
a race *** is one that ordinarily accompanies auto racing ***. [The decedent] accepted this risk
and agreed to exculpate defendants from any alleged negligence in connection with it when he
executed the broad releases ***." Id. at 1021.
¶ 29 Unlike Schlessman and Maness, we cannot conclude, as a matter of law, that the risk of a
mirror falling on a patron ordinarily accompanies the use of a fitness facility. In Schlessman and
Maness, it was reasonable to conclude that auto racing participants accept accidents and medical
attention as part of the sport. But nothing in the record suggests that a mirror falling off a fitness
club's wall is an ordinary or reasonable risk in this case.
¶ 30 True, Hawkins and Capital Fitness did not need to specifically foresee the precise
incident at the time that Hawkins signed the membership agreement. Even so, Schlessman and
Maness do not stand for the proposition that a broad exculpatory clause covers any conceivable
claim. Simpson v. Byron Dragway, Inc., 210 Ill. App. 3d 639 (1991), provides clarification. In
Simpson, the decedent, a licensed and experienced race car driver, was killed when his dragster
collided with a deer during a race. Simpson, 210 Ill. App. 3d at 641. Before the race, the
decedent signed a release in which he agreed to inspect the track and adjacent areas to ensure
that they were properly designed, maintained, and safe for race purposes. Id. at 642. The
decedent also voluntarily assumed " 'all risks arising from conditions related to use of the track
area by myself or others.' " Id. The appellate court reversed the trial court's grant of summary
judgment based on the release. Id. at 649. The court initially noted that to effectively assume
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the risk of some occurrence, "it must be demonstrated that the danger which caused the injury
was one which ordinarily accompanied the activity and that the plaintiff knew, or should have
known, that both the danger and the possibility of injury existed before the occurrence." Id. at
647. The court rejected the argument that the decedent, by virtue of his participation in an
inherently dangerous activity, contemplated a wide range of incidents, including the possibility
that an animal would run onto the racetrack. Id. at 648. The court noted that Schlessman "did
not hold that the range of accidents contemplated is without limit." Id. Thus, the court
concluded that the danger of a deer running onto a racetrack was not the type of risk that
ordinarily accompanies auto racing, and, therefore, a question of fact remained. Id. at 649.
¶ 31 Like Simpson, reasonable minds could differ on the issue of whether the incident here is
an ordinary risk associated with the use of a fitness facility. "Whether a particular injury is one
which ordinarily accompanies a certain activity and whether a plaintiff appreciates and assumes
the risks associated with the activity often constitute a question of fact." Simpson, 210 Ill. App.
3d at 647. Because a broad release does not encompass all accidents without limit (Simpson, 210
Ill. App. 3d at 648), a genuine issue of fact arises as to whether the exculpatory clause in the
membership agreement includes potential injury due to a mirror falling off a wall.
¶ 32 Notice of Defect
¶ 33 The trial court also granted summary judgment because Hawkins did not present any
evidence that Capital Fitness had notice of the defective condition of the mirror. A premises
liability plaintiff must prove, among other things, that the "landowner knew or in the exercise of
ordinary care should have known of both the condition and the risk the condition posed to others
lawfully on the property." Smart v. City of Chicago, 2013 IL App (1st) 120901, ¶ 46. In
granting Capital Fitness's motion for summary judgment, the trial court stated, "it is incumbent
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upon the plaintiff to show me some affirmative matter, something, a scintilla of evidence to show
that there was some type of actual or constructive notice, and the court cannot find any material
issue of fact that would indicate that there is other than what is pure speculation and conjecture."
¶ 34 The premise underlying this portion of the trial court's ruling and Capital Fitness's
argument is that Hawkins pursued a premises liability cause of action. Our review of Hawkins's
one-count complaint, however, establishes that it sounds in negligence, not premises liability,
and therefore, lack of evidence concerning notice is both inapplicable and irrelevant.
¶ 35 CONCLUSION
¶ 36 The trial court erred in granting defendant's motion for summary judgment.
¶ 37 Reversed and remanded.
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