2015 IL App (1st) 150879
FIRST DIVISION October 26, 2015
No. 1-15-0879
HERBERT OFFORD, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) ) FITNESS INTERNATIONAL, LLC, a ) Foreign Limited Liability Company, Individually, ) ) No. 14 L 007713 Defendant-Appellee ) ) (L.A. Fitness International, LLC, a Foreign ) Limited Liability Company, Individually, and/or ) Fitness and Sports Clubs, LLC, a Foreign ) Limited Liability Company, Individually, d/b/a ) and/or a/k/a and/or c/k/a LA Fitness, ) Honorable ) John Callahan, Jr., Defendants). ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Cunningham concurred in the judgment and opinion. Justice Connors dissented, with opinion.
OPINION
¶1 Plaintiff Herbert Offord filed a complaint against L.A. Fitness International, LLC, and/or
Fitness International, LLC, and/or Fitness & Sports Clubs, LLC, d/b/a as LA Fitness, alleging
negligence and willful and wanton conduct. Fitness International, LLC (Fitness International),
the only defendant relevant to this appeal, filed a section 2-619(a)(9) (735 ILCS 5/2-619(a)(9)
(West 2012)) motion to dismiss the negligence count based on a guest waiver that plaintiff had No. 1-15-0879
signed. Fitness International also filed a section 2-615 (735 ILCS 5/2-615 (West 2012)) motion
to dismiss the willful and wanton conduct claim. Following an evidentiary hearing, the trial
court denied the section 2-615 motion, but granted Fitness International's section 2-619(a)(9)
motion to dismiss the negligence claim. Plaintiff filed a motion to reconsider, which was denied,
and plaintiff now appeals. For the following reasons, we reverse the judgment of the circuit
court and remand the matter for proceedings consistent with this decision.
¶2 JURISDICTION
¶3 On March 9, 2015, the circuit court denied plaintiff's motion to reconsider and found no
just reason to delay appeal pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010)
(allowing this court to review judgments as to fewer than all of the claims or parties when such a
finding is made by the circuit court). On March 25, 2015, plaintiff timely appealed.
Accordingly, we have jurisdiction pursuant to Rule 304(a). Id.
¶4 BACKGROUND
¶5 On July 24, 2014, plaintiff filed a two-count complaint claiming both negligence and
willful and wanton conduct against Fitness International, based on a knee injury that occurred
while plaintiff was playing basketball on October 2, 2012, as a guest at an LA Fitness facility.
Plaintiff alleged that he slipped on an accumulation of water that was the result of a "leaking roof
and/or skylight and/or window." Fitness International filed a section 2-619(a)(9) motion to
dismiss the negligence claim, asserting that plaintiff's claim was barred by an affirmative matter;
namely, a guest waiver entitled "Assumption of Risk and Waiver of Liability," that plaintiff had
allegedly signed. The motion to dismiss was supported by the affidavit of Jaime Jakish, the
operations manager for the LA Fitness facility where the injury occurred. Jakish stated that
plaintiff "signed the Assumption of Risk and Waiver of Liability on Tuesday October 2, 2012
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and it was in full force and effect on that date." Jakish also stated that Fitness International
stored the guest wavier "in an electronic records system in the ordinary course of business."
¶6 A copy of the guest waiver form was also attached to the motion to dismiss, which states
in pertinent part:
"I hereby acknowledge, agree and understand that the use of LA Fitness facilities, services, equipment or premises, involves risks of injury to my person and property, as well as to that of a minor for whom I have guardianship and have requested entrance and use of the club (or Kids Klub Services). By engaging in such use, or permitting the use by such a minor, I assume full responsibility for such risks. Therefore, on behalf of myself, my heirs (including minors whom I have requested to be allowed to use the club), personal representatives or assigns, I do hereby release, waive, hold harmless, and covenant not to sue Fitness International LLC, d/b/a LA Fitness, its successor(s) or related entities, directors, officers, employees, volunteers, independent contractors, or agents (collectively, 'LAF') from any liability and all claims arising from my (or the minor for whom I am the guardian) use of LA Fitness' facilities, services, equipment or premises. This waiver of all claims includes, but is not limited to, personal injury (including death) from accidents or illness, as well as any and all claims resulting from damage to, loss of, or theft of property.
I understand that I am releasing LAF from all liability to me, my heirs, minor children for whom I am responsible, and our assigns, for any loss or damage to me or the child, and forever give up any claims therefore on account of injury to person or property whether caused by the active or passive negligence of LAF."
¶7 The body of the document is followed by the following text:
"FIRST NAME: Herbert
LAST NAME: Offord
PHONE NUMBER: (777) 777-7777
EMAIL:
DATE: Tuesday, October 2, 2012 8:17:35 PM
ID: -- --"
¶8 The document also shows a signature box, which contains an alleged signature.
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¶9 Plaintiff responded to Fitness International's motion to dismiss, stating the guest waiver
lists an incorrect phone number and that "the signature does not appear to be that of [plaintiff]."
Plaintiff further alleged that encountering water on the gymnasium floor was not conduct
intended by both parties to fall within the scope of the guest waiver. His response did not
contain any supporting affidavits.
¶ 10 A hearing was held on December 15, 2014. A transcript of the hearing does not appear in
the record, but the parties submitted an agreed statement of facts, which states that "the following
facts material to this appeal were testified to in oral proceedings *** on December 15, 2014."
The agreed statement of facts was signed by both parties' attorneys. According to the agreed
statement of facts, plaintiff testified that the signature on the guest waiver form was not his
signature, and that the number listed, (777) 777-7777, was not his telephone number. Also
according to the agreed statement of facts, "[p]laintiff testified that he was injured while using
the basketball court when he slipped on what he thought was water," and that someone else told
him that the "roof was leaking."
¶ 11 On cross-examination, plaintiff was asked to produce the signature on his driver's license
"which showed a deliberate spelling in cursive of all of the letters of his name." The signature on
the guest waiver form "was a scrawl across the signature line." Plaintiff admitted that the name
on the form was his name, and that the time printed on the waiver was before the time of his
injury, but that the signature was not his, and that he did not sign the form using an electronic
key pad.
¶ 12 Defense counsel argued that it was a reasonable inference that plaintiff had declined to
give his telephone number upon entry and that the signature was made by plaintiff "in hasty
acknowledgement while not being a deliberate cursive spelling of every letter in his name."
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Additionally, defense counsel noted that the coincidence was far too great that Fitness
International would have a guest waiver form with the "uncommon name of 'Herbert Offord,'
which had the day of the incident and an electronic stamp of time indicating a time from just
before the injury."
¶ 13 Counsel for plaintiff argued that slipping on water from a leaking rook was not
reasonably foreseeable. The trial court, after consideration of the briefs, affidavit, and testimony,
found the plaintiff "not credible with regard to his testimony as to the signature." The court
found that plaintiff signed the waiver, that the waiver was valid and enforceable, and that
slipping on a basketball court, as testified to, was reasonably foreseeable. The trial court granted
Fitness International's motion to dismiss the negligence count. Plaintiff now appeals.
¶ 14 ANALYSIS
¶ 15 On appeal, plaintiff contends that the trial court erred in granting Fitness International's
section 2-619(a)(9) motion to dismiss because plaintiff did not sign the guest waiver form in
question. While we generally review the grant of a section 2-619(a)(9) motion to dismiss de
novo, "[w]here, as here, the trial court grants a section 2-619 motion to dismiss following an
evidentiary hearing, 'the reviewing court must review not only the law but also the facts, and
may reverse the trial court order if it is incorrect in law or against the manifest weight of the
evidence.' " Hernandez v. New Rogers Pontiac, Inc., 332 Ill. App. 3d 461, 464 (2002) (quoting
Kirby v. Jarrett, 190 Ill. App. 3d 8, 13 (1989)). Accordingly, we review whether the trial court's
findings of fact are against the manifest weight of the evidence, while reviewing question of law
de novo. Law Offices of Nye & Associates, Ltd. v. Boado, 2012 IL App (2d) 110804, ¶ 12.
¶ 16 We will therefore first determine whether the trial court's finding that plaintiff signed the
guest waiver form was against the manifest weight of the evidence. A finding is against the
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manifest weight of the evidence only if the opposite conclusion is clearly evident or if the finding
itself is unreasonable, arbitrary, or not based on the evidence presented. Best v. Best, 223 Ill. 2d
342, 350 (2006). Under the manifest weight standard, we give deference to the trial court as the
finder of fact because it is in the best position to observe the conduct and demeanor of the parties
and witnesses. Id. A reviewing court will not substitute its judgment for that of the trial court
regarding the credibility of witnesses, the weight to be given to the evidence, or the inferences to
be drawn. Id. at 350-51.
¶ 17 Here, the trial court found that plaintiff's testimony regarding whether he signed the
document was not credible, and we will not substitute our judgment for that of the trial court
regarding the credibility of witnesses. While plaintiff testified that he did not sign the guest
waiver, and produced a driver's license with deliberate spelling in cursive of all of the letters of
his name, we do not find that the trial court's finding that plaintiff signed the guest waiver form
was against the manifest weight of the evidence. Plaintiff admitted that the name on the guest
waiver form was his name, and that the time printed on the waiver was before the time of his
injury. A document was produced which showed the correct spelling of his name on a guest
waiver form, and a scrawl in the signature box. Accordingly, we cannot find that the opposite
conclusion–that plaintiff did not sign the guest waiver form–is clearly evident, and thus, we find
that the trial court's finding that plaintiff signed the guest waiver form was not against the
manifest weight of the evidence.
¶ 18 Plaintiff argues in the alternative that even if we find that he signed the guest waiver
form, that the trial court nevertheless erred in dismissing plaintiff's negligence claim because the
injury he suffered was not one contemplated by the guest waiver form. We agree.
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¶ 19 The circuit court here dismissed plaintiff's negligence claim due to "other affirmative
matter avoiding the legal effect of or defeating the claim" pursuant to section 2-619(a)(9) of the
Illinois Code of Civil Procedure. 735 ILCS 5/2-619(a)(9) (West 2012). Therefore, the legal
sufficiency of plaintiff's complaint is admitted and all the facts contained in the record must be
viewed in the light most favorable to plaintiff, the nonmoving party. Van Meter v. Darien Park
District, 207 Ill. 2d 359, 367-68 (2003); Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343,
352 (2008). Our supreme court has likened a dismissal pursuant to section 2-619(a)(9) to a
summary judgment in that a genuine issue of material fact will preclude the dismissal of a claim.
Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997). Because this is a question
of law, we review this argument de novo. Law Offices of Nye & Associates, 2012 IL App (2d)
110804 at ¶ 12.
¶ 20 In Illinois, a party may contract to avoid liability for its own negligence. Garrison v.
Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 584 (1990). Although a party may enter
into a contract to avoid liability for negligence, such exculpatory clauses "must contain clear,
explicit, and unequivocal language referencing the type of activity, circumstance, or situation
that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of
care. Platt v. Gateway International Motorsports Corp., 351 Ill. App. 3d 326, 330 (2004). The
parties need not, at the time of the formation of the contract, contemplate the precise cause of the
injury. Garrison, 201 Ill. App. 3d at 585. The defendant, however, "must put the plaintiff on
notice of the range of dangers for which the plaintiff assumes the risk of injury." Hawkins v.
Capital Fitness, Inc., 2015 IL App (1st) 133716, ¶ 19. This allows the defendant to exercise a
greater degree of caution and minimize the risk of injury. Platt, 351 Ill. App. 3d at 330. Most
importantly, the scope of an exculpatory clause is defined by the foreseeability of the specific
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danger. Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 577 (1984). The foreseeability
of a danger is an important element of the risk a party assumes and often defines the scope of an
exculpatory release agreement. Platt, 351 Ill. App. 3d at 331. Stated differently, "[i]t should
only appear that the injury falls within the scope of possible dangers ordinarily accompanying
the activity and, thus, reasonably contemplated by the plaintiff." Id. Furthermore, exculpatory
clauses are strictly construed against the benefiting party because such clauses are not favored by
courts. Hawkins, 2015 IL App (1st) 133716, ¶ 19.
¶ 21 After reviewing the facts contained in the record, we hold that the circuit court erred
when it dismissed plaintiff's negligence claim. Plaintiff alleged in his complaint that defendant's
"roof and/or skylight and/or window" leaked onto the gymnasium floor and caused his injury.
The parties agreed that "[p]laintiff testified that he was injured while using the basketball court
when he slipped on what he thought was water," and that "[s]omeone else told [p]laintiff that the
roof was leaking." The exculpatory clause here is extremely broad, providing that plaintiff
releases Fitness International from liability for “all claims arising from my *** use of LA
Fitness’ facilities, services, equipment or premises." Notably, it does not make any mention of
shielding defendant from liability from the building itself being defective. This clause is typical
of that required by workout facilities to cover incidents that arise when patrons are injured using
equipment, such as tripping and falling off a treadmill or weights dropping on their feet. All
such events being foreseeable by both the facility and its patrons. Reviewing the above facts in
the light most favorable to plaintiff leads us to conclude that plaintiff could not possibly have
foreseen or contemplated that a leak from a defective roof would cause his injury. The alleged
cause of plaintiff's injury here, the defective roof, is distinguishable from an injury caused by
other sources of condensation on the court such as perspiration, a spilled beverage, or cleaning
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products. At the time of the signing of the exculpatory clause, plaintiff could not have foreseen
that he would be injured due to a leaking roof.
¶ 22 We agree with plaintiff that the cause of the injury alleged here is similar to those
suffered by the plaintiffs in Larsen v. Vic Tanny International, 130 Ill. App. 3d 574 (1984), and
Hawkins v. Capital Fitness, Inc., 2015 IL App (1st) 133716. In Larsen, the court held that a
waiver did not apply when the plaintiff suffered respiratory injuries from inhaling certain
cleaning chemicals while at the club. The court found that there was a question of fact as to
whether a plaintiff would contemplate the danger of this inhalation as part of the waiver. Larsen,
130 Ill. App. 3d at 578. In Hawkins, a mirror fell on the plaintiff while he was using the fitness
club. The court found that mirrors falling on gym members was not the type of risk gym
members assumed when signing the waiver at issue. Hawkins, 2015 IL App (1st) 133716, ¶ 25.
It must be pointed out that the plaintiffs in Larsen and Hawkins were also patrons of health clubs
who signed broad exculpatory clauses when they sustained their injuries. In both cases this court
held that summary judgment was not proper because the inhalation of gaseous vapors, as in
Larsen, or the falling mirror, as in Hawkins, could not have been contemplated by the parties.
Larsen, 130 Ill. App. 3d at 578; Hawkins, 2015 IL App (1st) 133716, ¶ 25. Plaintiff here could
not have foreseen that he would be injured on a basketball court due to a leaking roof.
Accordingly, we equate the cause of plaintiff's injury here to the injuries suffered by the
plaintiffs in Larsen, i.e., the inhalation of gaseous vapors and Hawkins, i.e., a defectively hung
mirror. Larsen, 130 Ill. App. 3d at 575; Hawkins, 2015 IL App (1st) 133716, ¶ 1.
¶ 23 Furthermore, at the very least, plaintiff has raised a sufficient factual issue to defeat the
dismissal of his claim at this stage of the proceedings. See Id. ¶ 20 ("Whether the particular
injury ordinarily accompanies a certain activity and whether the plaintiff understands and
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assumes the risk associated with the activity often is a question of fact."); Larsen, 130 Ill. App.
3d at 576-77. Plaintiff's contention that a leaky roof, as opposed to common causes of
condensation on a basketball court such as perspiration or a spilled beverage, provides a
sufficient factual question to defeat defendant's motion to dismiss.
¶ 24 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County
and remand the matter for proceedings consistent with this decision.
¶ 25 Reversed and remanded.
¶ 26 JUSTICE CONNORS, dissenting.
¶ 27 The majority opinion concludes that the circuit court erred when it dismissed plaintiff's
negligence claim because at the time of the signing of the exculpatory clause, plaintiff could not
have foreseen that he would be injured due to a leaking roof. I respectfully disagree.
¶ 28 I believe that the alleged water on the basketball court was within the scope of possible
dangers covered by this release. The plaintiff must be put on notice by the release of the range of
dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising
a greater degree of caution. Platt, 351 Ill. App. 3d at 331. Although the precise occurrence
which caused the injury need not have been contemplated by the parties when the release was
signed, the injury must fall "within the scope of possible dangers" accompanying the activity
and, thus, have been reasonably contemplated by the plaintiff and covered by the release. Id.
The release here is extremely broad, providing that plaintiff releases Fitness International from
liability for "all claims arising from my *** use of LA Fitness' facilities, services, equipment or
premises. This waiver includes, but is not limited to, personal injury (including death) from
accidents or illness ***." I would find that slipping on a wet substance on a gymnasium floor
while playing basketball certainly falls within the range of reasonably foreseeable dangers
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associated with using a fitness center, and thus plaintiff's injury was contemplated by the waiver
he signed.
¶ 29 It is my belief that the majority opinion makes an extremely tenuous distinction between
water on the floor as the result of an alleged leaky skylight and water on the floor as the result of
a leaky water bottle, cleaning supplies, or perspiration. I do not see such a distinction, and find
Larsen, 130 Ill. App. 3d 574, and Hawkins, 2015 IL App (1st) 133716, to be inapposite to the
case at bar. In Larsen, a waiver was found not to apply when the plaintiff suffered respiratory
injuries from inhaling certain cleaning chemicals while at a fitness club, and in Hawkins, a
waiver did not apply when a mirror fell and hit the plaintiff on the head while he was using the
fitness club. It is my opinion that the injury that occurred in the case at bar, as a result of water
on a gym floor, is distinguishable from an injury that occurred as a result of a noxious odor or a
fallen mirror. Therefore, I would find that the injury that occurred here was within the scope of
possible dangers associated with using LA Fitness' facilities, and thus was covered by the guest
waiver. Accordingly, I would affirm the circuit court's dismissal of plaintiff's claim of
negligence.