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Calarco v. Ymca

OPINION FILED NOVEMBER 18, 1986.

GINA MARIE CALARCO, PLAINTIFF-APPELLANT,

v.

YMCA OF GREATER METROPOLITAN CHICAGO ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County; the Hon. Anthony Peccarelli, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 30, 1986.

Plaintiff, Gina Marie Calarco, brought suit against defendant, YMCA of Greater Metropolitan Chicago (YMCA), and later filed an amended complaint adding as a defendant Universal Gym Equipment, Inc., not a party to this appeal. Plaintiff alleged that she was injured when weights on a "Universal Centurion 1020 Variable" gym machine fell on her hand in the weight room at the Buehler YMCA, one of the facilities operated by the YMCA, and sought recovery for her injury. Plaintiff appeals from the granting of the YMCA's motion for summary judgment based on an exculpatory clause included on the YMCA's application for membership and signed by plaintiff.

The single issue on appeal is whether the trial court properly granted the YMCA's motion for summary judgment based on the exculpatory clause. Plaintiff contends that the clause is too vague and uncertain to bar her suit against the YMCA.

Plaintiff's complaint alleged that plaintiff was injured when metal weights fell on her hand, causing broken bones and injuring her permanently. She alleged that the YMCA was negligent in failing to adequately inspect and maintain the "Universal Centurion 1020 Variable" gym machine, in failing to repair the machine, and in failing to warn or notify plaintiff that the machine was in a state of disrepair and unsuitable for use. Plaintiff later added Universal Gym Equipment, Inc., manufacturer of the machine, as a defendant, alleging negligence in the design and construction of the weight machine.

The YMCA filed a motion for summary judgment contending that an application for membership, signed by plaintiff, contained a valid exculpatory clause whereby plaintiff waived any rights or claims for damages she may have against the YMCA. The signed membership form was attached to the motion and stated:

"In consideration of my participation in the activities of the Young Men's Christian Association of Metropolitan Chicago, I do hereby agree to hold free from any and all liability the YMCA of Metropolitan Chicago and its respective officers, employees and members and do hereby for myself, my heirs, executors and administrators, waive, release and forever discharge any and all rights and claims for damages which I may have or which may hereafter accrue to me arising out of or connected with my participation in any of the activities of the YMCA of Metropolitan Chicago.

I hereby do declare myself to be physically sound, having medical approval to participate in the activities of the YMCA."

A deposition of plaintiff was also filed by the YMCA. Plaintiff stated, in pertinent part, that she was familiar with the rules and regulations contained on the membership form. She stated that, on the day of the incident, Connie Tucker was having trouble with the legpress portion of the universal machine and she volunteered to help her, as she had previously worked at a Nautilus facility and was familiar with the machine. Plaintiff stated that she was attempting to remove the pin to adjust the weights on the machine when approximately five weights, which were apparently stuck on top, fell on her hand, causing fractures in two of her fingers. The court granted YMCA's motion for summary judgment, and this appeal followed.

• 1 The courts of Illinois have long held that, under appropriate circumstances, a person may by contract avoid liability for his or her negligence. (Jackson v. First National Bank (1953), 415 Ill. 453, 461, 114 N.E.2d 721; Larsen v. Vic Tanny International (1984), 130 Ill. App.3d 574, 576, 474 N.E.2d 729.) Such an agreement will be enforced unless there exists a substantial disparity in the parties' bargaining position, unless the agreement is violative of public policy, or unless there is something in the social relationship of the parties militating against upholding the agreement. Schlessman v. Henson (1980), 83 Ill.2d 82, 86-87, 413 N.E.2d 1252.

Plaintiff contends, however, that such an agreement can absolve a party of the consequences of its own negligence only if that intent is expressed in clear, explicit, and unequivocal language, citing Poskozim v. Monnacep (1985), 131 Ill. App.3d 446, 449, 475 N.E.2d 1042. Plaintiff argues that the clause here is vague and uncertain, does not clearly indicate that YMCA members are giving up their right to claim damages for negligence for the failure to inspect, maintain, or repair equipment provided by the YMCA, and, when read with the declaration immediately following it, shows an intent to release the YMCA only from liability sustained because a member is physically unfit to undergo a chosen activity or becomes injured while participating in activities as a result of the member's bodily weakness. She contends that the clause, therefore, does not bar her action against the YMCA.

In response, the YMCA argues that Illinois courts have repeatedly upheld the validity and enforceability of similar clauses and cites two cases where an exculpatory clause was held to relieve similar facilities from liability for claims of negligence. In the two cases cited, however, the language contained in the exculpatory clauses was significantly more explicit than the clause in issue here. In Owen v. Vic Tanny's Enterprises (1964), 48 Ill. App.2d 344, 345-46, 199 N.E.2d 280, the clause stated:

"Member, in attending said gymnasiums and using the facilities and equipment therein, does so at his own risk. Tanny shall not be liable for any damages arising from personal injuries sustained by Member in, on or about the premises of any of the said gymnasiums. Member assumes full responsibility for any injuries or damages which may occur to Member in, on or about the premises of said gymnasiums and he does hereby fully and forever release and discharge Tanny and all associated gymnasiums, their owners, employees and agents from any and all claims, demands, damages, rights of action, or causes of action, present or future, whether the same be known, anticipated or unanticipated, resulting from or arising out of the Member's use or intended use of the said gymnasium or the facilities and equipment thereof."

The clause upheld in Kubisen v. Chicago Health Clubs (1979), 69 Ill. App.3d 463, 464, 388 ...


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