Appeal from the Circuit Court of Cook County No. 10 L 14683 Honorable Randye A. Kogan, Judge Presiding
The opinion of the court was delivered by: Justice McBRIDE
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Justices Howse and Palmer concurred in the judgment and opinion.
¶ 1 The issue on appeal is whether plaintiff's negligence suit regarding serious personal injuries he suffered while using exercise equipment at a fitness club is barred, under Minnesota law, by an exculpatory clause in his contract with the club. The circuit court of Cook County determined the clause warranted the dismissal of plaintiff's first amended complaint with prejudice and the denial of his motion for reconsideration. Plaintiff contends the court misconstrued the contract and the law and failed to consider his affidavit establishing material questions which could not be resolved on the pleadings.
¶ 2 Plaintiff-appellant Sahal Hussein was a resident of Minneapolis, Minnesota, when he executed the contract at issue with defendant-appellee L.A. Fitness International, L.L.C., d/b/a Pro Results (hereinafter L.A. Fitness), the operator of a national chain of fitness clubs which is headquartered in Irvine, California. A choice-of-law clause in this written agreement indicates it will be governed and enforced in accordance with Minnesota law. Hussein filed suit in 2010 in Illinois, alleging that he was injured in 2009, at an L.A. Fitness facility located near downtown Chicago, at 1101 South Canal Street, while making unsupervised use of an "assisted dip/chin" exercise machine. The circuit court granted L.A. Fitness' motion to dismiss the pleading as factually insufficient and allowed Hussein to replead.
¶ 3 Hussein alleged the following in his single-count first amended complaint. On February 14, 2009, Hussein "became a client and patron" of L.A. Fitness by executing a fitness service agreement and paying certain fees. He visited the Canal Street location of L.A. Fitness on July 7, 2009, and was permitted to make unsupervised use of its exercise equipment. L.A. Fitness breached its duty of ordinary care to Hussein by failing to maintain and inspect its fitness equipment and by failing to "appropriately and properly" monitor, supervise, or instruct club members who used the equipment. As a result, while Hussein was using the upper and lower bars and movable and adjustable bench on an assisted dip/chin exercise machine, he fell, struck his head and body, and was rendered a quadriplegic. (There has been no discovery and thus no further description of the accident, injuries, or health care.) Hussein claimed damages in excess of $50,000.
¶ 4 The "Fitness Service Agreement and Release of Liability" attached to Hussein's pleading indicates it was a contract for a series of prepaid 30-minute personal training sessions. However, L.A. Fitness' motion to dismiss provided the trial court with Hussein's general contract with the club, which was entitled "Membership Agreement" and bore the signature date of February 6, 2009, which was about a week before he bought the personal training sessions. Hussein acknowledged in the circuit court and again in his appellate brief that "[w]hen initially joining [L.A.] Fitness, [he] was provided with and signed" the membership agreement and entered into the fitness service agreement on February 14, 2009. In an affidavit attached to his response to L.A. Fitness' motion to dismiss, Hussein swore that when the accident occurred he was not exercising pursuant to the fitness service agreement and was not working with a personal trainer. Accordingly, the trial court's ruling was based on the membership agreement and did not rely on any part of the fitness service agreement.
¶ 5 Hussein's "multi-club" membership agreement states in pertinent part, "It is agreed *** you [the Buyer] are purchasing a membership from L.A. Fitness according to the terms on both pages of this Membership Agreement and the current Membership Policies and Club Rules and Regulations ('Agreement')." Also, "By signing this Agreement, Buyer acknowledges that Buyer *** has read and understands the entire Agreement including *** the Release and Waiver of Liability and Indemnity, [and] all other Additional Terms and Conditions on the reverse side hereof ***." The signature block at the bottom of this page dated February 6, 2009, contains the signatures of Hussein and an agent of L.A. Fitness. The following language appears on the reverse side of the page and is emphasized by a black frame and bold font:
"IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that Member's use of L.A. Fitness' facilities, services, equipment or premises involves risks of injury to persons *** and Member assumes full responsibility for such risks. *** Member hereby releases and holds L.A. Fitness *** harmless from all liability to Member *** for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member's person or property, including injury leading to the death of Member, whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member is in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services or equipment. *** Member has read this release and waiver of liability ***."
¶ 6 This quote is an excerpt from a paragraph which covers about one-third of the page. Hussein's affidavit indicates that when he joined L.A. Fitness by signing the membership agreement, the contents of the contract were not explained to him other than the provisions regarding payment and cancellation and he was not advised that the agreement included a release or waiver of liability.
¶ 7 Due to this exculpatory language, the circuit court granted L.A. Fitness' motion to dismiss Hussein's lawsuit and for the same reason denied his motion to reconsider the ruling.
¶ 8 Hussein's complaint was dismissed pursuant to section 2-619 of the Code of Civil Procedure, which governs the involuntary dismissal of a complaint based on certain defects, defenses, or other affirmative matters. 735 ILCS 5/2-619 (West 2010). The purpose of a section 2-619 motion is to dispose of issues of law and easily proved issues of fact at the outset of litigation. Zerjal v. Daech & Bauer Construction, Inc., 405 Ill. App. 3d 907, 910, 939 N.E.2d 1067, 1071 (2010). A section 2-619 motion admits the legal sufficiency of the plaintiff's claim " 'and raises defects, defenses, or other affirmative matters that appear on the face of the complaint or are established by external submissions that act to defeat the claim.' " Zerjal, 405 Ill. App. 3d at 910, 939 N.E.2d at 1071 (quoting Krilich v. American National Bank & Trust Co. 1-12-1426 of Chicago, 334 Ill. App. 3d 563, 569-70, 778 N.E.2d 1153 (2002)). When ruling on a section 2-619 motion, a court must construe the pleadings and supporting documents in the light most favorable to the plaintiff. Zerjal, 405 Ill. App. 3d at 910, 939 N.E.2d at 1071. This appellate court's role is to review the dismissal de novo and determine whether the existence of a genuine issue of material fact should have precluded the ruling or, absent an issue of material fact, whether the dismissal was proper as a matter of law. Zerjal, 405 Ill. App. 3d at 910-11, 939 N.E.2d at 1071-72.
¶ 9 Appellant Hussein argues the membership agreement is confusing, that the fitness services agreement is similarly flawed, and that the two contracts are contradictory, do not reflect the clear format and language required by Minnesota law, and should not be enforced. He also contends the trial court failed to consider the affidavit he filed in opposition to the motion to dismiss and that his sworn statement substantiates that the contracts are defective and should have led to the conclusion that there are material issues which cannot be properly decided at the pleading stage. Based on these arguments, Hussein seeks reversal of the dismissal order. Appellee L.A. Fitness responds that the exculpatory language in the membership agreement is clear, consistent with Minnesota public policy, and enforceable as written, ...