Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 10 L 10072. The Honorable William E. Gomolinski, Judge, presiding.
For PLAINTIFF-APPELLANT: Keith L. Young, Chicago, Illinois.
For DEFENDANT-APPELLEE: Law Offices of Loretta M. Griffin, Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and 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 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.
[¶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 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 ***."
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 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 ...