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                                      Appellate Court                              Date: 2016.01.26 14:24:07
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                 Offord v. Fitness International, LLC, 2015 IL App (1st) 150879



Appellate Court          HERBERT         OFFORD,        Plaintiff-Appellant,    v.    FITNESS
Caption                  INTERNATIONAL, LLC, a Foreign Limited Liability Company,
                         Individually, 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, Defendants).



District & No.           First District, First Division
                         Docket No. 1-15-0879


Filed                    October 26, 2015


Decision Under           Appeal from the Circuit Court of Cook County, No. 14-L-007713; the
Review                   Hon. John Callahan, Jr., Judge, presiding.



Judgment                 Reversed and remanded.



Counsel on               Whiteside & Goldberg, Ltd., of Chicago (Joseph W. Lauer, of
Appeal                   counsel), for appellant.

                         Goldberg Segalla LLP, of Chicago (James M. Rozak, of counsel), for
                         appellee.



Panel                    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
     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 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,


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              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.
¶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.”
       Additionally, defense counsel noted that the coincidence was far too great that Fitness

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       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
       questions 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
       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.



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¶ 18        Plaintiff argues in the alternative that even if we find that he signed the guest waiver form,
       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.
¶ 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, ¶ 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
       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


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       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 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
       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

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       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 of all claims 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 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.




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