                              Illinois Official Reports

                                      Appellate Court



                   Hawkins v. Capital Fitness, Inc., 2015 IL App (1st) 133716



Appellate Court          MICHAEL HAWKINS, Plaintiff-Appellant, v. CAPITAL FITNESS,
Caption                  INC., d/b/a X-Sport Fitness, Defendant-Appellee.



District & No.           First District, Third Division
                         Docket No. 1-13-3716



Filed                    March 4, 2015
Rehearing denied         April 2, 2015


Decision Under           Appeal from the Circuit Court of Cook County, No. 10-L-10072; the
Review                   Hon. William E. Gomolinski, Judge, presiding.



Judgment                 Reversed and remanded.



Counsel on               Keith L. Young, of Chicago, for appellant.
Appeal
                         Loretta M. Griffin, Heather L. Nelson, and Ana Maria L. Downs, all of
                         Law Offices of Loretta M. Griffin, of Chicago, for appellee.



Panel                    JUSTICE HYMAN delivered the judgment of the court, with opinion.
                         Presiding Justice Pucinski and Justice Mason concurred in the
                         judgment and opinion.
                                              OPINION

¶1       Michael Hawkins was at a 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.

¶2                                         BACKGROUND
¶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

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             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 ***.”
¶4        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 some weights scattered on the floor and he landed on a weight rack at which
     point the mirror hit his head.
¶6        An unidentified fitness club patron or employee told Hawkins that a maintenance crew had
     been working on the mirror before the accident. Hawkins then noticed a hole in the wall with
     supporting wire mesh pulled out and several missing tiles from the wall.
¶7        Hawkins filed a one-count complaint against Capital Fitness alleging negligent conduct in
     failing to adequately secure the mirror, failing to warn patrons that the mirror was loose and
     likely to fall, and failing to cordon off the area around the mirror. Capital Fitness moved for
     summary judgment, arguing that (i) the exculpatory language of the membership agreement
     barred Hawkins’s claim for personal injury damages and (ii) Capital Fitness could not be held
     liable without proof of notice of an actual defect in the premises that proximately caused
     Hawkins’s accident.
¶8        After a hearing, the trial court granted Capital Fitness’s motion for summary judgment.
     The trial court enforced the exculpatory clause, finding (i) no substantial disparity in
     bargaining power between the parties; (ii) no public policy bar to enforcement; and (iii)
     nothing in the social relationship between the parties that would militate against upholding the
     clause. The trial court further held that Hawkins failed to provide evidence that Capital Fitness
     had actual or constructive notice of any defect concerning the mirror.



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¶9                                      STANDARD OF REVIEW
¶ 10        “Summary judgment is appropriate where the pleadings, depositions, admissions, and
       affidavits show that there is no genuine issue of material fact and that the moving party is
       entitled to judgment as a matter of law.” Direct Auto Insurance Co. v. Beltran, 2013 IL App
       (1st) 121128, ¶ 43. A triable issue of fact exists “where there is a dispute as to material facts, or
       where, the material facts being undisputed, reasonable persons might draw different inferences
       from the facts.” (Internal quotation marks omitted.) Wolfram Partnership, Ltd. v. LaSalle
       National Bank, 328 Ill. App. 3d 207, 215 (2001). The movant for summary judgment has the
       initial burden of proof. Beltran, 2013 IL App (1st) 121128, ¶ 43. An appellate court reviews a
       disposition of summary judgment de novo. Id.

¶ 11                                           ANALYSIS
¶ 12                              Execution of Membership Agreement
¶ 13       Hawkins initially claims the sales associates were unfamiliar with the language of the
       membership agreement and failed to point out or explain the exculpatory clause. Hawkins
       concedes that he did not read the agreement before signing it but suggests Capital Fitness
       employees had a duty to explain the release. Hawkins appears to argue that the circumstances
       surrounding the execution of the membership agreement should invalidate the exculpatory
       clause.
¶ 14       Generally, absent fraud, the act of signing legally signifies that the individual had an
       opportunity to become familiar with and comprehend the terms of the document he or she
       signed. An individual “who has had an opportunity to read a contract before signing, but signs
       before reading, cannot later plead lack of understanding.” Breckenridge v. Cambridge Homes,
       Inc., 246 Ill. App. 3d 810, 819 (1993). See also, e.g., Urban Sites of Chicago, LLC v. Crown
       Castle USA, 2012 IL App (1st) 111880, ¶ 40 (a person may not avoid legal consequences of an
       executed contract on the ground that the signing was done without knowledge of its contents);
       State Bank of Geneva v. Sorenson, 167 Ill. App. 3d 674, 681 (1988) (“[f]ailure to read a
       [contract] before signing it is normally no excuse for a party who signs it”); Miller v. Wines,
       197 Ill. App. 3d 447, 452 (1990) (same).
¶ 15       Hawkins had a duty to read the membership agreement before he signed it. He did not ask
       for more time to review the document and no Capital Fitness employee prevented him from
       reading the agreement. Hawkins also received a copy of the agreement. There is no evidence,
       and Hawkins did not contend otherwise, that the sales associates made false representations to
       get him to enter the agreement or about its terms. Hence, nothing is raised by the circumstances
       of Hawkins’s signing the agreement that would render the exculpatory clause unenforceable.

¶ 16                                  Scope of Exculpatory Clause
¶ 17       Hawkins primarily argues a question of fact exists as to whether his injury falls within the
       contractual limits of the exculpatory clause. Specifically, Hawkins asserts that his injury
       resulted from a possible danger beyond the ordinary risks accompanying the use of a fitness
       club membership.
¶ 18       A party may contract to avoid liability for his own negligence. Garrison v. Combined
       Fitness Centre, Ltd., 201 Ill. App. 3d 581, 584 (1990). Absent fraud or willful and wanton
       negligence, a contract’s exculpatory clause will be valid and enforceable unless (1) the


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       bargaining position of the parties reflects a substantial disparity, (2) enforcement violates
       public policy, or (3) the social relationship between the parties militates against upholding the
       clause. Id. Absent any of these factors, “the question of whether or not an exculpatory clause
       will be enforced depends upon whether or not defendant’s conduct and the risk of injury
       inherent in said conduct was of a type intended by the parties to fall within the scope of the
       clause.” Masciola v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313, 317 (1993).
¶ 19       Because liability release clauses are highly disfavored, courts closely scrutinize them and
       they are strictly construed against the party seeking to rely on them. Cox v. US Fitness, LLC,
       2013 IL App (1st) 122442, ¶ 14; Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407,
       412 (2007). While usually worded broadly, an exculpatory clause “should contain clear,
       explicit, and unequivocal language referencing the types of activities, circumstances, or
       situations that it encompasses and for which the plaintiff agrees to relieve the defendant from a
       duty of care.” Garrison, 201 Ill. App. 3d at 585. At the time of contract formation, the parties
       do not have to contemplate the precise occurrence that later results in injury. Id. Nevertheless,
       the defendant must put the plaintiff on notice of the range of dangers for which the plaintiff
       assumes the risk of injury. Id. (“It should only appear that the injury falls within the scope of
       possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by
       the plaintiff.”); Johnson v. Salvation Army, 2011 IL App (1st) 103323, ¶ 36 (danger causing
       injury must ordinarily accompany activity covered by release).
¶ 20       The scope of the exculpatory clause depends on the foreseeability of a specific danger.
       Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 577 (1984). “The relevant inquiry ***
       is not whether plaintiff foresaw defendants’ exact act of negligence, but whether plaintiff knew
       or should have known the accident was a risk encompassed by his [or her] release.” (Internal
       quotation marks omitted.) Cox, 2013 IL App (1st) 122442, ¶ 14. 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. Hellweg v. Special Events
       Management, 2011 IL App (1st) 103604, ¶ 6.
¶ 21       The membership agreement provided that “MEMBER ACKNOWLEDGES THAT
       EXERCISE, TANNING AND USE OF THE EQUIPMENT AND FACILITIES ***
       NATURALLY INVOLVES THE RISK OF INJURY ***.” It further provides that
       “MEMBER ENGAGES IN ALL EXERCISE *** AND USES ALL FACILITES AND
       SERVICES *** AT SUCH PERSON’S OWN RISK.” The agreement lists some uses of the
       facility covered by the agreement, including: the use of the equipment, locker room, showers,
       pool, basketball court, whirlpool, spa, spa services, sauna, steam room, tanning facilities, rock
       climbing wall, parking area, and sidewalk. The agreement holds Capital Fitness harmless from
       injury sustained or incurred from negligent acts or omissions “ARISING OUT OF OR IN
       ANY WAY RELATED TO MEMBER’S PRESENCE AT OR USE OF THIS FACILITY.”
       The release includes a member’s “USE OF ANY FACILITY OR ITS IMPROPER
       MAINTENANCE *** USE OF ANY EXERCISE [EQUIPMENT] *** OR FACILITIES
       WHICH MAY MALFUNCTION OR BREAK *** [AND] IMPROPER MAINTENANCE
       OF ANY EXERCISE *** EQUIPMENT OR FACILITIES.”
¶ 22       A literal reading of the membership agreement reveals that Hawkins released Capital
       Fitness of all liability from injury, no matter the source, cause, or circumstance. For example,
       the agreement includes injury caused by a patron’s use of the exercise equipment itself, such as
       a weight machine breaking. Because an exculpatory clause is strictly construed against the

                                                   -5-
       party it benefits (Evans, 373 Ill. App. 3d at 412), the clause must identify the range of dangers
       for which risk of injury is being assumed. See Larsen, 130 Ill. App. 3d at 578 (“A plaintiff’s
       decision to assume the risk of injury resulting from a defendant’s conduct attains efficacy only
       in a context in which the plaintiff may foresee the range of possible dangers to which he
       subjects himself ***.”).
¶ 23       To be sure, at the time the membership agreement was signed, Hawkins and Capital Fitness
       did not contemplate that Hawkins might be struck by a mirror. The record indicates that the
       Logan Square X-Sport facility had a number of mirrors. Indeed, two longer mirrors were on
       each side of the protruding portion of the wall. Should Hawkins have known a mirror falling
       off a wall was within the range of danger ordinarily accompanying the use of a fitness facility?
       Nothing in the record shows that Hawkins knew or should have known that this particular
       danger accompanied his working out at the facility.
¶ 24       Larsen v. Vic Tanny International, 130 Ill. App. 3d 574 (1984), is instructive. In Larsen,
       the plaintiff sustained injuries after inhaling gaseous vapors emitted from the health club’s
       cleaning compounds. Larsen, 130 Ill. App. 3d at 575. Before joining the health club, the
       plaintiff read and signed a broad exculpatory agreement, releasing the health club from any
       damages arising from personal injury sustained “ ‘on or about the premises.’ ” Id. at 575-76.
       The court held that a genuine issue of fact remained as to whether a member’s exposure to
       gaseous vapors was a danger intended by the parties to be excused by the exculpatory clause.
       Id. at 577-78. The court explained that an exculpatory clause “attains efficacy only in a context
       in which the plaintiff may foresee the range of possible danger to which [the plaintiff] subjects
       himself [or herself].” Id. at 578. The court then found the assertion that a plaintiff could
       contemplate the danger of combustible cleaning compounds in a health club, and thereby alter
       one’s behavior, “untenable according to the standards of common experience.” Id.
¶ 25       Like Larsen, we are unable to hold, as a matter of law, that a falling mirror is a danger
       within the scope of the exculpatory clause. As the court in Larsen explained, “[f]oreseeability
       of a specific danger is *** an important element of the risk which a party assumes, and, for this
       reason, serves to define the scope of an exculpatory clause. *** No agreement to assume
       unknown risks shall be inferred.” Id. at 577. As the record illustrates, the Logan Square
       X-Sport contains a number of mirrors. If Hawkins foresaw the possible danger of a mirror
       coming unhinged, he would need to exercise a proportionately higher degree of caution around
       them, which would prevent him, or any member for that matter, from fully using portions of
       the facility near a mirror. Should Hawkins have worn protective equipment, like a helmet, to
       militate against the risk? Is Hawkins (and every member) expected, for safety purposes, to
       conduct a personal, comprehensive investigation of all aspects of the facility, including the
       quality and fit of every mirror? Like Larsen, the assertion that Hawkins would necessarily
       contemplate the danger of a mirror detaching from the wall and accordingly follow a more
       rigid standard of caution, either by avoiding certain areas or in some other way altering habits
       while present in those areas, is “untenable according to the standards of common experience.”
       Id. at 578.
¶ 26       Moreover, Hawkins’s injury is distinguishable from those suffered in Garrison v.
       Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581 (1990), Kubisen v. Chicago Health Clubs,
       69 Ill. App. 3d 463 (1979), and Owen v. Vic Tanny’s Enterprises, 48 Ill. App. 2d 344 (1964). In
       Garrison, the plaintiff’s trachea was crushed when a weighted bar fell from a bench press
       apparatus the plaintiff was preparing to use. Garrison, 201 Ill. App. 3d at 583. In Kubisen, the

                                                   -6-
       plaintiff suffered injuries after she fell in a steam room within the athletic club. Kubisen, 69 Ill.
       App. 3d 463. In Owen, the plaintiff injured her wrist when she slipped and fell as she left the
       club’s swimming pool. Owen, 48 Ill. App. 2d at 345. In each of these cases, the injuries
       occurred while the plaintiffs engaged in activities ordinarily associated with, engaged in, and
       performed at the facility at which they were injured. Hence, the plaintiffs could reasonably
       contemplate the possibility of injury resulting from a weight lifting apparatus or slippery
       surfaces in the steam room and around the swimming pool.
¶ 27        Capital Fitness’s reliance on Schlessman v. Henson, 83 Ill. 2d 82 (1980), and Maness v.
       Santa Fe Park Enterprises, Inc., 298 Ill. App. 3d 1014 (1998), does not necessitate a contrary
       result. In Schlessman, the plaintiff, an experienced amateur stock-car racer, crashed his race
       car after a portion of the upper track embankment collapsed. Schlessman, 83 Ill. 2d at 84.
       Before the race, the plaintiff signed a release agreeing not to hold the track liable for any
       injuries suffered as a result of its negligence or otherwise. Id. The Illinois Supreme Court
       concluded that, by adopting the broad language of the release, it was reasonable that the parties
       “contemplated the similarly broad range of accidents which occur in auto racing.” Id. at 86.
       The court reasoned that racing at high speeds in limited areas gives rise to a “myriad of
       factors,” obvious or unknown, which may result in unexpected and freakish accidents. Id. The
       court explained that “[e]xperienced race drivers, such as plaintiff, are obviously aware of such
       occurrences and the risks attendant to the sport of auto racing.” Id. Although the parties may
       not have contemplated the precise occurrence, this alone did not render the exculpatory clause
       inoperable. Id. Finally, the court noted that, as designed, the release encompassed all claims
       against the defendant based on its negligence or otherwise because “[t]he very nature of the
       parties’ activity requires this result.” Id.
¶ 28        In Maness, the decedent, a 51-year-old experienced racer, suffered a fatal heart attack
       while participating in a stock car race. Maness, 298 Ill. App. 3d at 1016. Before the race, the
       decedent signed three broad releases, discharging the defendants “from all liability for his
       injury or death whether caused by the negligence or gross negligence of defendants or
       otherwise.” Id. The court, relying on Schlessman, found that the releases were designed to
       cover all claims against the defendants based on their negligence, “including their alleged
       negligent delay in providing medical assistance.” Id. at 1020. The court concluded that the risk
       of requiring medical attention during a race ordinarily accompanies the “dangerous sport of
       auto racing.” Id. The court then reasoned that incidents requiring medical attention are
       common at racetracks. Id. Thus, the decedent, “as an experienced racer, expected prompt and
       adequate medical care at every race. Likewise, he should have expected that negligence on the
       part of defendants regarding the medical care provided was possible and could result in serious
       injury or death to participants in the race.” Id. Ultimately the court concluded that “[t]he risk of
       requiring medical attention during a race *** is one that ordinarily accompanies auto racing
       ***. [The decedent] accepted this risk and agreed to exculpate defendants from any alleged
       negligence in connection with it when he executed the broad releases ***.” Id. at 1021.
¶ 29        Unlike Schlessman and Maness, we cannot conclude, as a matter of law, that the risk of a
       mirror falling on a patron ordinarily accompanies the use of a fitness facility. In Schlessman
       and Maness, it was reasonable to conclude that auto racing participants accept accidents and
       medical attention as part of the sport. But nothing in the record suggests that a mirror falling off
       a fitness club’s wall is an ordinary or reasonable risk in this case.



                                                     -7-
¶ 30        True, Hawkins and Capital Fitness did not need to specifically foresee the precise incident
       at the time that Hawkins signed the membership agreement. Even so, Schlessman and Maness
       do not stand for the proposition that a broad exculpatory clause covers any conceivable claim.
       Simpson v. Byron Dragway, Inc., 210 Ill. App. 3d 639 (1991), provides clarification. In
       Simpson, the decedent, a licensed and experienced race car driver, was killed when his dragster
       collided with a deer during a race. Simpson, 210 Ill. App. 3d at 641. Before the race, the
       decedent signed a release in which he agreed to inspect the track and adjacent areas to ensure
       that they were properly designed, maintained, and safe for race purposes. Id. at 642. The
       decedent also voluntarily assumed “ ‘all risks arising from conditions related to use of the track
       area by myself or others.’ ” Id. The appellate court reversed the trial court’s grant of summary
       judgment based on the release. Id. at 649. The court initially noted that to effectively assume
       the risk of some occurrence, “it must be demonstrated that the danger which caused the injury
       was one which ordinarily accompanied the activity and that the plaintiff knew, or should have
       known, that both the danger and the possibility of injury existed before the occurrence.” Id. at
       647. The court rejected the argument that the decedent, by virtue of his participation in an
       inherently dangerous activity, contemplated a wide range of incidents, including the possibility
       that an animal would run onto the racetrack. Id. at 648. The court noted that Schlessman “did
       not hold that the range of accidents contemplated is without limit.” Id. Thus, the court
       concluded that the danger of a deer running onto a racetrack was not the type of risk that
       ordinarily accompanies auto racing, and, therefore, a question of fact remained. Id. at 649.
¶ 31        Like Simpson, reasonable minds could differ on the issue of whether the incident here is an
       ordinary risk associated with the use of a fitness facility. “Whether a particular injury is one
       which ordinarily accompanies a certain activity and whether a plaintiff appreciates and
       assumes the risks associated with the activity often constitute a question of fact.” Simpson, 210
       Ill. App. 3d at 647. Because a broad release does not encompass all accidents without limit
       (Simpson, 210 Ill. App. 3d at 648), a genuine issue of fact arises as to whether the exculpatory
       clause in the membership agreement includes potential injury due to a mirror falling off a wall.

¶ 32                                         Notice of Defect
¶ 33       The trial court also granted summary judgment because Hawkins did not present any
       evidence that Capital Fitness had notice of the defective condition of the mirror. A premises
       liability plaintiff must prove, among other things, that the “landowner knew or in the exercise
       of ordinary care should have known of both the condition and the risk the condition posed to
       others lawfully on the property.” Smart v. City of Chicago, 2013 IL App (1st) 120901, ¶ 46. In
       granting Capital Fitness’s motion for summary judgment, the trial court stated, “it is incumbent
       upon the plaintiff to show me some affirmative matter, something, a scintilla of evidence to
       show that there was some type of actual or constructive notice, and the court cannot find any
       material issue of fact that would indicate that there is other than what is pure speculation and
       conjecture.”
¶ 34       The premise underlying this portion of the trial court’s ruling and Capital Fitness’s
       argument is that Hawkins pursued a premises liability cause of action. Our review of
       Hawkins’s one-count complaint, however, establishes that it sounds in negligence, not
       premises liability, and therefore, lack of evidence concerning notice is both inapplicable and
       irrelevant.


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¶ 35                                      CONCLUSION
¶ 36   The trial court erred in granting defendant’s motion for summary judgment.

¶ 37   Reversed and remanded.




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