                             2017 IL App (3d) 160378

                           Opinion filed August 23, 2017
____________________________________________________________________________

                                     IN THE

                        APPELLATE COURT OF ILLINOIS

                                THIRD DISTRICT

                                      2017

C.H.,                                       )
                                            )
        Plaintiff-Appellant,                )
                                            )
        v.                                  ) Appeal from the Circuit Court
                                            ) of the 14th Judicial Circuit,
PLA-FIT FRANCHISE, LLC, a New               ) Rock Island County, Illinois.
Hampshire Limited Liability Company, and PF )
EAST MOLINE, LLC, an Illinois Limited       )
Liability Company, d/b/a Planet Fitness,    )
                                            )
        Defendants-Appellees.               )
_____________________________________ )       Appeal No. 3-16-0378
                                            ) Circuit Nos. 14-L-151 and 15-L-31
KELLY OTTERNESS, Individually and on        ) consol.
Behalf of All Others Similarly Situated,    )
                                            )
        Plaintiff-Appellant,                )
                                            )
        v.                                  )
                                            ) The Honorable
PLA-FIT FRANCHISE, LLC, a New               ) Clarence M. Darrow,
Hampshire Limited Liability Company, and PF ) Judge, presiding.
EAST MOLINE, LLC, an Illinois Limited       )
Liability Company, d/b/a Planet Fitness,    )
                                            )
        Defendants-Appellees.               )
____________________________________________________________________________

      JUSTICE McDADE delivered the judgment of the court, with opinion.
      Justices O’Brien and Schmidt concurred in the judgment and opinion.
____________________________________________________________________________
                                                 OPINION

¶1          Plaintiffs C.H. and Kelly Otterness were secretly videotaped in Planet Fitness’s tanning

     rooms. Plaintiffs filed a second amended complaint against defendants Pla-Fit Franchise, LLC,

     and PF East Moline, LLC, alleging defendants’ failure to ensure members’ privacy in the tanning

     rooms caused plaintiffs’ severe emotional distress. Defendants filed separate motions to dismiss

     the complaint, and the trial court granted the motions, determining plaintiffs had no cause of

     action for emotional distress damages. Plaintiffs appealed, arguing that (1) defendants are liable

     in negligence for the criminal or tortious acts committed by a third party, and (2) defendants

     failed to exercise reasonable care in violation of section 2 of the Premises Liability Act (740

     ILCS 130/2 (West 2014)). We affirm.

¶2                                                 FACTS

¶3          Pla-Fit, a franchisor that owned the trademark name “Planet Fitness,” and PF East

     Moline, a franchisee, entered into a franchise agreement in which PF East Moline would own,

     operate, and do business under the Planet Fitness name in Moline, Illinois. In the agreement, PF

     East Moline was to operate the gym under business formats, methods, procedures, designs,

     layouts, standards, and specifications created and distributed by Pla-Fit and Pla-Fit reserved the

     right to improve, develop, and modify the terms of the agreement.

¶4          Plaintiffs were members of the Moline gym. They upgraded their memberships to “Black

     Card” status in which the plaintiffs paid an extra fee to utilize the tanning rooms. Each tanning

     room contained a single tanning bed, and members gained access to the rooms by placing their

     names on a sign-in sheet before entering.

¶5          Between August and November 2014, plaintiffs disrobed and used the tanning beds in the

     tanning rooms. During this time, plaintiffs were secretly video recorded. On November 5, a PF


                                                      2
     East Moline employee discovered a hidden video camera in one of the tanning rooms. The police

     were called and conducted a search throughout the club. The next day, PF East Moline

     discovered a second hidden video camera in a different tanning room. Again, the police were

     notified. Eventually, a member of the gym, Trent Hamer, was arrested for the crime.

¶6          Mary Barnhill filed the original complaint against Pla-Fit and MBM Fitness Management

     LLC (case No. 14-L-149), alleging defendants failed to exercise a duty of care to protect its

     members’ privacy in the tanning rooms. Barnhill filed a subsequent first amended complaint

     removing MBM Fitness Management and adding PF East Moline as a defendant. C.H.’s and

     Otterness’s cases (case No. 15-L-31 and case No. 14-L-151, respectively) were later

     consolidated with Barnhill’s lawsuit. Ultimately, Barnhill and defendants filed a stipulation to

     dismiss wherein Barnhill dismissed her lawsuit against defendants with prejudice. The surviving

     plaintiffs, C.H. and Otterness, filed a joint second amended complaint against defendants. Under

     count I of the second amended complaint, C.H.’s allegations against Pla-Fit were the following:

                                                 “COUNT I

                                      C.H. vs. Pla-Fit Franchise, LLC

                            63. Plaintiff, C.H., repeats, re-alleges, and adopts

                    paragraphs 1-16 above with the same force and effect as though

                    fully set forth herein.

                            64. Defendant PLA-FIT, before up to and including

                    November 2015, had control or partial control of their franchisee’s

                    (including PF EM) on information and belief and included, but not

                    limited to, marketing the services of PF EM, providing rules and

                    regulations as to security of the facilities, and providing


                                                       3
instructions to the franchisees as to how and under what

circumstances to clean and inspect the tanning booths.

       65. Defendant PLA-FIT knew or in the exercise of due care

should have known that certain persons would attempt to secretly

video record people in the tanning rooms in various states of

undress through access to various franchise business journals and

trade associations memoranda and the fact that they knew that

people had engaged in this type of behavior in other franchises

other than the one in Moline.

       66. The cost of engaging in activity to minimize or

completely prevent the risk of people secretly recording people in

the tanning rooms would be minimal and would involve nothing

more than educating employees what to look for and how to

inspect the premises.

       67. At all relevant times complained of herein, Defendant

PLA-FIT had a duty to exercise ordinary care to provide their

franchisees with appropriate policies, procedures, and directions to

prevent or minimize the risk of their members being secretly video

recorded while using tanning rooms.

       68. Defendant digressed from the aforementioned duty and

as such was negligent in one or more of the following respects:

               a. Did not create or adequately create and provide to

       the franchisees sufficient policies and procedures designed


                                 4
                   to protect the privacy and security of Plaintiff while they

                   used the tanning rooms at the Planet Fitness Gym.

                           b. Did not engage in adequate inspection of the

                   tanning rooms at the Planet Fitness Gym for products or

                   devices that could be used to secretly video record the

                   tanning rooms.

                           c. Did not provide adequate warning materials to

                   franchisees to give members to advise them of the risk of

                   being secretly videotaped while using tanning rooms at the

                   Planet Fitness Gym.

                   69. One or more of the aforementioned acts and omissions

            by Defendant proximately caused the Plaintiff to suffer severe,

            significant, and permanent emotional distress.”

¶7   Under count II, C.H.’s allegations against PF East Moline were the following:

                                        “COUNT II

                                      C.H. vs. PF EM

                   70. Plaintiff repeats and re-alleges paragraphs 1-16 above

            with the same force and effect as though fully set herein.

                   71. Defendant PF EM knew or in the exercise of due care

            should have known that certain persons would attempt to secretly

            video record people in the tanning rooms because they had access

            to various PLA-FIT franchise literature and knew or should have

            known that at Planet Fitness locations other than the facility in

                                              5
Moline, customers of Planet Fitness were secretly video recorded

in tanning rooms before November of 2014.

       72. The cost of engaging in activity to minimize or

completely prevent the risk of people secretly recording people in

the tanning rooms would have been minimal and would have

involved nothing more than educating employees what to look for

and how to inspect the premises.

       73. At all relevant times complained of herein, Defendant

PF EM had a duty to exercise ordinary care to protect their

members’ privacy and security during their use of the tanning

rooms at the Planet Fitness Gym at 3624 Avenue of the Cities,

Moline, Illinois 61265.

       74. At all relevant times complained of herein, Defendant

PLA-FIT had a duty to exercise ordinary care to provide their

franchisee with appropriate policies, procedures, and directions to

prevent or minimize the risk of their members being secretly video

recorded while using tanning rooms.

       75. Defendant digressed from the aforementioned duty and

as such was negligent in one or more of the following respects:

               a. Did not create, implement and/or enforce

       adequate policies or procedures designed to protect the

       privacy and security of Plaintiff’s while they used the

       tanning rooms at the Planet Fitness Gym.


                                   6
                                       b. Did not inspect or adequately inspect the tanning

                              rooms at the Planet Fitness Gym for items or devices used

                              for purposes of videotaping Plaintiff while in tanning

                              rooms.

                                       c. Did not adequately train their employees to

                              search for and identify hidden devices that would include

                              video recording equipment in the tanning rooms.

                              76. One or more of the aforementioned acts or omissions

                      directly and proximately caused the Plaintiff to suffer severe,

                      significant, and permanent emotional distress.”

¶8            Aside from paragraph 74 in count II, Otterness’s claims mirror C.H.’s allegations in

       counts III against Pla-Fit and IV against PF East Moline. Defendants filed separate motions to

       dismiss the complaint, and the trial court granted the motions, determining plaintiffs did not state

       a cause of action for emotional distress damages. Plaintiffs appealed.

¶9                                                 ANALYSIS

¶ 10          The record presents three complaints: Barnhill filed the original and first amended

       complaint and C.H. and Otterness filed the second amended complaint, which is the operative

       pleading in this appeal. In the second amended complaint, plaintiffs bring the following four

       counts: (1) C.H. brings a claim against Pla-Fit in count I, (2) C.H. brings a claim against PF East

       Moline in count II, (3) Otterness brings a claim against Pla-Fit in count III, and (4) Otterness

       brings a claim against PF East Moline in count IV. Section 2-603(a) of the Code of Civil

       Procedure (735 ILCS 5/2-603(a) (West 2014)) states “[a]ll pleadings shall contain a plain and

       concise statement of the pleader’s cause of action.” However, the complaint is unclear as to the


                                                         7
       specific causes of action plaintiffs allege against defendants. On appeal, plaintiffs contend, and

       defendants concede, that the issues are limited to two causes of action: (1) common law

       negligence for the criminal or tortious acts committed by a third party and (2) premises liability.

       Accordingly, we focus our review on these two issues.

¶ 11          Plaintiffs claim (1) defendants are negligently liable for the criminal or tortious acts

       committed by a third party and (2) defendants failed to exercise reasonable care to ensure the

       privacy of its members in violation of section 2 of the Premises Liability Act (Act) (740 ILCS

       130/2 (West 2014)). They seek damages for emotional distress allegedly caused by defendants’

       tortious conduct.

¶ 12          A motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS

       5/2-615 (West 2014)) challenges the legal sufficiency of the complaint by alleging defects on the

       face of the complaint. Clark v. Children’s Memorial Hospital, 2011 IL 108656, ¶ 21. In ruling on

       a section 2-615 motion, the reviewing court accepts as true all well-pleaded facts in the

       complaint and all reasonable inferences therefrom. Id. The reviewing court must determine

       whether the allegations of the complaint, when construed in a light most favorable to the

       plaintiff, are sufficient to state a cause of action upon which relief may be granted. Id. We review

       an order granting a section 2-615 motion to dismiss de novo. Id.

¶ 13                                            I. PF East Moline

¶ 14                          A. Criminal or Tortious Acts Committed by Third Persons

¶ 15          Plaintiffs bring a claim of negligence, contending that defendants are liable for the

       criminal or tortious acts committed by a third party. Specifically, plaintiffs argue that PF East

       Moline had a duty as business invitor to protect plaintiffs as business invitees from the criminal

       acts committed by a third party and breached its duty when it failed to exercise reasonable care


                                                        8
       to (1) conduct adequate inspection of the tanning rooms for hidden cameras, (2) train employees

       on conducting searches and identifying hidden cameras, and (3) create policies and procedures to

       search for cameras in the tanning rooms when it knew members had been secretly recorded at a

       different Planet Fitness facility. Plaintiffs claim Pla-Fit’s failure to exercise reasonable care

       caused them to suffer emotional distress.

¶ 16          To state a cause of action for negligence, the plaintiff must allege a duty upon the

       defendant, breach of the duty, and an injury proximately caused by the breach. Marshall v.

       Burger King Corp., 222 Ill. 2d 422, 430 (2006). Generally, a possessor of land does not have a

       duty to protect invitees from the criminal acts committed by a third party. Hills v. Bridgeview

       Little League Ass’n, 195 Ill. 2d 210, 242 (2000). One exception to this rule is when there is a

       special relationship between the parties, such as (1) common carrier and passenger, (2) innkeeper

       and guest, (3) custodian and ward, and (4) business invitor and invitee. Id. at 243-44; Dearing v.

       Baumgardner, 358 Ill. App. 3d 540, 542 (2005). Illinois courts have relied on section 344 of the

       Restatement (Second) of Torts in determining whether a possessor of land is liable for the

       wrongful acts of third parties. Marshall, 222 Ill. 2d at 437. Section 344 states:

                              “A possessor of land who holds it open to the public for

                      entry for his business purposes is subject to liability to members of

                      the public while they are upon the land for such a purpose, for

                      physical harm caused by accidental, negligent, or intentionally

                      harmful acts of third persons or animals, and by the failure of the

                      possessor to exercise reasonable care to

                              (a) discover that such acts are being done or are likely to be

                      done, or


                                                          9
                              (b) give a warning adequate to enable the visitors to avoid

                      the harm, or otherwise to protect them against it.” (Emphasis

                      added.) Restatement (Second) of Torts § 344 (1965).

¶ 17          Plaintiffs cite several cases in which the reviewing court found the complaint stated a

       cause of action. None of these cases, however, involves damages for emotional distress. See

       Marshall, 222 Ill. 2d at 425 (decedent was struck by a car and fatally injured); Rowe v. State

       Bank of Lombard, 125 Ill. 2d 203, 208 (1988) (one victim died and the other victim sustained

       serious personal injuries); Duncavage v. Allen, 147 Ill. App. 3d 88, 92 (1986) (plaintiff seeking

       to recover damages for personal injuries and death); Cross v. Wells Fargo Alarm Services, 82 Ill.

       2d 313, 314 (1980) (plaintiff severely beaten and injured); Stribling v. Chicago Housing

       Authority, 34 Ill. App. 3d 551, 553 (1975) (plaintiff sought to recover damages for loss of

       property); Mims v. New York Life Insurance Co., 133 Ill. App. 2d 283, 284 (1971) (same); Ney v.

       Yellow Cab Co., 2 Ill. 2d 74, 76 (1954) (same).

¶ 18          We believe Lewis v. Heartland Food Corp., 2014 IL App (1st) 123303, is instructive in

       our review of this issue. In Lewis, the plaintiffs filed a claim of negligence against several

       corporations after his iPhone was allegedly stolen by other customers at a Burger King

       restaurant. Id. ¶ 2. The court adhered to the physical-harm limitation contained in section 344 of

       the Restatement, noting even when a special relationship exists “the landowner may only be held

       liable for physical harm caused by acts of third persons.” (Emphasis omitted.) Id. ¶ 9. As a result,

       the court refused to extend the duty to cases not involving physical harm. Id. ¶ 12.

¶ 19          Similarly in the instant case, although plaintiffs established PF East Moline owed them a

       duty as business invitor under the special relationship exception, they failed to sufficiently state a

       claim for negligence because they do not have a redressible injury. In the complaint, the


                                                         10
       plaintiffs allege that they seek damages solely for emotional distress as an element of negligence.

       Plaintiffs affirmatively state that they are not bringing a claim for either intentional or negligent

       infliction of emotional distress. We decline, as did the Lewis court, to extend a duty under

       section 344 of the Restatement to cases not involving physical harm. Therefore, we find

       plaintiffs failed to state a cause of action that PF East Moline was to them liable in negligence for

       the criminal or tortious acts committed by a third party.

¶ 20                                          B. Premises Liability

¶ 21          Plaintiffs argue the complaint states a cause of action that PF East Moline is liable for the

       emotional distress they suffered due to conditions on the premises because (1) it knew or had

       reason to know that there were dangerous conditions, i.e., two video cameras, on the premises,

       (2) plaintiffs were unaware of the danger, and (3) it failed to exercise reasonable care to protect

       plaintiffs against the danger.

¶ 22          Section 2 of the Act imposes a duty on an owner or occupier to exercise reasonable care

       for “the state of the premises or the acts done or omitted on them.” 740 ILCS 130/2 (West 2014).

       To determine whether a duty of care exists under section 2, the court must consider: (1)

       foreseeability, (2) likelihood of injury, (3) magnitude of the burden on the defendant to guard

       against the injury, and (4) consequences of placing a burden on the defendant. Kotecki v. Walsh

       Contruction Co., 333 Ill. App. 3d 583, 589 (2002) (citing LaFever v. Kemlite Co., 185 Ill. 2d

       380, 389 (1998)). The foreseeability prong is determined under the provisions in section 343 of

       the Restatement (Second) of Torts. Id. Section 343 states:

                               “A possessor of land is subject to liability for physical

                      harm caused to his invitees by a condition on the land if, but only

                      if, he


                                                         11
                              (a) knows or by the exercise of reasonable care would

                      discover the condition, and should realize that it involves an

                      unreasonable risk of harm to such invitees, and

                              (b) should expect that they will not discover or realize the

                      danger, or will fail to protect themselves against it, and

                              (c) fails to exercise reasonable care to protect them against

                      the danger.” (Emphasis added.) Restatement (Second) of Torts

                      § 343 (1965).

¶ 23          Plaintiffs do not have a redressible injury under section 343 of the Restatement. As with

       section 344, we find the language in section 343 also limits liability to physical harm, and we

       decline to extend its reach to claims that allege only emotional harm. Plaintiffs only seek in their

       complaint to recover emotional distress damages. They have, therefore, failed to state a cause of

       action under the premises liability theory.

¶ 24                                                 II. Pla-Fit

¶ 25                          A. Criminal or Tortious Acts Committed by Third Persons

¶ 26                                         1. Special Relationship

¶ 27          Plaintiffs also argue the complaint states a negligence cause of action that Pla-Fit is liable

       for the criminal acts of a third party because it failed to exercise reasonable care to (1) conduct

       adequate inspection of the tanning rooms for hidden cameras and create policies and procedures

       to search for cameras in the tanning rooms when it knew members had been secretly recorded at

       a different Planet Fitness facility and (2) warn customers that it discovered hidden cameras in the

       tanning room on November 5-6 to enable the customers to avoid harm. Consequently, plaintiffs

       contend Pla-Fit’s failure to exercise reasonable care caused plaintiffs to suffer emotional distress.

                                                         12
¶ 28          As stated above, a possessor of land does not owe a duty to protect invitees from the

       criminal acts of a third party unless there is a special relationship such as a business invitor and

       invitee. Hills, 195 Ill. 2d at 242; Dearing, 358 Ill. App. 3d at 542.

¶ 29          It is, however, well-established in Illinois that no such relationship exists between a

       franchisor and a franchisee’s invitee. Lewis, 2014 IL App (1st) 123303, ¶ 14 (no legal duty under

       the special relationship exception exists between a franchisor and a business invitee).

       Furthermore, Pla-Fit is not a possessor of land as stated in section 344 of the Restatement.

       Rather, a possessor of land is “a person who is in occupation of the land with intent to control it.”

       Restatement (Second) of Torts § 328E (1965). Pla-Fit is not in occupation of the land with intent

       to control it because, as the complaint states, Pla-Fit only owned the trademark name “Planet

       Fitness” and allowed franchisees to use the trademark. Instead, PF East Moline is the possessor

       of the premises because it owned, operated, and did business at the Planet Fitness gym. Lastly, as

       we found in supra ¶ 19, Pla-Fit is not liable for emotional distress damages under section 344 of

       the Restatement. Thus, we hold plaintiffs failed to state a cause of action that Pla-Fit was liable

       in negligence for the criminal or tortious acts committed by a third party.

¶ 30                                       2. Voluntary Undertaking

¶ 31          Plaintiffs allege Pla-Fit voluntarily undertook a role in ensuring that PF East Moline was

       protecting its members’ right to privacy in the tanning rooms when Pla-Fit reserved its right to

       perform on-site inspections of PF East Moline under the franchise agreement.

¶ 32          Another exception to the rule that an individual is not liable for the criminal acts

       committed by a third party is created when there is a voluntary undertaking. Under the voluntary-

       undertaking theory, a duty of care is imposed on a person who voluntarily agrees to perform a

       service necessary for the protection of another person. Claimsone v. Professional Property


                                                         13
       Management, LLC, 2011 IL App (2d) 101115, ¶ 21. “[T]he duty of care to be imposed upon a

       defendant is limited to the extent of the undertaking.” Bell v. Hutsell, 2011 IL 110724, ¶ 12. Our

       supreme court adopted section 324A of the Restatement (Second) of Torts in reviewing

       voluntary-undertaking claims. Id. Section 324A states:

                              “One who undertakes, gratuitously or for consideration, to

                      render services to another which he should recognize as necessary

                      for the protection of a third person or his things, is subject to

                      liability to the third person for physical harm resulting from his

                      failure to exercise reasonable care to protect his undertaking, if

                              (a) his failure to exercise reasonable care increases the risk

                      of such harm, or

                              (b) he has undertaken to perform a duty owed by the other

                      to the third person, or

                              (c) the harm is suffering because of reliance of the other or

                      the third person upon the undertaking.” (Emphasis added.)

                      Restatement (Second) of Torts § 324A (1965).

¶ 33          In Illinois, a franchisor is not liable under the voluntary-undertaking theory if the

       franchisee retains control of the day-to-day operations of the business. See Castro v. Brown’s

       Chicken & Pasta, Inc., 314 Ill. App. 3d 542, 551-52 (2000). In Castro, several individuals

       entered Brown’s in Palatine and murdered seven people. Id. at 543-44. Emmanuel Castro, an

       administrator for the estate of his deceased son, filed a claim against Brown’s, claiming, among

       other things, Brown’s, as the franchisor, voluntarily undertook to provide security at the Palatine




                                                        14
       restaurant. Id. at 544. Brown’s filed a motion for summary judgment, which the trial court

       granted, and Castro appealed. Id. at 545-46.

¶ 34           Relying on Coty v. U.S. Slicing Machine Co., 58 Ill. App. 3d 237 (1978), the First District

       noted Illinois courts refuse to impose liability on franchisors when the franchisee has retained

       total control over its day-to-day operations. It then determined that there was no evidence in the

       record that Brown’s controlled the Palatine restaurant’s day-to-day operations. Specifically, the

       court found, among other things, that Brown’s “did not implement mandatory security measures

       to be followed by the franchisee, it did not follow up to make sure that security recommendations

       were followed, it did not provide security for the Palatine restaurant or engage in routine security

       checks, and it did not set a security hotline or a committee to review security measures.” Further,

       there was no provision within the franchise agreement regarding security or Brown’s

       responsibility for such security. As a result, the First District affirmed the trial court’s grant of

       the motion for summary judgment, holding that Brown’s did not voluntarily undertake to provide

       security to the Palatine restaurant.

¶ 35           Similar to the ruling in Castro, we find the complaint in this case does not sufficiently

       demonstrate Pla-Fit controlled the day-to-day operations of PF East Moline to constitute a

       voluntary undertaking to protect members’ privacy. The complaint alleges that Pla-Fit exercised

       complete and substantial control over PF East Moline by providing rules and regulations as to

       security of the facilities and providing instructions on cleaning and inspecting the tanning booths.

       The complaint does not state whether the rules and regulations were mandatory or

       recommendations, that on-site inspections were conducted, or that the on-site inspections were

       for the purpose of protecting members’ privacy. In fact, the complaint states Pla-Fit did not

       create, implement, or enforce policies and procedures designed to protect the privacy and


                                                         15
       security of plaintiffs and that Pla-Fit did not inspect or adequately inspect tanning rooms for

       items or devices used to videotape members.

¶ 36           Also, we must follow the language within section 324A of the Restatement that limits

       injury to physical harm as the court did in Lewis and decline to extend a duty under section

       324A. Plaintiffs solely seek to recover damages for emotional distress in their complaint.

       Therefore, we find plaintiffs did not state a cause of action against Pla-Fit pursuant to section

       324A.

¶ 37                                          B. Premises Liability

¶ 38           Plaintiffs bring the same premises liability argument against Pla-Fit as it did against PF

       East Moline that (1) Pla-Fit knew or had reason to know that dangerous conditions, i.e., two

       video cameras, were on the premises; (2) plaintiffs were unaware of the danger; and (3) it failed

       to exercise reasonable care to protect plaintiffs against the danger.

¶ 39           As stated previously, under section 2 of the Act, the court must consider: (1)

       foreseeability, (2) likelihood of injury, (3) magnitude of the burden on the defendant to guard

       against the injury, and (4) consequences of placing a burden on the defendant. Kotecki, 333 Ill.

       App. 3d at 589 (citing LaFever, 185 Ill. 2d at 389). The foreseeability prong is determined under

       the provisions in section 343 of the Restatement, which states a possessor of land is subject to

       liability for physical harm caused to his invitees by a condition on the land if he (1) knows or by

       exercising reasonable care would discover the condition, (2) should expect the invitee will not

       discover the danger, and (3) fails to exercise reasonable care to protect invitee from the danger.

       Id.; Restatement (Second) of Torts § 343 (1965).

¶ 40           We determined in supra ¶ 29 that Pla-Fit is not a possessor of land as defined in section

       328E of the Restatement. Also, as we found in supra ¶ 23, liability under section 343 of the


                                                        16
       Restatement does not extend to injuries other than physical harm. Therefore, we hold plaintiffs

       did not state a cause of action against Pla-Fit under the premises liability theory.

¶ 41                                             CONCLUSION

¶ 42          The judgment of the circuit court of Rock Island County is affirmed.

¶ 43          Affirmed.




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