                                         2015 IL App (1st) 133716
                                              No. 1-13-3716
                                        Opinion filed March 4, 2015
                                                                                         Third Division


                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             FIRST DISTRICT


                                                           )
                                                                  Appeal from the Circuit Court
                                                           )
     MICHAEL HAWKINS,                                             of Cook County.
                                                           )
                                                           )
            Plaintiff-Appellant,
                                                           )
                                                                  No. 10 L 10072
                                                           )
     v.
                                                           )
                                                           )
     CAPITAL FITNESS, INC., d/b/a X-Sport Fitness,                The Honorable
                                                           )
                                                                  William E. Gomolinski,
                                                           )
            Defendant-Appellee.                                   Judge, presiding.
                                                           )



            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 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
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     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

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                 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 ***."

¶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

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       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.

¶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


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       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


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       [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' 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

       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).




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¶ 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 ***


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       NATURALLY INVOLVES THE RISK OF INJURY ***." IT FURTHER PROVIDES THAT

       "MEMBER ENGAGES IN ALL EXERCISE *** AND USES ALL FACILITIES 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 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


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       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 as 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


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       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

       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


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       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 the 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 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


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       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.

¶ 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


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       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


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       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.

¶ 35                                            CONCLUSION

¶ 36          The trial court erred in granting defendant's motion for summary judgment.

¶ 37          Reversed and remanded.




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