                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




           Hussein v. L.A. Fitness International, L.L.C., 2013 IL App (1st) 121426




Appellate Court            SAHAL HUSSEIN, Plaintiff-Appellant, v. L.A. FITNESS
Caption                    INTERNATIONAL, L.L.C., d/b/a Pro Results, Defendant-Appellee.



District & No.             First District, Fifth Division
                           Docket No. 1-12-1426


Filed                      March 22, 2013


Held                       Plaintiff’s action against defendant fitness club for the serious injuries he
(Note: This syllabus       suffered while using an assisted dip/chin exercise machine without
constitutes no part of     supervision was affirmatively barred by the exculpatory clause of the
the opinion of the court   contract he signed with the club and his contentions that the contract was
but has been prepared      unenforceable due to its wording or on public policy grounds were
by the Reporter of         rejected.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-L-14683; the
Review                     Hon. Randye A. Kogan, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Robert A. Shipley, of Shipley Law Group Ltd., of Chicago, for appellant.
Appeal
                            James M. Rozak and Rachel S. Nevarez, both of Wiedner & McAuliffe,
                            Ltd., of Chicago, for appellee.


Panel                       JUSTICE McBRIDE delivered the judgment of the court, with opinion.
                            Justices Howse and Palmer concurred in the judgment and opinion.



                                               OPINION

¶1          The issue on appeal is whether plaintiff’s negligence suit regarding serious personal
        injuries he suffered while using exercise equipment at a fitness club is barred, under
        Minnesota law, by an exculpatory clause in his contract with the club. The circuit court of
        Cook County determined the clause warranted the dismissal of plaintiff’s first amended
        complaint with prejudice and the denial of his motion for reconsideration. Plaintiff contends
        the court misconstrued the contract and the law and failed to consider his affidavit
        establishing material questions which could not be resolved on the pleadings.
¶2          Plaintiff-appellant Sahal Hussein was a resident of Minneapolis, Minnesota, when he
        executed the contract at issue with defendant-appellee L.A. Fitness International, L.L.C.,
        d/b/a Pro Results (hereinafter L.A. Fitness), the operator of a national chain of fitness clubs
        which is headquartered in Irvine, California. A choice-of-law clause in this written agreement
        indicates it will be governed and enforced in accordance with Minnesota law. Hussein filed
        suit in 2010 in Illinois, alleging that he was injured in 2009, at an L.A. Fitness facility located
        near downtown Chicago, at 1101 South Canal Street, while making unsupervised use of an
        “assisted dip/chin” exercise machine. The circuit court granted L.A. Fitness’ motion to
        dismiss the pleading as factually insufficient and allowed Hussein to replead.
¶3          Hussein alleged the following in his single-count first amended complaint. On February
        14, 2009, Hussein “became a client and patron” of L.A. Fitness by executing a fitness service
        agreement and paying certain fees. He visited the Canal Street location of L.A. Fitness on
        July 7, 2009, and was permitted to make unsupervised use of its exercise equipment. L.A.
        Fitness breached its duty of ordinary care to Hussein by failing to maintain and inspect its
        fitness equipment and by failing to “appropriately and properly” monitor, supervise, or
        instruct club members who used the equipment. As a result, while Hussein was using the
        upper and lower bars and movable and adjustable bench on an assisted dip/chin exercise
        machine, he fell, struck his head and body, and was rendered a quadriplegic. (There has been
        no discovery and thus no further description of the accident, injuries, or health care.) Hussein
        claimed damages in excess of $50,000.
¶4          The “Fitness Service Agreement and Release of Liability” attached to Hussein’s pleading
        indicates it was a contract for a series of prepaid 30-minute personal training sessions.

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     However, L.A. Fitness’ motion to dismiss provided the trial court with Hussein’s general
     contract with the club, which was entitled “Membership Agreement” and bore the signature
     date of February 6, 2009, which was about a week before he bought the personal training
     sessions. Hussein acknowledged in the circuit court and again in his appellate brief that
     “[w]hen initially joining [L.A.] Fitness, [he] was provided with and signed” the membership
     agreement and entered into the fitness service agreement on February 14, 2009. In an
     affidavit attached to his response to L.A. Fitness’ motion to dismiss, Hussein swore that
     when the accident occurred he was not exercising pursuant to the fitness service agreement
     and was not working with a personal trainer. Accordingly, the trial court’s ruling was based
     on the membership agreement and did not rely on any part of the fitness service agreement.
¶5       Hussein’s “multi-club” membership agreement states in pertinent part, “It is agreed ***
     you [the Buyer] are purchasing a membership from L.A. Fitness according to the terms on
     both pages of this Membership Agreement and the current Membership Policies and Club
     Rules and Regulations (‘Agreement’).” Also, “By signing this Agreement, Buyer
     acknowledges that Buyer *** has read and understands the entire Agreement including ***
     the Release and Waiver of Liability and Indemnity, [and] all other Additional Terms and
     Conditions on the reverse side hereof ***.” The signature block at the bottom of this page
     dated February 6, 2009, contains the signatures of Hussein and an agent of L.A. Fitness. The
     following language appears on the reverse side of the page and is emphasized by a black
     frame and bold font:
         “IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You
         hereby acknowledge and agree that Member’s use of L.A. Fitness’ facilities, services,
         equipment or premises involves risks of injury to persons *** and Member assumes full
         responsibility for such risks. *** Member hereby releases and holds L.A. Fitness ***
         harmless from all liability to Member *** for any loss or damage, and forever gives up
         any claim or demands therefore, on account of injury to Member’s person or property,
         including injury leading to the death of Member, whether caused by the active or passive
         negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while
         Member is in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities,
         services or equipment. *** Member has read this release and waiver of liability ***.”
¶6       This quote is an excerpt from a paragraph which covers about one-third of the page.
     Hussein’s affidavit indicates that when he joined L.A. Fitness by signing the membership
     agreement, the contents of the contract were not explained to him other than the provisions
     regarding payment and cancellation and he was not advised that the agreement included a
     release or waiver of liability.
¶7       Due to this exculpatory language, the circuit court granted L.A. Fitness’ motion to
     dismiss Hussein’s lawsuit and for the same reason denied his motion to reconsider the ruling.
¶8       Hussein’s complaint was dismissed pursuant to section 2-619 of the Code of Civil
     Procedure, which governs the involuntary dismissal of a complaint based on certain defects,
     defenses, or other affirmative matters. 735 ILCS 5/2-619 (West 2010). The purpose of a
     section 2-619 motion is to dispose of issues of law and easily proved issues of fact at the
     outset of litigation. Zerjal v. Daech & Bauer Construction, Inc., 405 Ill. App. 3d 907, 910,


                                              -3-
       939 N.E.2d 1067, 1071 (2010). A section 2-619 motion admits the legal sufficiency of the
       plaintiff’s claim “ ‘and raises defects, defenses, or other affirmative matters that appear on
       the face of the complaint or are established by external submissions that act to defeat the
       claim.’ ” Zerjal, 405 Ill. App. 3d at 910, 939 N.E.2d at 1071 (quoting Krilich v. American
       National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 569-70, 778 N.E.2d 1153, 1160
       (2002)). When ruling on a section 2-619 motion, a court must construe the pleadings and
       supporting documents in the light most favorable to the plaintiff. Zerjal, 405 Ill. App. 3d at
       910, 939 N.E.2d at 1071. This appellate court’s role is to review the dismissal de novo and
       determine whether the existence of a genuine issue of material fact should have precluded
       the ruling or, absent an issue of material fact, whether the dismissal was proper as a matter
       of law. Zerjal, 405 Ill. App. 3d at 910-11, 939 N.E.2d at 1071-72.
¶9         Appellant Hussein argues the membership agreement is confusing, that the fitness
       services agreement is similarly flawed, and that the two contracts are contradictory, do not
       reflect the clear format and language required by Minnesota law, and should not be enforced.
       He also contends the trial court failed to consider the affidavit he filed in opposition to the
       motion to dismiss and that his sworn statement substantiates that the contracts are defective
       and should have led to the conclusion that there are material issues which cannot be properly
       decided at the pleading stage. Based on these arguments, Hussein seeks reversal of the
       dismissal order. Appellee L.A. Fitness responds that the exculpatory language in the
       membership agreement is clear, consistent with Minnesota public policy, and enforceable as
       written, despite Hussein’s purported failure to read and comprehend the language before he
       executed that contract. L.A. Fitness also contends the fitness service agreement should be
       disregarded as irrelevant in this instance.
¶ 10       We agree with L.A. Fitness that the fitness service agreement (regardless of its content)
       is not at issue and we decline to address Hussein’s contentions about this contract. Hussein’s
       affidavit and appellate brief indicate he was not working with a personal trainer or pursuant
       to the fitness service agreement when he was injured.
¶ 11       Before responding to his specific contentions about the membership agreement, we must
       address the parties’ choice of law clause. A trial court’s choice-of-law determination is a
       legal issue subject to de novo review. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147,
       154, 879 N.E.2d 893, 898 (2007); see, e.g., Roby v. Corporation of Lloyd’s, 996 F.2d 1353
       (2d Cir. 1993). Illinois’s public policy “ ‘strongly favors freedom to contract’ ” (Harris v.
       Walker, 119 Ill. 2d 542, 548, 519 N.E.2d 917, 919 (1988) (quoting McClure Engineering
       Associates, Inc. v. Reuben H. Donnelley Corp., 95 Ill. 2d 68, 72, 447 N.E.2d 400, 402
       (1983)) and broadly allows parties to determine their contractual obligations. Restatement
       (Second) of Conflict of Laws § 187 cmt. e (1989). The primary objectives of contract law are
       to make it possible for parties “to foretell with accuracy what will be their rights and
       liabilities under *** [their] contract” and then protect the justified expectations that arise
       from that agreement. Restatement (Second) of Conflict of Laws § 187 cmt. e (1989). These
       two objectives are likely to be met when parties are allowed to choose the law that will
       govern the interpretation of their agreement. Restatement (Second) of Conflict of Laws § 187
       cmt. e (1989). In Illinois, an express choice-of-law provision will be given effect where there
       is some reasonable relationship between the chosen forum and the parties or transaction

                                                -4-
       (Potomac Leasing Co. v. Chuck’s Pub, Inc., 156 Ill. App. 3d 755, 759, 509 N.E.2d 751, 754
       (1987)) and it is “ ‘not dangerous, inconvenient, immoral, nor contrary to the public policy
       of our local government’ ” (Potomac Leasing, 156 Ill. App. 3d at 758, 509 N.E.2d at 753
       (quoting McAllister v. Smith, 17 Ill. 328, 334 (1856))).
¶ 12        We find there is a sufficient relationship with Minnesota. Hussein and L.A. Fitness
       executed the membership agreement in Minnesota while Hussein was residing there and the
       contract allowed him to use any branch of the national chain of health clubs. Hussein has
       neither confirmed nor denied L.A. Fitness’ statement that he still resides in Minnesota.
       Hussein is not arguing that the Minnesota choice-of-law clause is improper.
¶ 13        The question then becomes whether enforcement of the exculpatory clause is contrary
       to the standards of our own jurisdiction. Illinois will not “interfere with the rights of two
       parties to contract with one another if they freely and knowingly enter into the agreement”
       (Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 584, 559 N.E.2d 187, 190
       (1990)). They may allocate the risk of negligence as they see fit and rely on their agreement
       in the absence of fraud, willful and wanton negligence, or substantial disparity in their
       bargaining power, or the presence of some other factor in the social relationship of the parties
       which militates against upholding their agreement. Garrison, 201 Ill. App. 3d at 584, 559
       N.E.2d at 189; Harris, 119 Ill. 2d at 548, 519 N.E.2d at 919. Exculpatory clauses may be
       broadly worded (Harris, 119 Ill. 2d at 549, 519 N.E.2d at 920), but must “contain clear,
       explicit, and unequivocal language referencing the types of activities, circumstances, or
       situations that [are encompassed]” (Garrison, 201 Ill. App. 3d at 585, 559 N.E.2d at 190).
       “In this way the plaintiff will be put on notice of the range of dangers for which he assumes
       the risk of injury, enabling him to minimize the risks by exercising a greater degree of
       caution.” Garrison, 201 Ill. App. 3d at 585, 559 N.E.2d at 190. “The precise occurrence
       which results in injury need not have been contemplated by the parties at the time the
       contract was entered into.” Garrison, 201 Ill. App. 3d at 585, 559 N.E.2d at 190. “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.” Garrison, 201 Ill. App. 3d
       at 585, 559 N.E.2d at 190. Even so, “exculpatory clauses are not favored and must be strictly
       construed against the benefitting party, particularly one who drafted the release.” Harris, 119
       Ill. 2d at 548, 519 N.E.2d at 919 (quoting Scott & Fetzer Co. v. Montgomery Ward & Co.,
       112 Ill. 2d 378, 395, 493 N.E.2d 1022, 1029 (1986)). Hussein does not suggest that
       enforcement of this particular exculpatory clause is contrary to Illinois law and we note that
       similar clauses enforced in this jurisdiction have completely barred negligence claims arising
       from recreational activities. Compare Garrison, 201 Ill. App. 3d 581, 559 N.E.2d 187
       (enforcing release against health club member who sued health club alleging his trachea was
       crushed when a 295-pound weighted bar rolled and dropped off a bench press), Neumann v.
       Gloria Marshall Figure Salon, 149 Ill. App. 3d 824, 500 N.E.2d 1011 (1986) (enforcing
       release against health club member alleging she ruptured a lumbar disc using an exercise
       machine that was adjusted and activated for her by a health club employee), and Owen v. Vic
       Tanny’s Enterprises, 48 Ill. App. 2d 344, 199 N.E.2d 280 (1964) (enforcing release against
       gymnasium member alleging her wrist was injured in slip and fall on smooth spot on shower
       room floor), with Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 474 N.E.2d 729

                                                 -5-
       (1984) (ruling material questions of fact existed whether release fairly applied to health club
       member’s claim she suffered internal injuries from breathing noxious combination of
       cleaning compounds). See also Schlessman v. Henson, 83 Ill. 2d 82, 413 N.E.2d 1252 (1980)
       (enforcing release in suit by amateur race car driver who sued speedway operator alleging
       injuries in a car crash precipitated by collapse of banked race track); Hellweg v. Special
       Events Management, 2011 IL App (1st) 103604, 956 N.E.2d 954 (enforcing release against
       bicycle racer who sued race organizers for alleged injuries from collision with juvenile
       bicyclist who was not participating in race on the “ ‘closed course’ ” of municipal streets);
       Harris, 119 Ill. 2d 542, 519 N.E.2d 917 (enforcing release against horseback rider who sued
       stables alleging rented horse became spooked and caused rider to fall from the horse). But
       see Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill. App. 3d 1037, 501 N.E.2d
       268 (1986) (finding general language of release did not relieve recreation facility from
       liability for member alleging two fingers were fractured when metal weights fell from
       exercise equipment she was adjusting for another member).
¶ 14        Accordingly, we conclude that Minnesota law governs this contract and will next
       consider whether that state would enforce its terms. Our review discloses that Minnesota and
       Illinois share the same perspective on exculpatory clauses.
¶ 15        Schlobohm was a case of first impression in the Minnesota Supreme Court as to whether
       an exculpatory clause in “a health spa or gymnasium contract” should be invalidated on
       public policy grounds. Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922 (Minn. 1982).
       About six months after joining the Spa Petite health club in Owatonna, Minnesota, plaintiff
       Schlobohm was injured while using a leg extension machine which required her to sit on the
       edge of a bench, place her ankles under a padded bar to which weights were attached by a
       pulley, and then lift her legs straight up until they were parallel with the floor. Schlobohm,
       326 N.W.2d at 922. The plaintiff was lifting an unusually large weight when she felt a sharp
       pain in her back which forced her to stop her workout and obtain a series of chiropractic,
       orthopedic, and neurological treatments culminating in back surgery about four years later.
       Schlobohm, 326 N.W.2d at 922. Her membership agreement stated “ ‘all exercises and
       treatments and use of all facilities shall be undertaken by member at member’s sole risk.’ ”
       Schlobohm, 326 N.W.2d at 921. The clause expressly exonerated the defendant health club
       from “ ‘any claims, demands, injuries, damages, actions or causes of action, *** arising out
       of or connected with the use of any of the services and facilities *** and from all acts of
       active or passive negligence.’ ” Schlobohm, 326 N.W.2d at 921-22.
¶ 16        Like the Illinois authority set out above, the Minnesota Supreme Court indicated that the
       public interest in freedom of contract is preserved by recognizing exculpatory clauses as
       valid, exculpatory clauses are not favored by the courts, they are strictly construed against
       the drafter, and if a clause lacks clarity or purports to release a party from liability for
       intentional torts or willful or wanton recklessness, then it will not be enforced. Schlobohm,
       326 N.W.2d at 922-23.
                “The vice of ambiguous language is that it fails precisely and clearly to inform
            contracting parties of the meaning of their ostensible agreement. Because ambiguous
            language is susceptible to two or more reasonable meanings, each party might carry away
            from the agreement a different and perhaps contradictory understanding. In the context

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            of a release in connection with an athletic, health, or fitness activity, the consumer surely
            is entitled to know precisely what liability is being exonerated. A release that is so vague,
            general, or broad as to fail to specifically designate the particular nature of liability
            exonerated is not enforceable.” Anderson v. McOskar Enterprises, Inc., 712 N.W.2d 796,
            801 (Minn. Ct. App. 2006) (applying Schlobohm).
¶ 17        The court determined the Spa Petite clause was unambiguous and that its broadly-worded
       release of “ ‘any claims *** from all acts of active or passive negligence’ ” was permissible
       in that it was limited to exoneration from liability for ordinary rather than intentional or
       willful negligence. Schlobohm, 326 N.W.2d at 921-23.
¶ 18        Even if a release clause is unambiguous in scope and limited only to negligence, a court
       must determine whether enforcement of the clause will contravene Minnesota public policy.
       Schlobohm, 326 N.W.2d at 923. Here we again point out the similarity between Illinois and
       Minnesota law. The Minnesota court considered whether (1) there was a disparity in
       bargaining power between the two parties (resulting in a compulsion to sign a contract
       containing an unacceptable provision) and whether the services could be obtained elsewhere,
       as well as (2) whether the services were so essential to the public, they were “a practical
       necessity.” Schlobohm, 326 N.W.2d at 923-26. The first prong would indicate the
       membership agreement was an adhesion contract and the second prong would indicate the
       service being offered should be publically regulated instead of governed by the principle that
       parties may contract as they see fit. “By definition, an adhesion contract is drafted
       unilaterally by a business enterprise and forced upon an unwilling and often unknowing
       public for services that cannot readily be obtained elsewhere.” Schlobohm, 326 N.W.2d at
       924. “It is a contract generally not bargained for, but which is imposed on the public for
       necessary services on a ‘take it or leave it’ basis.” (Emphasis omitted.) Schlobohm, 326
       N.W.2d at 924. The Minnesota Supreme Court found that the plaintiff could freely choose
       between becoming a member of Spa Petite subject to the provisions in the membership
       contract or not becoming a member and that the provision of gymnasium or health spa
       services was not an essential service that was offered on a “ ‘take it or leave it basis.’ ”
       Schlobohm, 326 N.W.2d at 924-25. “Nothing in the record indicates that [plaintiff]
       Schlobohm had been directed to participate in Spa Petite’s program by any health adviser,
       nor that similar facilities offering similar programs were unavailable.” Schlobohm, 326
       N.W.2d at 925. Furthermore, “Even if there were a scarcity of facilities for gymnastic and
       reducing activities in the area, that fact alone would not create *** disparity of bargaining
       power.” Schlobohm, 326 N.W.2d at 925. Continuing with its analysis, the court concluded:
       “It should have been obvious to anyone of Schlobohm’s age, education and experience that
       an exercise program in a gymnasium bears with a certain risk of injury, and that by the
       exculpatory clause Spa Petite indicated clearly that it was unwilling to shoulder that risk for
       the relatively nominal membership fee it charged its members.” Schlobohm, 326 N.W.2d at
       925. Also, “Defendant, a private corporation, was under no obligation or legal duty to accept
       plaintiff as a ‘member’ or patron. Having consented to do so, it has the right to insist upon
       such terms as it deemed appropriate.” (Internal quotation marks omitted.) Schlobohm, 326
       N.W.2d at 926. The Minnesota court also indicated it was well-settled in Minnesota and
       elsewhere that enforcing an exculpatory clause in a contract regarding recreational activities

                                                  -7-
       would not violate public policy. Schlobohm, 326 N.W.2d at 926. The Minnesota court
       specifically held that “the furnishing of gymnasium or health spa services is not an activity
       of great public importance nor of a practical necessity,” and thus, there was no overriding
       public interest which would demand that the exculpatory language, entered into by two
       competent parties, should be disregarded. Schlobohm, 326 N.W.2d at 926. Accordingly, it
       declined to invalidate the release. Schlobohm, 326 N.W.2d at 926.
¶ 19        In our opinion, the Schlobohm release is remarkably similar to the language quoted above
       from Hussein’s membership contract with L.A. Fitness and he has failed to identify any
       circumstances suggesting that he had no choice but to join L.A. Fitness and become subject
       to the broad exculpatory terms in the membership agreement or that enforcing this particular
       clause would contravene the public interest. The clause was clear, explicit, and unequivocally
       stated that the “Member’s use of L.A. Fitness’ *** equipment *** involves risks of injury,”
       “including injury leading to the death of Member,” and “Member assumes full responsibility
       for such risks.” This language encompassed the most unfortunate circumstances that occurred
       on July 7, 2009, while Hussein was making unaided use of the exercise equipment at L.A.
       Fitness’ Canal Street location in Chicago. Hussein was on notice of the range of dangers he
       was exposing himself to, that he had assumed the risk of injury, and that he should exercise
       a greater degree of caution in order to minimize those risks. Like Spa Petite, L.A. Fitness is
       a private corporation which was under no obligation or legal duty to accept Hussein as a
       member or client. Having agreed to accept him, it had the right to insist on the terms it
       deemed appropriate. Schlobohm, 326 N.W.2d at 926. Also, like plaintiff Schlobohm, Hussein
       voluntarily applied for membership in a private organization and agreed to the terms that
       came with that membership. Schlobohm, 326 N.W.2d at 926. Nothing about these parties or
       the provision of health club services suggests that the exculpatory terms should be negated.
¶ 20        Hussein contends, however, that there are certain “material defects” in the L.A. Fitness
       membership agreement which render the exculpatory clause unclear and unenforceable. For
       instance, he contends that before he executed the membership agreement, only the payment
       and cancellation terms were explained to him and he was not specifically advised that the
       contract included liability release language. He contends the location of the signature block
       should distinguish this contract from Schlobohm, since signatures are affixed on the front
       page of the agreement directly below language pertaining to the member’s right to cancel.
       He also points out that the cancellation language is emphasized with a larger typeface. He
       contends the exculpatory paragraph should have had its own signature block indicating that
       the terms had been explained to and read and understood by the new club member. None of
       these arguments are persuasive, however. Hussein has not cited any authority indicating L.A.
       Fitness was under a duty to explain any part of the contract to him or that he can avoid the
       effect of the contract by claiming that he did not read or understand it before signing it. In
       fact, Minnesota law provides that except in instances of fraud or misrepresentation, a person
       who signs a contract cannot invalidate the agreement by claiming that he did not read it or
       thought that it contained different terms. Malecha v. St. Croix Valley Skydiving Club, Inc.,
       392 N.W.2d 727, 731 (Minn. Ct. App. 1986) (declining to invalidate exculpatory clause
       where injured skydiving client claimed “he was not informed of the effect of the document
       before signing it” and “he did not thoroughly read the waiver and he claims he did not

                                                -8-
       understand its terms prior to signing it”); Gartner v. Eikill, 319 N.W.2d 397, 398 (Minn.
       1982) (“In the absence of fraud or misrepresentation, a person who signs a contract may not
       avoid it on the ground that he did not read it or thought its terms to be different.”).
       Furthermore, at the top of the membership agreement, it is explicitly stated that Hussein was
       “purchasing a membership from L.A. Fitness according to both pages of this Membership
       Agreement and the current Membership Policies and Club Rules and Regulations.” This
       sentence alerted Hussein to the fact that he was agreeing to terms printed on the reverse side
       of the page. Further down the first page, the fourth paragraph of the membership agreement
       stated that “[b]y signing this agreement” Hussein was acknowledging that he “has read and
       understands the entire Agreement including *** the Release and Waiver of Liability and
       Indemnity *** on the reverse side” of the page. Hussein has not distinguished the Minnesota
       cases which the trial judge cited indicating that the membership terms located on the reverse
       side of the contract are enforceable. See Laurens Mills v. M.M.C., Inc., 159 N.W.2d 781, 785
       (Minn. 1968) (“There appeared on the front of the order blank in this case a warning that the
       parties agreed to the provisions on the back ***.”); Brown v. State Automobile Insurance
       Ass’n, 12 N.W.2d 712, 717 (Minn. 1944) (“the part above the insurer’s signature refers to
       the policy provisions printed elsewhere”). In addition, the release paragraph itself is printed
       in bold font, is offset by a box around the entire paragraph, and is the most prominent
       provision on that page. We also emphasize that this language was not a minor clause buried
       in a lengthy or confusing contract. It covers about one-third of a page in this three-page
       contract. The membership agreement terms are printed on the front and back of a single page
       in a readable, normal-sized typeface or larger and the membership policies and club rules and
       regulations are printed on one side only in a similar, readable and normal-sized font or larger.
       Thus, the presentation, paragraph placement, and typeface are not grounds for repudiating
       the release clause.
¶ 21        Hussein also points out that the term “multi-club [membership]” and the subtitle
       “Release and Waiver of Liability” are undefined in the membership contract. We consider
       these terms to be self-explanatory. In any event, the contract does specify the “membership
       types” that L.A. Fitness offered to Hussein, including “Single” membership, which was
       described as “A single club membership valid only at the club of enrollment”; “Premier”
       membership, which was described as “A multi-club membership valid at L.A. Fitness clubs
       in all states, except ‘Signature’ clubs”; and “Signature” membership, which was described
       as “A multi-state membership valid at L.A. Fitness clubs in all states, including ‘Signature’
       clubs.” The contract referred readers to L.A. Fitness’ website for complete and current club
       listings and locations. The fact that Hussein joined at a Minnesota club but was exercising
       in an Illinois club indicates he understood the significance of this contract language. We also
       fail to see a need for a definition of the words used in the subtitle, “Release and Waiver of
       Liability.” Most importantly, Hussein has failed to identify and discuss any precedent which
       suggests these words should have been expressly defined and he has failed to explain how
       these supposed “material defects” are actually “material” to his claim, or “defects” in the
       agreement, or in any other way militate against enforcement of the explicit exculpatory
       language.
¶ 22        Hussein also unpersuasively argues that contract language releasing L.A. Fitness from

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       liability for “the active or passive negligence of defendant or otherwise” renders the contract
       ambiguous. (Emphasis in original.) The Schlobohm clause was broadly worded, in that it
       released “ ‘any claims, demands, injuries, damages, actions or causes of action, whatsoever
       *** and from all acts of active or passive negligence.’ ” (Emphasis added.) Schlobohm, 326
       N.W.2d at 921-22. The Minnesota Supreme Court construed this to release only ordinary
       negligence. Another pertinent Minnesota case is Malecha, 392 N.W.2d at 728, which
       concerned a skydiving student who was injured when his parachute did not open properly
       after he jumped from a plane near Osceola, Wisconsin. A Minnesota appellate court
       concluded that a clause releasing the skydiving club from liability for “ ‘negligence implied
       or otherwise’ ” could have been interpreted to release more than negligent conduct, but was
       not ambiguous and unenforceable where the skydiving student was claiming only ordinary
       negligence. Malecha, 392 N.E.2d at 728. See also Anderson, 712 N.W.2d at 800-01
       (following Schlobohm and indicating that language in a contract which attempts to exempt
       a party from liability for gross negligence or wanton conduct is unenforceable but does not
       defeat the release of ordinary negligence). It is clear that Hussein agreed to exonerate L.A.
       Fitness from liability for negligence, that being part of the express agreement he executed,
       and that he is alleging only ordinary negligence. Minnesota has already rejected Hussein’s
       argument.
¶ 23       We acknowledge that upholding the health club’s exculpatory clause in this instance
       leads to a harsh result. Nevertheless, the law dictates that we reject Hussein’s contentions
       that this portion of the membership agreement is unenforceable due to its wording or on
       public policy grounds. We affirm the ruling of the circuit court that the contract affirmatively
       barred Hussein’s lawsuit against L.A. Fitness.

¶ 24      Affirmed.




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