FIRST DIVISION October 26, 2015

No. 1-15-0879

HERBERT OFFORD, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) ) FITNESS INTERNATIONAL, LLC, a ) Foreign Limited Liability Company, Individually, ) ) No. 14 L 007713 Defendant-Appellee ) ) (L.A. Fitness International, LLC, a Foreign ) Limited Liability Company, Individually, and/or ) Fitness and Sports Clubs, LLC, a Foreign ) Limited Liability Company, Individually, d/b/a ) and/or a/k/a and/or c/k/a LA Fitness, ) Honorable ) John Callahan, Jr., Defendants). ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Cunningham concurred in the judgment and opinion. Justice Connors dissented, with opinion.

OPINION

¶1 Plaintiff Herbert Offord filed a complaint against L.A. Fitness International, LLC, and/or

Fitness International, LLC, and/or Fitness & Sports Clubs, LLC, d/b/a as LA Fitness, alleging

negligence and willful and wanton conduct. Fitness International, LLC (Fitness International),

the only defendant relevant to this appeal, filed a section 2-619(a)(9) (735 ILCS 5/2-619(a)(9)

(West 2012)) motion to dismiss the negligence count based on a guest waiver that plaintiff had No. 1-15-0879

signed. Fitness International also filed a section 2-615 (735 ILCS 5/2-615 (West 2012)) motion

to dismiss the willful and wanton conduct claim. Following an evidentiary hearing, the trial

court denied the section 2-615 motion, but granted Fitness International's section 2-619(a)(9)

motion to dismiss the negligence claim. Plaintiff filed a motion to reconsider, which was denied,

and plaintiff now appeals. For the following reasons, we reverse the judgment of the circuit

court and remand the matter for proceedings consistent with this decision.

¶2 JURISDICTION

¶3 On March 9, 2015, the circuit court denied plaintiff's motion to reconsider and found no

just reason to delay appeal pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010)

(allowing this court to review judgments as to fewer than all of the claims or parties when such a

finding is made by the circuit court). On March 25, 2015, plaintiff timely appealed.

Accordingly, we have jurisdiction pursuant to Rule 304(a).

¶4 BACKGROUND

¶5 On July 24, 2014, plaintiff filed a two-count complaint claiming both negligence and

willful and wanton conduct against Fitness International, based on a knee injury that occurred

while plaintiff was playing basketball on October 2, 2012, as a guest at an LA Fitness facility.

Plaintiff alleged that he slipped on an accumulation of water that was the result of a "leaking roof

and/or skylight and/or window." Fitness International filed a section 2-619(a)(9) motion to

dismiss the negligence claim, asserting that plaintiff's claim was barred by an affirmative matter;

namely, a guest waiver entitled "Assumption of Risk and Waiver of Liability," that plaintiff had

allegedly signed. The motion to dismiss was supported by the affidavit of Jaime Jakish, the

operations manager for the LA Fitness facility where the injury occurred. Jakish stated that

plaintiff "signed the Assumption of Risk and Waiver of Liability on Tuesday October 2, 2012

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and it was in full force and effect on that date." Jakish also stated that Fitness International

stored the guest wavier "in an electronic records system in the ordinary course of business."

¶6 A copy of the guest waiver form was also attached to the motion to dismiss, which states

in pertinent part:

"I hereby acknowledge, agree and understand that the use of LA Fitness facilities, services, equipment or premises, involves risks of injury to my person and property, as well as to that of a minor for whom I have guardianship and have requested entrance and use of the club (or Kids Klub Services). By engaging in such use, or permitting the use by such a minor, I assume full responsibility for such risks. Therefore, on behalf of myself, my heirs (including minors whom I have requested to be allowed to use the club), personal representatives or assigns, I do hereby release, waive, hold harmless, and covenant not to sue Fitness International LLC, d/b/a LA Fitness, its successor(s) or related entities, directors, officers, employees, volunteers, independent contractors, or agents (collectively, 'LAF') from any liability and all claims arising from my (or the minor for whom I am the guardian) use of LA Fitness' facilities, services, equipment or premises. This waiver of all claims includes, but is not limited to, personal injury (including death) from accidents or illness, as well as any and all claims resulting from damage to, loss of, or theft of property.

I understand that I am releasing LAF from all liability to me, my heirs, minor children for whom I am responsible, and our assigns, for any loss or damage to me or the child, and forever give up any claims therefore on account of injury to person or property whether caused by the active or passive negligence of LAF."

¶7 The body of the document is followed by the following text:

"FIRST NAME: Herbert

LAST NAME: Offord

PHONE NUMBER: (777) 777-7777

EMAIL:

DATE: Tuesday, October 2, 2012 8:17:35 PM

ID: -- --"

¶8 The document also shows a signature box, which contains an alleged signature.

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¶9 Plaintiff responded to Fitness International's motion to dismiss, stating the guest waiver

lists an incorrect phone number and that "the signature does not appear to be that of [plaintiff]."

Plaintiff further alleged that encountering water on the gymnasium floor was not conduct

intended by both parties to fall within the scope of the guest waiver. His response did not

contain any supporting affidavits.

¶ 10 A hearing was held on December 15, 2014. A transcript of the hearing does not appear in

the record, but the parties submitted an agreed statement of facts, which states that "the following

facts material to this appeal were testified to in oral proceedings *** on December 15, 2014."

The agreed statement of facts was signed by both parties' attorneys. According to the agreed

statement of facts, plaintiff testified that the signature on the guest waiver form was not his

signature, and that the number listed, (777) 777-7777, was not his telephone number. Also

according to the agreed statement of facts, "[p]laintiff testified that he was injured while using

the basketball court when he slipped on what he thought was water," and that someone else told

him that the "roof was leaking."

¶ 11 On cross-examination, plaintiff was asked to produce the signature on his driver's license

"which showed a deliberate spelling in cursive of all of the letters of his name." The signature on

the guest waiver form "was a scrawl across the signature line." Plaintiff admitted that the name

on the form was his name, and that the time printed on the waiver was before the time of his

injury, but that the signature was not his, and that he did not sign the form using an electronic

key pad.

¶ 12 Defense counsel argued that it was a reasonable inference that plaintiff had declined to

give his telephone number upon entry and that the signature was made by plaintiff "in hasty

acknowledgement while not being a deliberate cursive spelling of every letter in his name."

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

International would have a guest waiver form with the "uncommon name of 'Herbert Offord,'

which had the day of the incident and an electronic stamp of time indicating a time from just

before the injury."

¶ 13 Counsel for plaintiff argued that slipping on water from a leaking rook was not

reasonably foreseeable. The trial court, after consideration of the briefs, affidavit, and testimony,

found the plaintiff "not credible with regard to his testimony as to the signature." The court

found that plaintiff signed the waiver, that the waiver was valid and enforceable, and that

slipping on a basketball court, as testified to, was reasonably foreseeable. The trial court granted

Fitness International's motion to dismiss the negligence count. Plaintiff now appeals.

¶ 14 ANALYSIS

¶ 15 On appeal, plaintiff contends that the trial court erred in granting Fitness International's

section 2-619(a)(9) motion to dismiss because plaintiff did not sign the guest waiver form in

question. While we generally review the grant of a section 2-619(a)(9) motion to dismiss de

novo, "[w]here, as here, the trial court grants a section 2-619 motion to dismiss following an

evidentiary hearing, 'the reviewing court must review not only the law but also the facts, and

may reverse the trial court order if it is incorrect in law or against the manifest weight of the

evidence.' " Hernandez v. New Rogers Pontiac, Inc.,

(2002) (quoting

Kirby v. Jarrett,

(1989)). Accordingly, we review whether the trial court's

findings of fact are against the manifest weight of the evidence, while reviewing question of law

de novo. Law Offices of Nye & Associates, Ltd. v. Boado,

.

¶ 16 We will therefore first determine whether the trial court's finding that plaintiff signed the

guest waiver form was against the manifest weight of the evidence. A finding is against the

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manifest weight of the evidence only if the opposite conclusion is clearly evident or if the finding

itself is unreasonable, arbitrary, or not based on the evidence presented. Best v. Best,

(2006). Under the manifest weight standard, we give deference to the trial court as the

finder of fact because it is in the best position to observe the conduct and demeanor of the parties

and witnesses.

A reviewing court will not substitute its judgment for that of the trial court

regarding the credibility of witnesses, the weight to be given to the evidence, or the inferences to

be drawn.

.

¶ 17 Here, the trial court found that plaintiff's testimony regarding whether he signed the

document was not credible, and we will not substitute our judgment for that of the trial court

regarding the credibility of witnesses. While plaintiff testified that he did not sign the guest

waiver, and produced a driver's license with deliberate spelling in cursive of all of the letters of

his name, we do not find that the trial court's finding that plaintiff signed the guest waiver form

was against the manifest weight of the evidence. Plaintiff admitted that the name on the guest

waiver form was his name, and that the time printed on the waiver was before the time of his

injury. A document was produced which showed the correct spelling of his name on a guest

waiver form, and a scrawl in the signature box. Accordingly, we cannot find that the opposite

conclusion–that plaintiff did not sign the guest waiver form–is clearly evident, and thus, we find

that the trial court's finding that plaintiff signed the guest waiver form was not against the

manifest weight of the evidence.

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

form, that the trial court nevertheless erred in dismissing plaintiff's negligence claim because the

injury he suffered was not one contemplated by the guest waiver form. We agree.

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¶ 19 The circuit court here dismissed plaintiff's negligence claim due to "other affirmative

matter avoiding the legal effect of or defeating the claim" pursuant to section 2-619(a)(9) of the

Illinois Code of Civil Procedure. 735 ILCS 5/2-619(a)(9) (West 2012). Therefore, the legal

sufficiency of plaintiff's complaint is admitted and all the facts contained in the record must be

viewed in the light most favorable to plaintiff, the nonmoving party. Van Meter v. Darien Park

District,

(2003); Porter v. Decatur Memorial Hospital,

(2008). Our supreme court has likened a dismissal pursuant to section 2-619(a)(9) to a

summary judgment in that a genuine issue of material fact will preclude the dismissal of a claim.

Epstein v. Chicago Board of Education,

(1997). Because this is a question

of law, we review this argument de novo. Law Offices of Nye & Associates,

.

¶ 20 In Illinois, a party may contract to avoid liability for its own negligence. Garrison v.

Combined Fitness Centre, Ltd.,

(1990). Although a party may enter

into a contract to avoid liability for negligence, such exculpatory clauses "must contain clear,

explicit, and unequivocal language referencing the type of activity, circumstance, or situation

that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of

care. Platt v. Gateway International Motorsports Corp.,

(2004). The

parties need not, at the time of the formation of the contract, contemplate the precise cause of the

injury. Garrison,

. The defendant, however, "must put the plaintiff on

notice of the range of dangers for which the plaintiff assumes the risk of injury." Hawkins v.

Capital Fitness, Inc.,

. This allows the defendant to exercise a

greater degree of caution and minimize the risk of injury. Platt,

. Most

importantly, the scope of an exculpatory clause is defined by the foreseeability of the specific

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danger. Larsen v. Vic Tanny International,

(1984). The foreseeability

of a danger is an important element of the risk a party assumes and often defines the scope of an

exculpatory release agreement. Platt,

. Stated differently, "[i]t should

only appear that the injury falls within the scope of possible dangers ordinarily accompanying

the activity and, thus, reasonably contemplated by the plaintiff."

Furthermore, exculpatory

clauses are strictly construed against the benefiting party because such clauses are not favored by

courts. Hawkins,

.

¶ 21 After reviewing the facts contained in the record, we hold that the circuit court erred

when it dismissed plaintiff's negligence claim. Plaintiff alleged in his complaint that defendant's

"roof and/or skylight and/or window" leaked onto the gymnasium floor and caused his injury.

The parties agreed that "[p]laintiff testified that he was injured while using the basketball court

when he slipped on what he thought was water," and that "[s]omeone else told [p]laintiff that the

roof was leaking." The exculpatory clause here is extremely broad, providing that plaintiff

releases Fitness International from liability for “all claims arising from my *** use of LA

Fitness’ facilities, services, equipment or premises." Notably, it does not make any mention of

shielding defendant from liability from the building itself being defective. This clause is typical

of that required by workout facilities to cover incidents that arise when patrons are injured using

equipment, such as tripping and falling off a treadmill or weights dropping on their feet. All

such events being foreseeable by both the facility and its patrons. Reviewing the above facts in

the light most favorable to plaintiff leads us to conclude that plaintiff could not possibly have

foreseen or contemplated that a leak from a defective roof would cause his injury. The alleged

cause of plaintiff's injury here, the defective roof, is distinguishable from an injury caused by

other sources of condensation on the court such as perspiration, a spilled beverage, or cleaning

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products. At the time of the signing of the exculpatory clause, plaintiff could not have foreseen

that he would be injured due to a leaking roof.

¶ 22 We agree with plaintiff that the cause of the injury alleged here is similar to those

suffered by the plaintiffs in Larsen v. Vic Tanny International,

(1984), and

Hawkins v. Capital Fitness, Inc.,

. In Larsen, the court held that a

waiver did not apply when the plaintiff suffered respiratory injuries from inhaling certain

cleaning chemicals while at the club. The court found that there was a question of fact as to

whether a plaintiff would contemplate the danger of this inhalation as part of the waiver. Larsen,

. In Hawkins, a mirror fell on the plaintiff while he was using the fitness

club. The court found that mirrors falling on gym members was not the type of risk gym

members assumed when signing the waiver at issue. Hawkins,

.

It must be pointed out that the plaintiffs in Larsen and Hawkins were also patrons of health clubs

who signed broad exculpatory clauses when they sustained their injuries. In both cases this court

held that summary judgment was not proper because the inhalation of gaseous vapors, as in

Larsen, or the falling mirror, as in Hawkins, could not have been contemplated by the parties.

Larsen,

; Hawkins,

. Plaintiff here could

not have foreseen that he would be injured on a basketball court due to a leaking roof.

Accordingly, we equate the cause of plaintiff's injury here to the injuries suffered by the

plaintiffs in Larsen, i.e., the inhalation of gaseous vapors and Hawkins, i.e., a defectively hung

mirror. Larsen,

; Hawkins,

.

¶ 23 Furthermore, at the very least, plaintiff has raised a sufficient factual issue to defeat the

dismissal of his claim at this stage of the proceedings. See Id. ¶ 20 ("Whether the particular

injury ordinarily accompanies a certain activity and whether the plaintiff understands and

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assumes the risk associated with the activity often is a question of fact."); Larsen,

. Plaintiff's contention that a leaky roof, as opposed to common causes of

condensation on a basketball court such as perspiration or a spilled beverage, provides a

sufficient factual question to defeat defendant's motion to dismiss.

¶ 24 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County

and remand the matter for proceedings consistent with this decision.

¶ 25 Reversed and remanded.

¶ 26 JUSTICE CONNORS, dissenting.

¶ 27 The majority opinion concludes that the circuit court erred when it dismissed plaintiff's

negligence claim because at the time of the signing of the exculpatory clause, plaintiff could not

have foreseen that he would be injured due to a leaking roof. I respectfully disagree.

¶ 28 I believe that the alleged water on the basketball court was within the scope of possible

dangers covered by this release. The plaintiff must be put on notice by the release of the range of

dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising

a greater degree of caution. Platt,

. Although the precise occurrence

which caused the injury need not have been contemplated by the parties when the release was

signed, the injury must fall "within the scope of possible dangers" accompanying the activity

and, thus, have been reasonably contemplated by the plaintiff and covered by the release.

The release here is extremely broad, providing that plaintiff releases Fitness International from

liability for "all claims arising from my *** use of LA Fitness' facilities, services, equipment or

premises. This waiver includes, but is not limited to, personal injury (including death) from

accidents or illness ***." I would find that slipping on a wet substance on a gymnasium floor

while playing basketball certainly falls within the range of reasonably foreseeable dangers

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associated with using a fitness center, and thus plaintiff's injury was contemplated by the waiver

he signed.

¶ 29 It is my belief that the majority opinion makes an extremely tenuous distinction between

water on the floor as the result of an alleged leaky skylight and water on the floor as the result of

a leaky water bottle, cleaning supplies, or perspiration. I do not see such a distinction, and find

Larsen,

, and Hawkins,

, to be inapposite to the

case at bar. In Larsen, a waiver was found not to apply when the plaintiff suffered respiratory

injuries from inhaling certain cleaning chemicals while at a fitness club, and in Hawkins, a

waiver did not apply when a mirror fell and hit the plaintiff on the head while he was using the

fitness club. It is my opinion that the injury that occurred in the case at bar, as a result of water

on a gym floor, is distinguishable from an injury that occurred as a result of a noxious odor or a

fallen mirror. Therefore, I would find that the injury that occurred here was within the scope of

possible dangers associated with using LA Fitness' facilities, and thus was covered by the guest

waiver. Accordingly, I would affirm the circuit court's dismissal of plaintiff's claim of

negligence.

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