WAL

Fees, Higher & Higher, P.C.

Law Offices Macomb, Illinois

From: Max Fees, Senior Partner Date: September 1 File: Anita and Darnell Anderson v. Monkeying Around Entertainment, LLC (File #22-1114) Re: Legal Memorandum _____________________________________________________________________________________

I have filed a complaint in a premises liability case in the McDonough County Courthouse in Macomb, IL. Our clients, the plaintiffs, are five year-old Darnell Anderson and his mother, Anita. The defendant Is a limited liability company who are the owners and operators of a chain of children’s indoor playgrounds called Just Monkeying Around. The facts set forth in the complaint are consistent with the attached factual summary.

The defendant has filed a Motion for Summary Judgment, claiming that there is no genuine issue of material fact in dispute and that the exculpation clause in its user agreement bars plaintiffs from pursuing a claim. When the motions are heard, Judge Henderson will assume, for purposes of the motions, that all facts in the complaint are true. I need you to answer the questions following the fact summary below analyzing whether we have a valid case against the defendant and whether the motion will be granted.

FACTUAL SUMMARY:

On February 1, Anita Anderson hosted a birthday party for her son at the Macomb, IL location of the popular children’s indoor playground, Just Monkeying Around. The playground includes a large playset consisting of a series of interconnected tubes and slides that allow children to climb and slide through plastic tubes. It also has a ball pit for children to jump and play in, which is approximately three feet deep and filled with colored plastic balls. The play equipment is covered in foam padding so that there are no sharp edges or exposed metal framing on which children could injure or cut themselves and the ball pit consists of padded walls three feet high and netting from the walls to near the ceiling to keep the balls (and children) inside the pit. The facility also serves food and offers party rooms, which provide space for eating and holding birthday parties, etc.

A week prior to the party, Ms. Anderson went to the Just Monkeying Around facility to reserve a party room for Feb. 1. She spoke with Amber, a teenage employee, about what she needed to do to reserve a party room. Amber, who was distracted by watching the children playing and telling the kids not to

throw the balls in the ball pit at each other, presented Ms. Anderson with a reservation agreement. Amber told Ms. Anderson to fill out the agreement, sign on the bottom and then she would take her credit card for payment. Ms. Anderson asked Amber why she needed to complete the form and Amber told her that is was so that Just Monkeying Around would know how many kids were coming, what food they wanted served and in what amounts and what date and time they needed the room. Ms. Anderson started to complete the form and had another question for Amber about the prices for food. Amber answered her quickly and asked Ms. Anderson if she could hurry up because she had a large group of kids scheduled to arrive in five minutes. Ms. Anderson then quickly filled in the blanks on the form for the date and time of the reservation, circled the birthday package that she wanted, signed the agreement and gave Amber her credit card. Ms. Anderson did not read the back of the form and Amber did not mention anything about the back side of the form. Amber took Ms. Anderson’s credit card, charged her $40 and Ms. Anderson left the facility.

On the day of the party, Ms. Anderson and Darnell arrived at Just Monkeying Around at approximately 1:00 p.m. She had invited four of Darnell’s friends to the party, who arrived at approximately 1:15 p.m. The five children ran to the play equipment and began climbing and playing. At just before 2:00 p.m., Ms. Anderson went to her car to retrieve some wrapped birthday presents for Darnell. Sometime prior to Ms. Anderson leaving a few of the kids in the ball pit (none of whom were in Darnell’s group), were throwing the balls from the pit as high as they could. While there was a net surrounding the ball pit, the net did not extend all the way to the ceiling, leaving a 6-8 foot gap between the top of the net and the ceiling. A few of the balls thrown by the kids in the pit made their way over the net and into the general walkway/eating area of the facility. Ms. Anderson re-entered the facility carrying 4 rather large packages and started to make her way past the ball pit on a designated walkway which led to the birthday rooms. Ms. Anderson did not see the balls on the floor, slipped on them and fell on her hip and arm. Darnell, seeing his mother fall, ran toward her, but also slipped on the balls and fell. Ms. Anderson suffered a broken bone in her arm, a sprained ankle and several bruises along her legs and hips. Darnell hit his head in the fall and broke his cheek bone requiring extensive medical treatment, including reconstructive surgery. Darnell is expected to have some permanent nerve damage as a result of the fall.

Ms. Anderson wants to file a negligence lawsuit against Just Monkeying Around in order to be compensated for her and her son’s injuries. Just Monkeying Around, which is owned by Monkeying Around Entertainment, LLC, is denying liability by claiming that Ms. Anderson waived her right to bring a lawsuit against them when she signed the Reservation Agreement form. The back side of the form contains an exculpatory clause, waiving any claims for negligence and agreeing to hold Monkeying Around Enterprises harmless from any and all liability associated with Ms. Anderson or her son’s use of the facility. A copy of the form used by Just Monkeying Around is attached to this memo for your consideration (you may need to change the font to read some sections of page 2).

Answer the following questions using the facts provided, as well as the form and case opinions included below. Be sure to address each part of each question in your answers.

Questions

1. Ms. Anderson claims the exculpatory clause in the Reservation Agreement should not be enforced against her because she did not voluntarily agree to it. Essentially, she claims she could not have voluntarily agreed to the waiver and hold harmless provisions because she didn’t have actual knowledge of their existence.

a. According to the court in Oelze v. Score Sports Venture, LLC (included below), “a release or exculpatory agreement can be set aside if there is either fraud in the execution or fraud in the inducement.” Briefly explain the difference between fraud in the execution and fraud in the inducement and give an example of each. (3 points)

b. What is Ms. Anderson’s best argument that the exculpatory clause should not be enforced, given the way it was presented to her and the manner in which it was drafted? (3 points)

c. What arguments would Just Monkeying Around have that its contract, including the exculpatory clause, should be enforced as written, even though Ms. Anderson didn’t read it? (3 points)

d. How would a court decide this issue – is the exculpatory clause enforceable as written and presented? Why or why not? (3 points)

e. What is your opinion – how would you decide this issue? Have you ever agreed to contract terms you haven’t read? Should those unread terms be enforced? What would happen with the way contracts are currently structured and used if unread terms were not enforced? (4 points)

2. Another argument Ms. Anderson is likely to raise has to do with the scope of the exculpatory clause.

a. Given the facts of her case and the court opinions provided, make an argument on her behalf that the exculpatory clause should not cover her injury in terms of scope. Which court cases do you anticipate she would use to support her position? Why? (4 points)Answer must include the name Daisy Kong

b. Now, make the counter-argument on behalf of Monkeying Around Entertainment. Which cases would you anticipate they would use in their argument? Why? (4 points)

c. If you were a judge, how would you decide this issue – is the exculpatory language broad enough to include Ms. Anderson’s injury? Why or why not? What is the most persuasive factor for you? (3 points)

3. Assume Ms. Anderson loses on summary judgment and the court agrees that her claim is barred by the exculpatory clause. Is there an argument that Darnell may still be able to pursue his claim? What is his argument and what does the Meyer v. Naperville Manor, Inc. case say about it? (3 points)

Just Monkeying Around 🐵 Party Room Registration

Parent Name: _________________________________

Phone: _____________________________________________

Child(ren) Name(s):___________________________________________________________________

Date and Time of Reservation: ____________________________________________

Birthday Packages

q King Kong Package ($120) • 15-20 kids, 2 hours • 5 large pizzas • 5 pitchers of soda • Balloon arrangement • Birthday cake (serves 20)

q Donkey Kong Package ($80)

• 10-15 kids, 2 hours • 3 large pizzas • 3 pitchers of soda • Birthday cake (serves 15)

q Donkey Kong Jr. Package ($60)

• 5-10 kids • 2 large pizzas • Birthday cake (serves 10)

q Diddy Kong Package ($40)

• 0-5 kids, 2 hours • 1 Large pizza

By signing this agreement, I agree to the price indicated herein and I agree to be bound by the TERMS and CONDITIONS included on the back side of this agreement.

By signing this agreement on the reverse side of this form, I hereby agree to abide by all of the rules and regulations set herein. Specifically, I agree to the WAIVER OF LIABILITY AND HOLD HARMLESS provisions below. Playground Rules

1. Shoes are not allowed in the play area. All adults and children must wear socks when entering the play area (by health code). Socks are available for purchase.

2. No food and drinks are allowed in the play area. 3. Parents and guardians – not Just Monkeying Around staff – are responsible for children and must remain on site at all times. 4. All guests must wash or sanitize their hands before entering the play area. 5. Just Monkeying Around is not responsible for any lost, damaged or stolen items. Please keep track of your belongings. 6. Children should play in the play rooms appropriate to their age. 7. Only children 10 years of age or younger are allowed to play on the playground equipment and jump pad. 8. Just Monkeying Around has a ZERO Bullying policy. Any child or adult seen bullying or harassing others will be asked to leave

and will not be entitled to a refund. 9. Children should not climb up slides, or onto any tables or chairs.

Participation Agreement, Liability Waiver, and Hold Harmless Agreement I, and as parent or legal guardian of the child (or children) whose name is set forth on the reverse side of this form (each referred to as a “Participant” and collectively referred to herein as the “Participants”) and in consideration of the Participants being permitted to participate in the Activities (as defined below) conducted by Monkeying Around Entertainment, LLC, located at 1015 N Marshall Rd, Macomb, IL 61455 (herinafter “MAE”) agree as follows:

1. Activities – Activities shall be defined as the various activities and services offered to Participants by MAE, an indoor playground and cafe.

2. I understand that the employees of MAE are not responsible for Participants who utilize the space and it is the responsibility of the undersigned individual to supervise any minors they bring into the facility.

3. I, and the children under my care, understand and agree to the safety rules and play guidelines as outlined on Justmonkeyingaround.com. I acknowledge that these rules and guidelines may change and that I have read and am familiar with them prior to entering the play space and making use of the facility.

4. BY VISITING JUST MONKEYING AROUND, YOU VOLUNTARILY ASSUME ALL RISKS RELATED TO COVID-19. 5. ASSUMPTION OF RISK – In addition to the inherent risk of exposure to COVID-19, I also understand that the Activities entail the

risk of severe bodily injury to the Participants. Injuries that could result may vary, but may include (a) minor injuries such as scratches, bruises and sprains; (b) major injuries such as eye injury or loss of sight, joint or back injuries and concussions; and (c) catastrophic injuries, including paralysis and even death.

I understand that MAE cannot eliminate all risks or guarantee the safety of the Participants while Participants participate in the Activities. I have made my own investigation of these risks, understand these risks, and assume them knowingly and willingly on behalf of myself and my minor Participant child. Notwithstanding these risks and other hazards that may be foreseeable but not specifically identified herein, I, for myself and any minor Participant child, and our respective heirs, personal representatives and assigns, understand, acknowledge, and expressly and voluntarily assume all risks and full responsibility for any sickness or injury arising out of or related to the Activities. 4. RELEASE, DISCHARGE & AGREEMENT NOT TO SUE – I, for myself and any minor Participant child and our respective heirs, personal representatives and assigns, do hereby release, discharge and agree not to sue MAE or its managers, members, employees and/or other agents, for any sickness, injury to or death of any Participant arising, directly or indirectly, from participation in the Activities. This release, discharge and covenant not to sue shall relate to any and all claims or legal rights now existing or arising in the future, including claims and legal rights arising out of any negligence of MAE and/or its managers, members, employees and/or other agents and any other breach of a legal duty arising out of common law, statute, contract or otherwise. 5. Indemnification And Hold Harmless – I agree to indemnify MAE and hold MAE harmless from, without limitation, any and all claims, actions, suits, procedures, costs, expenses, damages and liabilities, including attorney’s fees and costs, incurred due to claims brought by any party as a result of or arising out of my or my minor Participant child’s involvement in the Activities and agree to reimburse MAE for any such costs, expenses and fees as they are incurred. 6. Parent or Legal Guardian Certification and Consent – I hereby certify that I am the parent or legal guardian of the minor Participant children whose name(s) appear below, and I have authority to waive rights on behalf of the minor Participant(s). I have read and I understand all of the provisions of this document and the risks of the Activities. I understand that the Activities could cause injury and even death. I acknowledge that I have read and understand the terms of this document and I am freely and voluntarily signing this document. This Participation Agreement, Liability Waiver, and Hold Harmless Agreement has no expiration date.

Page 2

Oelze v. Score Sports Venture, LLC Opinion

No. 1-09-1476.

Opinion filed March 30, 2010.

Appeal from the Circuit Court of Cook County; the Hon. Kathy M. Flanagan, Judge, presiding.

Law Offices of Christ S. Stacey, of Chicago (Christ S. Stacey, of counsel), for appellant.

Pretzel Stouffer, Chtrd., of Chicago (Robert Marc Chemers, David M. Bennett, and Thomas E. Daugherty, of counsel), for appellee.

JUSTICE KARNEZIS delivered the opinion of the court:

Plaintiff Renate Oelze filed an action alleging negligence and willful and wanton misconduct against defendant ABRIA, INC., d/b/a Score Tennis Fitness Center, for injuries she sustained while playing tennis at defendant's tennis club. Plaintiff had previously signed a membership agreement containing a statement releasing defendant from liability for any injuries plaintiff might sustain when using defendant's equipment and facilities. The court dismissed plaintiff's negligence count and granted summary judgment to defendant on plaintiff's willful and wanton misconduct count. On appeal, plaintiff asserts the court erred in (1) dismissing her negligence claim because (a) she did not voluntarily waive her right to sue defendant for negligence when she signed the release and, alternatively, (b) her injury was caused by a circumstance that did not ordinarily accompany the game of tennis and was, therefore, not covered by the release; (2) granting summary judgment to defendant on the willful and wanton count because there exists a question of fact regarding whether defendant exhibited a conscious disregard for the safety of its patrons; and (3) finding that defendant's responses to plaintiff's request to admit were proper. We affirm in part, reverse in part and remand.

Background

Defendant is the owner and operator of an indoor tennis club. Plaintiff has been a member of the tennis club for over 10 years. On October 5, 2005, a club employee presented her with a "Players Club Membership Agreement" covering her membership for the upcoming tennis season. She had signed similar agreements in previous years. The agreement included a statement under which plaintiff released defendant "from any and all liability for any damage or injury" plaintiff might receive while using defendant's

equipment and facilities and assumed all risk for claims rising from the use of the equipment and facilities. Plaintiff signed the agreement.

On February 10, 2006, plaintiff was playing a tennis match on defendant's tennis court 5. Defendant's courts are separated from an access/service walkway by a heavy, black, floor-to-ceiling curtain at the back of each court. Players access the courts from the walkway and defendant stores equipment in the walkway. Returning a lob during her match, plaintiff ran to the back of the court and ran into the curtain trying to return the shot. Her effort pushed the curtain back slightly and she caught her foot in a rope exercise ladder lying behind the curtain. Plaintiff fell, fracturing her elbow and tearing her rotator cuff. The ladder was not visible from the court before the accident. Only after the accident, when a witness to the accident pushed the curtain back, was the ladder visible.

Plaintiff filed suit for negligence, asserting defendant was negligent in placing the ladder or allowing it to remain on the floor behind the curtain where it could not be seen from the court, knowing that it would be a tripping hazard to anyone playing tennis on the court. Defendant moved to dismiss pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure ( 735 ILCS 5/2-619(a)(9) (West 2008)). It asserted that plaintiff, by signing the membership agreement containing the release clause, voluntarily waived liability on behalf of defendant.

Plaintiff responded by asserting she did not voluntarily waive liability on behalf of defendant. By affidavit and deposition, she stated that she chose to make automatic payments for her membership dues and signed the form thinking that it was an authorization form for the automatic deductions from her credit card. When presented with the form, she asked the club employee who presented the form to her what it was and was told it was an authorization form for the automatic payments. Plaintiff saw that the $135 monthly fee was correct and signed the form on the only signature line. She did not see that the form contained a release.

Plaintiff stated in a deposition that she played at the club three or four times a week and, besides using the courts, regularly used the treadmills and weights available in the workout area of the club. Walking through the access walkways, she always saw a "a lot of stuff behind the curtains, such as tennis carts, padded concrete pillars, an equipment box and loose tennis balls. It was her habit, as she walked through the access walkway, to kick errant tennis balls from the middle of the walkway to the side, close to the curtain, so she would not step on the balls as she walked. She had walked through the walkway on the way to her match the morning of the accident but did not see the ladder. During the match, plaintiff had run to the back of the court to return a shot, and "got stuck with [her] foot" in the curtain. She thought she had gotten caught in a hole in the curtain but saw the culprit was a rope ladder when someone lifted the curtain to see what had trapped her. She had not known the ladder was there.

…

Lisa Paolella, the club's general manager, testified by deposition that the ladder was used in fitness training sessions at the club. She stated everyone in the class will help bring the equipment out before class and put it back after class, "a group effort," but the trainer or pro leading the class makes sure the equipment is put back. The ladder is to be used only for supervising training sessions but anyone at the club has access to it. Paolella testified she and all the teaching and fitness pros at the club have responsibility for the maintenance and pick up of the facility to keep the floor free of hazards. She stated "we don't allow debris to remain on the tennis court" because it would be unsafe. She found it "likely" that anyone running into the curtain would cause it to move back "a few inches." She found moving the curtain back "a few feet is hardly likely."

…

Paolella testified the ladder was normally kept in an equipment box located behind court 5. The box had been there for years and contained medicine balls, free weights and small weights, besides the ladder. The carts with balls were to be kept behind the metal beams in the hallway, away from the curtains, so that someone did not crash into a cart. There had not been any previous accidents involving training equipment on the floor behind a curtain.

…

Analysis

1. Dismissal of Negligence Count

a. Standard of Review

Plaintiff argues the court erred in dismissing her negligence count based on its finding that the release from liability plaintiff signed as part of her membership agreement was valid and enforceable and the danger posed by the ladder foreseeable. Under section 2- 619, a valid cause of action is presumed but barred by an affirmative matter, a defense which negates the plaintiff's cause of action. 735 ILCS 5/2-619(a)(9) (West 2008); Kedzie 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17, 619 N.E.2d 732, 735 (1993). The defense or affirmative matter must be apparent on the face of the pleading attacked or be supported by affidavit. Van Meter v. Darien Park District, 207 Ill. 2d 359, 367-68, 379, 799 N.E.2d 273, 278, 285 (2003). The existence of a valid release such as defendant claims here is an affirmative matter defeating plaintiff's claim. Weisblatt v. Colky, 265 Ill. App. 3d 622, 626-27, 637 N.E.2d 1198, 1201 (1994). There is no question that plaintiff signed the release contained in the membership agreement. Given the existence of a release, plaintiff, as the party opposing its use, has the burden of attacking its validity. Weisblatt, 265 Ill. App. 3d at 626, 637 N.E.2d at 1200. Interpreting all pleadings in the light most favorable to the nonmoving party, we must determine "whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law." Kedzie 103rd Currency Exchange,

Inc., 156 Ill. 2d at 116-17, 619 N.E.2d at 735. We review a section 2-619 dismissal de novo. Van Meter, 207 Ill. 2d at 368, 799 N.E.2d at 278.

b. Involuntary Waiver

In Illinois, a party may contract to avoid liability for its own negligence. Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 584, 559 N.E.2d 187, 189 (1990). Barring fraud or willful and wanton negligence, such a release or exculpatory agreement is valid and enforceable "unless: (1) there is a substantial disparity in the bargaining position of the two parties; (2) to uphold the exculpatory clause would be violative of the public policy; or (3) there is something in the social relationship between the two parties that would militate against upholding the clause." Garrison, 201 Ill. App. 3d at 584, 559 N.E.2d at 189-90. Plaintiff does not assert the court erred in finding the release enforceable because there exists a disparity in the bargaining positions between defendant and herself or the clause violates public policy or the parties had a social relationship affecting the validity of the release. Instead, plaintiff argues dismissal of her negligence count was improper because the circumstances surrounding her execution of the agreement create a question of fact as to whether the release was fairly obtained or executed because she was misled into signing the release.

A release or exculpatory agreement can be set aside if there is either fraud in the execution or fraud in the inducement. Bien v. Fox Meadow Farms Ltd., 215 Ill. App. 3d 337, 341, 574 N.E.2d 1311, 1315 (1991). Fraud in the execution occurs when the plaintiff was induced to sign the agreement not knowing it was a release, but believing it to be another type of document; fraud in the inducement occurs when the party is induced to enter into the release by false representations by the other party. Bien, 215 Ill. App. 3d at 342, 574 N.E.2d at 1315. However, a party has a general duty to read documents before she signs them, and her failure to do so will not render the document invalid. Bien, 215 Ill. App. 3d at 342, 574 N.E.2d at 1315. We find no question of fact raised by the circumstances of plaintiff's signing of the release and the court could properly find the release enforceable.

Plaintiff asserts she was told by one of defendant's employees that the form was for authorization of payment of her membership dues, she was not told there was anything else contained on the form, and she did not know she was signing a release when she signed the agreement. In an affidavit, plaintiff stated that, when asked to sign the document, she asked what she was signing and was told it was an authorization form authorizing the club to take automatic payments from her account. Relying on that representation, she signed the form on its only signature line believing the form was as represented to her. She stated she did not read anything other than the amount of monthly dues to make sure that was correct, did not voluntarily believe she was signing a waiver for injury claims and "did not even think that the form authorizing such payments would include any contractual language unrelated to [her] financial accounts."

We do not find, as plaintiff asserts, that a reasonable person could believe that the document plaintiff signed was a "financial document to simply authorize payments as

defendant represented." It may well be that defendant's employee told plaintiff the form was a payment authorization form. This is entirely true. The form is, for the most part, concerned with the payment and/or refunding of membership dues and the possibility of additional charges. But it is more than just a simple authorization for automatic payments of plaintiff's membership dues and, had plaintiff bothered to look at anything on the form beyond the fee amount, she would have seen this.

The release is incorporated into the membership agreement. That agreement consists of a single page, titled in large bold lettering "PLAYERS CLUB MEMBERSHIP AGREEMENT." There are then lines to be completed with the dollar amount of the membership dues, here shown to be $135 "monthly dues," followed by lines for the member's name, address and contact information. The next section of the form is titled, in much smaller font: "AUTHORIZATION FOR AUTOMATIC MONTHLY PAYMENTS." It consists of a paragraph titled "CREDIT CARD AUTHORIZATION" comprised of very small font delineating the details of the parties agreement regarding the automatic payments.

The next section on the form is titled, in the same size font as the previous title, "TERMS OF MEMBERSHIP." Under that title, in tiny font, is a paragraph detailing the member's rights and duties under the agreement, the nonrefunding of membership dues and lastly, in the final sentence, the following release:

"I hereby release SCORE Tennis Fitness and its owners and employees from any and all liability for any damage or injury, which I may receive while utilizing the equipment and facilities and assume all risk for claims rising from the use of said equipment and facilities." The only copy of the membership agreement in the record is an extremely blurry copy of a facsimile copy of the agreement. It is almost impossible to read the sections in the larger fonts, let alone the "terms of membership" section containing the release. The inclusion of a large-size font transcript of the "terms of membership," probably prepared by one of the parties so that the circuit court could read the language of the "terms of membership" section, is the only reason we are able to read this section. However, given that plaintiff does not assert the original form with which she was presented was illegible and that the larger font "authorization for monthly payments" section is almost as impossible to read as the "terms of membership" section, we assume the illegibility of the form in the record is entirely due to the poor facsimile copy and the original was legible. In the absence of a sufficient record, we must resolve any doubts arising from the incompleteness of the record against the appellant and presume the trial court's actions conformed to the law and its rulings were supported by the evidence, or lack thereof. Foutch v. O'Bryant, 99 Ill. 2d 389, 392, 459 N.E.2d 958, 959 (1984).

Below this is a section of boxed text, in larger font, regarding the length of the membership and possible additional charges. The box is followed by a signature line and a date line. Plaintiff signed and dated the form and wrote "same" for both her address and credit card information.

The titles "AUTHORIZATION FOR AUTOMATIC MONTHLY PAYMENTS" and "TERMS OF MEMBERSHIP" are in almost identical font size and clearly legible. The "TERMS

OF MEMBERSHIP" title is an obvious indication that there is more contained in the form than just a payment authorization. There is no question that, as plaintiff asserts, the font for the text in the "TERMS OF MEMBERSHIP" section encompassing the release is tiny, the smallest font in the agreement, and that, size-wise, the most space in the agreement is taken by the sections concerning the monthly dues, identification and credit card authorization information. There is also no question that the section containing the release is hard to read because of the size of the font. But plaintiff does not state that it is impossible to read. She does not assert that she failed to read it because it was so small or was illegible. She states she could have read it but did not because she thought the form was only about her financial obligations. Plaintiff asserts defendant's employee presented the agreement in the context of their discussion of payment for membership, that the form needed to be signed to authorize payment. She does not assert that the employee purposely misled her into thinking the agreement was only about her financial obligations, although this can be inferred. But even if the employee had misled her to this extent, plaintiff had a duty to read the agreement before she signed it. She did not read it. She was not prevented from reading it. It was her own decision not to read it. Had plaintiff read the agreement, she would have seen the release, which is legible and explicitly states in clear and common terms that plaintiff releases defendant from liability for injuries arising from and assumes all risk arising from the use of defendant's equipment and facilities. Her failure to read the release should not be held against defendant.

c. Foreseeable Risk

Plaintiff also argues that a question of fact exists regarding whether the danger created by the ladder, which was unrelated to the game of tennis and hidden behind the curtain outside the court of play, is the kind of risk that would have been reasonably contemplated to fall within the release. A release, to be valid and enforceable, "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, 559 N.E.2d at 190. The release here is extremely broad, providing that plaintiff releases defendant from liability for injuries she sustains "while utilizing the equipment and facilities" and she assumes "all risk for claims rising from the use of said equipment and facilities." It is uncontested that plaintiff was playing on defendant's court, i.e., using defendant's facilities, when she suffered her injury. Plaintiff does not assert that the language of the release is not clear. Therefore, plaintiff having agreed to assume the risk for her use of the club's "equipment and facilities," defendant is presumably not liable for plaintiff's injuries suffered during her use of its court facilities. Plaintiff asserts, however, that defendant is liable because the injury caused by the ladder was not within the scope of possible dangers covered by the release.

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 v. Gateway International Motorsports Corp., 351 Ill. App. 3d 326, 331, 813 N.E.2d 279, 284 (2004). The plaintiff must be put on notice by the release of the range of dangers for which she

assumes the risk of injury, enabling her to minimize the risks by exercising a greater degree of caution. Platt, 351 Ill. App. 3d at 331, 813 N.E.2d at 284; Garrison, 201 Ill. App. 3d at 585, 559 N.E.2d at 190. Although the precise occurrence which caused an 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. Platt, 351 Ill. App. 3d at 331, 813 N.E.2d at 284; Garrison, 201 Ill. App. 3d at 585, 559 N.E.2d at 190.

Plaintiff argues that the injury caused by the ladder was not within the scope of possible dangers covered by the release because the ladder was not a piece of equipment being used by her or by anyone else in her match and was unrelated to the game of tennis. She asserts, therefore, assuming arguendo that she did voluntarily sign the release, the injury was not something for which she could reasonably have assumed the risk. Defendant responds that the ladder may not have been used by plaintiff but it is used regularly by other club members and is, therefore, part of the club's equipment and facilities and thus covered by the release.

…

It is clear from the evidence that any equipment on the walkway floor closely behind the curtain can be a hazard for a player running into the curtain. This is why the club endeavored to keep the walkway clear. Plaintiff could have reasonably presumed that, should she run into the curtain, she might step or trip on something behind the curtain. It is entirely foreseeable that, if plaintiff accidently ran into the curtain to return a shot or turned her foot under the curtain, she could trip over or be hurt by any club equipment immediately behind the curtain, whether a cart or a ball or, as in this case, an exercise ladder. Granted, plaintiff had not used the ladder in her tennis match. But the ladder is part of the club's equipment and facilities. It is used in classes to make tennis players more fit. Fellow club-director Stinek's testimony shows a similar ladder is used at her tennis facility. All of the equipment behind the curtain is tennis-related. We find the ladder is encompassed by the "equipment" specified in the release and injury sustained from tripping on an exercise ladder is within the scope of possible dangers accompanying playing tennis at the club. The court did not err in finding the injury foreseeable and covered by the release.

…

Conclusion

For the reasons stated above, we affirm the decision of the circuit court dismissing plaintiff's negligence count, reverse the court's grant of summary judgment to defendant on plaintiff's willful and wanton count and reverse the court's denial of plaintiff's motion to deem admitted.

Affirmed in part, reversed in part and remanded.

Hawkins v. Capital Fitness, Inc.

2015 IL App (1st) 133716

District & No. First District, Third Division

Docket No. 1-13-3716

March 4, 2015

Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.

Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.

OPINION

¶ 1 Michael Hawkins was at a fitness club working out with hand weights when suddenly a

nearby mirror fell from the wall and struck him, causing injuries. Hawkins sued the fitness

club, Capital Fitness, Inc., alleging it negligently failed to secure the mirror or warn patrons

about the mirror and failed to cordon off the area around the mirror. Capital Fitness sought and

obtained summary judgment on the basis of the exculpatory clause in its membership

agreement. Hawkins argues the trial court erred in holding that the exculpatory clause bars his

personal injury claim. Hawkins asserts that the incident is not within the scope of possible

dangers ordinarily accompanying the use of a fitness club and a genuine issue of material fact

exists as to whether his injury related to exercise. We agree and reverse.

¶ 2 BACKGROUND

¶ 3 Michael Hawkins purchased a membership with X-Sport Fitness, owned and operated by

Capital Fitness. (In his brief, Hawkins states that at the time of the incident, he had a seven-day

trial membership, but the record indicates Hawkins purchased a full membership and signed a

membership agreement on January 5, 2010.) The membership agreement, under “Additional

Terms and Conditions,” included a clause entitled, “Disclaimers, Waiver, Release, and

Indemnification.” This clause, in bolded capital lettering, provided in relevant part:

“MEMBER ACKNOWLEDGES THAT EXERCISE, TANNING AND USE OF THE EQUIPMENT AND FACILITIES OF THE COMPANY OR OF THEIR

AFFILIATES NATURALLY INVOLVES THE RISK OF INJURY AND MEDICAL DISORDERS, INCLUDING DEATH, WHETHER MEMBER, SOMEONE ELSE, SOME ACTIVITY OR SOMETHING CAUSES IT. MEMBER AGREES THAT MEMBER ENGAGES IN ALL EXERCISE *** AND USES ALL FACILITIES AND SERVICES OF THE COMPANY AND THEIR FACILITIES, AT SUCH PERSON’S OWN RISK. SUCH ENGAGEMENT AND USE INCLUDES, WITHOUT LIMITATION, USE OF THE EQUIPMENT ***. YOU AGREE THAT YOU ARE VOLUNTARILY (A) PARTICIPATING IN THESE ACTIVITIES AND USING THE EQUIPMENT AND FACILITIES BASED ON SUCH PERSON’S OWN ASSESSMENT OF THE RISKS AND BENEFITS *** AND (B) ASSUMING ALL RISK OF INJURY ***. *** MEMBER SHALL HOLD COMPANY AND THEIR AFFILIATES *** HARMLESS FROM ANY AND ALL LOSS, CLAIM, INJURY, DAMAGE AND LIABILITY SUSTAINED OR INCURRED BY MEMBER FROM OR ARISING OUT OF THE NEGLIGENT ACTS AND OMISSIONS AND ALLEGED NEGLIGENT ACT AND OMISSIONS AND OTHER ACTS AND OMISSIONS, OF ANY OF THE RELEASED PARTIES, ANY PERSON AT THE FACILITY OR ANYONE ELSE, OR ANY OCCURRENCE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ARISING OUT OF OR IN ANY WAY RELATED TO MEMBER’S PRESENCE AT OR USE OF THIS FACILITY *** WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE *** TO RELEASE AND DISCHARGE RELEASED PARTIES FROM ANY AND ALL - 3 - CLAIMS OR CAUSES OF ACTION, AND DO HEREBY WAIVE ALL RIGHTS THAT YOU MAY HAVE *** TO BRING A LEGAL ACTION OR ASSERT A CLAIM, FOR INJURY OR LOSS OF ANY KIND AGAINST ANY OF THE RELEASED PARTIES ARISING OUT OF THE NEGLIGENT ACTS OR OMISSIONS OR OTHER ACTS OR OMISSIONS OF ANY OF THE RELEASED PARTIES OR ANYONE ELSE AT THE FACILITY *** OR ARISING OUT OF OR RELATING TO PARTICIPATION BY YOU IN ANY OF THE ACTIVITIES, OR YOUR USE OF THE EQUIPMENT, FACILITIES OR SERVICES ***. THIS HOLD HARMLESS FROM AND WAIVER AND RELEASE OF ALL LIABILITY INCLUDES, WITHOUT LIMITATION, (i) INJURIES, DAMAGES OR DISEASES WHICH MAY OCCUR AS A RESULT OF (A) YOUR USE OF ANY FACILITY OR ITS IMPROPER MAINTENANCE, (B) YOUR USE OF ANY EXERCISE *** EQUIPMENT, (C) IMPROPER MAINTENANCE OF ANY EXERCISE *** EQUIPMENT OR FACILITIES *** AND (ii) INJURIES OR MEDICAL DISORDERS RESULTING FROM EXERCISE, OR USE OF EQUIPMENT OR FACILITIES, AT THE FACTILITY OR ANY OF THE OTHER FACILITIES ***.”

¶ 4 Hawkins did not read the agreement before signing it. Instead, he relied only on what a

sales associate told him. According to Capital Fitness, however, sales associates lack sufficient

familiarity with the contents of the agreement to explain it to members and, in any event, are

instructed not to do so. Hawkins was given a copy of the agreement.

¶ 5 On January 27, 2010, Hawkins was working out at X-Sport’s Logan Square gym

(Hawkins’s brief states the injury occurred on January 19, but the record indicates January 27).

During his workout, Hawkins sat on a bench in front of a three-foot by eight-foot mirror

hanging from a protruding portion of a wall. As Hawkins performed arm curls with free

weights, a patron bumped into the mirror, dislodging it. Hawkins tried jumping out of the way,

but his feet hit some weights scattered on the floor and he landed on a weight rack at which

point the mirror hit his head.

¶ 6 An unidentified fitness club patron or employee told Hawkins that a maintenance crew had

been working on the mirror before the accident. Hawkins then noticed a hole in the wall with

supporting wire mesh pulled out and several missing tiles from the wall.

¶ 7 Hawkins filed a one-count complaint against Capital Fitness alleging negligent conduct in

failing to adequately secure the mirror, failing to warn patrons that the mirror was loose and

likely to fall, and failing to cordon off the area around the mirror. Capital Fitness moved for

summary judgment, arguing that (i) the exculpatory language of the membership agreement

barred Hawkins’s claim for personal injury damages and (ii) Capital Fitness could not be held

liable without proof of notice of an actual defect in the premises that proximately caused

Hawkins’s accident.

¶ 8 After a hearing, the trial court granted Capital Fitness’s motion for summary judgment.

The trial court enforced the exculpatory clause, finding (i) no substantial disparity in

bargaining power between the parties; (ii) no public policy bar to enforcement; and (iii)

nothing in the social relationship between the parties that would militate against upholding the

clause. The trial court further held that Hawkins failed to provide evidence that Capital Fitness

had actual or constructive notice of any defect concerning the mirror.

STANDARD OF REVIEW

¶ 10 “Summary judgment is appropriate where the pleadings, depositions, admissions, and

affidavits show that there is no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law.” Direct Auto Insurance Co. v. Beltran, 2013 IL App

(1st) 121128, ¶ 43. A triable issue of fact exists “where there is a dispute as to material facts, or

where, the material facts being undisputed, reasonable persons might draw different inferences

from the facts.” (Internal quotation marks omitted.) Wolfram Partnership, Ltd. v. LaSalle

National Bank, 328 Ill. App. 3d 207, 215 (2001). The movant for summary judgment has the

initial burden of proof. Beltran, 2013 IL App (1st) 121128, ¶ 43. An appellate court reviews a

disposition of summary judgment de novo. Id.

ANALYSIS

¶ 12 Execution of Membership Agreement

¶ 13 Hawkins initially claims the sales associates were unfamiliar with the language of the

membership agreement and failed to point out or explain the exculpatory clause. Hawkins

concedes that he did not read the agreement before signing it but suggests Capital Fitness

employees had a duty to explain the release. Hawkins appears to argue that the circumstances

surrounding the execution of the membership agreement should invalidate the exculpatory

clause.

¶ 14 Generally, absent fraud, the act of signing legally signifies that the individual had an

opportunity to become familiar with and comprehend the terms of the document he or she

signed. An individual “who has had an opportunity to read a contract before signing, but signs

before reading, cannot later plead lack of understanding.” Breckenridge v. Cambridge Homes,

Inc., 246 Ill. App. 3d 810, 819 (1993). See also, e.g., Urban Sites of Chicago, LLC v. Crown

Castle USA, 2012 IL App (1st) 111880, ¶ 40 (a person may not avoid legal consequences of an

executed contract on the ground that the signing was done without knowledge of its contents);

State Bank of Geneva v. Sorenson, 167 Ill. App. 3d 674, 681 (1988) (“[f]ailure to read a

[contract] before signing it is normally no excuse for a party who signs it”); Miller v. Wines,

197 Ill. App. 3d 447, 452 (1990) (same).

¶ 15 Hawkins had a duty to read the membership agreement before he signed it. He did not ask

for more time to review the document and no Capital Fitness employee prevented him from

reading the agreement. Hawkins also received a copy of the agreement. There is no evidence,

and Hawkins did not contend otherwise, that the sales associates made false representations to

get him to enter the agreement or about its terms. Hence, nothing is raised by the circumstances

of Hawkins’s signing the agreement that would render the exculpatory clause unenforceable.

¶ 16 Scope of Exculpatory Clause

¶ 17 Hawkins primarily argues a question of fact exists as to whether his injury falls within the

contractual limits of the exculpatory clause. Specifically, Hawkins asserts that his injury

resulted from a possible danger beyond the ordinary risks accompanying the use of a fitness

club membership.

¶ 18 A party may contract to avoid liability for his own negligence. Garrison v. Combined

Fitness Centre, Ltd., 201 Ill. App. 3d 581, 584 (1990). Absent fraud or willful and wanton

negligence, a contract’s exculpatory clause will be valid and enforceable unless (1) the

bargaining position of the parties reflects a substantial disparity, (2) enforcement violates

public policy, or (3) the social relationship between the parties militates against upholding the

clause. Id. Absent any of these factors, “the question of whether or not an exculpatory clause

will be enforced depends upon whether or not defendant’s conduct and the risk of injury

inherent in said conduct was of a type intended by the parties to fall within the scope of the

clause.” Masciola v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313, 317 (1993).

¶ 19 Because liability release clauses are highly disfavored, courts closely scrutinize them and

they are strictly construed against the party seeking to rely on them. Cox v. US Fitness, LLC,

2013 IL App (1st) 122442, ¶ 14; Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407,

412 (2007). While usually worded broadly, an exculpatory clause “should contain clear,

explicit, and unequivocal language referencing the types of activities, circumstances, or

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

duty of care.” Garrison, 201 Ill. App. 3d at 585. At the time of contract formation, the parties

do not have to contemplate the precise occurrence that later results in injury. Id. Nevertheless,

the defendant must put the plaintiff on notice of the range of dangers for which the plaintiff

assumes the risk of injury. Id. (“It should only appear that the injury falls within the scope of

possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by

the plaintiff.”); Johnson v. Salvation Army, 2011 IL App (1st) 103323, ¶ 36 (danger causing

injury must ordinarily accompany activity covered by release).

¶ 20 The scope of the exculpatory clause depends on the foreseeability of a specific danger.

Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 577 (1984). “The relevant inquiry ***

is not whether plaintiff foresaw defendants’ exact act of negligence, but whether plaintiff knew

or should have known the accident was a risk encompassed by his [or her] release.” (Internal

quotation marks omitted.) Cox, 2013 IL App (1st) 122442, ¶ 14. Whether the particular injury

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

the risk associated with the activity often is a question of fact. Hellweg v. Special Events

Management, 2011 IL App (1st) 103604, ¶ 6.

¶ 21 The membership agreement provided that “MEMBER ACKNOWLEDGES THAT

EXERCISE, TANNING AND USE OF THE EQUIPMENT AND FACILITIES ***

NATURALLY INVOLVES THE RISK OF INJURY ***.” It further provides that

“MEMBER ENGAGES IN ALL EXERCISE *** AND USES ALL FACILITES AND

SERVICES *** AT SUCH PERSON’S OWN RISK.” The agreement lists some uses of the

facility covered by the agreement, including: the use of the equipment, locker room, showers,

pool, basketball court, whirlpool, spa, spa services, sauna, steam room, tanning facilities, rock

climbing wall, parking area, and sidewalk. The agreement holds Capital Fitness harmless from

injury sustained or incurred from negligent acts or omissions “ARISING OUT OF OR IN

ANY WAY RELATED TO MEMBER’S PRESENCE AT OR USE OF THIS FACILITY.”

The release includes a member’s “USE OF ANY FACILITY OR ITS IMPROPER

MAINTENANCE *** USE OF ANY EXERCISE [EQUIPMENT] *** OR FACILITIES

WHICH MAY MALFUNCTION OR BREAK *** [AND] IMPROPER MAINTENANCE

OF ANY EXERCISE *** EQUIPMENT OR FACILITIES.”

¶ 22 A literal reading of the membership agreement reveals that Hawkins released Capital

Fitness of all liability from injury, no matter the source, cause, or circumstance. For example,

the agreement includes injury caused by a patron’s use of the exercise equipment itself, such as

a weight machine breaking. Because an exculpatory clause is strictly construed against the

party it benefits (Evans, 373 Ill. App. 3d at 412), the clause must identify the range of dangers

for which risk of injury is being assumed. See Larsen, 130 Ill. App. 3d at 578 (“A plaintiff’s

decision to assume the risk of injury resulting from a defendant’s conduct attains efficacy only

in a context in which the plaintiff may foresee the range of possible dangers to which he

subjects himself ***.”).

¶ 23 To be sure, at the time the membership agreement was signed, Hawkins and Capital Fitness

did not contemplate that Hawkins might be struck by a mirror. The record indicates that the

Logan Square X-Sport facility had a number of mirrors. Indeed, two longer mirrors were on

each side of the protruding portion of the wall. Should Hawkins have known a mirror falling

off a wall was within the range of danger ordinarily accompanying the use of a fitness facility?

Nothing in the record shows that Hawkins knew or should have known that this particular

danger accompanied his working out at the facility.

¶ 24 Larsen v. Vic Tanny International, 130 Ill. App. 3d 574 (1984), is instructive. In Larsen,

the plaintiff sustained injuries after inhaling gaseous vapors emitted from the health club’s

cleaning compounds. Larsen, 130 Ill. App. 3d at 575. Before joining the health club, the

plaintiff read and signed a broad exculpatory agreement, releasing the health club from any

damages arising from personal injury sustained “ ‘on or about the premises.’ ” Id. at 575-76.

The court held that a genuine issue of fact remained as to whether a member’s exposure to

gaseous vapors was a danger intended by the parties to be excused by the exculpatory clause.

Id. at 577-78. The court explained that an exculpatory clause “attains efficacy only in a context

in which the plaintiff may foresee the range of possible danger to which [the plaintiff] subjects

himself [or herself].” Id. at 578. The court then found the assertion that a plaintiff could

contemplate the danger of combustible cleaning compounds in a health club, and thereby alter

one’s behavior, “untenable according to the standards of common experience.” Id.

¶ 25 Like Larsen, we are unable to hold, as a matter of law, that a falling mirror is a danger

within the scope of the exculpatory clause. As the court in Larsen explained, “[f]oreseeability

of a specific danger is *** an important element of the risk which a party assumes, and, for this

reason, serves to define the scope of an exculpatory clause. *** No agreement to assume

unknown risks shall be inferred.” Id. at 577. As the record illustrates, the Logan Square

X-Sport contains a number of mirrors. If Hawkins foresaw the possible danger of a mirror

coming unhinged, he would need to exercise a proportionately higher degree of caution around

them, which would prevent him, or any member for that matter, from fully using portions of

the facility near a mirror. Should Hawkins have worn protective equipment, like a helmet, to

militate against the risk? Is Hawkins (and every member) expected, for safety purposes, to

conduct a personal, comprehensive investigation of all aspects of the facility, including the

quality and fit of every mirror? Like Larsen, the assertion that Hawkins would necessarily

contemplate the danger of a mirror detaching from the wall and accordingly follow a more

rigid standard of caution, either by avoiding certain areas or in some other way altering habits

while present in those areas, is “untenable according to the standards of common experience.”

Id. at 578.

¶ 26 Moreover, Hawkins’s injury is distinguishable from those suffered in Garrison v.

Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581 (1990), Kubisen v. Chicago Health Clubs,

69 Ill. App. 3d 463 (1979), and Owen v. Vic Tanny’s Enterprises, 48 Ill. App. 2d 344 (1964). In

Garrison, the plaintiff’s trachea was crushed when a weighted bar fell from a bench press

apparatus the plaintiff was preparing to use. Garrison, 201 Ill. App. 3d at 583. In Kubisen, the

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.

…

¶ 30 True, Hawkins and Capital Fitness did not need to specifically foresee the precise incident

at the time that Hawkins signed the membership agreement. Even so, Schlessman and Maness

do not stand for the proposition that a broad exculpatory clause covers any conceivable claim.

Simpson v. Byron Dragway, Inc., 210 Ill. App. 3d 639 (1991), provides clarification. In

Simpson, the decedent, a licensed and experienced race car driver, was killed when his dragster

collided with a deer during a race. Simpson, 210 Ill. App. 3d at 641. Before the race, the

decedent signed a release in which he agreed to inspect the track and adjacent areas to ensure

that they were properly designed, maintained, and safe for race purposes. Id. at 642. The

decedent also voluntarily assumed “ ‘all risks arising from conditions related to use of the track

area by myself or others.’ ” Id. The appellate court reversed the trial court’s grant of summary

judgment based on the release. Id. at 649. The court initially noted that to effectively assume

the risk of some occurrence, “it must be demonstrated that the danger which caused the injury

was one which ordinarily accompanied the activity and that the plaintiff knew, or should have

known, that both the danger and the possibility of injury existed before the occurrence.” Id. at

647. The court rejected the argument that the decedent, by virtue of his participation in an

inherently dangerous activity, contemplated a wide range of incidents, including the possibility

that an animal would run onto the racetrack. Id. at 648. The court noted that Schlessman “did

not hold that the range of accidents contemplated is without limit.” Id. Thus, the court

concluded that the danger of a deer running onto a racetrack was not the type of risk that

ordinarily accompanies auto racing, and, therefore, a question of fact remained. Id. at 649.

¶ 31 Like Simpson, reasonable minds could differ on the issue of whether the incident here is an

ordinary risk associated with the use of a fitness facility. “Whether a particular injury is one

which ordinarily accompanies a certain activity and whether a plaintiff appreciates and

assumes the risks associated with the activity often constitute a question of fact.” Simpson, 210

Ill. App. 3d at 647. Because a broad release does not encompass all accidents without limit

(Simpson, 210 Ill. App. 3d at 648), a genuine issue of fact arises as to whether the exculpatory

clause in the membership agreement includes potential injury due to a mirror falling off a wall.

CONCLUSION

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

¶ 37 Reversed and remanded.

Cox v. U.S. Fitness, LLC

Opinion No. 1–12–2442.

2013-12-18

Erin COX, Plaintiff–Appellant, v. US FITNESS, LLC, d/b/a Fitness Formula Clubs–Union Station, and Zachary Beachler, Defendants–Appellees.

Corboy & Demetrio, PC, Chicago, for appellant. Dana Crowley & Associates, Chicago, for appellees.

Justices PUCINSKI and MASON concurred in the judgment and opinion.

Corboy & Demetrio, PC, Chicago, for appellant. Dana Crowley & Associates, Chicago, for appellees.

OPINION

Presiding Justice HYMAN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Erin Cox filed suit against her gymnasium and personal trainer, defendants U.S. Fitness, LLC, and Zachary Beachler, after she fell and sustained a severe injury to her wrist during a personal training session. She alleged that defendants negligently instructed her to perform a dangerous exercise and used certain equipment in an unsafe manner, among other claims. The trial court granted defendants' motion for summary judgment, and Cox appealed.

…

Finding no error in the granting of summary judgment, we affirm the judgment.

¶ 3 Background

¶ 4 Defendant U.S. Fitness owns and operates a fitness club in Chicago named Fitness Formula Club. On March 4, 2009, plaintiff Erin Cox entered into a membership agreement with U.S. Fitness to use its club facilities. The agreement contained a waiver, which read:

“I have been informed that Fitness Formula Clubs (the Clubs) and its affiliated clubs and its owners, officers and employees will not be liable in lawsuits including negligence lawsuits brought against them by members or their guests. As material consideration for Fitness Formula Clubs and its affiliated clubs permitting members and guests to use the Club or its facilities, each member or guest agrees to specifically assume all risks of personal injury, property loss or other damages including risk associated with fitness classes and equipment, sports exercise, all locker room facilities and fitness advisory services and all other facilities. Further, all members and their guests waive any and all claims against any Fitness Formula Club, its affiliated clubs and the owners, officers, and employees of the Club for any personal injury, property loss or other damages connected to or arising out of any of the associated risks.” (Emphasis added.) Desiree Buford, member services director for U.S. Fitness, enrolled Cox. She asked Cox to read the liability waiver and to sign if she understood. Cox did not read or ask any questions about the waiver and signed the agreement. Buford did not receive any training or instructions about how to answer questions about the waiver of liability, and she did not know what the term “fitness advisory services” meant.

¶ 5 As part of her membership, Cox received a complimentary personal training session with a trainer named Timi Wusu, an employee of U.S. Fitness. During the session, Wusu asked Cox about her fitness goals, but did not instruct her in any exercises. That day or the next, Cox purchased from U.S. Fitness a package of personal training sessions with Wusu. When Cox signed up for these sessions, she signed a second contract, though no second contract was produced during discovery nor is it part of the record. After several sessions with Wusu, he left U.S. Fitness. Defendant Zachary Beachler took over as Cox's personal trainer.

¶ 6 Beachler explained and demonstrated how to perform certain exercises. During these sessions, Beachler had Cox do jumping exercises, including jumping from standing onto a set of risers placed on the floor. On the day of the accident, Beachler set the risers to 18 inches high. Cox, who stood at five 5 feet 5 inches, jumped on top of the risers and stepped down. On the second jump, as Cox described it, the riser collapsed and she fell backwards, severely injuring her wrist.

¶ 7 Cox filed suit against U.S. Fitness and Beachler, alleging that defendants negligently (i) stacked the risers, (ii) instructed Cox on how to jump on top of the risers, (iii) failed to implement necessary safety measures when instructing Cox on how to jump onto the risers, and (iv) failed to train employees on how to safely instruct, monitor, and supervise Cox's exercise. Defendants moved for summary judgment. The circuit court granted the motion. This appeal followed.

¶ 8 Standard of Review

¶ 9 “Summary judgment is appropriate where the pleadings, depositions, admissions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Direct Auto Insurance Co. v. Beltran, 2013 IL App (1st) 121128, ¶ 43, 376 Ill.Dec. 182, 998 N.E.2d 892. A triable

issue of fact precluding summary judgment 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, 262 Ill.Dec. 404, 765 N.E.2d 1012 (2001). This court's review of a disposition by summary judgment is de novo. Beltran, 2013 IL App (1st) 121128, ¶ 43, 376 Ill.Dec. 182, 998 N.E.2d 892. The party moving for summary judgment bears the initial burden of proof. Id.

¶ 10 ANALYSIS

¶ 11 Validity of Exculpatory Clause

¶ 12 Cox argues that there was a question of fact as to whether her claim falls within the scope of the exculpatory clause.

¶ 13 Courts construe contracts to give effect to the intention of the parties as expressed in the language of the agreement. Platt v. Gateway International Motorsports Corp., 351 Ill.App.3d 326, 329, 286 Ill.Dec. 222, 813 N.E.2d 279 (2004). Illinois law construes contracts as a whole, and generally disallows extrinsic evidence unless an ambiguity exists within the contract's four corners. Id. at 330, 286 Ill.Dec. 222, 813 N.E.2d 279. A court may consider extrinsic evidence to determine the intent of language predisposed to more than one reasonable meaning. Id.; West Bend Mutual Insurance Co. v. Talton, 2013 IL App (2d) 120814, ¶ 19, 375 Ill.Dec. 473, 997 N.E.2d 784.

¶ 14 Illinois permits parties to contract away liability for their own negligence. Hellweg v. Special Events Management, 2011 IL App (1st) 103604, ¶ 6, 353 Ill.Dec. 826, 956 N.E.2d 954. But exculpatory clauses exempting liability for negligence are generally disfavored and are strictly construed against the party they benefit. Evans v. Lima Lima Flight Team, Inc., 373 Ill.App.3d 407, 412, 311 Ill.Dec. 521, 869 N.E.2d 195 (2007). “General language is not sufficient to indicate an intention to absolve a party from liability for negligence; the language should be clear, explicit and unequivocal. [Citation.] ‘In this way the plaintiff will be put on notice of the range of dangers for which he [or she] assumes the risk of injury, enabling him [or her] to minimize the risk by exercising a greater degree of caution.’ ” Jewelers Mutual Insurance Co. v. Firstar Bank Illinois, 341 Ill.App.3d 14, 19, 274 Ill.Dec. 906, 792 N.E.2d 1 (2003) (quoting Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581, 585, 147 Ill.Dec. 187, 559 N.E.2d 187 (1990)). “The precise occurrence that results in injury * * * need not have been contemplated by the parties at the time of contracting.” Id. “The injury must only fall within the scope of possible dangers ordinarily accompanying the activity and, therefore, reasonably contemplated by the parties.” (Internal quotation marks omitted.) Hamer v. City Segway Tours of Chicago, LLC, 402 Ill.App.3d 42, 45, 341 Ill.Dec. 368, 930 N.E.2d 578 (2010). The foreseeability of a specific danger defines the scope. Hellweg, 2011 IL App. (1st) 103604, ¶ 6, 353 Ill.Dec. 826, 956 N.E.2d 954. “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.” Id. ¶ 7.

¶ 15 For example, in Hellweg, the plaintiff bicycle racer injured himself when he collided with a nonparticipating bicyclist. Id. ¶ 3. He sued the race organizers, alleging they failed to properly close the streets. Id. The trial court dismissed the action, and the appellate court affirmed, holding that the release of liability signed by the plaintiff absolved the organizers. Id. ¶ 6. The release language listed “dangers of collision with pedestrians, vehicles, other riders, and fixed or moving objects” as part of the waiver. (Internal quotation marks omitted.) Id. The appellate court noted that “[t]he presence of nonparticipants in bicycle races conducted on municipal streets is an inherent and reasonably foreseeable risk. * * * [P]laintiff's release plainly contemplates the possibility of * * * other riders * * * on the course.” Id.; see Johnson v. Salvation Army, 2011 IL App (1st) 103323, ¶¶ 37–38, 354 Ill.Dec. 169, 957 N.E.2d 485 (reading release broadly in view of activities outlined in contract).

¶ 16 Cox argues that the membership agreement does not encompass her claim of negligent instruction in directing her to perform a dangerous exercise. She further asserts that the terms “fitness advisory services” and “sports exercise”—which are included in the release—do not encompass personal training, but does not explain a basis for her reasoning.

¶ 17 In the membership agreement, Cox “assume[d] all risks of personal injury * * * including risk associated with * * * equipment* * * and fitness advisory services.” While the phrase “fitness advisory services” may include a broad range of services offered at the gym, its plain meaning encompasses personal training sessions, which quite literally include advice and instruction to improve physical fitness. It is foreseeable, and thus the release reasonably contemplates, that the a member may fall and be injured during a personal training session due to inadequate or faulty instruction. That is to say, not all advice is good advice, even when professionally given. The trial court therefore properly dismissed Cox's claims for negligent instruction. See Falkner v. Hinckley Parachute Center, Inc., 178 Ill.App.3d 597, 603, 127 Ill.Dec. 859, 533 N.E.2d 941 (1989) (“The risk of unsafe equipment, negligent instruction, and death can be contemplated by a participant, and the terms of the exculpatory clause are broad enough to cover these situations.”).

¶ 18 Moreover, the release includes injuries caused by equipment. Dangers ordinarily contemplated in the use of equipment include misuse that leads to injury. Cox claimed that Beachler negligently stacked the risers before she fell. This misuse is foreseeable and therefore covered in the release. Accordingly, the trial court properly disposed of Cox's claim that Beachler negligently stacked the risers.

¶ 19 Cox further argues that personal training sessions were not reasonably contemplated by the parties at the time they signed the membership agreement and therefore the release cannot cover her sessions. We disagree. The risk of negligent instruction and misused or faulty equipment occurred from the moment Cox started her membership, as it included access to fitness classes and gym equipment. This reasoning aside, Cox's argument still lacks merit. The parties need not predict the exact occurrence and injury when executing the release. Jewelers Mutual Insurance Co., 341

Ill.App.3d at 19, 274 Ill.Dec. 906, 792 N.E.2d 1. That Cox expanded the services she purchased from defendants to include personal training does not affect how we interpret the release language as a matter of law.

¶ 20 Cox next asserts an issue of fact regarding whether her injury is the type that ordinarily accompanies personal training. She cites Simpson v. Byron Dragway, Inc., 210 Ill.App.3d 639, 155 Ill.Dec. 398, 569 N.E.2d 579 (1991), involving a race car driver killed when his dragster collided with a deer after he crossed the finish line. Id. at 640, 155 Ill.Dec. 398, 569 N.E.2d 579. The record indicated that the track announcer had seen the deer start to run toward the track midway through the nine second race. Id. at 642–43, 155 Ill.Dec. 398, 569 N.E.2d 579. The announcer saw the deer near the track a few months earlier, and recalled that races had been halted two years earlier due to deer “in the vicinity.” Id. at 643, 155 Ill.Dec. 398, 569 N.E.2d 579. The release that the racer signed required him to inspect “the track and adjacent areas” before the race, and waived all claims for injury arising from participation in the race. Id. at 642, 155 Ill.Dec. 398, 569 N.E.2d 579. The trial court granted summary judgment, and the appellate court reversed. The panel held that there was a question of fact whether striking a deer during a drag race was a reasonably foreseeable danger anticipated in the release because “the danger which caused decedent's accident was not the type of risk which ordinarily accompanied the sport of auto racing.” Id. at 649, 155 Ill.Dec. 398, 569 N.E.2d 579. The appellate court distinguished numerous cases where—as a matter of law—the risk of a particular injury was reasonably foreseeable and ordinarily accompanied the activity. Id. (“horseback riders and falling from horse, * * * weightlifter and injury from weights, * * * sky diver and entangled parachute during jump, * * * pit crew member at racetrack struck by race car”); see Larsen v. Vic Tanny International, 130 Ill.App.3d 574, 578, 85 Ill.Dec. 769, 474 N.E.2d 729 (1984) (holding danger of combustible cleaning compounds not reasonably foreseeable based on language of gymnasium release).

¶ 21 We believe the issue of whether Cox's injury is within the scope of the release language, unlike Simpson, can be decided as a matter of law. Cox fell while exercising using certain gym equipment and receiving instruction from her personal trainer. Cox's injury fits the type of injury reasonably foreseeable based on the language of the release. The issue in Simpson—whether racers charged to inspect the track should expect deer on the drag strip—wanders much further afield from standards of common experience and could not be resolved on summary judgment. See Larsen, 130 Ill.App.3d at 577, 85 Ill.Dec. 769, 474 N.E.2d 729 (“where fair-minded people could draw different inferences from the facts presented, the issue should be submitted to a trier of fact”).

¶ 22 Cox also argues that Buford's testimony that she did not know the meaning of the term “fitness advisory services” made summary judgment improper. Buford's testimony on this point is irrelevant. Where a contract is interpreted as a matter of law, the contracting parties' “subjective intentions are irrelevant; rather, the pertinent inquiry focuses upon the objective manifestations of the parties, including the language they used in the contract.” Carey v. Richards Building Supply Co., 367 Ill.App.3d 724,

727, 305 Ill.Dec. 492, 856 N.E.2d 24 (2006). Buford's subjective understanding, or lack of it, is irrelevant to the court's construction.

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¶ 29 Unconscionability and Public Policy

¶ 30 Cox next asserts the doctrine of unconscionability voids the membership agreement.

¶ 31 Whether a contract is unconscionable is a matter of law. Razor v. Hyundai Motor America, 222 Ill.2d 75, 99, 305 Ill.Dec. 15, 854 N.E.2d 607 (2006). The courts recognize two types of unconscionability: (i) “procedural unconscionability” occurs where “a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it, and also takes into account a lack of bargaining power,” and (ii) “substantive unconscionability refers to those terms which are inordinately one-sided in one party's favor.” Id. at 100, 305 Ill.Dec. 15, 854 N.E.2d 607.

¶ 32 Procedurally unconscionable contract formation deprives the weaker party of making a meaningful choice. In re Marriage of Tabassum, 377 Ill.App.3d 761, 775, 317 Ill.Dec. 228, 881 N.E.2d 396 (2007). To determine procedurally unconscionability, courts consider: (i) the manner in which the contract was entered into; (ii) whether each party had a reasonable opportunity to understand the terms of the contract; and (iii) whether important terms were hidden in a maze of fine print. Frank's Maintenance & Engineering, Inc. v. C.A. Roberts Co., 86 Ill.App.3d 980, 989–90, 42 Ill.Dec. 25, 408 N.E.2d 403 (1980). “To be a part of the bargain, a provision limiting the defendant's liability must, unless incorporated into the contract through prior course of dealings or trade usage, have been bargained for, brought to the purchaser's attention or be conspicuous.” Id. at 990, 42 Ill.Dec. 25, 408 N.E.2d 403.

¶ 33 The release was neither hidden nor inconspicuous. Just above the signature line in Cox's membership agreement is the release, labeled in large bold letters “Liability Agreement.” Cox had every opportunity to read the release, and was asked to read the agreement before signing. Accordingly, we find no procedural unconscionability in the inclusion of the release.

¶ 34 Cox asserts that if the release applied to personal training sessions, then it indicates that she lacked bargaining power, since she did not sign up for personal training until after executing the membership agreement. We realize that Cox had little bargaining power as she had no hand in drafting the membership agreement, but this does not relieve Cox of establishing both her lack of bargaining power and that the nature of the formation process deprived her of a meaningful choice. All American Roofing, Inc. v. Zurich American Insurance Co., 404 Ill.App.3d 438, 452, 343 Ill.Dec. 355, 934 N.E.2d 679 (2010). She has not pointed to anything in the record indicating that defendants hid the release from her in anyway.

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¶ 37 CONCLUSION

¶ 38 The trial court properly granted defendant's motion for summary judgment.

¶ 39 Affirmed. Justices PUCINSKI and MASON concurred in the judgment and opinion.

Meyer v. Naperville Manner, Inc. Opinion

No. 2-93-0109

Opinion filed May 17, 1994.

Appeal from the Circuit Court of Du Page County; the Hon. Edward R. Duncan, Jr., Judge, presiding.

JUSTICE BOWMAN delivered the opinion of the court:

The minor plaintiff, Alicia Meyer, appeals from the trial court's grant of summary judgment in favor of defendant, Naperville Manner, Inc. We affirm in part, reverse in part and remand.

On March 18, 1992, plaintiff filed her original complaint at law through her parents and next friends, John and Eileen Meyer. The complaint alleged that, as a riding student of defendant, she sustained injuries when riding a horse owned by defendant on October 6, 1991. The action was initially brought pursuant to section 16 of the Animal Control Act (Animal Control Act or Act), which provides:

"If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such

dog or other animal is liable in damages to such person for the full amount of the injury sustained." 510 ILCS 5/16 (West 1992). After the trial court granted plaintiff's motion to strike certain affirmative defenses interposed by defendant, plaintiff was given leave to file an amended complaint on January 12, 1993. In it, plaintiff added a second count sounding in common-law negligence alleging that defendant (1) failed to warn plaintiff that the riding technique she had previously learned at another school was dangerous to use with defendant's horses; (2) plaintiff was promoted from "beginner" through "advanced" when she had not safely learned to manage defendant's horses; and (3) defendant entrusted the safety of its child students to a 17-year-old instructor who had no training or instruction in teaching and no prior teaching experience.

Defendant interposed three affirmative defenses to the original complaint. First, plaintiff's mother, Eileen Meyer, signed a waiver or release of liability on behalf of Alicia which acted as a complete bar to plaintiff's statutory cause of action. Second, plaintiff was contributorily negligent. Third, the Act did not cover injuries sustained by renters of horses or students taking horseback riding lessons. Plaintiff moved to strike the affirmative defenses, arguing, in part, that a parent has no right to waive or release a minor child's cause of action without judicial approval. In opposing plaintiff's motion to strike its affirmative defenses, defendant relied in part on Harris v. Walker (1988), 119 Ill.2d 542, which held under the circumstances in that case that a person who rents a horse and understands and expressly accepts the risks of using the horse cannot recover for damages under section 16 of the Act.

On July 28, 1992, the trial court denied plaintiff's motion to strike without prejudice the first affirmative defense asserting the signed release as a complete bar to the action; the court stated that it needed to have more factual information. The court denied plaintiff's motion to strike the third affirmative defense that the Animal Control Act did not support plaintiff's cause of action. The second affirmative defense of contributory negligence was stricken since at that time only a statutory claim, rather than a negligence claim, was before the court.

After further discovery, including the depositions of plaintiff and her mother, defendant filed a motion for summary judgment arguing that the Animal Control Act has been construed narrowly and does not impose strict liability upon defendant, particularly where a plaintiff rents a horse and signs a waiver of liability as in Harris. Defendant further argued that plaintiff voluntarily assumed the risk of injury where she took horseback riding lessons and her mother signed the waiver of liability. In support of its position, defendant also relied on Ennen v. White (1992), 232 Ill. App.3d 1061 (where person accepts responsibility for controlling animal, she cannot recover for injuries sustained in failing to control animal; Act does not extend protection to rider of a horse).

The parties stipulated that defendant's motion for summary judgment would apply to the amended complaint; plaintiff stood on the arguments made with respect to the affirmative defenses. On January 12, 1993, the court granted summary judgment in favor of defendant, and plaintiff brought this timely appeal.

The deposition included in the record establishes that Alicia, who was 10 years old at the time of her deposition, began taking horseback riding lessons when she was seven. She first began taking weekly lessons at High Style Stables, which later became the Black Medina Horse Troop. She had frequently been riding with her Aunt Annie. Alicia took lessons regularly from High Style Stables for about two years — until she was nine years old. After a hiatus of several months, she took lessons for two more months and then went to Naperville Manner. At High Style, she moved from beginner to the intermediate level, where she learned to canter, which she explained was a fast pace just before the horse went into a gallop, the fastest pace. Alicia explained the movements of the horse's legs at the different speeds, the signals used to control the horse from left to right, and the positions of the rider and her legs used in controlling the horse.

At Naperville, there were several levels of instruction: beginner flat (flat surface), intermediate flat, advanced flat, and beginner over fences. Alicia attended lessons weekly. When she began there, she explained that she had previously been in a higher group of intermediate students. Defendant asked Alicia to demonstrate a walk, a trot, and possibly a canter, and then a figure "8" and a half-circle. She began riding at Naperville in the spring or early summer and rode a horse named Dudley until her first show at the end of June. She then rode a horse named Kissey and had been riding at Naperville for two or three months before the accident. She began there as a beginner and, after one week, entered the intermediate flat class because she knew her "diagonal" position in riding a horse around the arena. Alicia moved up to the advanced level in her second month, and she fell off the horse in her last week at the advanced level. She was to start beginner over fences the following week.

On October 6, the day she was injured, Alicia began riding a horse named Skippy whom she had been told was usually a calm horse. The lesson was inside an indoor arena and the class was preparing for a show at the stable. They were to practice walking, trotting, and cantering. She began by performing a sitting trot, then a walk, and after the instructor commented, performed a posting trot. At the time of the incident, Alicia had progressed to a "two-point trot" in which the student rides the horse and leans forward in a "jump" position. She had been doing the two-point trot for about 1 1/2 to 2 months.

There were five or six students riding around the perimeter of the arena in a counterclockwise direction while the instructor stood in the middle of the arena. Skippy had been "pretty fidgety" during the class and then they passed a heater bolted to a corner of the arena. Alicia stated that sometimes "horses get nervous like that, but he was really, really nervous." Every time they passed the heater he got worse because it was "pretty noisy." The lesson had been going on for about 15 minutes when the accident occurred. Ann, the instructor, kept telling Alicia to stop the horse from prancing away from the wall. The two-point trot was slower than a canter. To keep the horse toward the wall, Alicia would put pressure on the inside or left leg. She tried to keep the horse close to the wall by pulling the reins a little toward the right. According to Alicia, the horse was going a little faster than he should have been and "kept trying to pull the

reins" out of her hands. She held him back until they got to the heater, "and he just bolted."

The instructor sometimes had to remind Alicia, as well as the class, to keep her heels down in order to maintain the proper balance and to prevent her feet from coming out of the stirrups. The instructor told Alicia about three times to slow the horse down and pull in the reins. Just before the horse bolted, Alicia was up in the saddle and leaning forward. The horse went from a trot to a gallop. Every time Alicia shortened the reins, Skippy yanked forward. He went around the arena faster than he should have about four or five times before he bolted the second time near the heater and Alicia fell to the ground. She landed on her left side, injuring herself. Alicia had fallen off of a horse a couple of times before taking classes at Naperville.

When Alicia began classes at defendant's riding school, her mother Eileen signed a waiver of liability dated May 2, 1991, which stated in pertinent part:

"I, as parent and guardian of the rider named above, do hereby waive any and all claims for personal injury or property damage suffered by me or my child * * * against Naperville Manner, Inc. doing business as Naperville Equestrian Center, * * * arising out of or incident to, but not limited to, riding lessons, horse rental, horse shows or events, equipment, Naperville Equestrian Center horses, * * * pleasure rides or other equestrian activity * * *. Riders are encouraged by Naperville Equestrian Center to carry sufficient medical and accident insurance." On appeal, plaintiff first argues that parents have no legal authority to release, waive, or compromise their child's legal right of action by signing such a waiver without court approval. Plaintiff relies on Mastroianni v. Curtis (1979), 78 Ill. App.3d 97. We agree that in the case at bar the parent's waiver of liability was ineffective to bar her minor child's cause of action against defendant.

In Mastroianni, in construing a provision of the Illinois Probate Act then in effect concerning the power of a guardian to compromise a ward's claim, the court held that court approval was required to give effect to the parents' release and settlement of their child's claim for negligence. In reaching its decision, the Mastroianni court observed that a parent has no legal right, by virtue of the parental relationship, to settle a minor's cause of action, and even if the trial court recognized the plaintiff's parent as a guardian, it would still have to approve a settlement agreement. Mastroianni, 78 Ill. App.3d at 100, citing Pittsburg, Cincinnati, Chicago St. Louis Ry. Co. v. Haley (1897), 170 Ill. 610, 613; see also Paskewie v. East St. Louis Suburban Ry. Co. (1917), 281 Ill. 385, 388-89.

The rule applied in Mastroianni is well established in the decisions of many jurisdictions. It is now the general rule that, in the absence of statutory or judicial authorization, a parent cannot waive, compromise, or release a minor child's cause of action merely because of the parental relationship. ( Scott v. Pacific West Mountain Resort (1992), 119 Wn.2d 484, 493, 834 P.2d 6, 11 (and cases cited therein); 59 Am. Jur. 2d Parent Child § 40, at 183 (1987); 67A C.J.S. Parent Child § 114, at 469 (1978); see, e.g., Gomez v. Maricopa County (1993), 175 Ariz. 469, 857 P.2d 1323; Walker v.

Stephens (1982), 3 Ark. App. 205, 626 S.W.2d 200; Burge v. City County of San Francisco (1953), 41 Cal.2d 608, 262 P.2d 6; Gordon v. Agaronian (1957), 10 Misc.2d 650, 171 N.Y.S.2d 131; Julian v. Zayre Corp. (1978), 120 R.I. 494, 388 A.2d 813.) This rule has also been extended to render ineffective releases or exculpatory agreements for future tortious conduct by other persons where such releases had been signed by parents on behalf of their minor children. See, e.g., Doyle v. Bowdoin College (Me. 1979), 403 A.2d 1206, 1208 n.3; Fitzgerald v. Newark Morning Ledger Co. (1970), 111 N.J. Super. 104, 267 A.2d 557; Rogers v. Donelson-Hermitage Chamber of Commerce (Tenn. Ct. App. 1990), 807 S.W.2d 242; Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 834 P.2d 6.

Since a parent generally may not release a minor child's cause of action after an injury, there is no compelling reason to conclude that a parent has the authority to release a child's cause of action prior to the injury. ( Scott, 119 Wn. 2d at 494, 834 P.2d at 11-12.) The policies served include the protection of minor children where parents may be unwilling or unable to provide for a seriously injured child ( Scott, 119 Wn. 2d at 494, 834 P.2d at 12) and the prevention of conflicts of interest between the parent and child ( Fitzgerald, 111 N.J. Super. at 107, 267 A.2d at 558-59).

We hold that this rule extends to the case at bar to render ineffective the release or waiver of liability signed by the parent before the minor child's cause of action accrued. Since the parent's waiver of liability was not authorized by any statute or judicial approval, it had no effect to bar the minor child's (future) cause of action, although it appears to be effective to bar the parent's own cause of action.

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The judgment of the circuit court is affirmed in part and reversed in part, and the cause is remanded for further proceedings.

Affirmed in part; reversed in part and remanded.

INGLIS, P.J., and DOYLE, J., concur