Tag Archives: Exculpatory Release

Cox v. US Fitness, LLC – Summary judgment in favor of gym operator upheld due to valid exculpatory clause signed by Plaintiff

Cox v. US Fitness LLC, 2013 IL App (1st) 122442 (Hyman)

Facts:  Plaintiff joins a gym and signs a waiver acknowledging the risks of injury associated with the gym membership, including equipment and fitness advisory services.  Later, she buys a personal training fitness package and while jumping onto risers that were set by her trainer at 18″ high, they collapsed and caused her to fall and seriously injure her wrist.  The defendant moved for summary judgment on the basis of the signed waiver and the trial court dismissed the case.  Plaintiff appeals.

Holding:  Summary judgment in favor of defendant was proper because the plaintiff’s personal training sessions fell within “fitness advisory services” and therefore were contemplated within the valid waiver signed by plaintiff.  Also, the inability of the defendant to produce the supplemental contract for personal training services, which was arguably a technical violation of the Physical Fitness Services Act requiring the gym to maintain original copies for 3 years, did not serve to create a question of fact as to a valid contract modification that would invalidate the waiver because plaintiff failed to produce specimen copy and was merely speculating on its impact.

Filed in Trial Book Under:  Gyms/Health Clubs, Exculpatory Clauses, Waiver of Liability, Unconscionability

Commentary:  No big surprise here.  Exculpatory clauses within the context of injuries at gyms and health clubs have long been deemed valid and not against public policy.  The injury suffered by the plaintiff clearly fell within the type of occurrence that would be contemplated in the release.

Useful Rules/Language from the Opinion:

Exculpatory Clauses/Waiver of Liabilty:  “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 (2010).

Unconscionability:  Whether a contract is unconscionable is a matter of law. Razor v. Hyundai Motor America, 222 Ill. 2d 75, 99 (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.”  To determine procedural 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 (1980).

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Spears v. Association of Illinois Electric Cooperatives – Appellate Court Refuses to Answer Rule 308 Appeal Because it is Dependent Upon Resolution of Facts and Not a Question of Law

Spears v. Association of Illinois Electric Cooperatives, 2013 IL App (4th) 120289 (Knecht)

Facts:  Plaintiff enrolled in a course for electrical lime maintenance and was injured as she was descending a pole during the pole climbing lessons included in the course.  Prior to the fall, but after she had already enrolled in the course and expended money to purchase equipment, she was presented with an exculpatory release that she signed , but later claimed she had not read or understood its implications.  The defendant raised an affirmative defense based upon the release and the plaintiff moved to strike the affirmative defense on the grounds that the unequal bargaining power between the parties rendered the release unenforceable as a matter of law.  The trial court agreed and granted plaintiff’s motion to strike the affirmative defense.  The defendant moved for an appeal pursuant to Supreme Court Rule 308(a), which was granted and the following certified question was presented to the appellate court: “Does the fact that the Plaintiff was a student at Lincoln Land Community College and the Defendant was the Association of Illinois Electric Cooperatives providing instructional services to community college students in climbing utility poles create an uneven bargaining position thereby militating against the enforcement of th exculpatory release at issue when the economic positions of the parties as well as all other undisputed facts concerning the timing and manner in which such release was presented to Plaintiff by Defendant are taken into consideration?”

Holding:  Since the answer to the certified question would depend upon the resolution of many questions of fact, the Appellate Court declines to answer because Supreme Court Rule 308 only allows the certification of questions of law.

Filed in Trial Book Under:  Supreme Court Rule 308; Exculpatory Releases

Commentary:  For a case that ultimately chooses not to answer the question, the appellate court spent a long time discussing exculpatory clauses in general, and specifically whether or not an exculpatory clause/release could be enforced in the context of an educator/student relationship.  There is currently no Illinois case directly on point at this time, but other states have held that the clauses are unenforceable because they violate public policy.  The crux of the argument is that in the context of education and an educator/student relationship, the bargaining power between the two is weighted unequally and therefore it would be against public policy to permit the enforcement of the exculpatory release.  I like the reasoning there and hope that if this case turns up again on a later appeal that this bright line rule could be set forth in the case law in Illinois.

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