A federal judge from the Northern District of Illinois has granted summary judgment to a fitness center in a case in which it was sued by a patron who slipped on a wet floor and broke his ankle while playing basketball. In so ruling for LTF Club Operations Co. and Life Time Fitness, Inc. (LTF), the court found that plaintiff Gregory Anast waived his right to sue when he signed a waiver as part of his membership.
Anast was playing basketball with a friend at the Life Time Fitness (LTF) facility in Vernon Hills, Ill. in the early morning hours when the incident occurred. Anast claimed that he saw an employee of LTF who appeared to be sweeping or mopping the floor, but did not see exactly what he was doing. While chasing a loose ball, Anast slipped and fell near the edge of the basketball court and broke his ankle. After he fell, he saw water standing on the floor where he had slipped. The employee testified that he had been cleaning around the edges of the floor with a damp mop and bucket.
Anast sued and LTF moved for summary judgment.
“The operator of a business owes its customers a duty to exercise reasonable care to maintain the premises in a reasonably safe condition for their use,” wrote the court, citing Ward v. K Mart Corp., 136 Ill. 2d 132, 141, 554 N.E.2d 223, 227, 143 Ill. Dec. 288 (1990).
It continued: “When a business invitee like Anast is injured in a fall, the business operator is liable if the condition that caused the fall was placed there by the operator’s agents or if the operator or its agents had actual notice of the condition or it was there long enough that it should have been discovered with ordinary care.” Tomczak v. Planetsphere, Inc., 315 Ill. App. 3d 1033, 1039, 735 N.E.2d 662, 667, 249 Ill. Dec. 58 (2000).
Based on the evidence, LTF is not entitled to summary judgment, according to the court.
However, the defendant adopted a different legal strategy in support of summary judgment, arguing that Anast’s claim “is barred by an exculpatory clause in the agreement that he signed when he became a member of LTF some months earlier. The agreement contains sections entitled ‘Assumption of Risk’ and ‘Waiver of Liability,’ which include the following undertakings:
“ASSUMPTION OF RISK. I understand that there are dangers, hazards, and risks of injury or damage, some of which are inherent in the use of Life Time’s premises, facilities, equipment, services, activities, or products . . . .
“Risks. I understand that the dangers, hazards, and risks of injury or damage in the Use of Life Time Premises and Services (“Risks”) may include but are not limited to (1) slips, trips, collisions, falls, and loss of footing or balance, including ‘slip and falls’ and falls from rock climbing structures or fitness equipment; (2) drowning; (3) equipment failure, malfunction, or misuse; (4) property theft, loss [*4] or damage, including from lockers or vehicles; and (5) other accidents or incidents that may result in injury or damage to me, Minor Member(s), Other Member(s) or Guests.
“I understand that Risks and Injuries in the Use of Life Time Premises and Services (collectively, “Risks of Injury”) may be caused, in whole or in part, by the ORDINARY NEGLIGENCE OF LIFE TIME, me, Minor Member(s), Other Member(s), Guest(s) and/or other persons. FULLY [sic] UNDERSTAND, AND VOLUNTARILY AND WILLINGLY ASSUME, THE RISKS OF INJURY.
“WAIVER OF LIABILITY. On behalf of myself . . ., I hereby voluntarily and forever release and discharge Life Time from, covenant and agree not to sue Life Time for, and waive, any claims, demands, actions, causes of action, . . . or any other alleged liabilities or obligations of any kind or nature, whether known or unknown (collectively, ‘Claims’) for any Injuries to me . . . in the Use of Life Time Premises and Services which arise out of, result from, or are caused by any Ordinary NEGLIGENCE OF LIFE TIME, me, any Minor Member(s), any Other Member(s), any Guest(s), and/or any other person . . . . (collectively, ‘Negligence Claims’).
“Negligence Claims. I understand that Negligence Claims include but are not limited to Life Time’s (1) negligent design, construction (including renovation or alteration), repair, maintenance, operation, supervision, monitoring, or provision of Life Time Premises and Services; (2) negligent failure to warn of or remove a hazardous, unsafe, dangerous or defective condition; (3) negligent failure to provide or keep premises in a reasonably safe condition; (4) negligent provision of or failure to provide emergency care; (5) negligent provision of services; and (6) negligent hiring, selection, training, instruction, certification, supervision or retention of employees, independent contractors or volunteers; or (7) other negligent act(s) or omission(s). Defs.’ LR 56.1 Stat., Ex. G (emphasis in original).”
In its analysis, the court noted that Illinois law “is clear that an entity, including a fitness facility, may contract away liability for its own negligence via an exculpatory agreement. Cox v. US Fitness, LLC, 2013 IL App (1st) 122442, ¶ 14, 377 Ill. Dec. 930, 2 N.E.3d 1211, 1215.
“An exculpatory agreement will be upheld under Illinois law unless it violates settled public policy, the parties have a special or substantially disparate bargaining relationship that precludes enforcement, or the type of injury the plaintiff sustained was not reasonably foreseeable or contemplated,” it wrote, citing Garrison v. Combined Fitness Ctr., Ltd., 201 Ill. App. 3d 581, 584, 559 N.E.2d 187, 189-90, 147 Ill. Dec. 187 (1990). “The first two of these exceptions do not apply; Anast does not argue otherwise. Specifically, there is no public policy that preludes a fitness center from enforcing an exculpatory agreement, and this is not one of the types of situations where a special relationship or disparate bargaining power precludes enforcement. Garrison, 201 Ill. App. 3d at 585-86, 559 N.E.2d at 190.
“Anast argues that the third exception applies. He contends that the condition that caused his injury was not within the scope of possible dangers ordinarily accompanying playing basketball and thus was not reasonably contemplated. Hamer v. City Segway Tours of Chicago, LLC, 402 Ill. App. 3d 42, 45, 930 N.E.2d 578, 581, 341 Ill. Dec. 368 (2010). As Judge Sam Der-Yeghiayan stated in another case involving LTF:
“To be valid, an exculpatory agreement ‘must spell out the intention of the parties with great particularity and will not be construed to defeat a claim which is not explicitly covered by [its] terms.’ . . . [But] [a]n injury not specifically contemplated in an exculpatory clause can also still be covered if it ‘fall[s] within the scope of possible dangers ordinarily accompanying the activity and, therefore, reasonably contemplated by the parties.’ Locke v. Life Time Fitness, Inc., 20 F. Supp. 3d 669, 673 (N.D. Ill. 2014) (quoting Hamer, 341 Ill.Dec. 368, 930 N.E.2d at 581).
“Anast argues that the exculpatory agreement does not expressly cover the condition or injury that took place here and that the danger that existed was not of a type that ordinarily accompanies playing basketball and thus was not reasonably contemplated. The Court disagrees. Slippery conditions—and specifically water—on a gym floor is within the scope of dangers that may ordinarily accompany playing basketball, and it is thus within the reasonable contemplation of an ordinary person entering into an exculpatory agreement like the one Anast signed.”
Gregory Anast v. LTF Club Operations CO., INC. and Life Time Fitness, INC.; N.D. Ill.; Case No. 16 C 8763, 2017 U.S. Dist. LEXIS 191751; 11/20/17
Attorneys of Record: (for plaintiff) Gary B. Friedman, Friedman and Solmor Ltd., Chicago, IL. (for defendants) Brian P Shaughnessy, LEAD ATTORNEY, Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC, Chicago, IL; Kanav Bhatheja, LEAD ATTORNEY, Cremer Spina Shaughnessy Jansen & Siegert, LLC, Chicago, IL.
