An Illinois state appeals court has reversed in part a trial judge’s decision to grant summary judgment to a tennis and fitness center, which was sued by a tennis player for negligence after she injured herself during a match.
While the panel of judges affirmed that the plaintiff waived her right to sue for negligence by signing a waiver, it was less inclined to agree with the lower court that the facility did not meet the willful and wanton misconduct standard. It thus reversed and remanded that portion of the case to the lower court.
Plaintiff Renate Oelze was playing tennis at Score Tennis & Fitness Center, owned by defendant Abria, Inc., on February 10, 2006 when the incident occurred. The 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 the defendant stores equipment in the walkway. Returning a lob during her match, the 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. The 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.
Oelze had been a member of the tennis club for over 10 years. A year earlier, she had signed a “Players Club Membership Agreement,” covering her membership for the upcoming tennis season. The agreement included a statement under which plaintiff released the defendant “from any and all liability for any damage or injury” that the plaintiff might receive while using the defendant’s equipment and facilities and assumed all risk for claims arising from the use of the equipment and facilities. Oelze signed the agreement.
After the injury, the plaintiff sued for negligence, claiming the 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. The defendant countered with a motion to dismiss, claiming that the plaintiff, by signing the membership agreement containing the release clause, voluntarily waived liability on behalf of the defendant.
In response, Oelze argued that the employee presenting the document to sign told her it concerned whether she would make automatic payments for her membership dues. She further claimed that she did not see that the form contained a release.
The plaintiff also alleged that the defendant had exhibited willful and wanton misconduct by exhibiting “a conscious indifference to the safety of others by placing the ladder, which is unrelated to the game of tennis and unlikely to be anticipated by a tennis player, in a concealed area, creating a tripping hazard trap or by allowing it to be so placed,” wrote the court.
The trial court ultimately granted summary judgment to the defendant on both counts, spawning the appeal.
Plaintiff Should Have Seen Release
The appeals court quickly dispatched the plaintiff argument that she was mislead by the defendant as to the nature of the form that she signed.
“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,’” wrote the court. “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.”
While the court acknowledged that the waiver language was in a “tiny font” and “hard to read because of the size of the font,” this had nothing to do with the plaintiff’s argument. “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. The plaintiff asserts the 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, the 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 the plaintiff read the agreement, she would have seen the release, which is legible and explicitly states in clear and common terms that the plaintiff releases the defendant from liability for injuries arising from and assumes all risk arising from the use of the defendant’s equipment and facilities. Her failure to read the release should not be held against the defendant.”
The appeals court was more sympathetic to the plaintiff regarding her second argument.
“It is clear that the defendant and its employees were very conscious of the danger caused by objects on the floor of the walkway closely behind the curtain. The defendant knew a tennis player may run a few inches into the curtain, although rarely more. The defendant endeavored to eliminate the danger caused by an object closely behind the curtain by trying to avoid having any object closer than two feet from the curtain, having the walkways cleaned three times per week, instructing its employees to keep the walkways clear and to pick up any stray objects and put them away where they belonged. In the case of the ladder, the defendant stored it in or on top of the equipment box two feet from the curtain.
“But the ladder was found on the floor right behind the curtain. There is nothing to show how the ladder came to be on the floor near the curtain, whether it fell there or was tossed there, who caused it to be placed there, when such placement happened or whether one of the defendant’s employees saw it there and neglected to pick it up. Sometime between the time the fitness class ended and the time the plaintiff caught her foot in the ladder, the ladder appeared on the floor where everyone agrees it should not have been. One can, therefore, infer that the defendant’s efforts to safeguard the hallway failed. There is no question the defendant attempted to keep its walkways and courts safe for its members. But there is a question of fact regarding whether the defendant’s efforts to prevent the danger caused by the errant ladder failed due to inadvertence or due to a reckless disregard for the safety of others. That question, of whether the plaintiff’s injury was the result of defendant’s failure to exercise ordinary care to discover the ladder and prevent the danger it posed or merely of the defendant’s inattentiveness, is for the trier of fact to decide.”
Renate Oelze v. score sports venture, LLC et al.; App. Ct. Ill., 1st Dist, 2nd Div.; No. 1-09-1476, 2010 Ill. App. LEXIS 252; 3/30/10
Attorneys of Record: (for appellant) Law Office of Christ S. Stacey, of Chicago (Christ S. Stacey, of counsel). (for appellee) Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, David M. Bennett and Thomas E. Daugherty, of counsel).
