This one’s just in time for the annual blizzard of new gym memberships and personal training sign-ups each January seems to bring. Cox v. US Fitness, LLC d/b/a Fitness Formula Club, 2013 IL App (1st) 122442, examines whether a gym (FFC) membership agreement’s liability release is enforceable against a gym patron who sued after she broke her wrist while attempting an exercise during a personal training session. The answer: “yes.”
Plaintiff signed an FFC membership agreement which contained a broad release which immunized the gym from any personal injury claims by a member associated with any equipment, exercises, classes, advisory services or the facility generally. The plaintiff signed the release but didn’t read it or ask questions about it. Plaintiff also signed a second personal training contract but couldn’t locate or produce that contract in discovery. Plaintiff fell and broke her wrist during a personal training session and sued FFC’s corporate parent and the personal trainer for negligence. She alleged the defendants improperly instructed plaintiff, neglected to implement safety measures, and failed to adequately monitor or supervise plaintiff’s exercises. The trial court granted defendants’ summary judgment motion based on the expansive language of the release.
Affirming the trial court (and finding for defendants), the Court applied a slew of black-letter contractual release rules and summary judgment burden-shifting principles. Cox’s key rules:
– Illinois allows parties to contract away their liability for negligence;
– While exculpatory clauses which insulate someone from his own negligence aren’t favored, they are still enforceable if specific and conspicuous;
– The precise occurrence doesn’t have to be contemplated by the parties at the time of contracting for the release language to be upheld;
– The injury must fall within the scope of possible dangers which ordinarily accompany a given activity (like fitness training, e.g.) to be considered in the parties’ reasonable contemplation;
– The key inquiry is whether plaintiff knew or should have known the accident was a risk encompassed by the release; not whether plaintiff foresaw the exact act of negligence alleged;
– Where a defendant supports its summary judgment motion with admissible evidence, the burden shifts to the plaintiff to present a factual basis arguably entitling her to judgment (the burden shifting rule);
– Where a summary judgment movant bases his motion on affirmative matter – like a release – and attaches that release to its motion, the burden shifts back to the respondent/plaintiff to show that the release is void or inapplicable;
– Procedural unconscionability applies where a weaker party is deprived of a meaningful choice in entering a contract with a stronger party such as where the release language is hidden or where the weaker party is prevented from reading it or can’t comprehend it;
– A contract won’t be voided on public policy grounds unless it is clearly contrary to statutes or court decisions which pronounce the State’s public policy.
Cox, ¶¶. 14, 26-27, 32, 36.
The Court held that the FFC release was broad enough to encompass plaintiff’s personal training session injury. By its plain text, the release applied to equipment and fitness advisory services which clearly included personal training session injuries. This broad language made it (or should have made it) plainly foreseeable that the plaintiff could get injured while training. Cox, ¶ 17. In fact, that’s the whole purpose for having personal trainee’s sign releases before engaging in strenuous athletic activity.
The court also discarded plaintiff’s argument that the later personal training contract – which plaintiff couldn’t locate – modified the membership agreement and created a question of fact to survive summary judgment. The Court held that it was plaintiff’s summary judgment burden to produce a specimen copy of the second contract. Since plaintiff failed to do so, it couldn’t create a fact question on whether the missing personal training contract modified the FFC contract’s release.
Rejecting plaintiff’s procedural unconscionability (plaintiff claimed she didn’t see the release language) argument, the Court noted that the release was easily located and in large bold-face letters. The Court held that plaintiff adduced no evidence that the release language was obscure or that defendants hid the language from the plaintiff. In fact, the evidence showed that defendant’s membership agent specifically asked plaintiff to read the liability release before signing the contract. Cox, ¶¶ 32-33.
The Cox Court also shot down plaintiff’s argument premised on the Physical Fitness Services Act (815 ILCS 645/10) which, among other things, voids false advertising in fitness contracts. The Court noted there was no evidence of fraudulent conduct by the defendants and that as a result, FFC’s release didn’t violate the statute. Cox, ¶ 35. The plaintiff also lost on her public policy argument: that enforcing the release against her violated public policy. The Court ruled that no Illinois statute or case provides that a gym membership agreement’s release violates Illinois public policy. Cox, ¶¶ 35-36.
Afterword: Release language in a gym contract will be enforced as written so long as there’s equal bargaining power between gym and member and the release language is clear and conspicuous. A release will be construed broadly if its language permits it and the release doesn’t have to spell out every possible injury to be valid. Its’ enough that the claimed injury has some connection to and falls within the scope of the claims being released. Cox also illustrates that a summary judgment respondent can’t use a missing document to create a fact question where it’s in that person’s power to obtain the missing document.