EXCULPATORY CLAUSES

Fitness gym

Fitness clubs, as well as recreational facilities, often have their customers sign exculpatory clauses as part of their membership agreement in an effort to limit their liability for subsequent injuries. Illinois law, however, does not favor such agreements. (Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill.App.3d 1037, 501 N.E.2d 268, 103 Ill.Dec. 247 [1986]; Poskozim v. Monnacep, 131 Ill.App.3d 446, 86 Ill.Dec. 663, 475 N.E.2d 1042 [1985]). They are to be strictly construed against the party they benefit (Hussein v. L.A. Fitness International, L.L.C., 2013 Ill.App. (1st) 121426, 2013 WL 1190488 [Ill.App.1st Dist.]). An agreement protecting one from the consequences of his own negligence must be expressed in clear, explicit and unequivocal language showing that such was the intent of the parties (Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill.App.3d 1037, 501 N.E.2d 268, 103 Ill.Dec. 247 [1986]). As stated in Comment d to Section 496B of the Restatement of Torts (Second), which discusses the validity of express assumptions of risk:

“In order for the agreement to assume the risk to be effective, it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm. Again, where the agreement is drawn by the defendant and the plaintiff passively accepts it, its terms will ordinarily be construed strictly against the defendant.”

A defendant’s attempt to insulate itself may fail for several reasons. First, the membership agreement signed by the invitee may not contain any specific language authorizing the grant of exculpation or indemnification for the defendant’s own negligence. In McNiff v. Millard Maintenance Service Company, 303 Ill.App.3d 1074, 1077-78, 715 N.E.2d 247, 239 Ill.Dec. 802 (Ill. 5th App.Dist, 1999]), quoting Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp., 395 Ill. 429, 70 N.E.2d 604 [Ill. 1947], the Court stated that:

“An agreement to indemnify a party for his own negligence would be so unusual and extraordinary as to require that the contract put the intent to indemnify ‘beyond doubt by expressed stipulation’.”

The Court concluded that an indemnification contract without specific language indemnifying the defendant for its own negligence could not be interpreted to do so (McNiff at 1079). If the membership agreement does not explicitly grant exculpation or indemnity to a defendant for its own negligence, no such protection is provided.

Second, the foreseeability of a danger is a critical element of the risk a party assumes and will often define the scope of an exculpatory agreement (Platt v. Gateway International Motorsports Corporation, 351 Ill.App.3d 326, 813 N.E.2d 279, 286 Ill.Dec. 222 [2004]; Simpson v. Byron Dragway, Inc., 210 Ill.App.3d 639, 155 Ill.Dec. 398, 569 N.E.2d 579 [1991]). The invitee must be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution (Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581, 147 Ill.Dec. 187, 559 N.E.2d 187 [1990]). In order to fall within the confines of the exculpatory agreement, the injury which occurs must fall within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff (Garrison, 201 Ill.App.3d at 585, 147 Ill.Dec. 187, 559 N.E.2d 187 [1990]). If a membership agreement limits the assumption of the risk of injury to the period of time the plaintiff is “using any equipment, programs or facilities” it will not prevent a party who is injured because of an unrelated condition of the premises from pursuing a claim. If a defendant wants to be indemnified for the dangerous condition of its premises, it needs to explicitly say so.

Woman running on a treadmillAs an example, my firm represented a young lady who was injured when she stepped on to a treadmill which, unbeknownst to her, had been turned on by an employee of the facility during the cleaning process and not turned off. Because there was no specific reference to the business’ own negligence in the exculpatory clause and the invitee had not yet begun to use the equipment, the provision did not apply and she was able to pursue her claim.

In another case, we were eventually able to take to trial a ninety-year-old woman in the cardiac rehabilitation program at the FitClub where she tripped over a plastic conduit extending into a walkway, fell and fractured her hip. The facts in that case closely resembled the facts in Larsen v. Vic Tanny International, 130 Ill.App.3d 574, 474 N.E.2d 729, 85 Ill.Dec. 769 [1984] and Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill.App.3d 1037, 501 N.E.2d 268, 103 Ill.Dec. 247 [1986]. In that case, the plaintiff was injured as a result of inhaling gaseous vapors. Recognizing that the foreseeability of a specific danger is an important element of the risk which a party assumes, the Court concluded that the defendant’s conduct and the risk of injury inherent in this conduct was not of a type intended by the parties to fall within the scope of exculpation.

Similarly, in Calarco the Court held that the language of the signed membership form was not explicit enough to relieve the YMCA from liability for negligence arising from the use of its equipment. In that case the plaintiff was injured as she tried to assist another individual who was having trouble with the leg press portion of a universal machine. The signed membership form stated as follows:

“In consideration of my participation in the activities of the Young Men’s Christian Association of Metropolitan Chicago, I do hereby agree to hold free from any and all liability the YMCA of Metropolitan Chicago and its respective officers, employees and members and do hereby for myself, my heirs, executors and administrators, waive, release and forever discharge any and all rights and claims for damages which I may have or which may hereafter accrue to me arising out of or connected with my participation in any of the activities of the YMCA of Metropolitan Chicago.”

The Court concluded that this language did not explicitly include the activity which resulted in Ms. Calarco’s injury and, therefore, provided no insulation for the defendant.

It was just as untenable according to the standards of common experience for our client to contemplate the danger of an unnecessary extension of hard plastic conduit into a walkway and to, therefore, accordingly exercise a more rigid standard of caution by avoiding that area of the premises. As such an expectation is untenable, the court agreed it was not encompassed in the exculpatory language in our client’s Membership Agreement.

Finally, an exculpatory contract is not enforceable where there is a substantial disparity in the bargaining position of the two parties or where there is something in the social relationship between them that would militate against upholding the clause (Harris v. Al Walker, d/b/a Ky-Wa Acres, 119 Ill.2d 542, 519 N.E.2d 917, 116 Ill.Dec. 702 [1988]; Hellwig v. Special Events Management, 2011 Ill.App. (1st) 103604, 956 N.E.2d 954, 353 Ill.Dec. 826 {2011]; Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581, 559 N.E.2d 187, 147 Ill.Dec. 187 [1990]). When our client entered the third phase cardiac rehabilitation program following her heart surgery at the age of eighty-seven, the defendant’s facility was the only location offering the program. As a result, she had no choice but to continue pursuant to the Membership Agreement she had previously signed.

Because she had no choice, there was a substantial disparity in the bargaining position of the two parties. Furthermore, the age and physical capacity of the invitees involved in the third phase cardiac rehabilitation program militates against upholding a clause indemnifying the defendant from its own negligence. The State of Illinois has always recognized the public policy of protecting its elderly and/or physically incapacitated citizens (Mason v. Department of Public Health, 326 Ill.App.3d 616, 761 N.E.2d 794, 260 Ill.Dec. 611 [2001]; Creighton, et al v. Pope County, 320 Ill.App. 256, 50 N.E.2d 984 [1943]). Pursuant to this well-recognized public policy, no health club should be allowed to invite the old and/or incapacitated to its facility, charge them for the privilege and then relieve itself of responsibility for injuries caused by its own negligence.

Weight room at a fitness gymIn short, if you or someone you know is injured at a fit club or recreational facility and the owner tells you that you cannot pursue a claim for injuries because of your membership agreement, take the time to review the contract to see if it applies to your circumstances. Even better, have an attorney review the document and apply it to the facts of your case. You may find that the owner is not correct and your claim can be pursued.