In January 2010, Michael Hawkins, a member of X-Sport Fitness in Chicago, sustained injuries when a mirror fell from the wall and struck him while he was exercising. Specifically, Hawkins was seated on a bench doing arm curls with free weights in front of a three-by-eight-foot mirror that was mounted on a protruding portion of the wall. As Hawkins used the weights, another patron bumped the mirror and dislodged it.
Hawkins attempted to jump out of the way, but tripped over the free weights on the floor and landed on a weight rack, at which point the mirror hit his head. After the incident occurred, Hawkins noticed a hole in the wall and several missing tiles where the mirror previously hung.
As a result of the incident, Hawkins filed a complaint against Capital Fitness, owners and operators of X-Sport Fitness, alleging negligent conduct in "failing to adequately secure the mirror, failing to warn patrons that the mirror was loose and likely to fall, and failing to cordon off the area around the mirror." In response, Capital Fitness moved for summary judgment based on two arguments: the exculpatory clause in the membership agreement barred the claim, and there was no proof that Capital Fitness had notice of an actual defect in the premises.
After a hearing, the trial court granted the motion for summary judgment in favor of Capital Fitness, enforcing the exculpatory clause. Further, the trial court held that Hawkins failed to provide evidence that Capital Fitness had actual or constructive notice of any defect concerning the mirror. On appeal, Hawkins argued the trial court erred in holding that the exculpatory clause barred his negligence claim. Specifically, Hawkins asserted that the injury was not within the scope of possible dangers ordinarily accompanying the use of a fitness club, and that the exculpatory clause did not cover the type of harm he sustained. Upon review, the Illinois appellate court agreed with Hawkins and reversed the trial court's grant of summary judgment.
In finding for Hawkins, the appellate court reviewed the membership agreement's exculpatory clause language to determine its scope. The membership agreement included a clause entitled "Disclaimers, Waiver, Release and Indemnification" under a subheading titled "Additional Terms and Conditions." The clause, which was conspicuous, included the following:
Member acknowledges that exercise, tanning and use of the equipment and facilities of the company or of their facilities naturally involves the risk of injury and medical disorders, including death, whether member, someone else, some activity or something causes it. Member agrees that member engages in all exercise and uses all facilities and services of the company and their facilities, at such person's own risk. Such engagement and use includes, without limitation, use of the equipment. You agree that you are voluntarily participating in these activities and using the equipment and facilities based on such person's own assessment of the risks and benefits and assuming all risk of injury.
At question was whether the injury Hawkins sustained resulted from a possible danger beyond the ordinary risks accompanying the use of a fitness club membership. Relying on precedent set by other cases in Illinois, the appellate court reasoned that "the scope of the exculpatory clause depends on foreseeability of a specific danger," and that the necessary inquiry is not whether the plaintiff's specific harm was foreseeable, but rather whether the plaintiff knew or should have known the accident was a risk encompassed by the release.
FITNESS VS. FACILITY RISKS
After consideration, the appellate court held that a falling mirror is not within the scope of the exculpatory clause, and is not a danger the plaintiff could reasonably contemplate. The court was unwilling to conclude that the risk of a mirror falling on a patron ordinarily accompanies the use of a fitness facility. The court noted that the X-Sport facility had numerous mirrors, many of which hung from a protruding section of the wall. The court reasoned that if Hawkins did in fact foresee the possible dangers associated with the mirrors, he would have been expected to take preventative measures to protect against harm, such as wearing protective headgear while exercising.
The court was clear that potential dangers related to the facility itself, rather than activity-related dangers, are not within the scope of the exculpatory language, and that patrons would not necessarily contemplate the danger of a mirror detaching from the wall and impose a more "rigid standard of caution" while present in the facility.
Regarding notice, the appellate court failed to address this portion of the claim, holding that the complaint was one of negligence, and not premises liability, thus rendering the lack of evidence concerning notice irrelevant.
Although the validity of the exculpatory language is determined by the law in each state, there is ample recent case law in multiple states that clearly distinguishes activity-based risk and facility-based risk when the scope of exculpatory language is considered. A signed agreement containing exculpatory language, however broad, does not provide insulation from liability to a premises owner/operator who negligently maintains said premises.
Kristi Schoepfer-Bochicchio is an associate professor of Sports Management and Sport Law at Winthrop University in Rock Hill, S.C.
This article originally appeared in the June 2015 issue of Athletic Business with the title "WAIVER REFLECTION"