Titschler v. LTF Club Operations Company, Inc.

Filing 52

ORDER: For the reasons more fully discussed below, Defendant's Motion for Summary Judgment 40 is GRANTED. Judgment is entered in favor of Defendant LTF Club Operations Company d/b/a Lifetime Fitness ("Defendant") and against Plaintiff James Titschler ("Plaintiff"). Civil case terminated. [For further details see order] - Signed by the Honorable Susan E. Cox on 4/22/2016. Mailed notice (np, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES TITSCHLER,
Plaintiff,
v.

LTF CLUB OPERATIONS COMPANY,
Inc., d/b/a LIFTETIME FITNESS

)
)
)
)
)
)
)
)
)
)

1:15-cv-0664

Magistrate Judge Susan E. Cox

ORDER
For the reasons more fully discussed below, Defendant’s Motion for Summary Judgment
[40] is GRANTED. Judgment is entered in favor of Defendant LTF Club Operations Company
d/b/a Lifetime Fitness (“Defendant”) and against Plaintiff James Titschler (“Plaintiff”).
I.

Background

Defendant operates a fitness club, and Plaintiff was a member of that club. (Dkt. 46 at ¶¶
5, 9.) Defendants have produced a Membership Application and Agreement (the “Membership
Agreement”), which contains two provisions relevant to the instant suit (together, the
“Exculpatory Clauses”).

First, is the section entitled “Assumption of Risk, Release and

Indemnity,” which reads in relevant part:
The use of the facilities at the Club naturally involves the risk of
injury, whether the undersigned or someone else causes it. As
such, the undersigned agrees that he or she understands and
voluntarily accepts this risk and agrees that LIFE TIME FITNESS
will not be liable for any injury, including and without limitation,
personal, bodily or mental injury, economic loss or any damage to
the undersigned, the undersigned’s spouse, guest or relatives
resulting from the negligence or other acts of LIFETIME
FITNESS or anyone else using the facilities.

1

(Dkt. 42-3.)
The second section of the Membership Agreement involved in this case is the “Waiver of
Liability” clause. This portion of the Membership Agreement states:
The undersigned understands that although the Clubs (sic)
facilities, equipment, services and programs are designed to
provide a safe level of beneficial exercise and enjoyment, there is
an inherent risk that use of such facilities, equipment, services and
programs may result in injury. Therefore, the undersigned agrees
to specifically assume all risk while using any of the Clubs (sic)
facilities, equipment, services or programs and hereby waives any
and all claims or actions which may arise against LIFE TIME
FITNESS or its owners and employees as a result of such injuries.
The risks include, but are not limited to: 1) Injuries arising from
my use of any exercise equipment, machines and/or tanning booths
. . . .”
(Dkt. 42-3.)
The Membership Agreement shows that the “Activation Date” is December 29, 2000.
(Dkt. 42-3 at 1.) The last page of the Membership Agreement contains a blank page with
Plaintiff’s signature, and bears the date December 29, 2000. (Dkt. 42-3 at 3; Dkt. 42-4 at 12:810.) Plaintiff testified at his deposition that he did not remember the exact date he became a
member, but that his membership with Defendant had been continuous since he first joined
Defendant’s fitness club. However, the Plaintiff testified at his deposition that he did not
remember reading the Membership Agreement, did not remember of the title of the document he
signed, did not recall how many pages it had, and did not know that the Membership Agreement
contained the Exculpatory Clauses recited above. (Dkt. 42-4 at 128:24-131:11.)
Plaintiff alleges that he was “using a specific piece of equipment at the defendant’s
physical fitness facilities” “as part of his physical fitness gym membership,” when “the
equipment’s stopping mechanism did not engage,” causing Plaintiff to suffer injuries. (Cmplt. at
¶¶ 5-6.)

Plaintiff further alleges that Defendant failed to properly maintain its exercise
2

equipment, failed to properly inspect and repair the equipment, and failed to warn its members
that the equipment was not in working order. (Cmplt. at ¶ 12.) As a result of Plaintiff’s
accident, he suffered a double hernia, which required surgical intervention. (Dkt. 42-4 at 107:23108:7.)
Plaintiff filed the instant action in the Circuit Court of McHenry County, alleging
negligence against the Defendant. (Dkt. 42-1, Ex. 1.) The case was then removed to federal
court based on diversity of citizenship; Plaintiff is a citizen of Illinois and Defendant is a citizen
of Minnesota. (Dkt. 42-1 at ¶ 7.) Defendant filed in the instant motion for summary judgment,
arguing that the Exculpatory Clauses bar Plaintiff’s claims for negligence. That motion is fully
briefed and ripe for disposition by this Court.
II.

Discussion
A.

Summary Judgment Standard

For purposes of summary judgment, the Court will view all facts and draw all inferences
in the light most favorable to the nonmoving party. Smith v. Fusion Med. Spa, S.C., 836 F. Supp.
2d 773, 776 (N.D. Ill. 2011). Summary judgment is appropriate if “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Lalowski v. City
of Des Plaines, 789 F.3d 784, 787 (7th Cir. 2015) (quoting Fed.R.Civ.P. 56(a)).
B.

The Exculpatory Clauses Bar Plaintiff’s Claims.

In this case, both parties agree that the substantive law of Illinois applies to determine the
validity of the Exculpatory Clauses. Illinois courts allow parties to contract away their own
negligence through the use of exculpatory clauses. Cox v. U.S. Fitness, LLC, 2 N.E.3d 1211,
1215 (Ill. App. Ct. 2013). Such clauses are valid and enforceable unless: 1) there is a substantial
disparity in the bargaining power of the parties, 2) it would violate public policy to uphold the

3

clause, or 3) “there is something in the social relationship between the two parties that would
militate against upholding the clause.” Garrison v. Combined Fitness Center, Ltd., 559 N.E.2d
187, 190 (Ill. App. Ct. 1990). However, such clauses are generally disfavored and strictly
construed against the party they benefit. Cox, 2 N.E.3d at 1215. Therefore, as the court in
Garrison explained:
[A]n exculpatory clause, to be valid and enforceable, should
contain clear, explicit, and unequivocal language referencing the
type of activities, circumstances, or situations that it encompasses
and for which the plaintiff agrees to relieve the defendant from a
duty of care. In this way the plaintiff will be put on notice of the
range of dangers for which he assumes the risks by exercising a
greater degree of caution. The precise occurrence which results in
the injury need not have been contemplated by the parties at the
time the contract was entered into. It should only appear that the
injury falls within the scope of possible dangers ordinarily
accompanying the activity and, thus, reasonably contemplated by
the plaintiff.
Garrison, 559 N.E.2d at 190 (internal citations omitted). “The foreseeability of a specific danger
defines the scope” of the exculpatory clause, and the relevant inquiry is whether the Plaintiff
knew or should have known the accident was a risk that was encompassed by his release.” Cox,
2 N.E.3d at 1216.
The Defendant moves for summary judgment, arguing that the Exculpatory Clauses in
the Membership Agreement bar Plaintiff’s claim.

The Plaintiff does not argue that the

Exculpatory Clauses violate public policy, are the result of a substantial disparity in the
bargaining positions of the parties, or that anything in the relationship between the two parties
“militates” against upholding the clauses. 1 Instead, Plaintiff argues that the Exculpatory Clauses

1

Presumably, the Plaintiff did not make these arguments because they have been previously rejected by Illinois
courts. See, e.g., Owen v. Vic Tanny’s Enterprises, 199 N.E.2d 280, 282 (Ill. App. Ct. 1964) (“The scarcity of
facilities for gymnastic and reducing activities hardly creates such a disparity of bargaining power that plaintiff is
forced to accept such terms without alternatives. If the public interest is involved, it is for the legislature to make
such pronouncements. Absent appropriate legislative action, we must hold that the instant exculpatory clause barred

4

are not applicable because: 1) “at no time was there any express or implied agreement to
exculpate the Defendant from risks arising from its own direct negligence for defective or illmaintained equipment;” 2) the clause was “fatally vague and enforceable;” and 3) there was no
“meeting of the minds as to the contents of the exculpatory agreement” because Plaintiff had no
knowledge that the Membership Agreement contained the Exculpatory Clauses. (Dkt. 45.)
Regarding the first argument, the Membership Agreement clearly states that the Plaintiff
“agrees to specifically assume all risk while using any of the Clubs (sic) facilities, equipment,
services or programs and hereby waives any and all claims or actions which may arise against”
the Defendant, and that Plaintiff agrees that the Defendant “will not be liable for any injury . . .
resulting from the negligence or other acts of [Defendant] or anyone else using the facilities.”
(Dkt. 42-3) (emphasis added). Plaintiff cites no legal authority that suggests the Court should
not read this language any differently than its plain meaning and the Court has found none.
Despite Plaintiff’s conclusory statements to the contrary, this language constitutes a clear and
“express . . . agreement to exculpate Defendant from the risks arising from its own direct
negligence for defective or ill-maintained equipment.” (See Dkt. 45.) The Court, therefore,
rejects the Plaintiff’s first argument.
Plaintiff’s second argument is also unavailing. Although the Plaintiff uses different terms
(i.e., “vague”), the Plaintiff appears to be arguing that the Exculpatory Clauses are not
enforceable because Plaintiff’s injury did not “fall[] within the scope of possible dangers
ordinarily accompanying the activity and, thus, [was not] reasonably contemplated by the
plaintiff.” In other words, Plaintiff is arguing that his particular injury was not foreseeable. See
Garrison, 559 N.E.2d at 190. But courts in Illinois regularly uphold exculpatory clauses like the

plaintiff's suit, and the court erred in not directing a verdict for the defendant and in denying defendant's motion for
a judgment notwithstanding the verdict”).

5

one at bar where the plaintiff is injured while using fitness equipment at a gymnasium. See Cox,
2 N.E.3d at 1216-1217 (wrist injury caused when risers collapsed during jumping exercise barred
by exculpatory clause stating that plaintiff “assume[d] all risks associated with . . . equipment”);
Garrison, 559 N.E.2d at 190-191 (crushed trachea caused when bench press fell onto plaintiff’s
neck barred by exculpatory clause); Owen v. Vic Tanny’s Enterprises, 199 N.E.2d 280, 281 (Ill.
App. Ct. 1964) (wrist injury suffered during slip and fall at fitness center’s pool barred by
exculpatory clause stating that plaintiff released defendant from all claims “arising out of the
Member’s use or intended use of the said gymnasium or the facilities and equipment thereof”);
Kubisen v. Chicago Health Clubs, 388 N.E.2d 44, 46-47 (Ill. Ap. Ct. 1979) (injuries caused by
fall in steam room of athletic club barred by exculpatory clause stating that defendant was not
liable “for any damages arising from personal injuries sustained by the Member or his guest . . .
as a result of their using the facilities and the equipment therein”); see also, Hussein v. L.A.
Fitness Int’l, LLC, 987 N.E.2d 460 (Ill. App. Ct. 2013) (Illinois appellate court upholding similar
exculpatory clause, applying Minnesota law). Having reviewed the overwhelming body of case
law in Illinois, the Court finds that, as a matter of law, the injury suffered by the Plaintiff – i.e., a
double hernia suffered while using a piece of exercise equipment – is the type of risk that
Plaintiff knew, or should have known, was encompassed by the release in the Membership
Agreement– i.e., the risk associated with using any of the Defendant’s “facilities, equipment,
services or programs.”
Moreover, the Illinois cases that Plaintiff cites in support of his position are easily
distinguishable from the facts in this case. 2 The court in Calarco v. YMCA of Greater Metro.

2

The New York state court cases cited by Plaintiff in his brief in opposition are also readily distinguishable from the
facts in this case, in addition to being of limited precedential value as they are New York cases that do not analyze
Illinois law. None of those cases dealt with exculpatory clauses in fitness center contracts. Given the plethora of

6

Chicago, 501 N.E.2d 268 (Ill. App. Ct. 1986), held that the exculpatory clause, which covered
“[p]articipation in any of the activities of the YMCA,” was too vague to bar plaintiff’s claims for
injuries sustained while helping another member use a weight lifting machine. 501 N.E.2d at
272. However, the court in that case specifically discussed much of the case law cited above,
and drew a clear distinction between those cases and the form that was at issue in Calarco. Id.
The court in Calarco diverged from the case law upholding exculpatory clauses in fitness center
contracts because the form in Calarco did “not contain a clear and adequate description of
covered activities, such as ‘use of the said gymnasium or the facilities and equipment thereof,’ to
clearly indicate that injuries resulting from negligence in maintaining the facilities or equipment
would be covered by the release.” Id. In the case at bar, the Membership Agreement does
contain the type of language that the Calarco court specifically pointed to as a valid and
enforceable exculpatory clause for injuries suffered while using fitness equipment. As such, the
holding in that case is not applicable to the language of the clause currently before the Court.
Moreover, it appears that Calarco might very well have been decided differently had the specific
language in the Membership Agreement in this case been in front of that court.
Similarly, the facts of Larsen v. Vic Tanny Int’l, 474 N.E.2d 729 (Ill. App. Ct. 1984), are
equally distinguishable from the case at bar. The plaintiff in Larsen alleged that he had been
injured when a combination of chemicals used at the defendant fitness center had caused him to
inhale hydrochloric acid vapors. Id. at 730-31. The court held that there was a genuine issue of
material of fact regarding whether the plaintiff had suffered the type of injury that was
reasonably encompassed by the exculpatory clause. An injury suffered when a piece of exercise
equipment malfunctions – as occurred in this case – is significantly different the hydrochloric

Illinois case law with very similar facts to the case at bar, the Court does not believe that those cases are useful in
deciding the instant motion.

7

acid vapor inhalation in Larsen, and this Court does not believe that the facts in that case are
applicable to the facts currently before this Court. It is foreseeable that a person might suffer an
injury while using exercise equipment; this is precisely why the use of “equipment” is expressly
listed is most exculpatory clauses drafted by fitness centers, including the one in this case. On
the other hand, it is not reasonable to expect that a person will be exposed to a dangerous mixture
of chemicals during their workout, which explains the court’s holding in Larsen. As noted
above, personal injury suffered while using fitness equipment is precisely the type of injury that
Illinois court regularly hold is barred by exculpatory clauses that specifically reference
“equipment” or “facilities.” See, e.g., Cox, 2 N.E.3d at 1216-1217. Therefore, the exculpatory
clause is applicable to this injury and bars the Plaintiff’s claim.
Furthermore, the Plaintiff’s argument that there was no “meeting of the minds as to the
contents of the exculpatory agreement” because Plaintiff was unaware of the exculpatory clause
when he signed the Membership Agreement is also rejected. Absent fraudulent inducement or a
material misrepresentation, the failure to read a contract will not prevent a party from being
bound by its terms. See Hawkins v. Capital Fitness, Inc., 29 N.E.2d 442, 446 (Ill. App. Ct.
2015).

Plaintiff in this case has not alleged that he was fraudulently induced to sign the

Membership Agreement, or that Defendant did anything to prevent him from reading the
Membership Agreement before signing it; the court in Hawkins summarily rejected a similar
argument when a plaintiff attempted to evade the coverage of an exculpatory clause that he failed
to read. Id. Simply put, Plaintiff’s failure to read the Membership Agreement does nothing to
affect the validity or enforceability of the exculpatory clauses in that agreement, and his
argument is rejected. 3

3

Although not argued in Plaintiff’s brief in opposition to the instant motion, the Plaintiff’s Response to Defendant’s
Statement of Facts in Support of Summary Judgment appears to claim that there is a genuine issue of material fact

8

Finally, Plaintiff argues that whether or not he knew he was signing the exculpatory
clause is an issue of fact that must be decided by the jury. (Dkt. 45 at 8.) The cases cited by
Plaintiff do not support that contention. Kursturin v. Chicago & A.R. Co., 122 N.E.2d 512, 517
(Ill. 1919), concerned a release that was signed by a Croatian immigrant who could not read or
write English, was not presented a copy of the release in Croatian or an interpreter, had been in
the hospital for fourteen weeks when he signed, and the claims agent misrepresented what the
plaintiff was signing. Plaintiff in this suit does not argue that he was incapable of understanding
the Exculpatory Clauses, or that anyone from the Defendant misrepresented the substance of
those clauses. Similarly, in Johnson v. Elgin, J&E Ry. Co., 87 N.E.2d 567, 572 (Ill. App. Ct.
1948), “there [was] evidence that [the plaintiff] was told at the time he signed the release that the
paper he signed, which later proved to be a release, was for the purpose of getting him another
job.” Here, Plaintiff has not claimed that the Defendant misrepresented the nature of the
Membership Agreement or the Exculpatory Clauses. Additionally, as discussed above, lack of
knowledge does not prevent a party from being bound by the terms of a contract, where – as here
– that party was given an opportunity to read the contract and there is no evidence of fraud,
deception, or misrepresentation. Thus, even assuming there is a question of fact regarding
Plaintiff’s knowledge, that question of fact is not material to this Court’s ruling, as a matter of
regarding whether Plaintiff ever received or signed the Membership Agreement at issue in this case, stating that he
admits signing “a document, but denies that at the time he signed such document it was known or called a Member
Agreement and denies such document – to his knowledge – contained any exculpatory language.” (Dkt. 46 at ¶¶ 1011.) “A genuine dispute of material fact exists only when the evidence could support a reasonable jury's verdict for
the non-moving party.” Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 650 (7th Cir. 2011) (citing
Spivey v. Adaptive Mktg., LLC, 622 F.3d 816, 822 (7th Cir. 2010)). Here, the Plaintiff admits that the signature on
the last page of the Membership Agreement is his, does not deny that the date on that page matches the Activation
Date listed on the Membership Agreement, admits that he has continuously been a member of the Defendant’s
fitness club since he first signed up, and admits that he signed a document of some sort when he became a member
of Defendant’s fitness club, but does not remember what the document was called and does not recall whether he
read that document. This Court does not believe that a reasonable jury could review these facts and come to any
conclusion other than that the Membership Agreement in this case was presented to Plaintiff at the time he became a
member of Defendant’s fitness club, and that he chose to sign it without reading it first. As such, there is no genuine
issue of material fact as to this issue, and the Court rejects that argument.

9

law. Therefore, this is not an issue of fact that must be presented to a jury, and this Court rejects
Plaintiff’s argument.

CONCLUSION
For the reasons more fully discussed above, Defendant’s Motion for Summary Judgment
[40] is GRANTED. Judgment is entered in favor of Defendant and against Plaintiff.

ENTERED:

DATED: April 22, 2016

______________________________
Susan E. Cox
United States Magistrate Judge

10