Illinois upholds release stopping a claim for injury from bouldering at defendant North Wall.

However, defendant climbing wall admitted it had not followed its own procedures or Climbing Wall Association manual with the plaintiff, law in Illinois saved defendant.

Cizek v. North Wall, Inc., 2018 IL App (2d) 170168-U *; 2018 Ill. App. Unpub. LEXIS 320

State: Illinois, Appellate Court of Illinois, Second District

Plaintiff: Patricia Cizek

Defendant: North Wall, Inc., d/b/a North Wall Rock Climbing Gym

Plaintiff Claims: Negligence & Willful & Wanton Negligence

Defendant Defenses: Open & Obvious & Release

Holding: For the Defendant

Year: 2018

Summary

Plaintiff was boulder for the first time and not given the normal or required introduction at the bouldering gym. She fell off the wall and missed a crash pad breaking her ankle. Court held the release she signed stopped her lawsuit.

Facts

On February 14, 2013, she attended respondent’s gym with Kosinski, a coworker. She characterized Kosinski as a “good climber, experienced.” Kosinski told her climbing was one of his hobbies. She did not think climbing would involve any risk because “[k]ids were doing it.” Further, climbing occurred at a gym, which she viewed as a “safe zone.” Also, based on what she saw on television, she believed she would be using a harness. She and Kosinski did not consume any alcohol prior to arriving at North Wall, and she was not taking any medication at the time.

When they arrived, Kosinski paid the fee. Plaintiff signed and returned a waiver form. Kosinski had climbed at North Wall before. At the time, plaintiff did not know whether Kosinski was a member at North Wall, though she later learned that he had been at the time she was injured. Plaintiff acknowledged that she did, in fact, read and understand the waiver form. She did not look at the back of the form, but she recalled that she was given only one sheet of paper. She was provided with a pair of climbing shoes.

When she first arrived, she observed “children in harnesses with ropers.” There were two large green pads that covered most of the floor. Plaintiff did not recall seeing any bulletin boards or posters. She also did not recall seeing a black line running “continuously around the parameter [sic] of the climbing wall.” At the time of the deposition, she was aware that such a line existed. Beyond signing the waiver when she arrived, she had no further interaction with respondent’s staff. Plaintiff reviewed a number of pictures of the facility and testified that it had changed since her accident. She also identified a photograph taken in October 2013 that showed where she was injured.

She and Kosinski then proceeded to the climbing wall. She asked, “What about my harness?” Kosinski said that harnesses were “more trouble than they were worth.” Plaintiff stated that she “kind of was dumbfounded.” Plaintiff proceeded to climb without a harness. Kosinski went first. He told her to follow some yellow markers, as they were for beginners. While she watched Kosinski, she did not see a black, horizontal line on the wall. Prior to climbing, Kosinski placed a mat below the area in which he intended to climb. Plaintiff found climbing “very difficult,” explaining that “[y]ou use your core.” Plaintiff would “shimmy” down when she got “sore.” She added, “[i]ts tough work getting up there, so I need[ed] to get down.” She would jump down from two to three feet off the ground. Plaintiff made three or four climbs before she was injured.

Large green mats covered almost the entire floor of the gym. There were also smaller black mats that could be placed in different locations by climbers. Kosinski was not near plaintiff when she was injured. Before being injured, plaintiff had moved to a new climbing area. She placed a black mat where she planned on climbing. A green mat also abutted the wall in that area. The black mat was three to six inches away from the wall.

Plaintiff was injured during her third attempt at climbing that day, and she did not feel comfortable climbing. She explained that she was not wearing a harness, but was trying to do her best. There was a part of the floor that was not covered by a green mat in this area, which is where plaintiff landed when she was injured. Plaintiff stated she jumped off the wall and when she landed, her right foot was on a green mat, but her left foot landed on the uncovered floor. She felt pain in her left ankle and could not put weight on it. Kosinski and an employee came over to assist plaintiff. Kosinski got plaintiff some ibuprofen. Plaintiff felt “a little dizzy.” An employee called the paramedics. The paramedics stated that plaintiff’s ankle was broken. They assisted plaintiff to Kosinski’s car, and he drove her to St. Alexius hospital. At the hospital, they x-rayed plaintiff’s ankle and confirmed that it was broken. She was given some sort of narcotic pain killer, and her ankle was placed in a cast. Plaintiff was discharged and told to follow up with an orthopedic surgeon.

She followed up with Dr. Sean Odell. Odell performed a surgery six days after the accident. He installed eight pins and a plate. Plaintiff had broken both leg bones where they intersect at the ankle. She took Norco for months following the surgery. She engaged in physical therapy for years, including what she did at home. The hardware was removed in December 2013. Her ankle continues to be stiff, she has trouble with many activities, and she takes ibuprofen for pain several times per week.

The court also went through a litany of issues the defendant climbing gym did not do with the plaintiff.

Novice climbers were supposed to sign a waiver and view a video. Spencer trained Cipri [gym manager] to go over “any and all safety procedures” with new climbers.

There was no manual on “how to run North Wall,” but there was an “unofficial manual” kept on the front desk. This was comprised of a couple of binders that concerned how to teach climbing, use of the telephone, memberships, employee conduct, and various rules. He did not recall anything specific relating to dealing with novice climbers. There was a copy of the Climbing Wall Association manual in a file-cabinet drawer; however, he never used it for anything. Cipri did not recall Spencer [gym owner] instructing him to use this manual. Spencer did train employees on climbing, particularly new hires. Cipri described Spencer as an “absentee” manager.” He would come in early in the day, and Cipri typically would not see him.

Aside from ascertaining a customer’s age and climbing experience, they did nothing else to assess his or her proficiency. They would show new climbers a video and explain the rules of the gym to them. Cipri could not say whether a copy of a manual shown to him was the manual they were actually using when he worked for respondent. However, he stated various forms shown to him, including one concerning bouldering orientation, were not used when he was there. Spencer never told Cipri to get rid of any document; rather, he was adamant about keeping such material. Weekly inspections of the premises were conducted, but no records documenting them were maintained.

One document stated, “If the facility allows bouldering, the staff provides an orientation before novice climbers are allowed to boulder without assistance or direct supervision.” Cipri testified that this was not generated by respondent, but they followed it. Employees working the counter were trained to have new customers watch a video, instruct them on safety procedures, and assess their abilities. To the left of the front door, posters from the Climbing Wall Association were displayed. There was also one near the back door. Cipri did not remember what they were about beyond that they concerned “stable rules” of the Climbing Wall Association.

On redirect-examination, Cipri agreed that beyond verbal questioning, they did not test new customers. They did not “inspect or observe climbers while they were actually climbing to determine competency.” They did “orientate climbers” and show them the video. Further, new climbers read the waiver forms. Climbers were instructed on general and bouldering safety rules. Cipri was aware of an earlier incident where a young boy cut his head while climbing. Cipri stated that it was arguable that climbing with a rope was more dangerous than bouldering because a person could get tangled in the rope. Cipri did not give plaintiff an orientation, and he had no recollection of anyone giving her one.

Employees were instructed to follow the policies of the Climbing Wall Association. If an employee did not spend time with a new customer “explaining the policies and procedures of bouldering, that would be a violation of company policy.” This is true even if the new customer is accompanied by a more experienced climber.

Obviously, the defendant gym failed to follow its own rules or the rules and ideas of the CWA that the gym, in the court’s mind, had adopted.

Analysis: making sense of the law based on these facts.

The court first looked at the issue that falling was an open and obvious risk.

In Illinois, obvious dangers include fire, drowning in water, or falling from a height.”). Thus, for the purpose of resolving this appeal and in the absence of evidence to the contrary, we will presume that plaintiff was aware that falling off the climbing wall presented certain obvious dangers.

The court moved on to review release law in Illinois. Illinois supports the use of releases, unless the contract is between parties with unequal bargaining power, violates public policy or there is a special relationship between the parties.

Absent fraud or willful and wanton negligence, exculpatory agreements of this sort are generally valid. An agreement may be also vitiated by unequal bargaining power, public policy considerations, or some special relationship between the parties; however, such issues are not present here. This court has previously explained that “[a]n exculpatory agreement constitutes an express assumption of risk insofar as the plaintiff has expressly consented to relieve the defendant of an obligation of conduct toward him [or her].

When written the release must be expressed in clear, explicit an unequivocal language. The release must also be written in a way that both parties to the contract intended to apply to the conduct of the defendant which caused the harm to the plaintiff. However, the release must not be written precisely to cover the exact conduct or exact harm.

Thus, an exculpatory agreement will excuse a defendant from liability only where an “injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.” The foreseeability of the danger defines the scope of the release.

The court found the language “…arising out of or in any way related to [her] use of the climbing gym, whether that use is supervised or unsupervised, however, the injury or damage is caused.” w sufficient to the injury the plaintiff received based on the conduct (or lack of conduct in this case) of the defendant.

The court held “In sum, the release, here is clear, pertains to use of defendant’s climbing gym, and is broad enough to encompass falling or jumping from the climbing wall.”

The court then reviewed the willful and wanton claims of the plaintiff. The court described willful and wanton as “”Conduct is “willful and wanton” where it involves a deliberate intention to harm or a conscious disregard for the safety of others. It is an “aggravated form of negligence.”

The plaintiff argued that failing to follow the defendant bouldering gym’s own policies or evaluate her abilities was proof of willful and wanton conduct. She also pointed out the defendant failed to tell her not to climb above the bouldering line.

Quickly, the court determined the plaintiff had not pled or provided any facts to support her willful and wanton claims. Even if the defendant had followed its own policies, the plaintiff could not show that would have prevented her injuries. Falling at a height above the bouldering line is an open and obvious risk so failing to tell the plaintiff not to climb high is not relevant.

The risk of falling is open and obvious and none of the arguments made by the plaintiff as to the defendants actions overcame that doctrine.

So Now What?

It is great that Illinois supports the use of releases. Even in a case where the defendant failed to follow its own policies or the “manual” of the trade association it belonged to. Even better the court did not find the CWA manual or the defendant’s failure to follow its policies as an issue that could over come the release.

However, from the court’s writing, it is obvious, that the open and obvious doctrine was the most persuasive in supporting both the release and ignoring the defendant’s actions or lack of action.

What do you think? Leave a comment.

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Cizek v. North Wall, Inc., 2018 IL App (2d) 170168-U *; 2018 Ill. App. Unpub. LEXIS 320

Cizek v. North Wall, Inc., 2018 IL App (2d) 170168-U *; 2018 Ill. App. Unpub. LEXIS 320

Appellate Court of Illinois, Second District

March 2, 2018, Order Filed

No. 2-17-0168-U

Notice: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).

Prior History:
[**1] Appeal from the Circuit Court of McHenry County. No. 15-LA-56. Honorable Thomas A. Meyer, Judge, Presiding.

Disposition: Affirmed.

Judges: PRESIDING JUSTICE HUDSON delivered the judgment of the court. Justices Schostok and Spence concurred in the judgment.

Opinion by: HUDSON

Opinion

PRESIDING JUSTICE HUDSON delivered the judgment of the court.

Justices Schostok and Spence concurred in the judgment.

ORDER

 [*P1] Held: Plaintiff validly waived any cause of action stemming from defendants alleged negligence and failed to identify facts from which willful and wanton conduct could be inferred; therefore, trial courts grant of summary judgment was proper.

 [*P2]
I. INTRODUCTION

 [*P3]
Plaintiff, Patricia Cizek, appeals an order of the circuit court of McHenry County granting summary judgment in favor of defendant, North Wall, Inc. (doing business as North Wall Rock Climbing Gym). For the reasons that follow, we affirm.

 [*P4]
II. BACKGROUND

 [*P5]
Defendant operates an indoor rock climbing gym; plaintiff was a customer at the gym when she was injured. Plaintiff and a friend, Daniel Kosinski, attended the gym. Plaintiff had never been climbing before. At some point, after having been climbing for a while, plaintiff became tired and jumped down or fell from the climbing [**2]
wall. Plaintiffs right foot landed on a mat, but her left foot landed on the floor. Plaintiffs left ankle broke.

 [*P6]
In her deposition (taken December 23, 2015), plaintiff testified as follows. She stated that she had been a member of a health club for 10 years, where she primarily swam and did yoga. Prior to February 14, 2013, plaintiff had no experience rock climbing or bouldering, though she had observed people rock climbing in the past. She agreed that she understood that rock climbing involved being at a height higher than the ground.

 [*P7]
On February 14, 2013, she attended respondents gym with Kosinski, a coworker. She characterized Kosinski as a good climber, experienced. Kosinski told her climbing was one of his hobbies. She did not think climbing would involve any risk because [k]ids were doing it. Further, climbing occurred at a gym, which she viewed as a safe zone. Also, based on what she saw on television, she believed she would be using a harness. She and Kosinski did not consume any alcohol prior to arriving at North Wall, and she was not taking any medication at the time.

 [*P8]
When they arrived, Kosinski paid the fee. Plaintiff signed and returned a waiver form. Kosinski [**3]
had climbed at North Wall before. At the time, plaintiff did not know whether Kosinski was a member at North Wall, though she later learned that he had been at the time she was injured. Plaintiff acknowledged that she did, in fact, read and understand the waiver form. She did not look at the back of the form, but she recalled that she was given only one sheet of paper. She was provided with a pair of climbing shoes.

 [*P9]
When she first arrived, she observed children in harnesses with ropers. There were two large green pads that covered most of the floor. Plaintiff did not recall seeing any bulletin boards or posters. She also did not recall seeing a black line running continuously around the parameter [sic] of the climbing wall. At the time of the deposition, she was aware that such a line existed. Beyond signing the waiver when she arrived, she had no further interaction with respondents staff. Plaintiff reviewed a number of pictures of the facility and testified that it had changed since her accident. She also identified a photograph taken in October 2013 that showed where she was injured.

 [*P10]
She and Kosinski then proceeded to the climbing wall. She asked, What about my harness? Kosinski [**4]
said that harnesses were more trouble than they were worth. Plaintiff stated that she kind of was dumbfounded. Plaintiff proceeded to climb without a harness. Kosinski went first. He told her to follow some yellow markers, as they were for beginners. While she watched Kosinski, she did not see a black, horizontal line on the wall. Prior to climbing, Kosinski placed a mat below the area in which he intended to climb. Plaintiff found climbing very difficult, explaining that [y]ou use your core. Plaintiff would shimmy down when she got sore. She added, [i]ts tough work getting up there, so I need[ed] to get down. She would jump down from two to three feet off the ground. Plaintiff made three or four climbs before she was injured.

 [*P11]
Large green mats covered almost the entire floor of the gym. There were also smaller black mats that could be placed in different locations by climbers. Kosinski was not near plaintiff when she was injured. Before being injured, plaintiff had moved to a new climbing area. She placed a black mat where she planned on climbing. A green mat also abutted the wall in that area. The black mat was three to six inches away from the wall.

 [*P12]
Plaintiff was injured [**5]
during her third attempt at climbing that day, and she did not feel comfortable climbing. She explained that she was not wearing a harness, but was trying to do her best. There was a part of the floor that was not covered by a green mat in this area, which is where plaintiff landed when she was injured. Plaintiff stated she jumped off the wall and when she landed, her right foot was on a green mat, but her left foot landed on the uncovered floor. She felt pain in her left ankle and could not put weight on it. Kosinski and an employee came over to assist plaintiff. Kosinski got plaintiff some ibuprofen. Plaintiff felt a little dizzy. An employee called the paramedics. The paramedics stated that plaintiffs ankle was broken. They assisted plaintiff to Kosinskis car, and he drove her to St. Alexius hospital. At the hospital, they x-rayed plaintiffs ankle and confirmed that it was broken. She was given some sort of narcotic pain killer, and her ankle was placed in a cast. Plaintiff was discharged and told to follow up with an orthopedic surgeon.

 [*P13]
She followed up with Dr. Sean Odell. Odell performed a surgery six days after the accident. He installed eight pins and a plate. Plaintiff [**6]
had broken both leg bones where they intersect at the ankle. She took Norco for months following the surgery. She engaged in physical therapy for years, including what she did at home. The hardware was removed in December 2013. Her ankle continues to be stiff, she has trouble with many activities, and she takes ibuprofen for pain several times per week.

 [*P14]
On cross-examination, plaintiff stated that she read the wavier form before she signed it (though, she added, she did not study it). Other climbers were climbing without ropes, and the only people she saw using ropes were children. She was not offered a rope or harness. Plaintiff still takes prescription pain killers on occasion. However, she does not like to take it due to its side effects.

 [*P15]
A discovery deposition of Daniel Kosinski was also conducted. He testified that he knew plaintiff from work. She was a travel agent that did all the travel arrangements for [his] company. He and plaintiff were friends, though they do not associate outside of work.

 [*P16]
Kosinski stated that rock climbing is one of his hobbies. He started climbing in 2008. He initially climbed at Bloomingdale Lifetime Fitness. They eventually offered him a job, and [**7]
he worked there for four or five years. His title was [r]ock wall instructor. He described bouldering as climbing without a rope. He stated that it is a little more intense. Generally, one climbs at lower levels, and there are mats, as opposed to ropes, for protection. He added that [t]heres not really much instruction [to do] in terms of bouldering. He explained, bouldering, theres just—okay, this is how high you can go and thats pretty much it. There was no bouldering line at Lifetime Fitness. However, they did have a rule that you should not climb above the height of your shoulders. A spotter is not typically required when bouldering.

 [*P17]
He and plaintiff went to North Wall on February 14, 2013. He was a member and had been there multiple times previously. When he first went to North Wall, he signed a waiver and viewed a video recording that concerned safety. Due to height considerations, Kosinski characterized North Wall as pretty much a dedicated bouldering gym. North Wall offers top rope climbing, which Kosinski said was often used for childrens parties.

 [*P18]
Kosinski believed he was aware that plaintiff did not have any climbing experience prior to their trip to North [**8]
Wall. He could not recall whether there were any safety posters displayed. He and plaintiff had a conversation about the risks involved in rock climbing. He also explained to her what bouldering entailed and that a rope was not used. He noted that plaintiff was shaky or nervous on her first climb. Kosinski told plaintiff that if she was not comfortable, she should come down. He did not recall a bouldering line at North Wall and believed it was permissible to climb all the way to the top when bouldering. He did not recall whether plaintiff had been provided with climbing shoes. Plaintiff was in better than average physical condition.

 [*P19]
When plaintiff was injured, she was climbing on a wall called Devils Tower. It was toward the back, right of the facility. During the climb on which plaintiff was injured, Kosinski observed that plaintiff was stuck at one point and could not figure out what to do next. He walked over to assist her. She was four or five feet off the ground. Plaintiffs left foot and hand came off the wall, and her body swung away from the wall (counterclockwise). She then fell and landed on the edge of a mat. Kosinski stated she landed half on the mat and was rotating [**9]
when she landed. After plaintiff landed, Kosinski went over to check on her. Plaintiff said she believed she had broken her ankle. He did not know whether plaintiff had applied chalk to her hands before, nor did he recall what she was wearing. It did not appear that plaintiff had control of herself before she fell off the wall and injured herself. It also did not appear to him that plaintiff was attempting to get down from the wall or that she deliberately jumped.

 [*P20]
Kosinski told an employee of respondents to call the paramedics. Kosinski recalled an employee offering plaintiff ice. Plaintiff declined a ride to the hospital in an ambulance, and Kosinski drove her there instead.

 [*P21]
Kosinski testified that he and plaintiff had never been romantically involved. He recalled that plaintiff used crutches following the injury and took some time off from work. According to Kosinski, she used crutches for quite a while.

 [*P22]
On cross-examination, Kosinski explained that a spotter, unlike a belayer, only has limited control over a climber. A spotter just direct[s] them to fall onto a mat and not hit their head. It would have been possible for plaintiff to use a rope while climbing (assuming one was [**10]
available). Kosinski stated that use of a rope might have prevented plaintiffs injury; however, it might also have caused another injury, such as plaintiff hitting her head on something. Kosinski agreed that he climbed twice a week or about 100 times per year. He did not recall an employee ever advising him about not climbing too high when bouldering. An automatic belayer might have lessened the force with which plaintiff landed and mitigated her injury. It was about 25 to 30 feet from the front desk to the place where plaintiff fell. The safety video new customers had to watch was about two minutes long. He did not observe plaintiff watching the video.

 [*P23]
Prior to climbing, Kosinski told plaintiff that climbing was a dangerous sport and that they would be climbing without ropes. He did not recall any employee of respondent testing plaintiff with regard to her climbing abilities. After refreshing his recollection with various documents, Kosinski testified that they had been climbing for about half an hour when plaintiff was injured. He agreed that plaintiff was an inexperienced climber.

 [*P24]
On redirect-examination, he confirmed that he was not present when plaintiff first checked in at North [**11]
Wall. He had no knowledge of what transpired between plaintiff and respondents employees at that point.

 [*P25]
Jason R. Cipri also testified via discovery deposition. He testified that he had been employed by respondent as a manager for two years, from 2012 to 2014. His immediate supervisor was Randy Spencer (respondents owner). When he was hired in 2012, Cipri was trained on office procedures, logistics, how to deal with the cash register, where to put the mail, and the use of a computer system. He was also trained on dealing with customers. Cipri started climbing in 2000 and had worked for respondent for about a year around the time of plaintiffs injury.

 [*P26]
Novice climbers were supposed to sign a waiver and view a video. Spencer trained Cipri to go over any and all safety procedures with new climbers. Cipri was trained to interact with the customers to decide and figure out their climbing ability. Three types of climbing occurred at North Wall: bouldering, top-rope climbing, and lead climbing (also known as sport climbing). Plaintiff was bouldering when she was injured. Bouldering does not involve the use of ropes. Cipri estimated about 90 percent (or at least the vast majority) of [**12]
the climbing at North Wall is bouldering. Cipri received very specific training regarding how to execute waiver forms. Customers were instructed to read the waiver form.

 [*P27]
There was a bouldering line on the climbing wall. People engaged in bouldering were not supposed to bring their feet above that line. The bouldering line is described in the waiver. However, Cipri explained, having a bouldering line is not common. He added, We all kind of thought it was cute, but it didnt really serve a purpose.

 [*P28]
Cipri was working as a manager on the day plaintiff was injured. He recalled that an employee named Miranda, whom he called a coach, came and told him that someone had been injured. He called the paramedics, as that was what plaintiff wanted. He brought plaintiff some ice. He described Kosinski (whom he initially called Eric) as a pretty novice climber. Cipri did not know whether plaintiff was above the bouldering line when she fell. Plaintiff did not appear intoxicated or smell of alcohol. She did not appear to have any injuries besides the one to her ankle. Plaintiff would not have been allowed to use a rope because you have to be certified and taken through a lesson to use the [**13]
ropes.

 [*P29]
To the left side of the customer-service counter, there were posters addressing safety and such. Cipri filled out an accident report concerning plaintiffs injury. Cipri denied that he was terminated by respondent and that the owner ever accused him of using drugs on the job. There was no manual on how to run North Wall, but there was an unofficial manual kept on the front desk. This was comprised of a couple of binders that concerned how to teach climbing, use of the telephone, memberships, employee conduct, and various rules. He did not recall anything specific relating to dealing with novice climbers. There was a copy of the Climbing Wall Association manual in a file-cabinet drawer; however, he never used it for anything. Cipri did not recall Spencer instructing him to use this manual. Spencer did train employees on climbing, particularly new hires. Cipri described Spencer as an absentee manager. He would come in early in the day, and Cipri typically would not see him.

 [*P30]
Aside from ascertaining a customers age and climbing experience, they did nothing else to assess his or her proficiency. They would show new climbers a video and explain the rules of the gym to them. [**14]
Cipri could not say whether a copy of a manual shown to him was the manual they were actually using when he worked for respondent. However, he stated various forms shown to him, including one concerning bouldering orientation, were not used when he was there. Spencer never told Cipri to get rid of any document; rather, he was adamant about keeping such material. Weekly inspections of the premises were conducted, but no records documenting them were maintained.

 [*P31]
On cross-examination, Cipri stated that his sister had been hired to rewrite the operations manual. One document stated, If the facility allows bouldering, the staff provides an orientation before novice climbers are allowed to boulder without assistance or direct supervision. Cipri testified that this was not generated by respondent, but they followed it. Employees working the counter were trained to have new customers watch a video, instruct them on safety procedures, and assess their abilities. To the left of the front door, posters from the Climbing Wall Association were displayed. There was also one near the back door. Cipri did not remember what they were about beyond that they concerned stable rules of the Climbing [**15]
Wall Association.

 [*P32]
Cipri did not witness plaintiffs accident, and he did not recall being present when she was checked in. He never had rejected a customer previously, but he had the authority to do so. He never encountered a situation where he felt it was necessary.

 [*P33]
On redirect-examination, Cipri agreed that beyond verbal questioning, they did not test new customers. They did not inspect or observe climbers while they were actually climbing to determine competency. They did orientate climbers and show them the video. Further, new climbers read the waiver forms. Climbers were instructed on general and bouldering safety rules. Cipri was aware of an earlier incident where a young boy cut his head while climbing. Cipri stated that it was arguable that climbing with a rope was more dangerous than bouldering because a person could get tangled in the rope. Cipri did not give plaintiff an orientation, and he had no recollection of anyone giving her one.

 [*P34]
Randall Spencer, respondents owner, also testified via discovery deposition. Spencer testified that North Wall is pretty much run by employees and he does not have much of a role anymore. The business is run by a manager, Eric Paul. [**16]
Spencer did not have an independent recollection of plaintiffs accident. Cipri was the manager at the time. There was another manager as well named Chuck Kapayo, who Spencer described as co-managing with Cipri. Anything Spencer knew about plaintiffs accident he learned from Cipri or another employee named Terri Krallitsch. Usually, two people worked at any given time, although, sometimes, only one would be present.

 [*P35]
Spencer identified the waiver form signed by plaintiff. However, he acknowledged that it was not the original. The purpose of the waiver was to inform a customer about the danger involved in rock climbing. Further, employees were trained to talk about the rules and safety items when [customers] first come into the gym. In addition, there were posters, four of which were visible at the entrance. The posters were produced by the Climbing Wall Association as part of their Climb Smart Program. Spencer added that they say [c]limbing is [d]angerous. One says Bouldering is Dangerous Climb Smart. These were the only ways customers were informed of the dangers of rock climbing. Customers are not tested as to their climbing proficiency, and they are not trained unless they [**17]
sign up for a class. Customers were told not to climb above the bouldering line when bouldering.

 [*P36]
Employees were instructed to follow the policies of the Climbing Wall Association. If an employee did not spend time with a new customer explaining the policies and procedures of bouldering, that would be a violation of company policy. This is true even if the new customer is accompanied by a more experienced climber.

 [*P37]
Spencer explained that bouldering is climbing without a rope. The bouldering line is a little bit over three feet from the floor. Climbers were to keep their feet below the bouldering line. The accident report prepared by Cipri states plaintiffs feet were six feet off the floor when she fell. The only equipment provided by respondent to plaintiff was climbing shoes. Respondent could have provided a harness, and plaintiff could have been belayed. They did not provide chalk to plaintiff.

 [*P38]
Spencer testified that the waiver form states that it is not intended to provide a description of all risks and hazards. He explained that this means it is possible to get hurt in a manner not described in the waiver. There was no formal training program for employees. Managers trained [**18]
new employees, and managers themselves came to respondent already having climbing experience. In 2013, respondent had no auto-belay system in place. Spencer testified that he fired Cipri because of suspected drug use.

 [*P39]
The released signed by plaintiff states, in pertinent part, as follows. Initially, it states that plaintiff is giving up any right of actions arising out of use of the facilities of North Wall, Inc. Plaintiff then acknowledged that the sport of rock climbing and the use of the facilities of North Wall, Inc., has inherent risks. It then states that plaintiff has full knowledge of the nature and extent of all the risks associated with rock climbing and the use of the climbing gym, including but not limited to the following:

1. All manner of injury resulting from falling off the climbing gym and hitting rock faces and/or projections, whether permanently or temporarily in place, or on the floor or loose. 2. Rope abrasions, entanglement and other injuries ***. 3. Injuries resulting from falling climbers or dropped items ***. 4. Cuts and abrasions resulting from skin contact with the climbing gym and/or the gyms devices and/or hardware. 5. Failure of ropes, slings, [**19]
harnesses, climbing hardware, anchor points, or any part of the climbing gym structure.

Plaintiff then waived any cause of action arising out of or in any way related to [her] use of the climbing gym whether that use is supervised or unsupervised, however the injury or damage is caused.

 [*P40]
The trial court granted summary judgment in favor of defendant. It noted that case law indicates that a competent adult recognizes the danger of falling from a height. It next observed that the waiver plaintiff signed stated that she was releasing defendant from all manner of injury resulting from falling off the climbing gym. The trial court then rejected plaintiffs argument that this language was too general to be enforced. It further found that plaintiff had set forth no facts from which willful and wanton conduct could be inferred. This appeal followed.

 [*P41]
III. ANALYSIS

 [*P42]
We are confronted with two main issues. First is the effect of the waiver form signed by plaintiff. Second, we must consider whether plaintiffs count alleging willful and wanton conduct survives regardless of the waiver (an exculpatory agreement exempting liability for willful and wanton conduct would violate public policy (Falkner v. Hinckley Parachute Center, Inc., 178 Ill. App. 3d 597, 604, 533 N.E.2d 941, 127 Ill. Dec. 859 (1989))). [**20]
Plaintiffs brief also contains a section addressing proximate cause; however, as we conclude that the waiver bars plaintiffs cause of action, we need not address this argument.

 [*P43]
A. THE WAIVER

 [*P44]
The trial court granted summary judgment on all but the willful and wanton count of plaintiffs complaint based on plaintiffs execution of a waiver. As this case comes to us following a grant of summary judgment, our review is de novo. Bier v. Leanna Lakeside Property Assn, 305 Ill. App. 3d 45, 50, 711 N.E.2d 773, 238 Ill. Dec. 386 (1999). Under the de novo standard of review, we owe no deference to the trial courts decision and may freely substitute our judgment for that of the trial court. Miller v. Hecox, 2012 IL App (2d) 110546, ¶ 29, 969 N.E.2d 914, 360 Ill. Dec. 869. Summary judgment is a drastic method of resolving litigation, so it should be granted only if the movants entitlement to judgment is clear and free from doubt. Bier, 305 Ill. App. 3d at 50. It is appropriate only where the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the nonmovant, show that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law.
Id. Finally, it is axiomatic that we review the result to which the trial court arrived at, rather than its reasoning. In re Marriage of Ackerley, 333 Ill. App. 3d 382, 392, 775 N.E.2d 1045, 266 Ill. Dec. 973 (2002).

 [*P45]
Though we are not bound by the trial courts reasoning, [**21]
we nevertheless find ourselves in agreement with it. Like the trial court, we find great significance in the proposition that the danger of falling from a height is open and obvious to an adult. Ford ex rel. Ford v. Narin, 307 Ill. App. 3d 296, 302, 717 N.E.2d 525, 240 Ill. Dec. 432 (1999); see also Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 448, 665 N.E.2d 826, 216 Ill. Dec. 568 (1996); Mount Zion Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 118, 660 N.E.2d 863, 214 Ill. Dec. 156 (1995) (In Illinois, obvious dangers include fire, drowning in water, or falling from a height.). Thus, for the purpose of resolving this appeal and in the absence of evidence to the contrary, we will presume that plaintiff was aware that falling off the climbing wall presented certain obvious dangers.

 [*P46]
We also note that, in Illinois, parties may contract to limit the liability for negligence. Oelze v. Score Sports Venture, LLC, 401 Ill. App. 3d 110, 117, 927 N.E.2d 137, 339 Ill. Dec. 596 (2010). Absent fraud or willful and wanton negligence, exculpatory agreements of this sort are generally valid. Id. An agreement may be also vitiated by unequal bargaining power, public policy considerations, or some special relationship between the parties (Id.); however, such issues are not present here. This court has previously explained that [a]n exculpatory agreement constitutes an express assumption of risk insofar as the plaintiff has expressly consented to relieve the defendant of an obligation of conduct toward him [or her].
Falkner, 178 Ill. App. 3d at 602.

 [*P47]
Agreements of this nature must be expressed in clear, explicit [**22]
and unequivocal language showing that such was the intent of the parties.
Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill. App. 3d 1037, 1043, 501 N.E.2d 268, 103 Ill. Dec. 247 (1986). That is, it must
appear that its terms were intended by both parties to apply to the conduct of the defendant which caused the harm.
Id., (quoting Restatement (Second) of Torts, Explanatory Notes
496B, comment d, at 567 (1965)). Nevertheless, “The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract was entered into.
Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 585, 559 N.E.2d 187, 147 Ill. Dec. 187 (1990). Thus, an exculpatory agreement will excuse a defendant from liability only where an
injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.
Id. The foreseeability of the danger defines the scope of the release. Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442, ¶ 14, 377 Ill. Dec. 930, 2 N.E.3d 1211.

 [*P48]
Numerous cases illustrate the degree of specificity required in an exculpatory agreement necessary to limit a defendants liability for negligence. In Garrison, 201 Ill. App. 3d at 583, the plaintiff was injured when a weighted bar rolled off a grooved rest on a bench press and landed on his neck. The plaintiff alleged that the bench press was improperly designed and that the defendant-gym was negligent in providing it when it was not safe for its intended use. Id. [**23]
The plaintiff had signed an exculpatory agreement, which stated, inter alia:

It is further agreed that all exercises including the use of weights, number of repetitions, and use of any and all machinery, equipment, and apparatus designed for exercising shall be at the Members sole risk. Notwithstanding any consultation on exercise programs which may be provided by Center employees it is hereby understood that the selection of exercise programs, methods and types of equipment shall be Members entire responsibility, and COMBINED FITNESS CENTER [sic] shall not be liable to Member for any claims, demands, injuries, damages, or actions arising due to injury to Members person or property arising out of or in connection with the use by Member of the services and facilities of the Center or the premises where the same is located and Member hereby holds the Center, its employees and agents, harmless from all claims which may be brought against them by Member or on Members behalf for any such injuries or claims aforesaid.
Id. at 584.

The plaintiff argued that the agreement did not contemplate a release of liability for the provision of defective equipment. The trial court granted the defendants motion [**24]
for summary judgment based on the exculpatory agreement.

 [*P49]
The reviewing court affirmed. Id. at 586. It explained as follows:

Furthermore, the exculpatory clause could not have been more clear or explicit. It stated that each member bore the sole risk; of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the entire responsibility of the member.
Id. at 585.

It further noted that the defendant was aware of the attendant dangers in the activity and, despite the fact that plaintiff now alleges that the bench press he used was unreasonably unsafe because it lacked a certain safety feature, the injury he sustained clearly falls within the scope of possible dangers ordinarily accompanying the activity of weight-lifting.
Id.

 [*P50]
Similarly, in Falkner, 178 Ill. App. 3d at 603, the court found the following exculpatory clause exempted the defendant from liability following a parachute accident: The Student exempts and releases the [defendant] *** from any and all liability claims *** whatsoever arising out of any damage, loss or injury to the Student or the Students property while upon the premises or aircraft of the [defendant] or while [**25]
participating in any of the activities contemplated by this agreement. The plaintiffs decedent died during a parachute jump. The court placed some significance on the fact that the decedent had been a pilot in the Army Air Corp. Id.

 [*P51]
Another case that provides us with some guidance is Oelze, 401 Ill. App. 3d 110, 927 N.E.2d 137, 339 Ill. Dec. 596. There, the plaintiff had signed an exculpatory agreement stating, I hereby release SCORE Tennis & Fitness and its owners and employees from any and all liability for any damage or injury, which I may receive while utilizing the equipment and facilities and assume all risk for claims arising from the use of said equipment and facilities.
Id. at 118. The plaintiff, who was playing tennis, was injured when she tripped on a piece of equipment that was stored behind a curtain near the tennis court she was using while she was trying to return a lob. Id. at 113. The plaintiff argued that this risk was
unrelated to the game of tennis and thus outside the scope of the release. Id. at 120. However, the court found that the broad language of the release encompassed the risk, relying on the plaintiffs agreement to assume the risk for her use of the clubs equipment and facilities.‘”
Id.

 [*P52]
Finally, we will examine Calarco, 149 Ill. App. 3d 1037, 501 N.E.2d 268, 103 Ill. Dec. 247. In that case, the plaintiff [**26]
was injured when weights from a Universal gym machine fell on her hand. Id. at 1038. The trial court granted summary judgment based on an exculpatory clause. Id. at 1038-39. The clause read:

“‘In consideration of my participation in the activities of the Young Mens Christian Association of Metropolitan Chicago, I do hereby agree to hold free from any and all liability the [defendant] and do hereby for myself, *** 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 [defendant].

I hereby do declare myself to be physically sound, having medical approval to participate in the activities of the [defendant].‘”
Id. at 1039.

The reviewing court reversed, finding that the language of the release was not sufficiently explicit to relieve the defendant from liability. Id. at 1043. It explained, The form does 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 [**27] .” (Emphasis added.) Id.

 [*P53]
In the present case, plaintiff waived any cause of action arising out of or in any way related to [her] use of the climbing gym whether that use is supervised or unsupervised, however the injury or damage is caused. (Emphasis added.) This is remarkably similar to the language, set forth above, that the Calarco court stated would have been sufficient to shield the defendant in that case. Id. Likewise, in Garrison, 201 Ill. App. 3d at 585, the language that was found sufficient to protect the defendant stated that each member bore the sole risk; of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the entire responsibility of the member. Again, identifying the activity involved along with an expressed intent to absolve the defendant from any liability prevailed. Here, the activity was clearly defined and plaintiffs intent to waive any cause related to that activity was clear. Furthermore, plaintiffs injury was of the sort that a participant in that activity could reasonably expect. As Oelze, 401 Ill. App. 3d at 120, indicates, language encompassing assumption of the risk for her use of the clubs equipment and [**28]
facilities‘” is broad and sufficient to cover accidents of the sort that are related to the primary activity. See also Falkner, 178 Ill. App. 3d at 603. Here, falling or jumping off the climbing wall are things a climber can clearly expect to encounter.

 [*P54]
Plaintiff cites Locke v. Life Time Fitness, Inc., 20 F. Supp. 3d 669 (N.D. Ill. 2014), a case from the local federal district court. Such cases merely constitute persuasive authority (Morris v. Union Pac. R.R. Co., 2015 IL App (5th) 140622, ¶ 25, 396 Ill. Dec. 330, 39 N.E.3d 1156); nevertheless, we will comment on it briefly. In that case, the plaintiff suffered a heart attack and died during a basketball game at a gym operated by the defendant. Id. at 671. There was an automatic defibrillator on site, but no employee retrieved it or attempted to use it. Id. The plaintiff had signed a waiver, which included the risk of a heart attack. Id. at 672. However, the waiver did not mention the defendants failure to train its employees in the use of the defibrillator. Id. The Locke court held that by advancing this claim as a failure to train by the defendant, the plaintiff could avoid the effect of the waiver. Id. at 674-75.

 [*P55]
We find Locke unpersuasive. Following the reasoning of Locke, virtually any claim can be recast as a failure to train, supervise, or, in some circumstances, inspect. Allowing such a proposition to defeat an otherwise valid exculpatory agreement [**29]
would effectively write such agreements out of most contracts. See Putnam v. Village of Bensenville, 337 Ill. App. 3d 197, 209, 786 N.E.2d 203, 271 Ill. Dec. 945 (2003) (Limiting the disclaimer in the manner suggested by the plaintiffs would effectively write it out of the contract. Virtually every error in construction by a subcontractor could be recast and advanced against [the defendant] as a failure to supervise or inspect the project.). Here, plaintiff promised to release defendant from any liability resulting from her use of the climbing wall. Moreover, we fail to see how providing additional training to employees would have impacted on plaintiffs perception of an obvious risk. Allowing her to avoid this promise in this manner would be an elevation of form over substance.

 [*P56]
At oral argument, plaintiff relied heavily on the allegation that the spot where she landed was uneven due to the placement of mats in the area. As noted, one of plaintiffs feet landed on a mat and the other landed directly on the floor. According to plaintiff, the risk of landing on an uneven surface was not within the scope of the waiver she executed. This argument is foreclosed by two cases which we cite above. First, in Oelze, 401 Ill. App. 3d at 113, the plaintiff was injured while, during a game of tennis, she tripped on a piece [**30]
of equipment stored behind a curtain near the tennis court. This arguably dangerous condition was found to be within the scope of her waiver. Id. at 121-22. Furthermore, in Garrison, 201 Ill. App. 3d at 584, the plaintiff argued that an alleged defect in gym equipment rendered ineffective an exculpatory agreement which stated that the plaintiff bore the sole risk of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the entire responsibility of the member.
Id. at 585. In this case, assuming arguendo, there was some unevenness in the floor due to the placement of the floor mats, in keeping with Oelze and Garrison, such a defect would not vitiate plaintiff
s waiver.

 [*P57]
In sum, the release here is clear, pertains to use of defendants climbing gym, and is broad enough to encompass falling or jumping from the climbing wall.

 [*P58]
B. WILLFUL AND WANTON CONDUCT

 [*P59]
In an attempt to avoid the effect of the exculpatory agreement, plaintiff also contends that defendant engaged in willful and wanton conduct. Conduct is willful and wanton where it involves a deliberate intention to harm or a conscious disregard for the safety of others. In re Estate of Stewart, 2016 IL App (2d),151117 ¶ 72, 406 Ill. Dec. 345, 60 N.E.3d 896. It is an aggravated [**31]
form of negligence.
Id. Plaintiff contends that defendant should have followed its own policies and evaluated her abilities. However, plaintiff does not explain what such an evaluation would have shown or what sort of action it would have prompted one of defendant
s employees to take that would have protected plaintiff from the injury she suffered. Plaintiff also points to defendants failure to advise her not to climb above the bouldering line. As the trial court observed, the risk of falling from a height is open and obvious to an adult. Ford ex rel. Ford, 307 Ill. App. 3d at 302. Plaintiff cites nothing to substantiate the proposition that failing to warn plaintiff of a risk of which she was presumptively already aware rises to the level of willful and wanton conduct. Indeed, how a defendant could consciously disregard the risk of not advising plaintiff of the dangers of heights when she was presumptively aware of this risk is unclear (plaintiff provides no facts from which an intent to harm could be inferred).

 [*P60]
In short, the conduct identified by plaintiff simply does not show a willful and wanton disregard for her safety.

 [*P61]
IV. CONCLUSION

 [*P62]
In light of the foregoing, the judgment of the circuit court of McHenry County [**32]
is affirmed.

 [*P63]
Affirmed.


Grosch v. Anderson, 2018 IL App (2d) 170707-U; 2018 Ill. App. Unpub. LEXIS 1529

Grosch v. Anderson, 2018 IL App (2d) 170707-U; 2018 Ill. App. Unpub. LEXIS 1529

Grosch v. Anderson

Appellate Court of Illinois, Second District

September 12, 2018, Order Filed

No. 2-17-0707

Reporter

2018 IL App (2d) 170707-U *; 2018 Ill. App. Unpub. LEXIS 1529 **

TRACEY GROSCH, Individually and as Mother and Next Friend of Riley Grosch, a Minor, Plaintiff and Counterdefendant-Appellant, v. BRIAN ANDERSON, JO ANDERSON, CARY-GROVE EVANGELICAL FREE CHURCH, d/b/a Living Grace Community Church of Cary, Defendants and Counterplaintiffs-Appellees.

Notice: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).

Prior History:  [**1] Appeal from the Circuit Court of Kane County. No. 14-L-619. Honorable James R. Murphy, Judge, Presiding.

Disposition: Affirmed.

Judges: JUSTICE BIRKETT delivered the judgment of the court. Justices McLaren and Burke concurred in the judgment.

Opinion by: BIRKETT

Opinion

JUSTICE BIRKETT delivered the judgment of the court.

Justices McLaren and Burke concurred in the judgment.

ORDER

 [*P1] 
Held: The trial court properly granted summary judgment in favor of defendants because the fire pole was an open and obvious condition and no exception existed, and there were no genuine issues of material fact sufficient to preclude summary judgment.

 [*P2]  Plaintiff, Tracey Grosch, individually and as mother and next friend of Riley Grosch, a minor, appeals the judgment of the circuit court of Kane County, granting summary judgment in favor of defendants, Brian Anderson, Jo Anderson, and the Cary-Grove Evangelical Free Church d/b/a Living Grace Community Church on plaintiff’s claims of negligence related to Riley’s fall as he was attempting to slide down a fire pole in the Andersons’s back yard during an event sponsored by the Church’s youth ministry. On appeal, plaintiff argues that the trial court erred in relying on the open-and-obvious doctrine and in concluding [**2]  that there were no genuine issues of material fact sufficient to preclude summary judgment. We affirm.

 [*P3]  I. BACKGROUND

 [*P4]  We summarize the pertinent facts. On November 14, 2016, the Andersons were members of the Church; plaintiff’s family attended the Church, but were not members. According to Pastor Cory Shreve, quite a few more people attended the Church than were members. Shreve was the youth pastor and was responsible for running and administering the Church’s youth ministry. He was in charge of the Radiate program which provided for fellowship and religious mentoring of youths beginning in seventh grade and ending upon high school graduation. Radiate was open to members and attendees, and it incorporated youths from other churches and even the “unchurched” as well. Radiate had contacted the Andersons seeking to hold a bonfire at their home; the group had held a bonfire there previously.

 [*P5]  In the Andersons’ back yard, Brian had constructed a platform in a tree from which he had removed the upper branches and foliage. The platform was about 25 feet above the ground. The platform was reached by a ladder tied to the tree. The platform had a rail around it, but no other fall protection. The [**3]  platform had a triangular hole in it, and through the hole, was a metal “fire pole.” The pole was made out of sprinkler pipe, was affixed in concrete at the base, and was 3 1/2 inches in diameter. The surface of the pole had oxidized. The ground around the pole was grass covered, and no force-absorbing material, such as sand or wood chips, had been placed around the bottom of the pole.

 [*P6]  Brian explained that he built the platform and fire pole for his children. Both Brian and Jo testified in deposition that between 150 to 200 people had used the pole, all without injury. Brian testified that he was a construction contractor and was familiar with fall protection for working above the ground and had employed it in his work; no fall protection was installed or available on the platform. Brian testified that he did not research or follow any building codes for the platform and fire pole.

 [*P7]  On the day of the Radiate event, Shreve arrived 15-30 minutes before the announced start of the event. Some of the parents stayed to socialize, others dropped their children off. Plaintiff dropped off Riley and then went shopping nearby, intending to finish shopping and then return for the balance of the [**4]  event. Jo was inside the house for the event, and she monitored the food and drinks, making sure that there was plenty for all of the guests. She also socialized with the other parents. Brian was also inside socializing. Shreve was monitoring the bonfire. At one point, he intercepted one of the youths who tried to jump over the bonfire and explained to the youth why that was not a wise decision. At the time of Riley’s accident, Shreve had gone inside.

 [*P8]  Riley, the Andersons, and Shreve all testified that it was a cool or cold evening, estimating the temperature was anywhere from the 20s to the 40s. According to Shreve and Brian, the point of the event was the bonfire and indoor fellowship; the youths attending were not expected to play in the back yard, but were expected to roast marshmallows in the bonfire and to play in the basement, where pool, basketball, and board games were available. After about an hour outside, Shreve went inside, planning to steer the event towards worship. One of the youths came inside and alerted Shreve and the adults that Riley was hurt.

 [*P9]  Riley testified that he climbed up the ladder. The ladder had metal rungs, so his hands became cold. At the top, on the [**5]  platform while waiting for his turn, he put on gloves. Riley testified that the gloves were like ski gloves, and believed they were slick, possibly made of nylon. Riley testified that he awaited his turn along with several other youths. On that day, Riley was 13 years of age. He grabbed the pole with his hands, but he did not wrap his arms or legs around the pole. As Riley began his descent, he lost control, grabbed for the edge of the platform but could not hang on, and he plummeted the rest of the way to the ground. Riley suffered a comminuted fracture of his left femur and broke several long bones in his right foot. Riley’s femur was repaired surgically, and he had a rod emplaced in the bone. There is a possibility that the rod may have to be removed at a future date. Riley also developed a foot drop following his fall from the platform.

 [*P10]  The adults came out to investigate after they were notified. One of the youths, an Eagle Scout, obtained a rigid table top, and after they had ascertained that Riley had no apparent head or spinal injuries, placed him on the table top and moved him inside. Their purpose was to get him off of the cold ground; Riley apparently was complaining of resting [**6]  on the cold ground. Plaintiff was informed and told to return to the Andersons’ house. According to Brian, she arrived in minutes; plaintiff and other deponents testified that it was closer to 20 minutes. Eventually, an ambulance was called. It appears that plaintiff made the call for an ambulance as the other adults wanted to defer to her wishes. The ambulance took Riley to the hospital where he was treated for his injuries.

 [*P11]  Shreve and the Andersons testified that, when the plans were made to use the Anderson property for the Radiate bonfire, they did not conduct an inspection of the property to determine if there were any unsafe conditions. Rather, Brian testified that he had a safe house, including the fire pole, because nobody had been injured using it up to that time.

 [*P12]  Plaintiff’s expert, Alan Caskey, a park and recreation planner and consultant, testified that the fire pole was too wide, too high, and the landing area was too hard. Caskey opined that the width of the pole, being almost twice the diameter that industry standards allowed in playground equipment, contributed to Riley’s injury, because the excessive width of the pole decreased the strength of the user’s grip of the [**7]  pole. Caskey did not, however, offer any opinion about the effect of Riley’s gloves on his ability to grip the pole, but noted that any effect would depend on the type of glove, which he could not recall. Caskey also specifically noted that the fall height was much greater than industry standards allowed (five feet is the norm), and the landing area did not contain any force-mitigating substances, and these circumstances caused or contributed to the likelihood and severity of injury. Caskey also opined that the darkness could have contributed to Riley losing his grip on the pole because it obscured the size of the pole and its texture. However, Caskey admitted that these were assumptions on his part, and he conceded that there was no testimony specifically addressing these issues.

 [*P13]  As to the procedural posture of this case, on December 15, 2014, plaintiff timely filed her initial complaint; on February 19, 2015, plaintiff filed the first amended complaint at issue in this case. On April 28, 2016, the Andersons filed their motion for summary judgment followed on June 29, 2016, with the Church’s motion for summary judgment. The motions were stayed while plaintiff procured her expert testimony. [**8]  In November 2016, defendants filed their counterclaims against plaintiff.

 [*P14]  On March 16, 2017, plaintiff filed a motion for leave to file a second amended complaint, which the trial court granted. On March 31, 2017, the Church, joined by the Andersons, filed a motion to vacate the trial court’s grant of leave to file the second amended complaint. On April 6, 2017, the trial court vacated its order granting leave to file the second amended complaint and reinstated the briefing schedule on defendants’ motions for summary judgment.

 [*P15]  On May 15, 2017, the trial court apparently heard the parties’ arguments regarding defendants’ motions for summary judgment. On that date, the trial court continued the cause until June 2, 2017, for ruling. On June 2, 2017, the trial court entered summary judgment in favor of defendants and against plaintiff. The court specifically held that:

“defendants owed no duty to plaintiff based on the open and obvious nature of the subject condition [(the platform and fire pole)] on the property; there being no proximate cause between the condition on the property and the injury to [Riley]; and there being no question of material fact raised by plaintiff.”

The trial court [**9]  entered judgment for defendants and dismissed plaintiff’s case. No transcripts of either the argument or the pronouncement of judgment were included in the record.

 [*P16]  On June 30, 2017, plaintiff filed her motion to reconsider. On August 11, 2017, the trial court denied plaintiff’s motion to reconsider, and plaintiff timely appeals.

 [*P17]  II. ANALYSIS

 [*P18]  On appeal, plaintiff argues that the trial court erred in holding that the platform and fire pole presented open and obvious conditions precluding the imposition of a duty. Plaintiff specifically contends that the design flaws in the construction of the platform and the fire pole and the lack of lighting rendered the dangers hidden rather than open and obvious; alternatively, plaintiff argues that the distraction doctrine should apply. Plaintiff also contends that there is a genuine issue of material fact regarding “the true cause” of Riley’s fall. We consider the arguments in turn.

 [*P19]  A. General Principles

 [*P20]  This case comes before us following the trial court’s grant of summary judgment in favor of defendants. In deciding a motion for summary judgment, the court must determine whether the pleadings, depositions, admissions, and affidavits in the record [**10]  show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016). The purpose of summary judgment is not to try a factual issue but to determine if a factual issue exists. Monson v. City of Danville, 2018 IL 122486, ¶ 12. While summary judgment provides an expeditious means to resolve a lawsuit, it is also a drastic means of disposing of litigation. Id. Because of this, the court must construe the record strictly against the moving party and favorably towards the nonmoving party, and the court should grant summary judgment only if the moving party’s right to judgment is clear and free from doubt. Id. We review de novo the trial court’s judgment on a motion for summary judgment. Id.

 [*P21]  Here, plaintiff alleged that defendants were negligent regarding the platform and fire pole. In a negligence action, the plaintiff must plead and prove that the defendant owed the plaintiff a duty, that the defendant breached the duty owed, and that an injury proximately resulted from the breach. Bujnowski v. Birchland, Inc., 2015 IL App (2d) 140578, ¶ 12, 394 Ill. Dec. 906, 37 N.E.3d 385. The existence of a duty is a question of law and may properly be decided by summary judgment. Id. If the plaintiff cannot demonstrate the existence of a duty, no recovery by the plaintiff [**11]  is possible, and summary judgment in favor of the defendant must be granted. Wade v. Wal-Mart Stores, Inc., 2015 IL App (4th) 141067, ¶ 12, 396 Ill. Dec. 315, 39 N.E.3d 1141. With these general principles in mind, we turn to plaintiff’s contentions.

 [*P22]  B. Open and Obvious

 [*P23]  Plaintiff argues the trial court erred in determining that the platform and the fire pole were open and obvious conditions precluding the finding of a duty on the part of defendants. As a general matter, the owner or possessor of land owes a visiting child the duty to keep the premises reasonably safe and to warn the visitor of dangerous nonobvious conditions, but if the conditions are open and obvious, the owner or possessor has no duty. Friedman v. Park District of Highland Park, 151 Ill. App. 3d 374, 384, 502 N.E.2d 826, 104 Ill. Dec. 329 (1986). The analysis of duty with respect to children follows the customary rules of negligence. Id. This means that a dangerous condition on the premises is deemed one that is likely to cause injury to a general class of children, who, by reason of their immaturity, might be unable to appreciate the risk posed by the condition. Id. However, the open-and-obvious doctrine may preclude the imposition of a duty. Id.

 [*P24]  Recently, this court gave a thoroughgoing analysis of the open-and-obvious doctrine, how exceptions to that doctrine are accounted for, and, ultimately, how duty is imposed [**12]  in these types of cases. Bujnowski, 2015 IL App (2d) 140478, ¶¶ 13-46.1 We concluded that, in cases in which the open-and-obvious doctrine applies, the court will consider whether any exception to the doctrine applies, such as the distraction exception (id. ¶ 18 (discussing Ward v. K Mart Corp., 136 Ill. 2d 132, 149-50, 554 N.E.2d 223, 143 Ill. Dec. 288 (1990) (it is reasonably foreseeable to the defendant that the plaintiff’s attention might be distracted so that the plaintiff will not discover or will forget what is obvious)) or the deliberate-encounter exception (id. ¶ 32 (discussing LaFever v. Kemlite Co., 185 Ill. 2d 380, 391, 706 N.E.2d 441, 235 Ill. Dec. 886 (1998) (it is reasonably foreseeable to the defendant that the plaintiff, generally out of some compulsion, will recognize the risk but nevertheless proceed to encounter it because, to a reasonable person in the same position, the advantages of doing so outweigh the apparent risk)). When no exception applies, the court proceeds to the general four-factor test for imposing liability: (1) whether an injury was reasonably foreseeable; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant. Id. ¶ 19 (quoting Ward, 136 Ill. 2d at 151).

 [*P25]  We held that the case law had developed into two approaches in applying the four-factor [**13]  duty test. In one approach, the first two factors will favor the defendant (because the danger is open and obvious), and the court must consider the third and fourth factors which could, at least theoretically, counterbalance the first two factors. Id. ¶ 46. Under the second approach, which we deemed to be more consistent with section 343A of the Restatement (Second) of Torts (Restatement (Second) of Torts § 343A (1965)) on which our supreme court had relied, the last two factors could never outweigh the first two factors, so even if the burden and consequences were minimal, the defendant necessarily would not have any duty to the plaintiff. Bujnowski, 2015 IL App (2d) 140478, ¶ 46.

 [*P26]  Generally, falling from a height is among the dangers deemed to be open and obvious and appreciable even by very young children. Qureshi v. Ahmed, 394 Ill. App. 3d 883, 885, 916 N.E.2d 1153, 334 Ill. Dec. 265 (2009). The risk that confronted Riley as he clambered up to the platform and attempted to use the fire pole was simply a fall from a height, and thus, was an open and obvious risk. We next turn to whether there is an available exception to the open-and-obvious doctrine.

 [*P27]  Plaintiff first argues that the distraction exception applies here. The distraction exception had its genesis in Ward, 136 Ill. 2d 132, 554 N.E.2d 223, 143 Ill. Dec. 288. In that case, a shopper exited the store carrying large mirror he had just purchased and was injured when he walked into a [**14]  concrete post. Id. at 135. The court explained that, even though the post was an open and obvious condition, harm was nevertheless reasonably foreseeable because the store had reason to expect that its customer’s attention may have been distracted so that the customer would not have discovered what is obvious, or would have forgotten what was discovered, or would have failed to protect himself. Id. at 149-50.

 [*P28]  In support of her argument that the distraction exception should apply, plaintiff cites only Ward and Sollami v. Eaton, 201 Ill. 2d 1, 15-16, 772 N.E.2d 215, 265 Ill. Dec. 177 (2002). Ward gave several examples of circumstances in which the distraction exception could apply. As an example, stairs are generally not unreasonably dangerous, but they may be so if, under the circumstances, the plaintiff may fail to see the stairs. Ward, 136 Ill. 2d at 152. Additionally, an open and obvious condition may nevertheless be unreasonably dangerous if it exists in an environment in which the plaintiff is attending to his or her assigned workplace duties and encounters the condition. Id. at 153. For example, a builder carrying roof trusses steps into an open hole in the floor, or a dock worker unloading a truck steps off of a lowered dockplate while unloading a truck, or a customer falls when he or she misses the step off of the stoop [**15]  at the entrance to the store, are all instances in which the defendant should have foreseen the risk of harm caused by the otherwise open and obvious condition.

 [*P29] 
Sollami, by contrast, involved a child “rocket jumping” on a trampoline with several other children when she injured her knee after being “rocketed” to a greater-than-usual height and landing on the surface of the trampoline. Sollami, 201 Ill. 2d at 4. After briefly discussing the parameters of the distraction exception (id. at 15-16), the court held that there was no evidence to show that the child was distracted while jumping on the trampoline (id. at 16). In other words, the child was using the trampoline as she intended to, and she was fully aware of the danger jumping on it may have presented.

 [*P30]  Considering the evidence in the record, we conclude that there was no evidence of distraction presented in the record. Riley climbed up the ladder to the platform, some 25 feet above the ground. Once there, he waited in a line for the fire pole. He did not testify that any of the other persons in the line bothered or distracted him as he prepared to slide down the fire pole. Instead, he put on slick nylon gloves and attempted to slide down the pole by grasping the pole with [**16]  only his hands. As he began his descent, he lost control, attempted to arrest his descent by grabbing the deck of the platform, failed, and fell from a height onto the ground. There is nothing in the evidence in the record to support a conclusion that Riley was distracted. He was not going about his profession or avocation as in the examples in Ward when he encountered the condition. Rather, he was participating in using the fire pole as he intended, as in Sollami. Indeed, Riley attributed his fall to losing his grip when he attempted to slide down the pole using only his hands and not wrapping his arms and legs around the pole. Accordingly, we hold the distraction exception does not apply here.

 [*P31]  Plaintiff argues that the darkness of the evening distracted Riley from perceiving the width of the fire pole and the height of the drop from the platform. We disagree. Riley had to have been acutely aware of the height of the platform, having climbed every inch of the 25-foot height up the ladder. As to the width of the pole, Riley would have perceived it as he grasped it. Brian Anderson testified that everyone he had observed use the pole had instinctually wrapped their arms and legs around [**17]  it. Riley testified that he attempted to use only his hands to grip the pole for his descent, despite the fact that a number of other children had used the pole before him and he apparently had the opportunity to observe them while waiting his turn.

 [*P32]  We also note that there is no evidence that Riley stepped through the opening while trying to use the fire pole, which would, perhaps, have brought the circumstances within the examples in Ward in which workers encountered a condition that was otherwise open and obvious while performing work-related tasks. Instead, Riley testified that he was able to negotiate his way to the pole and grasp it to begin his descent. Thus, there is no evidence that he simply stepped into the opening which went unperceived due to the darkness of the evening. Likewise, there is no evidence that one of the persons waiting for a turn distracted him so he stepped into the opening and fell. There is no evidence of distraction evident, so we reject plaintiff’s contention that Riley was distracted by the darkness and the other children, or that the presence of darkness and other children were sufficient to demonstrate a factual issue in the absence of any evidence [**18]  that these purported distracting circumstances contributed in Riley’s fall.

 [*P33]  The deliberate-encounter exception is usually raised in cases in which an economic compulsion (such as employment) causes the plaintiff to encounter the dangerous condition because, to a reasonable person in that position, the advantages of doing so outweigh the apparent risk. Sollami, 201 Ill. 2d at 15-16. Plaintiff does not contend that the deliberate-encounter exception is applicable to the circumstances. While the deliberate-encounter exception may not be limited to circumstances of economic compulsion, there is no evidence that Riley was under any compulsion, such as peer pressure, to attempt to slide down the fire pole. Because there is no evidence, we hold the deliberate-encounter exception does not apply.

 [*P34]  In the Bujnowski analytical framework, we now turn to the four-factor duty test. Because the condition was open and obvious, namely falling from a height, Riley’s injury was not reasonably foreseeable, because falling from a height is among the risks that even very young children (and Riley was not a very young child but 13 years of age) are capable of appreciating and avoiding that risk. Qureshi, 394 Ill. App. 3d at 885. Likewise, the likelihood of injury is [**19]  small because the risk was apparent. Thus, the first two factors strongly favor defendants.

 [*P35]  The remaining factors appear to be split between plaintiff and defendant. The burden of guarding against the injury appears relatively slight. Defendants could have forbidden the children to use the platform and fire pole. The consequences of placing the burden on defendants are perhaps greater. The Andersons testified that they erected the structure for the amusement of their children. They also testified that of hundreds of users and uses, no one had ever been injured, from young children to older adults. (Plaintiff testified that one of the Andersons told her that one of their children had been injured using the fire pole; the Andersons denied making this statement and denied that any of their children had been injured using the fire pole.) The consequences of forbidding the structure’s use that evening would have been miniscule; the consequences of forbidding access altogether would have been much greater. Even if this calculus on the final two factors favors plaintiff, we cannot say that, in light of the open and obvious nature of the hazard, that they outweigh the first two factors. See [**20] 
Bujnowski, 2015 IL App (2d) 140578, ¶ 55 (no published case has held both that the open-and-obvious doctrine applied without any exception being present and the defendant still owed a duty to the plaintiff). Accordingly, we hold that defendants did not owe Riley any duty in this case.

 [*P36]  Plaintiff argues that the hazard in this case was not open and obvious. Plaintiff argues first that the fire pole, being almost twice the diameter recommended in the industry, was a hidden and dangerous condition. We disagree. The risk posed by the structure was a fall from a height, and the evidence shows that Riley made the climb up to the platform and fell when he had donned slick nylon-shelled ski gloves and did not wrap his arms and legs around the pole.

 [*P37]  Plaintiff argues that the darkness of the evening concealed the width of the pole from Riley. Riley did not testify that he fell through the opening because it was too dark to see. Rather, he testified that he fell when he tried to slide down without wrapping his arms and legs around the pole and when his slick gloves caused his grip to fail. We reject plaintiff’s contentions.

 [*P38]  Plaintiff contends that, due to the construction of the structure and the darkness of the evening, the dangers [**21]  associated with it were not obvious to Riley. We disagree. Riley climbed up to the platform, so he knew that he was very high above the ground. The risk of a fall from a height was therefore clearly apparent, as even very young children are deemed to appreciate the risk of a fall from a height. Qureshi, 394 Ill. App. 3d at 885. We therefore reject plaintiff’s contention and persist in holding that the risk was open and obvious.

 [*P39]  As plaintiff has neither convinced us that the risk was not open and obvious nor that any exception to the open-and-obvious doctrine was applicable, we affirm the judgment of the trial court on this point.

 [*P40]  C. Factual Issues

 [*P41]  Plaintiff argues there is a factual issue whether Riley’s slick gloves or the 3 1/2-inch diameter of the pole caused Riley’s fall. Plaintiff contends that Caskey testified that the pole was so wide that Riley had inadequate grip strength to descend safely (perhaps implying the converse that, if the pole were narrower, Riley’s grip strength would have been adequate). Plaintiff concludes that there is a factual issue regarding the mechanism of Riley’s fall, and this issue should have precluded summary judgment.

 [*P42]  We disagree. Even conceding a factual issue in the mechanism [**22]  of Riley’s fall, defendants did not owe Riley any duty because the risk of a fall from a height was open and obvious, no exception to the open-and-obvious doctrine applied, and the final two factors of the four-factor duty test did not outweigh the first two factors. Thus, the factual issue regarding the mechanism of Riley’s fall was not material in the absence of a duty.

 [*P43]  Plaintiff also contends that defendants owed a duty to instruct Riley on the use of the pole. While this contention is perhaps structurally misplaced in plaintiff’s argument, it is unavailing. The danger of the structure to Riley was open and obvious: a fall from a height. If, as plaintiff appears to contend, Riley did not know how to descend a fire pole, the risk of a fall from a height was still something he could appreciate. Under the law, then, Riley is deemed to be able to appreciate and avoid that risk, including his own limitations on using the fire pole to descend from the height. Accordingly, we reject plaintiff’s contentions.

 [*P44]  We close with the following observation from Bujnowski: “[t]ragic as the facts of this case are, they are not extraordinary in a legal sense and do not call for a result that would [**23]  appear to be without precedent.” Bujnowski, 2015 IL App (2d) 140578, ¶ 55.

 [*P45]  III. CONCLUSION

 [*P46]  For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

 [*P47]  Affirmed.

End of Document


Release for a health club which had a foam pit included language specific to the injury the plaintiff suffered, which the court used to deny the plaintiff’s claim.

Argument made that the word inherent limited the risks the release covered and as such did not cover the injury the plaintiff received.

Macias, v. Naperville Gymnastics Club, 2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

State: Illinois, Appellate Court of Illinois, Second District

Plaintiff: Kamil Macias

Defendant: Naperville Gymnastics Club

Plaintiff Claims: negligent in its failure to properly supervise the open gym, train participants, and warn participants of hazards and dangers accompanied with activities and use of equipment in the open gym

Defendant Defenses: Release

Holding: For the Defendant

Year: 2015

Summary

Plaintiff was injured jumping headfirst into a foam pit at the defendant’s gym. The plaintiff had signed a release relieving the defendant of liability, which was upheld by the trial court and the appellate court.

For the first time, the plaintiff argued the release was limited by the language in the release because it used the term inherent in describing the risks. Inherent limits the risks, to those that are part and parcel of the activity and the injury that befell the plaintiff was a freak accident.

Facts

The plaintiff went to the defendant club during open hours when the public could attend with a friend. He paid an admission fee and signed a release. The club had a foam pit. The plaintiff watched other people jump into the pit then tried it himself. He jumped off the springboard and instead of landing feet first he landed head first in the pit.

The plaintiff broke his neck requiring extensive surgery and rehabilitation.

The defendant club filed a motion to dismiss based upon the release signed by the plaintiff. The trial court denied the motion to dismiss because the release was ambiguous.

During discovery, the plaintiff admitted he did not see the rules of the gym but did understand the risks of landing in the pit head first.

Walk around all pits and trampolines,” and he stated that he understood what this meant. The rules also stated: “Do not play on any equipment without proper supervision,” and “Do not do any gymnastics without proper supervision,” and plaintiff stated that he understood what these meant. Plaintiff also stated that he did not see a sign painted on the wall in the gym titled, “Loose foam pit rules.” That sign stated: “Look before you leap,” “No diving or belly flops,” and “Land on feet, bottom or back only.” Plaintiff acknowledged that he understood what these meant

After discovery, the defendant club filed a motion for summary judgment based on the additional information collected during discovery. The trial court granted that motion, and this appeal was dismissed.

Analysis: making sense of the law based on these facts.

The appellate court looked at contract law in Illinois.

The primary objective in construing a contract is to give effect to the parties’ intent, and to discover this intent the various contract provisions must be viewed as a whole. Words derive meaning from their context, and contracts must be viewed as a whole by examining each part in light of the other parts. Id. Contract language must not be rejected as meaningless or surplusage; it is presumed that the terms and provisions of a contract are purposely inserted and that the language was not employed idly.

A release is a contract. For the release to be valid and enforceable, it should:

…contain clear, explicit, and unequivocal language referencing the types 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 risk of injury, enabling him to minimize the risks by exercising a greater degree of caution.

The court found the injury suffered by the plaintiff fell within the scope of the possible injuries of the release and contemplated by the plaintiff upon signing the release.

Two clauses in the release stated the plaintiff was in good physical health and had proper physical condition to participate. The plaintiff argued these clauses made the release ambiguous; however, the appellate court did not find that to be true.

Here is the interesting argument in the case.

I have repeatedly stated that releases that limit releases to the inherent risk are limited in their scope. The plaintiff made that argument here.

Plaintiff argues that the use of “inherent risk” language throughout the release creates an ambiguity as to whether the language covers only dangers inherent in gymnastics and not freak accidents. We also reject this argument. As previously stated, the release specifically lists landing on landing surfaces as an inherent risk. Thus, there is no ambiguity as to whether plaintiff’s injury was covered by the release.

The plaintiff also argued his injury was not foreseeable because:

… (1) he lacked specialized knowledge of gymnastics and, in particular, foam pits, to appreciate the danger and foresee the possibility of injury, and (2) his injury was not the type that would ordinarily accompany jumping into a foam pit.

The argument on whether the injury was foreseeable is not whether the plaintiff knew of the risk but:

The relevant inquiry is not whether [the] plaintiff foresaw [the] defendants’ exact act of negligence,” but “whether [the] plaintiff knew or should have known” the accident “was a risk encompassed by his [or her] release.

The court found the injury the plaintiff received was on that was contemplated by the release.

Thus, the issue here is whether plaintiff knew or should have known that the accident was a risk encompassed by the release which he signed. As previously determined, the language of the release in this case was specific enough to put plaintiff on notice. In discussing inherent risks in the sport of gymnastics and use of the accompanying equipment, the release lists injuries resulting from landing on the landing surfaces, which includes injuries to bones, joints, tendons, or death.

The plaintiff also argued the release violated public policy because the release was presented to “opened its gym to the unskilled and inexperienced public” when it opened its gym to the public.

The court struck down this argument because the freedom to contract was greater than the limitation on damages issues.

The appellate court affirmed the trial court’s granting of the summary judgment for the defendant based on the release.

So Now What?

The inherent risk argument here was made but either not effectively argued by the plaintiff or ignored by the court. However, for the first time, the argument that the word inherent is a limiting word, not a word that expands the release was made in an argument.

What do you think? Leave a comment.

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Macias, v. Naperville Gymnastics Club, 2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

Macias, v. Naperville Gymnastics Club, 2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

Kamil Macias, Plaintiff-Appellant, v. Naperville Gymnastics Club, Defendant-Appellee.

No. 2-14-0402

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

March 10, 2015, Order Filed

NOTICE: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Du Page County. No. 11-L-1418. Honorable Judges Hollis L. Webster and John T. Elsner, Judges, Presiding.

DISPOSITION: Affirmed.

CORE TERMS: gym, pit, landing, summary judgment, foam, exculpatory clause, gymnastics, release agreement, surface, inherent risk, jumping, discovery, ambiguity, exculpatory, deposition, injury resulting, public policy, risk of injury, physical condition, releasing, ambiguous, sport, bones, supervision, de novo, springboard, encompassed, notice, undersigned, climbing

JUDGES: JUSTICE BURKE delivered the judgment of the court. Presiding Justice Schostok and Justice Zenoff concurred in the judgment.

OPINION BY: BURKE

OPINION

ORDER


Held: Release agreement for the gym was sufficiently clear, explicit, and unequivocal to show intent to protect facility from liability arising from use of its “foam pit”; it was proper for the gym to raise the issue it had raised in the section 2-619 motion in a summary judgment motion as it alleged new facts which were developed during discovery that affected the validity of the release; affirmed.

[*P2] Plaintiff, Kamil Macias, filed a complaint against defendant, Naperville Gymnastics Club (the Club), for injuries he received after jumping off a springboard and landing head first into a “foam pit.” The trial court denied the Club’s motion to dismiss, pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), but it later granted the Club’s motion for summary judgment based on a liability release agreement signed by plaintiff. Plaintiff raises several issues on appeal concerning the release and the effect of the earlier [**2] section 2-619 motion to dismiss. We affirm.

[*P3] I. BACKGROUND

[*P4] On January 15, 2011, plaintiff came to the Club with his friend. The Club offers “open gym” hours where members of the Club and the general public can attend. Plaintiff, who was not a member of the Club, paid a $10 admission fee and he signed a liability release agreement.

[*P5] A foam pit was located in the gym. After seeing participants jumping into the pit, plaintiff jogged up to a springboard in front of the pit, jumped onto the board and into the pit. While attempting to jump feet first, plaintiff’s body moved in the air, causing him to land head first, striking the bottom of the pit. Plaintiff immediately lost all feeling in his body below the neck. He remained in the pit covered by pieces of foam until he was extracted by the Naperville Fire Department. At the time, plaintiff was 20 years old, about 6 feet tall, and weighed 310 pounds. As a result of the accident, plaintiff suffered a broken neck, requiring extensive surgery and rehabilitation. Plaintiff filed a complaint alleging the Club was negligent in its failure to properly supervise the open gym, train participants, and warn participants of hazards and dangers accompanied with activities [**3] and use of equipment in the open gym.

[*P6] The Club filed a section 2-619(a)(9) motion to dismiss (735 ILCS 5/2-619(a)(9) (West 2010)), alleging that plaintiff signed a two-page liability release agreement that contained an exculpatory clause releasing the Club from liability for any acts of negligence.

[*P7] The trial court found the release ambiguous and denied the section 2-619(a)(9) motion without prejudice. In denying the motion, the judge stated that she felt it was inappropriate to dismiss the suit at that point, that there was case law on both sides of “these exculpatory clauses,” and the judge agreed that it was something that could be developed through discovery. She further stated, “But I think it’s something that is better suited for a summary judgment motion if the facts do bear that out from the defense’s perspective.”

[*P8] During discovery, plaintiff was questioned by defense counsel and testified to the following:

“Q. Okay. That first part of the form it says, ‘To gain admission to the activity areas of [the Club], all parts of this form must be read, understood, and signed.’ Do you see that?

A. Yes.

Q. And did you understand what that means?

A. Yes.

* * *

Q. Did you understand this to be an agreement on January 15th, 2011[,] between you and [the [**4] Club]?

A. Had I read this agreement I would have understood.

* * *

Q. And you understand that [the release] means that when you sign it that you’re agreeing to not bring any lawsuit against [the Club]?

A. Correct.

Q. And if you had read it on January 15th of 2011, that’s what you would have understood it to mean?

A. Correct.

* * *

Q. And you agree that the sport of gymnastics is a risky sport?

A. Correct.

Q: And you would have felt the same on January 15th, 2011[,] before your accident?

A. Yes.”

[*P9] At the entrance to the gym was a closed door with a window pane in it. Plaintiff did not recall seeing a sign on the door entitled, “Rules of the Gym.” Plaintiff reviewed the rules at his deposition and admitted that it said to “Walk around all pits and trampolines,” and he stated that he understood what this meant. The rules also stated: “Do not play on any equipment without proper supervision,” and “Do not do any gymnastics without proper supervision,” and plaintiff stated that he understood what these meant. Plaintiff also stated that he did not see a sign painted on the wall in the gym titled, “Loose foam pit rules.” That sign stated: “Look before you leap,” “No diving or belly flops,” and “Land on [**5] feet, bottom or back only.” Plaintiff acknowledged that he understood what these meant.

[*P10] After discovery, the Club filed a motion for summary judgment, arguing that plaintiff’s claim was barred by the exculpatory clause of the release signed by plaintiff. The motion included the deposition testimony and that (1) plaintiff denied being given any verbal instructions and denied seeing the warning signs or rules posted in the gym before he was injured, and (2) plaintiff admitted that he would have understood the terms of the liability release, had he read it. Following argument, the trial court granted the Club’s motion for summary judgment. This timely appeal follows.

[*P11] II. ANALYSIS

[*P12] A. Standard of Review

[*P13] Summary judgment is appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2010). The motion should be denied if there are disputed facts, but also if reasonable people could draw different inferences from the undisputed facts. Wood v. National Liability & Fire Insurance Co., 324 Ill. App. 3d 583, 585, 755 N.E.2d 1044, 258 Ill. Dec. 225 (2001). We review an order granting summary judgment de novo. Pielet v. Pielet, 2012 IL 112064, ¶ 30, 978 N.E.2d 1000, 365 Ill. Dec. 497.

[*P14] We review the parties’ [**6] liability release agreement in accordance with well-established contract principles. Joyce v. Mastri, 371 Ill. App. 3d 64, 74, 861 N.E.2d 1102, 308 Ill. Dec. 537 (2007). The primary objective in construing a contract is to give effect to the parties’ intent, and to discover this intent the various contract provisions must be viewed as a whole. Kerton v. Lutheran Church Extension Fund, 262 Ill. App. 3d 74, 77, 634 N.E.2d 16, 199 Ill. Dec. 416 (1994). Words derive meaning from their context, and contracts must be viewed as a whole by examining each part in light of the other parts. Id. Contract language must not be rejected as meaningless or surplusage; it is presumed that the terms and provisions of a contract are purposely inserted and that the language was not employed idly. Id.

[*P15] In order for an exculpatory clause to be valid and enforceable, it should contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care. Calarco v. YMCA, 149 Ill. App. 3d 1037, 1040, 501 N.E.2d 268, 103 Ill. Dec. 247 (1986). In this way, the plaintiff will 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. Neumann v. Gloria Marshall Figure Salon, 149 Ill. App. 3d 824, 827, 500 N.E.2d 1011, 102 Ill. Dec. 910 (1986). The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract [**7] was entered into. Schlessman v. Henson, 83 Ill. 2d 82, 86, 413 N.E.2d 1252, 46 Ill. Dec. 139 (1980). 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 v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 585, 559 N.E.2d 187, 147 Ill. Dec. 187 (1990). Further, when interpreting a contract containing an exculpatory clause, the court must interpret the scope of the exculpatory provision in the “context of the entire agreement.” Shorr Paper Products, Inc. v. Aurora Elevator, Inc., 198 Ill. App. 3d 9, 13, 555 N.E.2d 735, 144 Ill. Dec. 376 (1990). We review the interpretation of an exculpatory agreement or release of liability authorization de novo. Stratman v. Brent, 291 Ill. App. 3d 123, 137, 683 N.E.2d 951, 225 Ill. Dec. 448 (1997).

[*P16] In Garrison, a member of a health club who was injured when lifting weights on a bench press brought suit against the club and the manufacturer of the press. The trial court entered summary judgment in favor of the club, and the plaintiff appealed. The First District Appellate Court held that the exculpatory clause could not have been more clear or explicit, as it stated that each member bore the “sole risk” of injury that might result from the use of weights, equipment, or other apparatus provided and that the selection of the type of equipment to be used would be the “entire responsibility” of the member. The court found that the injury the plaintiff sustained clearly fell within the scope of possible dangers [**8] ordinarily accompanying the activity of weightlifting. Id. at 585. The court observed that the injury was of a type that would normally be contemplated by the parties at the time the contract was made and, therefore, the court held that it clearly fell within the parameters of the exculpatory clause. Id. See also Hussein v. L.A. Fitness International, LLC, 2013 IL App (1st) 121426, 987 N.E.2d 460, 369 Ill. Dec. 833; Neumann v. Gloria Marshall Figure Salon, 149 Ill. App. 3d 824, 500 N.E.2d 1011, 102 Ill. Dec. 910 (1986).

[*P17] Similar to Garrison and the cases cited above, the release agreement in the present case is clear and specific regarding the risks it covers and the release of the Club’s negligence. It specifically references the inherent risk of injury resulting from landing on landing surfaces, and plaintiff acknowledged in his deposition that this phrase includes the foam pit in which he was injured. The agreement also releases the Club from any and all claims, including those caused by its negligence. Furthermore, plaintiff’s signature certified that he recognized the dangers inherent with climbing and jumping activities and that he voluntarily assumed the risks.

[*P18] Nevertheless, plaintiff raises several arguments regarding the validity of the release and the effect of the earlier section 2-619 motion.

[*P19] B. Ambiguity of the Release

[*P20] 1. First Clause

[*P21] The first clause of the release, which is typed in capital letters, states: [**9]

“BY SIGNING THIS DOCUMENT YOU ACKNOWLEDGE THAT UNSUPERVISED USE OF ANY AREA OF FACILITY IS STRICTLY PROHIBITED AND COMPLETELY AT THE RISK OF THE PARTICIPANT AND THAT THE RULES [OF] EACH AREA BEING UTILIZED ARE UNDERSTOOD PRIOR TO PARTICIPATION!”

Plaintiff asserts that this clause is ambiguous as to whether supervision and a full understanding of the rules of the Club is a condition precedent to releasing defendant from liability. We agree that the first clause, standing alone, might be construed as stating that supervision and a full understanding of the rules of the Club is a condition preceding releasing the Club from liability. However, case law teaches that we must review the language of the release in its entirety in order to interpret the parties’ intent.

[*P22] The release contains a “Covenant Not to Sue for Injury or Damages,” which provides, in relevant part:

“Notice: This is a legally binding agreement. By signing this agreement, you waive your right to bring a court action to recover compensation or to obtain any other remedy for any injury to yourself *** however caused arising out of use of the facilities of [the Club].

I hereby acknowledge and agree that the sport of gymnastics [**10] and the use of the accompanying equipment has INHERENT RISKS. I have full knowledge of the nature and extent of all of the risks inherent in gymnastics and the use of the facilities of the gym, including but not limited to:

***

5. Injuries resulting from landing on the landing surfaces; and

6. Injuries to bones, joints, tendons, or death.

[*P23] The section of the release agreement entitled “Release Indemnification Liquidation Damages and Agreement to Arbitrate” states, in relevant part:

“In consideration of my use of the GYM, I the undersigned user, agree to release on behalf of myself *** [the Club] *** including but not limited to a claim of NEGLIGENCE.”

[*P24] The clause of the release immediately preceding plaintiff’s signature provides that “the undersigned recognize[s] the dangers inherent with climbing and jumping activities,” and the undersigned is “assuming the hazard of this risk upon myself because I wish to participate. I realize that I am subject to injury from this activity and that no form of pre-planning can remove all of the danger to which I am exposing myself.”

[*P25] In reading the release in its entirety, it is clear that the first clause of the release cannot be construed as plaintiff argues. The [**11] release contains no such limitations as it covers a number of activities, including “[i]njuries resulting from landing on the landing surfaces” (i.e. the “foam pit”), releasing the Club from negligence, and “the dangers inherent with climbing and jumping activities.”

[*P26] 2. Physical Condition Clause

[*P27] Two clauses of the release request the participant to agree that he or she is in good physical health and proper physical condition to participate. Plaintiff cites Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill. App. 3d 1037, 501 N.E.2d 268, 103 Ill. Dec. 247 (1986), and Macek v. Schooner’s Inc., 224 Ill. App. 3d 103, 586 N.E.2d 442, 166 Ill. Dec. 484 (1991), for the proposition that these types of clauses render the release ambiguous, as it is unclear whether the release only applies to injuries resulting from a participant’s physical ailments. In other words, the release does not apply to participants without physical ailments.

[*P28] We fail to follow the logic of plaintiff’s argument. However, the cases relied on by plaintiff are readily distinguishable. In Calarco, the plaintiff had been injured when metal weights from an exercise machine fell on her hand, breaking her bones. The plaintiff had agreed “to hold free from any and all liability the [defendant] *** for damages which [the plaintiff] may have or which may hereafter accrue to [the plaintiff] arising out of or connected with [the plaintiff’s] participation [**12] in any of the activities of the [defendant].” We held that the exculpatory clause in the membership application for the defendant’s facility was insufficient to protect the defendant from liability as a matter of law because the clause did not adequately describe the covered activities to clearly indicate that defendant’s negligence would be covered by the release. Calarco, 149 Ill. App. 3d at 1043-44. We further noted that the statement immediately following the alleged exculpatory language contained a declaration of physical health by the signer, and that the combination of the two provisions further complicated the interpretation of the release. Id.

[*P29] In Macek, the plaintiff participated in an arm wrestling contest with a machine that broke his arm. The court held that summary judgment was inappropriate because the release did not specify the covered activities but rather merely indicated that damages for “all injuries suffered” are waived. The court found further that the line immediately following the exculpatory language regarding the signer’s physical condition provided additional ambiguity. Id. at 106.

[*P30] In both Calarco and Marek, the releases did not specify the covered activities and did not specifically cover the defendants’ [**13] negligence. Both courts held that the physical condition clause simply added to the ambiguity of the release. However, contrary to Calarco and Marek, the release in this case clearly covers the activities in question and specifically releases defendant from liability for its negligence.

[*P31] 3. Inherent Risk Language

[*P32] Plaintiff argues that the use of “inherent risk” language throughout the release creates an ambiguity as to whether the language covers only dangers inherent in gymnastics and not freak accidents. We also reject this argument. As previously stated, the release specifically lists landing on landing surfaces as an inherent risk. Thus, there is no ambiguity as to whether plaintiff’s injury was covered by the release.

[*P33] C. Forseeability

[*P34] Plaintiff argues that his injury was not foreseeable because (1) he lacked specialized knowledge of gymnastics and, in particular, foam pits, to appreciate the danger and foresee the possibility of injury, and (2) his injury was not the type that would ordinarily accompany jumping into a foam pit.

[*P35] A plaintiff who expressly consents to relieve a defendant of an obligation of conduct toward the plaintiff assumes the risk of injury as a result of the [**14] defendant’s failure to adhere to the obligation. Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 576, 474 N.E.2d 729, 85 Ill. Dec. 769 (1984). The doctrine of assumption of risk presupposes, however, that the danger which causes the injury is such that it ordinarily accompanies the activities of the plaintiff, and that the plaintiff knows or should know both the danger and the possibility of injury prior to its occurrence. Id. at 576. The standard is a subjective one geared to a particular plaintiff, and the determination ordinarily will be made by a jury. Id. at 576-77.

[*P36] “The foreseeability of a specific danger defines the scope.” Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442, ¶ 14, 377 Ill. Dec. 930, 2 N.E.3d 1211. “The relevant inquiry *** is not whether [the] plaintiff foresaw [the] defendants’ exact act of negligence,” but “whether [the] plaintiff knew or should have known” the accident “was a risk encompassed by his [or her] release.” Hellweg v. Special Events Management, 2011 IL App (1st) 103604, ¶ 7, 956 N.E.2d 954, 353 Ill. Dec. 826.

[*P37] Thus, the issue here is whether plaintiff knew or should have known that the accident was a risk encompassed by the release which he signed. As previously determined, the language of the release in this case was specific enough to put plaintiff on notice. In discussing inherent risks in the sport of gymnastics and use of the accompanying equipment, the release lists injuries resulting from landing on the landing surfaces, which includes [**15] injuries to bones, joints, tendons, or death. Plaintiff agreed that the foam pit was a landing surface and that some of the possible injuries that he could sustain at the gym from gymnastics activities included injuries to his bones, and he admitted at deposition that he had not read the release and that, had he read the release, he would have understood it to mean that he could not sue the gym for any injuries he sustained. Based on these facts, plaintiff should have known the risks of injury associated with the activity of jumping into the foam pit. Plaintiff participated in open gym, which reasonably contemplates participating in the use of the accompanying equipment. Plaintiff could have reasonably presumed that, should he jump from a springboard into the foam pit, he might land on his head. It is entirely foreseeable that, if plaintiff accidently fell on his head, he would be hurt by “landing on the landing surfaces,” a risk encompassed by the release agreement. See Oelze v. Score Sports Venture, 401 Ill. App. 3d 110, 121, 927 N.E.2d 137, 339 Ill. Dec. 596 (2010). Although plaintiff suffered a serious injury, we are bound by the release agreement. Accordingly, we find the trial court properly granted summary judgment on the basis that the release barred plaintiff’s negligence [**16] claim.

[*P38] D. Public Policy

[*P39] Plaintiff next argues that it would be against public policy to enforce the release in this case because the Club opened its gym to the unskilled and inexperienced public. Plaintiff does not cite any cases in support of this argument. In fact, the only case he cites, Hamer v. City Segway Tours of Chicago, LLC, 402 Ill. App. 3d 42, 930 N.E.2d 578, 341 Ill. Dec. 368 (2010), is inapposite to his position.

[*P40] Several cases have rejected plaintiff’s argument in the fitness club setting. See, e.g., Kubisen v. Chicago Health Clubs, 69 Ill. App. 3d 463, 388 N.E.2d 44, 26 Ill. Dec. 420 (1979); Owen v. Vic Tanny’s Enterprises, 48 Ill. App. 2d 344, 199 N.E.2d 280 (1964). Had plaintiff, an adult, read the release and disagreed with it, he could have simply refused to participate in open gym. “While exculpatory or limitation of damages clauses are not favored and must be strictly construed against a benefitting party [citation] the basis for their enforcement is the strong public policy favoring freedom of contract.” Rayner Covering Systems, Inc. v. Danvers Farmers Elevator Co., 226 Ill. App. 3d 507, 512, 589 N.E.2d 1034, 168 Ill. Dec. 634 (1992). There does not seem to be any reason in this case to depart from the strong public policy of allowing parties to freely enter into contracts.

[*P41] E. Section 2-619 Motion to Dismiss

[*P42] The Club filed a section 2-619 motion, alleging that plaintiff signed a two-page liability release that contained an exculpatory clause, which released the Club from liability for any acts of negligence. The trial court found the release was ambiguous and denied the motion. However, [**17] the court recognized that disputed facts might affect the validity of the release and indicated that the Club was free to raise the issue again in a summary judgment motion after facts surrounding the execution of the release were developed in discovery.

[*P43] Citing Makowski v. City of Naperville, 249 Ill. App. 3d 110, 117-18, 617 N.E.2d 1251, 187 Ill. Dec. 530 (1993), plaintiff acknowledges that a trial court may allow a party to reassert a defense after previously ruling on the merits only when new evidence is presented. Plaintiff claims that the summary judgment motion did not allege new facts but simply relied on the language of the release as it did in the Club’s section 2-619 motion. We disagree.

[*P44] The Club did allege additional facts in its summary judgment motion that were developed during discovery that affected the validity of the release. Those facts included plaintiff’s acknowledgment that he understood the meaning of the terms of the release, that he understood the inherent risks, and that he understood that the risk of “landing on landing surfaces” would include the foam pit where he was injured. He also testified that had he read the release he would have understood its language to mean that he could not sue the gym for any injuries he sustained. Since we review a summary judgment motion [**18] de novo (Pielet, 2012 IL 112064, ¶ 30), this evidence tends to defeat plaintiff’s ambiguity arguments.

[*P45] III. CONCLUSION

[*P46] For the reasons stated, we affirm the judgment of the Circuit Court of Du Page County granting the Club’s motion for summary judgment.

[*P47] Affirmed.


When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.

In this case, the national organization was also sued for failing to instruct and enforce the regional organization in the rules, regulations, standards or policies. If you are going to make rules, and you say the rules must be followed you have to make sure you train in the rules and that everyone follows the rules.

If you make a rule you have to enforce it if you are in charge of making rules.
Otherwise, don’t make rules!

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005 

State: Illinois, United States District Court for the Central District of Illinois, Springfield Division

Plaintiff: T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually

Defendant: Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin

Plaintiff Claims: negligence and willful and wanton misconduct

Defendant Defenses: Failure to state a claim upon which relief can be granted filed in a Motion to dismiss

Holding: for the plaintiff

Year: 2017

This case is a federal diversity case. That means the plaintiff(s) and the defendant(s) were legally residents of different states, and the amount claimed by the plaintiff was greater than $75,000.00. In this case, the plaintiff was from California, and the Defendant was located in Illinois.

The plaintiff was in Illinois and attending the Decatur Boys & Girls Club, which was part of the America Boys & Girls Club. America Boys & Girls Club was based in Georgia.

America Boys & Girls Club provided policies, procedures, rules, guidelines and instructions to the Decatur Boys & Girls Clubs, and all other Boys & Girls Clubs. The Boys & Girls Clubs are required to follow the operating policies, procedures, rules, guidelines, and instructions.

While attending the club, the plaintiff was taken to a local farm. Neither of the defendants had permission to transport the minor plaintiff to the farm. While there the plaintiff was riding on a trailer (probably a hay ride)that did not have guardrails, seats, seatbelts or other equipment designed from keeping people from falling off. (But then very few hay rides do.) The tractor and trailer were pulled onto a public highway with 15-20 children on it. While on the highway the plaintiff either jumped or fell off or might have been pushed
off sustaining injuries.

The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor defendant.

The issue that the trailer was not designed to be on a highway and did not have seats, seatbelts or other equipment to keep people from falling off was repeatedly brought up by the court.

The defendants filed a motion to dismiss, and this opinion is court’s response to that motion.

Analysis: making sense of the law based on these facts.

A motion to dismiss is a preliminary motion filed when the allegations in the complaint do not meet the minimum requirements to make a legally recognizable claim.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Plausibility means alleging factual content that allows a court to reasonably infer that the defendant is liable for the alleged misconduct. A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” “The required level of factual specificity rises with the complexity of the claim.”

When reviewing a motion to dismiss the court must look at the plaintiff’s pleadings as true and any inference that must be drawn from the pleadings is done so in favor of the plaintiff.

To plead negligence under Illinois’s law the plaintiff must prove “…that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” In Illinois, every person owes all other persons “a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.”

Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm.

It is a legal question to be decided by the court if a legal duty exists.

…the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two  organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions.

The plaintiffs argued the duty of care of the two organizations was breached by:

(1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer.

The plaintiff’s also argued there was a greater responsibility and as such duty on the part of the America Boys & Girls Club to train the Decatur club on its rules, regulations and policies and failing to train on them was  also negligent.

T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club, and that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed.

In this case, the duty of care was created by the rules, regulations, policies and procedures created by the America Boys & Girls Clubs upon the Decatur Boys & Girls Club.

The plaintiff went on to argue, and since it was quoted by the court, accepted by the court that:

Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to  give him a ride on the trailer. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2)
failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway.

The court held this was enough to create a duty of care and proved a possible negligence claim.

Furthermore, of note was a statement that a statutory violation of a statute in Illinois does not create a negligence per se claim.

A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”

The court then looked at the minor plaintiff’s father claims to see if those met the requirements to prove negligence in Illinois.

To state a negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him.

However, the father was not able to prove his claim because it is separate and distinct from the minor’s claim. “The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings.”

It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants, therefore, had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

The father also pleaded a claim for loss of aid, comfort, society and companionship of his child. However, Illinois’s law does not allow for recovery of those emotional damages unless the child’s injury is a fatality.

The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act.

However, the father did have a claim for the medical expenses the father paid on behalf of his minor son for the injuries he incurred.

The plaintiff also pleaded res ipsa loquitur.

Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Accordingly, res ipsa lo-quitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.”

Res ipsa loquitur is a claim that when an incident has occurred, the control of the instrumentality was solely within the control of the defendant.

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.

An example of res ipsa loquitur is a passenger in an airplane that crashes. The pilot is the defendant, and the
control of the airplane is solely with the pilot.

Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.

However, the allegations of the plaintiff did not meet the requirements of res ipsa loquitur in Illinois.

Plaintiff’s final allegation discussed in the opinion was one for willful and wanton misconduct on the part of the defendants. Under Illinois’s law to establish a claim for willful and wanton conduct, the plaintiff must.

…plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.

Generally, this is the same standard to prove willful and wanton conduct in most states. Once the negligence claim is proved, then the allegations only need to support the additional acts as willful and wanton.

Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants.

The court defined willful and wanton conduct.

Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. To meet this standard, the defendant “must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.

With the allegations plead, the court found sufficient information to confirm the plaintiff going forward with willful and wanton claims. Those allegations include:

Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. T.K. further alleges that the trailer was not designed to transport people.

Putting kids on a trailer was a major issue for the court. Kids on a highway on a vehicle not created to transport people were enough to create willful and wanton conduct.

The defendant argued that the allegations that created the negligence claim were also allowed to be the same facts. No new allegations needed to be plead to support the claims for willful and wanton conduct.

Under Illinois’s law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.

The plaintiff had pled enough facts that the court found relevant and substantial to continue with the negligence and willful and wanton claim.

So Now What?

The actual rules, regulations, procedures were not identified by the court in making its decision. However, the continuous restatement of the plaintiff’s allegations in the same order and words. However, the court specifically stated the defendants failed to follow their own rules.

If you have rules, regulations, policies, procedures, or you must abide by such you MUST follow them. There are no loop holes, exceptions or “just this one time” when dealing with rules, policies and procedures that affect safety or affect minors. If you make them, you must follow them.

If you make them, you must make sure everyone is trained on them. One of the big issues the plaintiff pleads and the court accepted was the rules made by the parent organization were not known or followed by the subsidiary organization. The parent organization when making rules is under a requirement to make sure
the rules are understood and followed according to this decision in Tennessee.

The other major issue was transporting the plaintiff away from the location where the parents thought the plaintiff would be without their permission and then transporting the plaintiff on a road without meeting the requirements of state law, seats, seat belts, etc.

When you have minors, especially minors under the age of ten, you are only acting within the realm and space permitted by the parents. The line that makes me cringe every time I hear it on the news is “If I would have known they were going to do ______________, I never would have let me kid go.” Listen and you
will realize you will hear it a lot when a minor is injured.

You need to prepare your program and your parents so that line is never spoken about you.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005

T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually, Plaintiffs, v. Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin, Defendants.

Case No. 16-cv-03056

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION

2017 U.S. Dist. LEXIS 87005

June 6, 2017, Decided

June 7, 2017, E-Filed

CORE TERMS: trailer, willful, farm, wanton misconduct, res ipsa loquitur, negligence claims, pleaded, cognizable, exclusive control, wanton, medical expenses, supervision, pulled, negligence per se, public road, legal conclusions, pulling, seat, factual allegations, right to relief, conscious disregard, indifference, speculative, supervise, reckless, notice, owed, public highway, guidelines, transport

COUNSEL: [*1] For T.K., a Minor, By And Through His Natural Father and Next Friend, Timothy Killings, Timothy Killings, Plaintiffs: Christopher Ryan Dixon, THE DIXON INJURY FIRM, St Louis, MO.

For Boys & Girls Club of America, Boys and Girls Club of Decatur, Inc., Defendants: Randall A Mead, LEAD ATTORNEY, DRAKE NARUP & MEAD PC, Springfield, IL.

For Mary K Paulin, Defendant: Daniel R Price, LEAD ATTORNEY, WHAM & WHAM, Centralia, IL.

JUDGES: SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE.

OPINION BY: SUE E. MYERSCOUGH

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

Before the Court are Defendants Boys & Girls Clubs of America and Boys & Girls Club of Decatur, Inc.’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint (d/e 32) and Defendant Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33). The motion filed by Defendants Boys and Girls Club of Decatur, Inc. (Decatur Boys & Girls Club) and Boys & Girls Clubs of America (America Boys & Girls Club) is GRANTED IN PART and DENIED IN PART. Defendant Paulin’s motion is DENIED. In the Second Amended Complaint, T.K., a [*2] minor, through his father, Timothy Killings, sufficiently pleads negligence and willful and wanton misconduct causes of action against all Defendants. In addition, Mr. Killings pleads cognizable claims for T.K.’s past and future medical expenses against all Defendants. However, the allegations of the Second Amended Complaint are not sufficient to render the doctrine of res ipsa loquitur applicable against Decatur Boys & Girls Club or America Boys & Girls Club.

I. BACKGROUND

The following facts come from Plaintiffs’ Second Amended Complaint. The Court accepts them as true at the motion to dismiss stage. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

On July 17, 2015, T.K., a then-eight-year-old resident of California, was a member of Decatur Boys & Girls Club, a corporate citizen of Illinois and a licensed child-care facility. On that same date, Decatur Boys & Girls Club was operating a summer camp through its agents and employees, and T.K. was under the paid care and supervision of Decatur Boys & Girls Club and America Boys & Girls Club. America Boys & Girls Club, a corporate citizen of Georgia, provides operating policies, procedures, rules, guidelines, and instructions regarding how Decatur Boys & Girls Club is to operate. Decatur [*3] Boys & Girls Club is required to follow these operating policies, procedures, rules, guidelines, and instructions.

On July 17, 2015, T.K. was taken from the premises of Decatur Boys & Girls Club in Decatur, Illinois, to property in Clinton, Illinois, owned by Defendant Paulin, an Illinois citizen. Neither Decatur Boys & Girls Club nor America Boys & Girls Club had permission to transport T.K. from Decatur to Defendant Paulin’s property in Clinton. Defendants,1 again without permission, put T.K. on a farm trailer owned by Defendant Paulin and located on Defendant Paulin’s property. The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor Defendant Paulin owned. The trailer was not being used in connection with a parade or a farm-related activity.

1 The use of “Defendants” in this Opinion will refer collectively to Decatur Boys & Girls Club, America Boys & Girls Club, and Mary K. Paulin.

While riding on the trailer, T.K. fell or jumped off the trailer or was pushed off. As a result, T.K. sustained injuries to his head, face, eyes, chest, neck, back, arms, lungs, hands, legs, [*4] and feet. T.K. underwent medical treatment for his injuries and will have to undergo additional treatment in the future. T.K’s father, Timothy Killings, a citizen of California, has incurred expenses related to his son’s medical care and will incur additional expenses in the future for his son’s future medical care.

On March 3, 2016, Plaintiffs filed their Complaint (d/e 1) against Defendants. Plaintiffs subsequently filed their First Amended Complaint (d/e 26) on May 23, 2016, and their Second Amended Complaint (d/e 31) on June 17, 2016. The Second Amended Complaint contains five counts. Counts 1 through 3 allege claims against Decatur Boys & Girls Club and America Boys & Girls Club for, respectively, negligence, negligence based on the doctrine of res ipsa loquitur, and willful and wanton misconduct. Counts 4 and 5 allege negligence and willful and wanton misconduct claims, respectively, against Defendant Paulin.

On June 27, 2016, Decatur Boys & Girls Club and America Boys & Girls Club filed their Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint, asking the Court to dismiss Counts 1 through 3 for failing to [*5] state cognizable claims or, in the alternative, to strike certain paragraphs of the Second Amended Complaint. On June 30, 2017, Defendant Paulin filed her Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint, asking the Court to dismiss Counts 4 and 5 for failing to state cognizable claims or, in the alternative, to strike certain paragraphs of the Second Amended Complaint.

II. JURISDICTION

This Court has original jurisdiction over Plaintiffs’ claims because no Plaintiff is a citizen of the same state as any Defendant and Plaintiffs are seeking damages in excess of $75,000. See 28 U.S.C. § 1332(a)(1); McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009) (“When the jurisdictional threshold is uncontested, we generally will accept the plaintiff’s good faith allegation of the amount in controversy unless it appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.”) (internal quotation marks omitted).

III. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Plausibility means alleging factual content that allows a court to reasonably infer [*6] that the defendant is liable for the alleged misconduct. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016). “The required level of factual specificity rises with the complexity of the claim.” McCauley v. City of Chicago, 671 F.3d 611, 616-17 (7th Cir. 2011).

When faced with a Rule 12(b)(6) motion to dismiss, the Court “accept[s] as true all of the well-pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). “[L]egal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth.” McCauley, 671 F.3d at 616. Further, the Court is “not obliged to ignore any facts set forth in the complaint that undermine the plaintiff’s claim.” R.J.R. Servs., Inc. v. Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989). The Court may “strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. Pro. 12(f).

IV. ANALYSIS

A. Count I and Count IV Sufficiently Plead Negligence and Medical Expense Claims Against All Defendants.

1. T.K. has pleaded cognizable negligence claims against all Defendants.

In a case where federal jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332, “[s]tate substantive law applies, but federal procedural rules govern.” Doermer v. Callen, 847 F.3d 522, 529 (7th Cir. 2017). “To state a claim for negligence under Illinois law, a plaintiff must plead [*7] that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” Allstate Indem. Co. v. ADT LLC, 110 F. Supp. 3d 856, 862-63 (N.D. Ill. 2015) (citing Simpkins v. CSX Transp., Inc., 2012 IL 110662, 965 N.E.2d 1092, 1097, 358 Ill. Dec. 613 (Ill. 2012). In Illinois, “every person owes to all other persons a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.” Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Dirs., 2012 IL 112479, 973 N.E.2d 880, 890, 362 Ill. Dec. 484 (Ill. 2012). Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm. Ryan v. Yarbrough, 355 Ill. App. 3d 342, 823 N.E.2d 259, 262, 291 Ill. Dec. 249 (Ill. App. Ct. 2005). Whether a duty exists is a question of law to be decided by the Court. Simpkins, 965 N.E.2d at 1096.

In support of his negligence claims against America Boys & Girls Club and Decatur Boys & Girls Club, T.K.2 alleges that he was a member of Decatur Boys & Girls Club and was entrusted to the care of both organizations on July 17, 2015. Sec. Am. Complaint, ¶¶ 15-16. America Boys & Girls Club and Decatur Boys & Girls Club agreed to accept the “care, custody, and control” of T.K. for the purpose of providing child care. Id. ¶ 16. T.K. also alleges [*8] that on July 17, 2015, the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions. Id. ¶¶ 42-43.

2 Plaintiffs do not separate T.K’s claims from Mr. Killings’ claims in the Second Amended Complaint. To avoid confusion, the Court will address the allegations of the Second Amended Complaint as those of T.K. when analyzing T.K’s claims and as those of Mr. Killings when analyzing Mr. Killings’ claims.

Further, according to T.K., America Boys & Girls Club and Decatur Boys & Girls Club breached the duty of care they owed him in several ways, including by (1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer. Id. ¶ 45. With respect to America Boys & Girls Club, T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club and [*9] that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed. Id. ¶¶ 46-47. In addition, T.K. claims that the actions of America Boys & Girls Club and Decatur Boys & Girls Club proximately caused his injuries. Id. ¶¶ 33-39, 49.

In support of his negligence claim against Defendant Paulin, T.K. alleges that on July 17, 2015, Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to give him a ride on the trailer. Sec. Am. Complaint, ¶¶ 21, 23. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. Id. ¶¶ 28-29. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2) failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn [*10] him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway. Id. ¶¶ 72-73. In addition, T.K. alleges that the actions of Defendant Paulin proximately caused his injuries. Id. ¶¶ 33-39, 75.

Based on these allegations, T.K. has sufficiently pleaded negligence claims against Decatur Boys & Girls Club, America Boys & Girls Club, and Defendant Paulin. The allegations in Count I and Count IV of the Second Amended Complaint give Defendants notice of the basis for T.K.’s negligence claims against them and are sufficient to establish that T.K. has a plausible, as opposed to speculative, right to relief against Defendants. This is all that is required of a plaintiff under the federal notice pleading regime. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 547.

Defendants do not seem to dispute such a finding. Indeed, their arguments for the dismissal of Count I and Count IV focus on the allegations in the Second Amended Complaint relating to an alleged violation of 625 Ill. Comp. Stat. 5/11-1408, a provision of the Illinois Vehicle Code, and claims that their alleged statutory violations constitute [*11] negligence per se. See Mot. to Dismiss (d/e 32), at 1-2; Memorandum of Law (d/e 21), at 4-6; Mot. to Dismiss (d/e 33), at 1-2; Memorandum of Law (d/e 34), at 1-2. Defendants are correct that Illinois does not recognize statutory violations as negligence per se. See Kalata v. Anheuser-Busch Companies, Inc., 144 Ill. 2d 425, 581 N.E.2d 656, 661, 163 Ill. Dec. 502 (Ill. 1991) (“A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”). But the inclusion of allegations regarding violations of 625 Ill. Comp. Stat. 5/11-1408 and negligence per se do not require the dismissal of Count I or Count IV. As the Court has explained above, T.K. has sufficiently pleaded negligence claims against Defendants without the allegations relating to statutory violations. Cf. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (“[T]he complaint need not identify a legal theory, and specifying an incorrect theory is not fatal.”).

2. Timothy Killings has pleaded cognizable medical expense claims against all Defendants.

Just because T.K. has cognizable negligence claims against Defendants does not mean that Timothy Killings, T.K.’s father, also has such claims. To state a [*12] negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him. Allstate, 110 F. Supp. 3d at 862-63. Mr. Killings has failed to meet his burden. The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings. See Bruntjen v. Bethalto Pizza, LLC, 2014 IL App (5th) 120245, 385 Ill. Dec. 215, 18 N.E.3d 215, 231 (Ill. App. Ct. 2014) (“The criterion in a duty analysis is whether a plaintiff and a defendant stood in such a relationship to each other that the law imposed an obligation upon the defendant to act for the protection of the plaintiff.”). It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants therefore had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. See Sec. Am. Complaint, ¶¶ 38-39. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

But just because Mr. [*13] Killings has not pleaded cognizable negligence claims against Defendants does not mean that he has pleaded no cognizable claims against them. In Illinois, parents have a cause of action against a tortfeasor who injures their child and causes them to incur medical expenses. Pirrello v. Maryville Acad., Inc., 2014 IL App (1st) 133964, 386 Ill. Dec. 108, 19 N.E.3d 1261, 1264 (Ill. App. Ct. 2014). The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act. Id.; see also 750 Ill. Comp. Stat. 65/15(a)(1) (obligating parents to pay for the “expenses of the family”). T.K. has pleaded cognizable negligence claims against Defendants. Mr. Killings alleges that he has been saddled with bills stemming from T.K.’s medical care, some of which he has paid, and that he will incur additional medical bills in the future as a result of the injuries T.K. suffered on account of Defendants’ negligence. Sec. Am. Complaint, ¶¶ 38-39. Mr. Killings is the father of T.K., a minor, and is required by law to pay for T.K.’s medical expenses, Mr. Killings has adequately pleaded claims against Defendants for the recovery of the amounts paid or to be paid for T.K.’s past and future medical expenses stemming from Defendants’ negligence.

One [*14] final point merits a brief discussion. In the Second Amended Complaint, Mr. Killings alleges that he has suffered, as a result of T.K.’s injuries, “loss of aid, comfort, society, companionship, pleasure, and the family relationship.” Sec. Am. Complaint, ¶ 40. However, in Illinois, a parent may not “recover for loss of the society and companionship of a child who is nonfatally injured.” Vitro v. Mihelcic, 209 Ill. 2d 76, 806 N.E.2d 632, 633, 282 Ill. Dec. 335 (Ill. 2004). Therefore, Mr. Killings has no valid claim for loss of society and companionship in this case.

3. The Court strikes paragraph 27 from Plaintiffs’ Second Amended Complaint.

As an alternative to the dismissal of Count I of the Second Amended Complaint, Defendants Decatur Boys & Girls Club and America Boys & Girls Club ask the Court to strike paragraphs 50 through 55 of the Complaint. Mot. to Dismiss (d/e 32), at 2. Similarly, Defendant Paulin asks the Court, as an alternative to the dismissal of Count IV, to strike paragraphs 76 through 81 of the Second Amended Complaint. Mot. to Dismiss (d/e 33), at 1-2. According to Defendants, the Court should strike these paragraphs because they are ultimately used to claim that Defendants’ alleged statutory violations constitute negligence per se.

Additionally, Defendants [*15] Decatur Boys & Girls Club and America Boys & Girls Club request that the Court strike paragraph 27 from the Second Amended Complaint for being duplicative of paragraph 25 and strike paragraphs 42, 43, 44, 48, 68, 69, and 70 because those paragraphs are legal conclusions. Mot. to Dismiss (d/e 32), at 4. But even assuming that the aforementioned paragraphs are legal conclusions, as opposed to factual allegations, that is no reason to strike them from the Second Amended Complaint. Although Plaintiffs are required to plead facts that indicate they have a plausible, as opposed to a speculative, right to relief, see Iqbal, 556 U.S. at 678, they are not prohibited from also pleading legal conclusions that might help to provide Defendants with notice of the claims brought against them or provide context for the factual allegations. See State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989)) (noting that “legal conclusions are an integral part of the federal notice pleading regime” and that Rule 8(b) of the Federal Rules of Civil Procedure requires parties to respond to all allegations contained within a pleading, including legal conclusions). Therefore, the Court strikes only paragraph 27 of the Second Amended Complaint, as it is duplicative of paragraph 25.

B. The Allegations of Plaintiffs’ Second Amended [*16] Complaint Are Insufficient to Render the Doctrine of Res Ipsa Loquitur Applicable Against Decatur Boys & Girls Club and America Boys & Girls Club.

Res ipsa loquitur is a rule of evidence applicable to a negligence claim, not a distinct theory of recovery. Rice v. Burnley, 230 Ill. App. 3d 987, 596 N.E.2d 105, 108, 172 Ill. Dec. 826 (Ill. App. Ct. 1992). Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” Metz v. Cent. Ill. Elec. & Gas Co., 32 Ill. 2d 446, 207 N.E.2d 305, 307 (Ill. 1965). The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Buechel v. United States, 746 F.3d 753, 765 (7th Cir. 2014). Accordingly, res ipsa loquitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.” Britton v. Univ. of Chi. Hosps., 382 Ill. App. 3d 1009, 889 N.E.2d 706, 709, 321 Ill. Dec. 441 (Ill. App. Ct. 2008). Whether the doctrine of res ipsa loquitur applies is a question of law to be determined by the Court. Imig v. Beck, 115 Ill. 2d 18, 503 N.E.2d 324, 329, 104 Ill. Dec. 767 (Ill. 1986).

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.” Avalos-Landeros v. United States, 50 F. Supp. 3d 921, 927 (N.D. Ill. 2014) (citing Heastie v. Roberts, 226 Ill. 2d 515, 877 N.E.2d 1064, 1076, 315 Ill. Dec. 735 (Ill. 2007)). Although, in the past, [*17] a plaintiff had to allege that the “the injury occurred under circumstances indicating that it was not due to any voluntary act or neglect on the part of the plaintiff,” this requirement was removed due to the adoption of comparative fault principles in Illinois. Heastie, 877 N.E.2d at 1076. With respect to the requirement of “exclusive control,” a defendant’s control over the instrumentality “at the time of the alleged negligence is not defeated by lack of control at the time of the injury.” Darrough v. Glendale Heights Cmty. Hosp., 234 Ill. App. 3d 1055, 600 N.E.2d 1248, 1252-53, 175 Ill. Dec. 790 (Ill. App. Ct. 1992). Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.” Id. at 1253.

T.K. alleges that “a minor child under the care and supervision of a registered, licensed professional child care facility does not ordinarily sustain serious injuries when properly supervised in the absence of negligence.” Sec. Am. Complaint, ¶ 60. Further, T.K. claims that at the time he sustained his injuries, the farm trailer that injured him was under the exclusive control of Decatur Boys & Girls Club and America Boys [*18] & Girls Club. Id. ¶ 61. These allegations are not sufficient to render the doctrine of res ipsa loquitur applicable here. See Twombly, 550 U.S. at 545 (noting that “a formulaic recitation of a cause of action’s elements” will not withstand a Rule 12(b)(6) motion to dismiss). And although the Second Amended Complaint contains numerous factual allegations regarding the incident in which T.K. was injured, those allegations do not indicate a plausible right to relief for T.K. under the doctrine of res ipsa loquitur.

Because the facts pleaded in Plaintiffs’ Second Amended Complaint provide no support for the second prong in the res ipsa loquitur analysis–whether an injury was caused by an object within the defendant’s exclusive control–the Court’s res ipsa loquitur analysis will begin and end with that prong. Even assuming that the incident in which T.K. was injured was one that does not ordinarily occur in the absence of negligence, T.K.’s account of the circumstances surrounding the accident indicate that it was Defendant Paulin, not Decatur Boys & Girls Club or America Boys & Girls Club, who had exclusive control of the farm trailer. According to the Second Amended Complaint, the farm trailer that injured T.K. was owned [*19] by Defendant Paulin and located on Defendant Paulin’s property. Defendant Paulin was the one who pulled the trailer onto a public road with T.K. and several other minor children on board. Defendant Paulin owned the tractor with which the trailer was pulled. Although T.K. claims that Decatur Boys & Girls Club and America Boys & Girls Club were responsible for placing him on the farm trailer, he makes the same allegation with respect to Defendant Paulin. See Sec. Am. Complaint, ¶¶ 22-23. In short, there is nothing in the Second Amended Complaint to support T.K.’s allegation that Decatur Boys & Girls Club and America Boys & Girls Club were in exclusive control of the farm trailer at any time.

Based on this analysis, the Court has determined that the factual allegations of the Second Amended Complaint are not sufficient to render the doctrine of res ipsa loquitur applicable. In doing so, the Court again notes that res ipsa loquitur is an evidentiary rule, not a distinct theory of recovery. If facts uncovered through the discovery process sufficiently support the application of res ipsa loquitur against any Defendant, the Court will allow T.K. to rely on the doctrine at the summary judgment [*20] stage and will allow the trier of fact to consider and apply the doctrine as to that Defendant.

C. Count III and Count V Sufficiently Plead Willful and Wanton Misconduct Claims Against the Defendants.

To state a claim under Illinois law for willful and wanton misconduct, a plaintiff must plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.” Kirwan v. Lincolnshire-Riverwoods Fire Protections Dist., 349 Ill. App. 3d 150, 811 N.E.2d 1259, 1263, 285 Ill. Dec. 380 (Ill. App. Ct. 2004) (quoting Adkins v. Sarah Bush Lincoln Health Ctr., 129 Ill. 2d 497, 544 N.E.2d 733, 743, 136 Ill. Dec. 47 (Ill. 1989)). As noted above, T.K. has sufficiently pleaded negligence causes of action against all Defendants. T.K. has incorporated the allegations comprising his negligence claims into his willful and wanton misconduct claims against Defendants. Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants. Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. Kirwan, 811 N.E.2d at 1263. To meet this standard, the defendant “must be conscious of his conduct, [*21] and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.” Id.

In the Second Amended Complaint, T.K. alleges that on July 17, 2015, Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. Sec. Am. Complaint, ¶¶ 22, 65. T.K. further alleges that the trailer was not designed to transport people. Id. ¶ 24. T.K claims that Decatur Boys & Girls Club and America Boys & Girls Club failed to take necessary safety precautions and operated their summer camp recklessly or with gross negligence. Id. ¶¶ 64, 68. According to T.K., the actions and inaction of Decatur Boys & Girls Club and America Boys & Girls Club were “willful, wanton, grossly negligent, careless, [and] reckless” and “showed an utter indifference to or conscious disregard for the safety of [T.K.].” Id. ¶ 70.

T.K. also includes several allegations in Count III about what Decatur Boys & Girls Club and America Boys & Girls Club “knew or should have [*22] known.” Specifically, according to T.K., Decatur Boys & Girls Club and America Boys & Girls Club knew or should have known that the farm trailer was unreasonably dangerous, that additional supervision was required for the 15 to 20 children riding on the farm trailer, and that there was no way for the children to be properly seated on the farm trailer. Id. ¶¶ 66-68. Decatur Boys & Girls Club and America Boys & Girls Club also knew or should have known that placing children on the farm trailer and pulling it with a tractor without proper supervision posed a high probability of serious physical harm to T.K. Id. ¶ 69.

With respect to Defendant Paulin, T.K. alleges that Defendant Paulin placed T.K. on a farm trailer that was not designed or intended to transport people and had no guardrails, seats, or seat belts to prevent people from falling off it. Id. ¶¶ 23, 25-26. Further, T.K. claims that Defendant Paulin had no intention of making sure that T.K. was safe when she placed him on the farm trailer and pulled it onto a public road. Id. ¶ 83. T.K. also claims that Defendant Paulin failed to take necessary safety precautions. Id. ¶ 85. Defendant Paulin’s conduct, according to T.K., was “willful, [*23] wanton, grossly negligent, careless, [and] reckless” and showed a “conscious disregard for the safety of [T.K.].” Id. ¶ 87.

As with Decatur Boys & Girls Club and America Boys & Girls Club, T.K. includes allegations in the Second Amended Complaint regarding what Defendant Paulin “knew or should have known.” Specifically, T.K. alleges that Defendant Paulin knew or should have known that the farm trailer was unreasonably dangerous, that pulling children onto a public road while on the trailer was unreasonably dangerous, and that placing children on the farm trailer and pulling the trailer onto a public roadway without proper supervision posed a high probability of serious physical harm or death. Id. ¶¶ 83-84, 86.

T.K.’s allegations are sufficient to plead willful and wanton misconduct claims against Defendants. The Federal Rules of Civil Procedure require that a pleading include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a)(2). A plaintiff need not plead enough facts to show that he is likely to prevail on his claim; rather, he is required only to include enough facts to raise his claim from speculative to plausible. See Iqbal, 556 U.S. at 678. The allegations set forth [*24] above are sufficient to make it plausible that Defendants committed willful and wanton misconduct when they put T.K. on an unsafe farm trailer not designed for transporting people, failed to take necessary safety precautions, and either failed to properly supervise T.K. or pulled the trailer, with T.K. on it, onto a public road. See Worthem v. Gillette Co., 774 F. Supp. 514, 517 (N.D. Ill. 1991) (holding that the plaintiff had sufficiently pleaded willful and wanton misconduct claims where she alleged that “willful and wanton acts or omissions [were] committed or omitted with conscious indifference to existing circumstances and conditions” and went on to “enumerate specific instances of willful and wanton conduct”).

Although T.K.’s “knew or should have known” allegations against Defendants may have been insufficient to meet his pleading burden with respect to willful and wanton misconduct claims, see id. (admitting that the court “might agree” with the defendant’s arguments that “knew or should have known” allegations are mere negligence allegations insufficient to merit punitive damages), T.K. does not rely solely on these allegations in his willful and wanton misconduct claims against Defendants. Indeed, as the Court has noted above, Count III [*25] and Count V of the Second Amended Complaint, which incorporate the allegations from the counts preceding them, contain specific factual allegations regarding the actions Defendants took. Further, the Court does not view T.K.’s “knew or should have known” allegations as completely irrelevant to a willful and wanton misconduct claim under Illinois law, which holds that willful and wanton misconduct can be found where there is a failure to discover a danger through carelessness when it could have been discovered through the exercise of ordinary care. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 641 N.E.2d 402, 406, 204 Ill. Dec. 178 (Ill. 1994).

The fact that T.K. bases his willful and wanton claims on the same facts as his negligence claims is of no concern. Under Illinois law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Bastian v. TPI Corp., 663 F. Supp. 474, 476 (N.D. Ill. 1987) (citing Smith v. Seiber, 127 Ill. App. 3d 950, 469 N.E.2d 231, 235, 82 Ill. Dec. 697 (Ill. App. Ct. 1984). Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.” Bastian, 663 F. Supp. at 476 (citing O’Brien v. Twp. High Sch. Dist. 214, 83 Ill. 2d 462, 415 N.E.2d 1015, 1018, 47 Ill. Dec. 702 (Ill. 1980).

V. CONCLUSION

For the foregoing reasons, Defendants Boys & Girls Club of America and Boys & Girls Club of Decatur, Inc.’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion [*26] to Strike Portions of Count I of the Second Amended Complaint (d/e 32) is GRANTED IN PART and DENIED IN PART. Count II of Plaintiffs’ Second Amended Complaint is DISMISSED WITHOUT PREJUDICE. Further, the Court STRIKES paragraph 27 of Plaintiffs’ Second Amended Complaint as duplicative. Defendant Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33) is DENIED. Pursuant to Rule 12(a)(4)(A) of the Federal Rules of Civil Procedure, Defendants have 14 days from the date they receive a copy of this Order to file an answer to Plaintiffs’ Second Amended Complaint.

ENTER: June 6, 2017.

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE