In a pending appeal from a jury verdict in favor of defendants Capital Fitness Inc. and a personal trainer, the plaintiff Gabriela Sosa-Gaines appealed the verdict handed down by a DuPage County Circuit Court jury on Aug. 4, 2017 and entered by the trial court.
The principal basis for the appeal was that the trial court denied the plaintiff’s motion for summary judgment and refused to instruct the jury on assumption of risk, the risk that the plaintiff could never have imagined when signing the two exculpatory- laden agreements.
It was argued in the briefs and in oral argument, which took place on Dec. 14, 2018 at the Illinois Appellate Court, Second District in Elgin, Ill., that there was no genuine issue of disputed facts that the “mild adjustment” that herniated plaintiff’s disks at the thoracic spine level was not an activity covered by the exculpatory clauses found in the Capital Fitness/XSport Membership Agreement and the Physical Training Agreement. Both documents have broad exculpatory clauses that would make a claim for negligence against these defendants unsustainable should any one of the delineated activities injure the plaintiff.
However, the exculpatory clauses of the agreements clearly did not exclude manipulations, adjustments, medical advice, medical treatment of any kind and particularly a spinal adjustment that herniated the disks of the plaintiff. That being the case, it was claimed that the trial court was wrong in denying the plaintiff’s summary judgment motion because it was abundantly obvious that as a matter of law, a “mild adjustment” that injured the plaintiff was not covered in exculpatory clauses.
In addition, and perhaps more important, the trial court was wrong in choosing not to give an adequate jury instruction on assumption of risk.
The defendants maintained that because their affirmative defense was whether the exculpatory language in the Membership Agreement barred plaintiff’s injury claim against these defendants, the jury was aptly instructed and thus the general verdict should not be overturned. The defendants also argued that because of the affirmative defense raised, no assumption of risk instruction could be given because of the “Notes” found in the Illinois Pattern Jury Instructions, No. 13. The defendants also maintained that because there was no special interrogatory submitted, the general verdict should stand.
Fundamentally, the trial court’s reversible error was in its denial of the plaintiff’s proposed jury instruction No. 7, which laid out the specific instruction on assumption of risk. There is no way the jury could have found in favor of the plaintiff with the narrow and limited instruction given by the trial court. In fact, this is one of those cases where the defendants were completely insulated from an adverse jury verdict because of the judge’s decision in giving a jury instruction was limited only to whether the exculpatory clauses barred a negligence claim for the defendant personal trainer laying hands on plaintiff to ostensibly cure a medical condition: a painful feeling in plaintiff’s mid-back.
The agreements completely prohibited a personal trainer, or anyone connected to the defendants from giving any medical advice, diagnosis or medical treatment to any person. The several personal training organizations that the defendant personal trainer claimed to be an active member of likewise prohibits any such activity and just the kind of manipulation that the personal trainer testified to that a chiropractor would do but only more extensively. The personal trainer defendant testified at trial that he was not a chiropractor but had studied what chiropractors do and had watched an instruction video on chiropractic maneuvers.
Under Illinois law, exculpatory clauses are strictly construed against the benefactor of such clauses, which in this case is the defendant Capital Fitness. Capital Fitness was required to specifically identify “mild adjustments” as an assumed risk in the exculpatory clauses of the Membership Agreement, but it did not do so. What Capital Fitness did at trial was to persuade the trial judge to instruct the jury that an inference in its favor that such risks relating to “mild adjustments” were covered by the exculpatory clause, but under Illinois law, the inferences are made in favor of the plaintiff, not Capital Fitness. There was no way that plaintiff could reasonably have believed, anticipated or assumed the risk that the personal trainer at Capital Fitness would be physically putting pressure on her spine for a “mild adjustment.”
The law in this area of exculpatory clauses demands that the doctrine of assumption of risk presupposes that the danger that 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 possibility of injury prior to its occurrence. Larsen v. Vic Tanny International, 130 Ill.App.3d 574, 576-577 (5th Dist. 1984). The Larsen case makes clear that “foreseeability of specific danger is thus an important element of the risk which a party assumes, and for this reason, serves to define the scope of an exculpatory clause.” The plaintiff could not have known that she was waiving the right to bring this case for negligence against these defendants anticipating that she would be “mildly adjusted” by a personal trainer that would result in her severe and permanent injuries. There was no such exclusion in the Membership Agreement or Personal Trainer Agreement.
The jury instruction that no doubt influenced the jury in this case was the defendants’ jury instruction that merely recited the affirmative defense (the exculpatory clause) without going through what the trial court had already determined, “genuine issues of fact” that should be left up to the jury. The trial court rejected plaintiff’s jury instructions that would have conveyed to the jury to consider whether the plaintiff assumed the risk of being injured by a “mild adjustment” made by her personal trainer at just her second session.
The transcript of the proceedings in this case show that the trial court judge was asking the very questions that he refused to allow the jury to answer.
The defendants’ response to the error in jury instruction was that the verdict should not be overturned because the “manifest weight of the evidence” was in their favor. That cannot be the case when the jury instructions were so blatantly deficient. The plaintiff seeks the Court’s order reversing the trial court’s verdict and order in favor of defendants and remanding the case back to the trial court with instructions for a new trial requiring the correct instructions to the jury.
Oral argument was heard by Justices Michael J. Burke, Anne B. Jorgensen and Donald C. Hudson. Oral argument was presented on behalf of plaintiff by John W. Whitcomb and supported by co-counsel Robert D. Kreisman. The case remains under consideration by the appeals panel.
Gabriela Sosa-Gaines v. Capital Fitness, Inc. d/b/a XSport Fitness, et al., No. 2-17-1035 (Appellate Court of Illinois, Second Judicial District).
Kreisman Law Offices has been handling catastrophic injury lawsuits, civil appellate practice in state and federal courts, work injury lawsuits and truck crash cases for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Bolingbrook, Elgin, Joliet, Midlothian, Northfield, Glenview, Rosemont, Chicago Ridge, Oak Park, Oak Lawn, Park Forest, Park Ridge, Chicago (East Side, Hegewisch, Lake Calumet, Back of the Yards, Little Italy, Chinatown, Bucktown, Wicker Park, Austin, Lawndale, Garfield Park, Jefferson Park, Washington Park), Long Grove, Wilmette, Waukegan, Zion, Lake Zurich and Berwyn, Ill.
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