Oelze v. Venture

• Decision Date: 30 March 2010
• Docket Number: No. 1-09-1476.,1-09-1476.
• Citation: 401 Ill.App.3d 110,927 N.E.2d 137,339 Ill.Dec. 596
• Parties: Renate OELZE, Plaintiff-Appellant,v.SCORE SPORTS VENTURE, LLC d/b/a Score Tennis and Fitness Center, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

401 Ill.App.3d 110

927 N.E.2d 137

339 Ill.Dec. 596

Renate OELZE, Plaintiff-Appellant,v.SCORE SPORTS VENTURE, LLC d/b/a Score Tennis and Fitness Center, Defendant-Appellee.

No. 1-09-1476.

Appellate Court of Illinois First District, Second Division.

March 30, 2010.

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Law Office of Christ S. Stacey, Chicago (Christ S. Stacey, of counsel), for Appellant.

Pretzel & Stouffer, Chartered, Chicago (Robert Marc Chemers, David M. Bennett and Thomas E. Daugherty, of counsel), for Appellee.

Justice KARNEZIS delivered the opinion of the court:

Plaintiff Renate Oelze filed an action alleging negligence and willful and wanton misconduct against defendant ABRIA, INC., d/ b/a Score Tennis & Fitness Center ¹ for injuries she sustained while playing tennis at defendant's tennis club. Plaintiff had previously signed a membership agreement containing a statement releasing defendant from liability for any injuries plaintiff might sustain when using defendant's equipment and facilities. The court dismissed plaintiff's negligence count and granted summary judgment to defendant on plaintiff's willful and wanton misconduct count. On appeal, plaintiff asserts the court erred in (1) dismissing her negligence claim because (a) she did not voluntarily waive her right to sue defendant for negligence when she signed the release and, alternatively, (b) her injury was caused by a circumstance that did not ordinarily accompany the game of tennis and was, therefore, not covered by the release; (2) granting summary judgment to defendant on the willful and wanton count because there exists a question of fact regarding whether defendant exhibited a conscious disregard for the safety of its patrons; and (3) finding that defendant's responses to plaintiff's request to admit were proper. We affirm in part, reverse in part and remand.

Background

Defendant is the owner and operator of an indoor tennis club. Plaintiff has been a member of the tennis club for over 10 years. On October 5, 2005, a club employee presented her with a “Players Club Membership Agreement” covering her membership for the upcoming tennis season. She had signed similar agreements in previous years. The agreement included a statement under which plaintiff released defendant “from any and all liability for any damage or injury” plaintiff might receive while using defendant's equipment and facilities and assumed all risk for claims rising from the use of the equipment and facilities. Plaintiff signed the agreement.

On February 10, 2006, plaintiff was playing a tennis match on defendant's tennis court 5. Defendant's courts are separated from an access/service walkway by a heavy, black, floor-to-ceiling curtain at the back of each court. Players access the courts from the walkway and defendant stores equipment in the walkway. Returning a lob during her match, plaintiff ran to the back of the court and ran into the curtain trying to return the shot. Her effort pushed the curtain back slightly and she caught her foot in a rope exercise ladder lying behind the curtain. Plaintiff fell, fracturing her elbow and tearing her rotator cuff. The ladder was not visible from the court before the accident. Only after the accident, when a witness to the accident pushed the curtain back, was the ladder visible.

Plaintiff filed suit for negligence, asserting defendant was negligent in placing the ladder or allowing it to remain on the floor behind the curtain where it could not be seen from the court knowing that it would be a tripping hazard to anyone playing tennis on the court. Defendant moved to dismiss pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2008)). It asserted that plaintiff, by signing the membership agreement containing the release clause, voluntarily waived liability on behalf of defendant.

Plaintiff responded by asserting she did not voluntarily waive liability on behalf of defendant. By affidavit and deposition, she stated that she chose to make automatic payments for her membership dues and signed the form thinking that it was an authorization form for the automatic deductions from her credit card. When presented with the form, she asked the club employee who presented the form to her what it was and was told it was an authorization form for the automatic payments. Plaintiff saw that the $135 monthly fee was correct and signed the form on the only signature line. She did not see that the form contained a release.

Plaintiff stated in a deposition that she played at the club three or four times a week and, besides using the courts, regularly used the treadmills and weights available in the workout area of the club. Walking through the access walkways, she always saw a “a lot of stuff” behind the curtains, such as tennis carts, padded concrete pillars, an equipment box and loose tennis balls. It was her habit, as she walked through the access walkway, to kick errant tennis balls from the middle of the walkway to the side, close to the curtain, so she would not step on the balls as she walked. She had walked through the walkway on the way to her match the morning of the accident but did not see the ladder. During the match, plaintiff had run to the back of the court to return a shot, and “got stuck with [her] foot” in the curtain. She thought she had gotten caught in a hole in the curtain but saw the culprit was a rope ladder when someone lifted the curtain to see what had trapped her. She had not known the ladder was there.

Plaintiff testified it was unavoidable that a player would come in contact with the curtain at some point when chasing a deep ball but that you cannot get hurt hitting the curtain. Only if something that should not be there is too close behind the curtain, such as a cart with balls, could one get hurt. The player's goal is not, however, to hit the curtain with her body, because then the player could not get to the ball anyway. The curtains are heavy and give a little when touched. Only if a player ran “really hard to it,” with all of her force, would a curtain give more.

Connie Stinek and Mary Gallagher testified by deposition that they witnessed plaintiff's accident. Stinek, the tennis director for another club, pushed the curtain back after the accident and saw the rope ladder. When she was leaving the court, she saw “other teaching equipment, teaching carts, you know, other cones and those kinds of things there” in the walkway. Stinek remembered thinking when she saw the equipment, “oh boy, that is not real safe.” The equipment, including the ladder, appeared tennis specific and was all equipment used at her club as well. Her club had a separate area away from the walkway for such equipment. Gallagher testified she saw plaintiff go back against the curtain when she reached to hit the ball to return a lob. She saw the curtain push back when plaintiff made contact, plaintiff's foot get caught in “some kind of netting,” which was “right by the backdrop or right behind it,” and plaintiff go down.

Jeff Schuetz, the club tennis pro supervising plaintiff's match, testified in his deposition that players could run a few inches or feet into the dividing curtains while playing on the courts. He stated the walkways should, therefore, be kept clear of equipment and other tripping hazards. One of his responsibilities, as it was for all the club teaching and fitness staff, was to keep the floors clear of any tripping hazards. He had taught the cardio-fitness class which used the equipment Stinek saw in the walkway, including the ladder, but did not remember whether he had used the ladder in class that morning. It was Schuetz's responsibility to retrieve the equipment and put it away after the fitness class. None of the equipment should have been on the floor behind the curtain. It was kept in a large green equipment storage box kept two feet from the back of the curtains. Although Schuetz typically put the fitness equipment away after class, sometimes class members did the cleanup. He did not recall who performed the cleanup that morning. He did not see the ladder prior to the accident. It was Schuetz's practice to walk through the walkway every morning and pick up stray balls and anything that needed cleaning up. He walked through the walkway that morning and did not see the rope ladder. Had he seen it on the floor, he would have picked it up and put it away.

Lisa Paolella, the club's general manager, testified by deposition that the ladder was used in fitness training sessions at the club. She stated everyone in the class will help bring the equipment out before class and put it back after class, “a group effort,” but the trainer or pro leading the class makes sure the equipment is put back. The ladder is to be used only for supervising training sessions but anyone at the club has access to it. Paolella testified she and all the teaching and fitness pros at the club have responsibility for the maintenance and pick up of the facility to keep the floor free of hazards. She stated “we don't allow debris to remain on the tennis court” because it would be unsafe. She found it “likely” that anyone running into the curtain would cause it to move back “a few inches.” She found moving the curtain back “a few feet is hardly likely.”

Paolella testified the club does not store equipment up against the curtain “in case someone does fall into the curtain.” It would not be safe. She stated that, for the safety of the tennis players, the area right behind the curtain must be free of objects. She stated if she was walking through the walkway and saw the ladder on the floor behind the curtain she would pick it up and her employees were trained to do the same. On the morning before plaintiff's match, the walkway would have been cleaned by the club's maintenance person. He cleaned the walkways three days a week. Cleaning involved picking up any stray balls and rackets,...