{
  "id": 5271408,
  "name": "Susan Owen, Plaintiff-Appellee, v. Vic Tanny's Enterprises, a Corporation, Defendant-Appellant",
  "name_abbreviation": "Owen v. Vic Tanny's Enterprises",
  "decision_date": "1964-04-06",
  "docket_number": "Gen. No. 49,254",
  "first_page": "344",
  "last_page": "348",
  "citations": [
    {
      "type": "official",
      "cite": "48 Ill. App. 2d 344"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "177 NE2d 925",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1961,
      "opinion_index": 0
    },
    {
      "cite": "10 NY2d 294",
      "category": "reporters:state",
      "reporter": "N.Y.2d",
      "case_ids": [
        2260406
      ],
      "year": 1961,
      "opinion_index": 0,
      "case_paths": [
        "/ny-2d/10/0294-01"
      ]
    },
    {
      "cite": "169 NE2d 396",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1960,
      "opinion_index": 0
    },
    {
      "cite": "27 Ill App2d 189",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        5786643
      ],
      "year": 1960,
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-2d/27/0189-01"
      ]
    },
    {
      "cite": "114 NE2d 721",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1953,
      "opinion_index": 0
    },
    {
      "cite": "415 Ill 453",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2682045
      ],
      "year": 1953,
      "opinion_index": 0,
      "case_paths": [
        "/ill/415/0453-01"
      ]
    },
    {
      "cite": "155 NE2d 545",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1958,
      "opinion_index": 0
    },
    {
      "cite": "15 Ill2d 436",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        2766827
      ],
      "year": 1958,
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/15/0436-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 449,
    "char_count": 6648,
    "ocr_confidence": 0.548,
    "pagerank": {
      "raw": 3.7711909616550016e-07,
      "percentile": 0.8961259903569667
    },
    "sha256": "3b0844a5e8cc34219f91dc28c722542863eeba0cee8d4090bfe593dd437c581c",
    "simhash": "1:bd3f0de2fa41025d",
    "word_count": 1070
  },
  "last_updated": "2023-07-14T21:28:25.209130+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "BURMAN and KLUCZYNSKI, JJ., concur."
    ],
    "parties": [
      "Susan Owen, Plaintiff-Appellee, v. Vic Tanny\u2019s Enterprises, a Corporation, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "MR. PRESIDING- JUSTICE MURPHY\ndelivered the opinion of the court.\nThis is a personal injury action in which plaintiff, a member of defendant\u2019s gymnasium, sues to recover, for injuries received while on defendant\u2019s premises. The answer relied on an exculpatory clause in the membership contract. A $2,000 verdict and judgment for plaintiff resulted. Defendant appeals from the denial of its motion for a judgment notwithstanding the verdict.\nThe facts are not in dispute. At the time of the occurrence, the defendant corporation was engaged in the business of providing gymnastic facilities for its members. On February 11, 1961; plaintiff used the facilities offered under the membership contract and slipped and fell as she left the defendant\u2019s swimming pool, suffering an injury to her right wrist. At the trial, plaintiff testified, \u201cThe floor was wet . . . some kind of stone floor, what they have in any shower room floor .... It just didn\u2019t have the roughness to it as the rest of the floor had.\u201d An employee of defendant testified that the \u201csmooth spot\u201d had been there for a period of time, and she \u201creported it to the management .... The management did nothing about it.\u201d\nThe determinative question is whether, under such circumstances, the exculpatory clause is a complete defense. It reads as follows:\n\u201cMember, in attending said gymnasiums and using the facilities and equipment therein, does so at his own risk. Tanny shall not be liable for any damages arising from personal injuries sustained by Member in, on or about the premises of any of the said gymnasiums. Member assumes full responsibility for any injuries or damages which may occur to Member in, on or about the premises of said gymnasiums and he does hereby fully and forever release and discharge Tanny and all associated gymnasiums, their owners, employees and agents from any and all claims, demands, damages, rights of action, or causes of action, present or future, whether the \u25a0 same be known, anticipated or unanticipated, resulting from or arising out of the Member\u2019s use or intended use of the said gymnasium or the facilities and equipment thereof.\u201d\nIn Illinois, clauses that exculpate the landlord from the consequences of his negligence were sustained in residential as well as commercial leases in the absence of a statute voiding them. (O\u2019Callaghan v. Waller & Beckwith Realty Co., 15 Ill2d 436, 155 NE2d 545 (1958); Jackson v. First Nat. Bank of Lake Forest, 415 Ill 453, 114 NE2d 721 (1953).) We believe the pronouncements in those cases, made in sustaining exculpatory clauses, apply here. Although the Illinois legislature enacted a statute (Ill Rev Stats 1959, c 80, \u00a7 15a) that such clauses in leases \u201cshall be deemed to be void as against public policy and wholly unenforceable,\u201d we are not persuaded, as plaintiff argues, that the legislature intended to extend the provisions of the Act to any other type of contract. If exculpatory clauses in,contracts for gymnastics and reducing activities were intended to be \u201cdeemed to be void as against public policy,\u201d the legislature would have so provided.\nPlaintiff\u2019s principal contention is that an exculpatory clause will be strictly construed against the party whom' it favors, and other terms of the instrument may be considered in weighing the parties\u2019 intent with regard to the clause. We agree with this statement. (Moss v. Hunding, 27 Ill App2d 189, 169 NE2d 396 (1960).) As there expressed (p 193), the rule of construction to be applied here is tbat \u201can agreement protecting one from tbe consequences of Ms own negligence must be in clear and explicit language or expressed M unequivocal terms.\u201d We find no merit in plaintiff\u2019s contention tbat tbe clause refers only to injuries arising from tbe use of facilities which are not, in themselves, necessarily defective, or that it is not applicable where a portion of the building is defective. The mishap occurred in the shower room adjacent to the swimming pool, which we believe is within the provisions of the clause relating to \u201con or about the premises of said gymnasium\u201d and \u201cresulting from or arising out of the Member\u2019s use or intended use of the said gymnasium or the facilities and equipment thereof.\u201d\nThe New York case of Ciofalo v. Vic Tanney Gyms, Inc., 10 NY2d 294, 177 NE2d 925 (1961), is factually similar. The plaintiff fell at or near the edge of the swimming pool on defendant\u2019s premises and claimed that the fall was due to excessive slipperiness and lack of sufficient personnel. Defendant set forth the contract as an affirmative defense. The trial court granted a summary judgment for defendant and, in affirming the Court of Appeals, said (p 926):\n\u201cThe wording of the contract in the instant case expresses as clearly as language can the intention of the parties to completely insulate the defendant from liability for injuries sustained by plaintiff by reason of defendant\u2019s own negligence, and, in the face of the allegation of the complaint charging merely ordinary negligence, such agreement is valid.\n\u201cHere there is no special legal relationship and no over-riding public interest which demand that this contract provision, voluntarily entered into by competent parties, should be rendered ineffectual. Defendant, a private corporation, was under . no obligation or legal duty to accept plaintiff as a \u2018member\u2019 or patron. Having consented to do so, it had the right to insist upon such terms as it deemed appropriate. Plaintiff, on the other hand, was not required to assent to unacceptable terms, or to give up a valuable legal right . . . .\u201d\nWe believe the foregoing pronouncements in Ciofalo v. Vic Tanney Gyms, Inc., apply here. The scarcity of facilities for gymnastic and reducing activities hardly creates such a disparity of bargaining power that plaintiff is forced to accept such terms without alternatives. If the public interest is involved, it is for the legislature to make such pronouncements. Absent appropriate legislative action, we must hold that the instant exculpatory clause barred plaintiff\u2019s suit, and the court erred in not directing a verdict for the defendant and in denying defendant\u2019s motion for a judgment notwithstanding the verdict.\nFor the reasons stated, the judgment for plaintiff is hereby reversed and judgment is entered here for defendant.\nReversed and judgment here.\nBURMAN and KLUCZYNSKI, JJ., concur.",
        "type": "majority",
        "author": "MR. PRESIDING- JUSTICE MURPHY"
      }
    ],
    "attorneys": [
      "Vogel & Vogel, of Chicago (David F. Holland, of counsel), for appellant.",
      "Harry B. Davidson, of Maywood, for appellee."
    ],
    "corrections": "",
    "head_matter": "Susan Owen, Plaintiff-Appellee, v. Vic Tanny\u2019s Enterprises, a Corporation, Defendant-Appellant.\nGen. No. 49,254.\nFirst District, First Division.\nApril 6, 1964.\nVogel & Vogel, of Chicago (David F. Holland, of counsel), for appellant.\nHarry B. Davidson, of Maywood, for appellee."
  },
  "file_name": "0344-01",
  "first_page_order": 356,
  "last_page_order": 360
}