Illinois Official Reports 

Appellate Court

C.H. v. Pla-Fit Franchise, LLC, 2017 IL App (3d) 160378

Appellate Court 

Caption

C.H., Plaintiff-Appellant, v. PLA-FIT FRANCHISE, LLC, a New

Hampshire Limited Liability Company, and PF EAST MOLINE, 

LLC, an Illinois Limited Liability Company, d/b/a Planet Fitness,

Defendants-Appellees.—KELLY OTTERNESS, Individually and on

Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. 

PLA-FIT FRANCHISE, LLC, a New Hampshire Limited Liability 

Company, and PF EAST MOLINE, LLC, an Illinois Limited Liability 

Company, d/b/a Planet Fitness, Defendants-Appellees.

District & No. Third District

Docket No. 3-16-0378

Filed

Rehearing denied

August 23, 2017

September 25, 2017

Decision Under 

Review

Appeal from the Circuit Court of Rock Island County, Nos. 14-L-151, 

15-L-31; the Hon. Clarence M. Darrow, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Mark F. Cyr, of Law Office of Mark F. Cyr, of Moline, and Michael J. 

Warner, of Warner & Zimmerle, of Rock Island, for appellants.

James R. Branit and Mitchell H. Frazen, of Litchfield Cavo, LLP, of 

Chicago, for appellee Pla-Fit Franchise, LLC.
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Michael W. Donaubauer and Gary K. Moore, of Moore Strickland, of 

Chicago, for other appellee.

Panel JUSTICE McDADE delivered the judgment of the court, with 

opinion.

Justices O’Brien and Schmidt concurred in the judgment and opinion. 

 OPINION 

¶ 1 Plaintiffs C.H. and Kelly Otterness were secretly videotaped in Planet Fitness’s tanning 

rooms. Plaintiffs filed a second amended complaint against defendants Pla-Fit Franchise, 

LLC (Pla-Fit), and PF East Moline, LLC (PF East Moline), alleging defendants’ failure to 

ensure members’ privacy in the tanning rooms caused plaintiffs’ severe emotional distress. 

Defendants filed separate motions to dismiss the complaint, and the trial court granted the 

motions, determining plaintiffs had no cause of action for emotional distress damages. 

Plaintiffs appealed, arguing that (1) defendants are liable in negligence for the criminal or 

tortious acts committed by a third party and (2) defendants failed to exercise reasonable care 

in violation of section 2 of the Premises Liability Act (740 ILCS 130/2 (West 2014)). We 

affirm. 

¶ 2 FACTS 

¶ 3 Pla-Fit, a franchisor that owned the trademark name “Planet Fitness,” and PF East 

Moline, a franchisee, entered into a franchise agreement in which PF East Moline would 

own, operate, and do business under the Planet Fitness name in Moline, Illinois. In the 

agreement, PF East Moline was to operate the gym under business formats, methods, 

procedures, designs, layouts, standards, and specifications created and distributed by Pla-Fit 

and Pla-Fit reserved the right to improve, develop, and modify the terms of the agreement. 

¶ 4 Plaintiffs were members of the Moline gym. They upgraded their memberships to “Black 

Card” status in which the plaintiffs paid an extra fee to utilize the tanning rooms. Each 

tanning room contained a single tanning bed, and members gained access to the rooms by 

placing their names on a sign-in sheet before entering. 

¶ 5 Between August and November 2014, plaintiffs disrobed and used the tanning beds in the 

tanning rooms. During this time, plaintiffs were secretly video recorded. On November 5, a 

PF East Moline employee discovered a hidden video camera in one of the tanning rooms. 

The police were called and conducted a search throughout the club. The next day, PF East 

Moline discovered a second hidden video camera in a different tanning room. Again, the 

police were notified. Eventually, a member of the gym, Trent Hamer, was arrested for the 

crime. 

¶ 6 Mary Barnhill filed the original complaint against Pla-Fit and MBM Fitness Management 

LLC (case No. 14-L-149), alleging defendants failed to exercise a duty of care to protect its 

members’ privacy in the tanning rooms. Barnhill filed a subsequent first amended complaint 
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removing MBM Fitness Management LLC and adding PF East Moline as a defendant. C.H.’s 

and Otterness’s cases (case No. 15-L-31 and case No. 14-L-151, respectively) were later 

consolidated with Barnhill’s lawsuit. Ultimately, Barnhill and defendants filed a stipulation 

to dismiss, wherein Barnhill dismissed her lawsuit against defendants with prejudice. The 

surviving plaintiffs, C.H. and Otterness, filed a joint second amended complaint against 

defendants. Under count I of the second amended complaint, C.H.’s allegations against 

Pla-Fit were the following: 

 “COUNT I

 C.H. vs. Pla-Fit Franchise, LLC 

 63. Plaintiff, C.H., repeats, re-alleges, and adopts paragraphs 1-16 above with the 

same force and effect as though fully set forth herein. 

 64. Defendant PLA-FIT, before up to and including November 2015, had control 

or partial control of their franchisee’s (including PF EM) on information and belief 

and included, but not limited to, marketing the services of PF EM, providing rules 

and regulations as to security of the facilities, and providing instructions to the 

franchisees as to how and under what circumstances to clean and inspect the tanning 

booths. 

 65. Defendant PLA-FIT knew or in the exercise of due care should have known 

that certain persons would attempt to secretly video record people in the tanning 

rooms in various states of undress through access to various franchise business 

journals and trade associations memoranda and the fact that they knew that people 

had engaged in this type of behavior in other franchises other than the one in Moline. 

 66. The cost of engaging in activity to minimize or completely prevent the risk of 

people secretly recording people in the tanning rooms would be minimal and would 

involve nothing more than educating employees what to look for and how to inspect 

the premises. 

 67. At all relevant times complained of herein, Defendant PLA-FIT had a duty to 

exercise ordinary care to provide their franchisees with appropriate policies, 

procedures, and directions to prevent or minimize the risk of their members being 

secretly video recorded while using tanning rooms. 

 68. Defendant digressed from the aforementioned duty and as such was negligent 

in one or more of the following respects: 

 a. Did not create or adequately create and provide to the franchisees sufficient 

policies and procedures designed to protect the privacy and security of Plaintiff 

while they used the tanning rooms at the Planet Fitness Gym. 

 b. Did not engage in adequate inspection of the tanning rooms at the Planet 

Fitness Gym for products or devices that could be used to secretly video record 

the tanning rooms. 

 c. Did not provide adequate warning materials to franchisees to give members 

to advise them of the risk of being secretly videotaped while using tanning rooms 

at the Planet Fitness Gym. 

 69. One or more of the aforementioned acts and omissions by Defendant 

proximately caused the Plaintiff to suffer severe, significant, and permanent 

emotional distress.” 
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¶ 7 Under count II, C.H.’s allegations against PF East Moline were the following: 

 “COUNT II

 C.H. vs. PF EM 

 70. Plaintiff repeats and re-alleges paragraphs 1-16 above with the same force and 

effect as though fully set herein. 

 71. Defendant PF EM knew or in the exercise of due care should have known that 

certain persons would attempt to secretly video record people in the tanning rooms 

because they had access to various PLA-FIT franchise literature and knew or should 

have known that at Planet Fitness locations other than the facility in Moline, 

customers of Planet Fitness were secretly video recorded in tanning rooms before 

November of 2014. 

 72. The cost of engaging in activity to minimize or completely prevent the risk of 

people secretly recording people in the tanning rooms would have been minimal and 

would have involved nothing more than educating employees what to look for and 

how to inspect the premises. 

 73. At all relevant times complained of herein, Defendant PF EM had a duty to 

exercise ordinary care to protect their members’ privacy and security during their use 

of the tanning rooms at the Planet Fitness Gym at 3624 Avenue of the Cities, Moline, 

Illinois 61265. 

 74. At all relevant times complained of herein, Defendant PLA-FIT had a duty to 

exercise ordinary care to provide their franchisee with appropriate policies, 

procedures, and directions to prevent or minimize the risk of their members being 

secretly video recorded while using tanning rooms. 

 75. Defendant digressed from the aforementioned duty and as such was negligent 

in one or more of the following respects: 

 a. Did not create, implement and/or enforce adequate policies or procedures 

designed to protect the privacy and security of Plaintiff’s while they used the 

tanning rooms at the Planet Fitness Gym. 

 b. Did not inspect or adequately inspect the tanning rooms at the Planet 

Fitness Gym for items or devices used for purposes of videotaping Plaintiff while 

in tanning rooms. 

 c. Did not adequately train their employees to search for and identify hidden 

devices that would include video recording equipment in the tanning rooms. 

 76. One or more of the aforementioned acts or omissions directly and proximately 

caused the Plaintiff to suffer severe, significant, and permanent emotional distress.” 

¶ 8 Aside from paragraph 74 in count II, Otterness’s claims mirror C.H.’s allegations in 

counts III against Pla-Fit and IV against PF East Moline. Defendants filed separate motions 

to dismiss the complaint, and the trial court granted the motions, determining plaintiffs did 

not state a cause of action for emotional distress damages. Plaintiffs appealed. 

¶ 9 ANALYSIS 

¶ 10 The record presents three complaints: Barnhill filed the original and first amended 

complaint and C.H. and Otterness filed the second amended complaint, which is the 

operative pleading in this appeal. In the second amended complaint, plaintiffs bring the 
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following four counts: (1) C.H. brings a claim against Pla-Fit in count I, (2) C.H. brings a 

claim against PF East Moline in count II, (3) Otterness brings a claim against Pla-Fit in count 

III, and (4) Otterness brings a claim against PF East Moline in count IV. Section 2-603(a) of 

the Code of Civil Procedure (735 ILCS 5/2-603(a) (West 2014)) states “[a]ll pleadings shall 

contain a plain and concise statement of the pleader’s cause of action.” However, the 

complaint is unclear as to the specific causes of action plaintiffs allege against defendants. 

On appeal, plaintiffs contend, and defendants concede, that the issues are limited to two 

causes of action: (1) common law negligence for the criminal or tortious acts committed by a 

third party and (2) premises liability. Accordingly, we focus our review on these two issues. 

¶ 11 Plaintiffs claim (1) defendants are negligently liable for the criminal or tortious acts 

committed by a third party and (2) defendants failed to exercise reasonable care to ensure the 

privacy of its members in violation of section 2 of the Premises Liability Act (Act) (740 

ILCS 130/2 (West 2014)). They seek damages for emotional distress allegedly caused by 

defendants’ tortious conduct. 

¶ 12 A motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 

5/2-615 (West 2014)) challenges the legal sufficiency of the complaint by alleging defects on 

the face of the complaint. Clark v. Children’s Memorial Hospital, 2011 IL 108656, ¶ 21. In 

ruling on a section 2-615 motion, the reviewing court accepts as true all well-pleaded facts in 

the complaint and all reasonable inferences therefrom. Id. The reviewing court must 

determine whether the allegations of the complaint, when construed in a light most favorable 

to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Id. 

We review an order granting a section 2-615 motion to dismiss de novo. Id.

¶ 13 I. PF East Moline 

¶ 14 A. Criminal or Tortious Acts Committed by Third Persons 

¶ 15 Plaintiffs bring a claim of negligence, contending that defendants are liable for the 

criminal or tortious acts committed by a third party. Specifically, plaintiffs argue that PF East 

Moline had a duty as business invitor to protect plaintiffs as business invitees from the 

criminal acts committed by a third party and breached its duty when it failed to exercise 

reasonable care to (1) conduct adequate inspection of the tanning rooms for hidden cameras, 

(2) train employees on conducting searches and identifying hidden cameras, and (3) create 

policies and procedures to search for cameras in the tanning rooms when it knew members 

had been secretly recorded at a different Planet Fitness facility. Plaintiffs claim Pla-Fit’s 

failure to exercise reasonable care caused them to suffer emotional distress. 

¶ 16 To state a cause of action for negligence, the plaintiff must allege a duty upon the 

defendant, breach of the duty, and an injury proximately caused by the breach. Marshall v. 

Burger King Corp., 222 Ill. 2d 422, 430 (2006). Generally, a possessor of land does not have 

a duty to protect invitees from the criminal acts committed by a third party. Hills v. 

Bridgeview Little League Ass’n, 195 Ill. 2d 210, 242 (2000). One exception to this rule is 

when there is a special relationship between the parties, such as (1) common carrier and 

passenger, (2) innkeeper and guest, (3) custodian and ward, and (4) business invitor and 

invitee. Id. at 243-44; Dearing v. Baumgardner, 358 Ill. App. 3d 540, 542 (2005). Illinois 

courts have relied on section 344 of the Restatement (Second) of Torts in determining 

whether a possessor of land is liable for the wrongful acts of third parties. Marshall, 222 Ill. 

2d at 437. Section 344 states: 
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“A possessor of land who holds it open to the public for entry for his business 

purposes is subject to liability to members of the public while they are upon the land 

for such a purpose, for physical harm caused by accidental, negligent, or intentionally 

harmful acts of third persons or animals, and by the failure of the possessor to 

exercise reasonable care to 

 (a) discover that such acts are being done or are likely to be done, or 

 (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise 

to protect them against it.” (Emphasis added.) Restatement (Second) of Torts § 344 

(1965). 

¶ 17 Plaintiffs cite several cases in which the reviewing court found the complaint stated a 

cause of action. None of these cases, however, involves damages for emotional distress. See 

Marshall, 222 Ill. 2d at 425 (decedent was struck by a car and fatally injured); Rowe v. State 

Bank of Lombard, 125 Ill. 2d 203, 208 (1988) (one victim died and the other victim sustained 

serious personal injuries); Duncavage v. Allen, 147 Ill. App. 3d 88, 92 (1986) (plaintiff 

seeking to recover damages for personal injuries and death); Cross v. Wells Fargo Alarm 

Services, 82 Ill. 2d 313, 314 (1980) (plaintiff severely beaten and injured); Stribling v. 

Chicago Housing Authority, 34 Ill. App. 3d 551, 553 (1975) (plaintiff sought to recover 

damages for loss of property); Mims v. New York Life Insurance Co., 133 Ill. App. 2d 283, 

284 (1971) (same); Ney v. Yellow Cab Co., 2 Ill. 2d 74, 76 (1954) (same). 

¶ 18 We believe Lewis v. Heartland Food Corp., 2014 IL App (1st) 123303, is instructive in 

our review of this issue. In Lewis, the plaintiffs filed a claim of negligence against several 

corporations after his iPhone was allegedly stolen by other customers at a Burger King 

restaurant. Id. ¶ 2. The court adhered to the physical-harm limitation contained in section 344 

of the Restatement, noting even when a special relationship exists “the landowner may only 

be held liable for physical harm caused by acts of third persons.” (Emphasis omitted.) Id. ¶ 9. 

As a result, the court refused to extend the duty to cases not involving physical harm. Id.

¶ 12. 

¶ 19 Similarly in the instant case, although plaintiffs established PF East Moline owed them a 

duty as business invitor under the special relationship exception, they failed to sufficiently 

state a claim for negligence because they do not have a redressible injury. In the complaint, 

the plaintiffs allege that they seek damages solely for emotional distress as an element of 

negligence. Plaintiffs affirmatively state that they are not bringing a claim for either 

intentional or negligent infliction of emotional distress. We decline, as did the Lewis court, to 

extend a duty under section 344 of the Restatement to cases not involving physical harm. 

Therefore, we find plaintiffs failed to state a cause of action that PF East Moline was to them 

liable in negligence for the criminal or tortious acts committed by a third party. 

¶ 20 B. Premises Liability 

¶ 21 Plaintiffs argue the complaint states a cause of action that PF East Moline is liable for the 

emotional distress they suffered due to conditions on the premises because (1) it knew or had 

reason to know that there were dangerous conditions, i.e., two video cameras, on the 

premises, (2) plaintiffs were unaware of the danger, and (3) it failed to exercise reasonable 

care to protect plaintiffs against the danger. 
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¶ 22 Section 2 of the Act imposes a duty on an owner or occupier to exercise reasonable care 

for “the state of the premises or the acts done or omitted on them.” 740 ILCS 130/2 (West 

2014). To determine whether a duty of care exists under section 2, the court must consider: 

(1) foreseeability, (2) likelihood of injury, (3) magnitude of the burden on the defendant to 

guard against the injury, and (4) consequences of placing a burden on the defendant. Kotecki 

v. Walsh Construction Co., 333 Ill. App. 3d 583, 589 (2002) (citing LaFever v. Kemlite Co., 

185 Ill. 2d 380, 389 (1998)). The foreseeability prong is determined under the provisions in 

section 343 of the Restatement (Second) of Torts. Id. Section 343 states: 

“A possessor of land is subject to liability for physical harm caused to his invitees 

by a condition on the land if, but only if, he 

 (a) knows or by the exercise of reasonable care would discover the condition, and 

should realize that it involves an unreasonable risk of harm to such invitees, and 

 (b) should expect that they will not discover or realize the danger, or will fail to 

protect themselves against it, and 

(c) fails to exercise reasonable care to protect them against the danger.” 

(Emphasis added.) Restatement (Second) of Torts § 343 (1965). 

¶ 23 Plaintiffs do not have a redressible injury under section 343 of the Restatement. As with 

section 344, we find the language in section 343 also limits liability to physical harm, and we 

decline to extend its reach to claims that allege only emotional harm. Plaintiffs only seek in 

their complaint to recover emotional distress damages. They have, therefore, failed to state a 

cause of action under the premises liability theory. 

¶ 24 II. Pla-Fit 

¶ 25 A. Criminal or Tortious Acts Committed by Third Persons 

¶ 26 1. Special Relationship 

¶ 27 Plaintiffs also argue the complaint states a negligence cause of action that Pla-Fit is liable 

for the criminal acts of a third party because it failed to exercise reasonable care to (1) 

conduct adequate inspection of the tanning rooms for hidden cameras and create policies and 

procedures to search for cameras in the tanning rooms when it knew members had been 

secretly recorded at a different Planet Fitness facility and (2) warn customers that it 

discovered hidden cameras in the tanning room on November 5-6 to enable the customers to 

avoid harm. Consequently, plaintiffs contend Pla-Fit’s failure to exercise reasonable care 

caused plaintiffs to suffer emotional distress. 

¶ 28 As stated above, a possessor of land does not owe a duty to protect invitees from the 

criminal acts of a third party unless there is a special relationship such as a business invitor 

and invitee. Hills, 195 Ill. 2d at 242; Dearing, 358 Ill. App. 3d at 542. 

¶ 29 It is, however, well-established in Illinois that no such relationship exists between a 

franchisor and a franchisee’s invitee. Lewis, 2014 IL App (1st) 123303, ¶ 14 (no legal duty 

under the special relationship exception exists between a franchisor and a business invitee). 

Furthermore, Pla-Fit is not a possessor of land as stated in section 344 of the Restatement. 

Rather, a possessor of land is “a person who is in occupation of the land with intent to control 

it.” Restatement (Second) of Torts § 328E (1965). Pla-Fit is not in occupation of the land 

with intent to control it because, as the complaint states, Pla-Fit only owned the trademark 

name “Planet Fitness” and allowed franchisees to use the trademark. Instead, PF East Moline 
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is the possessor of the premises because it owned, operated, and did business at the Planet 

Fitness gym. Lastly, as we found supra ¶ 19, Pla-Fit is not liable for emotional distress 

damages under section 344 of the Restatement. Thus, we hold plaintiffs failed to state a cause 

of action that Pla-Fit was liable in negligence for the criminal or tortious acts committed by a 

third party. 

¶ 30 2. Voluntary Undertaking 

¶ 31 Plaintiffs allege Pla-Fit voluntarily undertook a role in ensuring that PF East Moline was 

protecting its members’ right to privacy in the tanning rooms when Pla-Fit reserved its right 

to perform on-site inspections of PF East Moline under the franchise agreement. 

¶ 32 Another exception to the rule that an individual is not liable for the criminal acts 

committed by a third party is created when there is a voluntary undertaking. Under the 

voluntary- undertaking theory, a duty of care is imposed on a person who voluntarily agrees 

to perform a service necessary for the protection of another person. Claimsone v. 

Professional Property Management, LLC, 2011 IL App (2d) 101115, ¶ 21. “[T]he duty of 

care to be imposed upon a defendant is limited to the extent of the undertaking.” Bell v. 

Hutsell, 2011 IL 110724, ¶ 12. Our supreme court adopted section 324A of the Restatement 

(Second) of Torts in reviewing voluntary-undertaking claims. Id. Section 324A states:

“One who undertakes, gratuitously or for consideration, to render services to

another which he should recognize as necessary for the protection of a third person or 

his things, is subject to liability to the third person for physical harm resulting from 

his failure to exercise reasonable care to protect his undertaking, if 

 (a) his failure to exercise reasonable care increases the risk of such harm, or 

 (b) he has undertaken to perform a duty owed by the other to the third person, or 

 (c) the harm is suffering because of reliance of the other or the third person upon 

the undertaking.” (Emphasis added.) Restatement (Second) of Torts § 324A (1965). 

¶ 33 In Illinois, a franchisor is not liable under the voluntary-undertaking theory if the 

franchisee retains control of the day-to-day operations of the business. See Castro v. Brown’s 

Chicken & Pasta, Inc., 314 Ill. App. 3d 542, 551-52 (2000). In Castro, several individuals 

entered Brown’s in Palatine and murdered seven people. Id. at 543-44. Emmanuel Castro, an 

administrator for the estate of his deceased son, filed a claim against Brown’s, claiming, 

among other things, Brown’s, as the franchisor, voluntarily undertook to provide security at 

the Palatine restaurant. Id. at 544. Brown’s filed a motion for summary judgment, which the 

trial court granted, and Castro appealed. Id. at 545-46. 

¶ 34 Relying on Coty v. U.S. Slicing Machine Co., 58 Ill. App. 3d 237 (1978), the First District 

noted Illinois courts refuse to impose liability on franchisors when the franchisee has retained 

total control over its day-to-day operations. It then determined that there was no evidence in 

the record that Brown’s controlled the Palatine restaurant’s day-to-day operations. 

Specifically, the court found, among other things, that Brown’s “did not implement 

mandatory security measures to be followed by the franchisee, it did not follow up to make 

sure that security recommendations were followed, it did not provide security for the Palatine 

restaurant or engage in routine security checks, and it did not set up a security hotline or a 

committee to review security measures.” Castro, 314 Ill. App. 3d at 552. Further, there was 

no provision within the franchise agreement regarding security or Brown’s responsibility for 
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such security. As a result, the First District affirmed the trial court’s grant of the motion for 

summary judgment, holding that Brown’s did not voluntarily undertake to provide security to 

the Palatine restaurant. 

¶ 35 Similar to the ruling in Castro, we find the complaint in this case does not sufficiently 

demonstrate Pla-Fit controlled the day-to-day operations of PF East Moline to constitute a 

voluntary undertaking to protect members’ privacy. The complaint alleges that Pla-Fit 

exercised complete and substantial control over PF East Moline by providing rules and 

regulations as to security of the facilities and providing instructions on cleaning and 

inspecting the tanning booths. The complaint does not state whether the rules and regulations 

were mandatory or recommendations, that on-site inspections were conducted, or that the 

on-site inspections were for the purpose of protecting members’ privacy. In fact, the 

complaint states Pla-Fit did not create, implement, or enforce policies and procedures 

designed to protect the privacy and security of plaintiffs and that Pla-Fit did not inspect or 

adequately inspect tanning rooms for items or devices used to videotape members. 

¶ 36 Also, we must follow the language within section 324A of the Restatement that limits 

injury to physical harm as the court did in Lewis and decline to extend a duty under section 

324A. Plaintiffs solely seek to recover damages for emotional distress in their complaint. 

Therefore, we find plaintiffs did not state a cause of action against Pla-Fit pursuant to section 

324A. 

¶ 37 B. Premises Liability 

¶ 38 Plaintiffs bring the same premises liability argument against Pla-Fit as it did against PF 

East Moline that (1) Pla-Fit knew or had reason to know that dangerous conditions, i.e., two 

video cameras, were on the premises, (2) plaintiffs were unaware of the danger, and (3) it 

failed to exercise reasonable care to protect plaintiffs against the danger. 

¶ 39 As stated previously, under section 2 of the Act, the court must consider (1) 

foreseeability, (2) likelihood of injury, (3) magnitude of the burden on the defendant to guard 

against the injury, and (4) consequences of placing a burden on the defendant. Kotecki, 333 

Ill. App. 3d at 589 (citing LaFever, 185 Ill. 2d at 389). The foreseeability prong is 

determined under the provisions in section 343 of the Restatement, which states a possessor 

of land is subject to liability for physical harm caused to his invitees by a condition on the 

land if he (1) knows or by exercising reasonable care would discover the condition, (2) 

should expect the invitee will not discover the danger, and (3) fails to exercise reasonable 

care to protect invitee from the danger. Id.; Restatement (Second) of Torts § 343 (1965). 

¶ 40 We determined supra ¶ 29 that Pla-Fit is not a possessor of land as defined in section 

328E of the Restatement. Also, as we found supra ¶ 23, liability under section 343 of the 

Restatement does not extend to injuries other than physical harm. Therefore, we hold 

plaintiffs did not state a cause of action against Pla-Fit under the premises liability theory. 

¶ 41 CONCLUSION 

¶ 42 The judgment of the circuit court of Rock Island County is affirmed. 

¶ 43 Affirmed.