## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Hussein v. L.A. Fitn ess Internati onal, L.L.C. , 2013 IL App (1st) 121426

Appellate Court Caption S A H A L H U S S E IN
, P l a i n t i f f

- A p p e l l a n t , v

. L

. A

. F IT N E S S I NTERNATI ONAL , L .L .C., d/b/a Pro Results , Def endant- Appellee

.

District & N o. First District, F ifth Division Docke t No. 1-12-1426

Filed Marc h 22, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiff’s action ag ainst defe ndant fitness club for the serious injuries he suffe red whil e u s i ng an assisted dip/chin exercise machine without supervision was aff

irmatively barre d by the exculpatory clause of the
contra ct he signe d with the club and his contentions that the contra ct was unenfor cea

ble due to its wording or on public policy g rou n ds wer e reje cted.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 10-L -14683; the Hon. Randy e A. Kog an, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Robert A. Shipley
, of Shipley L aw Group L td., of Chicag o, for appellant.

J ames M. Roz ak and Rache l S. Neva rez, both of Wiedner & McAuliffe
, L td., of Chicag o, for a

ppellee.

Panel J USTI CE Mc BRI DE delivere d the judgme nt of the court, with opinion.
J ustices Howse and Palmer c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 The issue on appea l is wheth er p l ai n t i ff’ s neg lige nce suit reg arding serious per sonal injuries he suffe re d wh i l e using exercise equipment at a fitness club is barr ed, under Minnesota l aw, by an ex culpatory clause in his contra ct wit h the club. The circuit court of Cook County deter

mined the clause war

rante d the dismiss al of plaintiff’s first am en d ed complaint with prejudice and the denial of his motion for rec onsideration. Plaintiff contends the court misconstrued the contra ct and the law and failed to co n s i d er his aff idavit establishing material que stions which could not be re solved on the plea dings. ¶ 2 Plaintiff-appe llant S ah al Hu s s ei n was a resident of Minneapolis, Minnesota, when he executed the contra ct at issue with defe ndant-a ppellee L .A. Fitness Interna tiona l
, L .L .C., d/b/a Pro Results (her einaf ter L .A. Fitness), the operator of a national chain of fitness clubs which is headqua

rtere d in Irvine, Calif

o r n ia

. A c h o ic e

- o f

-law clause in this written ag ree ment indicates it will be g overne d and enfor ced in acc ordanc e with Minnesota law. Hussein filed suit in 2010 in I llinois
, alleg ing that he was injured in 2009, at an L .A. Fitness fac ility located

near downtown Chicag o, at 1101 South Canal Street, while making unsupervised use of an “assisted dip/chin” exercise machine. The circ uit court gra nted L .A. Fitness’ motion to dismiss the pleading

as fa ctually

insufficient a

nd allowed Husse in to replea d. ¶ 3 Hussein alleg ed the following in his single -count first amende d complaint. On Fe bruar y 14, 2009, Hussein “bec ame a client and patron” of L .A. Fitness by executing a fitness service
ag ree ment and paying cer tain fee s. He visited the Canal Street location of L .A. Fitness on J uly 7, 2009, and was permitted t o make unsupervised use of i ts exercise equipment. L

. A. Fitness breac hed it s duty of ordinary car e to Hu s s ei n by failing to maintain and ins pect its fitness equipment and by failing to “a p p ro priately and proper ly ” monitor, supervise, or instruct club members who used the equipment. As a re sult, while Hussein was using the

up p er and lower bars and movable and adjustable bench on an assisted dip/chin ex er ci s e machine, he fell, struck his head and body
, and was rende red a quadripleg ic. (Ther e has been

no discovery and thus no further descr iption of the acc ident, injuries, or health car e.) Hussein claimed da

mag es in excess of $50,000. ¶ 4 The “F itness Service Agree ment and Release of L ia b il ity” attache d to Hussein’s plea ding indicates it was a contra ct for a series o f p re paid 30-minute persona l training sessions.

-2-Howeve r, L

. A. Fi t ness’ motion to dismiss provided the trial court with Hussein’s g ener al

contra ct with the club, which was entitled “Membe rship Ag ree ment” and bore the signature date o f Fe bruar

y 6, 2009, which was about a wee k befor e he boug ht the persona l training sessions. Hussein acknow ledg ed in the circ uit court and ag ain in his appellate b ri ef t h at “[w]hen initially joining [L .A.] Fitness, [he] was provided with and signe d” the membership
ag ree ment and enter ed into the fitness service ag ree ment on Fe bruar y 14, 2009. In an aff idavit attache d to his response to L .A. Fitness’ motion to dismiss
, Hussein s wo re t h at when the acc ident occur

red he was not exercising pursuant to the fitness service ag ree ment and was not working with a persona l trainer

. Acc ording ly
, the trial court’s ruling was based

on the membership ag ree ment and did not rely on any part of the fitness service ag ree ment. ¶ 5 Hussein’s “multi-club” membership ag ree ment states in pertinent part, “It is ag ree d ***
y ou [t he B uy er] are purcha sing a membership from L .A. Fitness a ccor ding to the te rms on both pag es of this Membership Agr eeme nt and the curr ent M ember ship Policies and C lub Ru les and Regulations (‘Agree ment’).” Also, “B y signing this Ag ree ment, Bu y er acknow ledg es that Buyer *** has rea d and understands the entire Agree ment including ***
t h e R elease and Waiver of L iability and Indemnity
, [and] all other Additional Terms an d Conditi ons on the re verse side here of ***.” The signature block at the bot tom of t his pag e dated Fe bruar

y 6, 2009, contains the signatures of Hussein and an ag ent of L .A. Fitness. The fo l l o wi n g l an g uag e appea rs on the reve rse side of the pag e and is emphasized by a black frame and bold font:
“I MPORTANT: REL EASE AND WAI VER OF L IAB I L I TY AND I NDEMNI TY. You here by acknow ledg e an d ag ree that Member’ s use of L .A. Fitness’ fac iliti es, service s, equipment or premises involves risks of injury to persons *** and Member assumes full responsibility for such risks. *** Member here by rele ases and holds L .A. Fitness *** harmless from all liability to Member *** for any loss or damag e, and fore ver g ives up any claim or demands therefor e, on account of i njury to Member’ s person or proper ty , including injury leading to the death of Member, whether cause d by the active or passive
neg lige nce of L .A. Fitness or otherwise, to the fullest extent permitted by l aw , wh ile Member is in, upon, or about L .A. Fitness premises or using any L .A. Fitness fac iliti es, service s or equipment. *** Membe r has r ead this re lease and wa iver of liability ***.” ¶ 6 This quote is an excerpt from a p ar agr ap h which cover s about one-third of the pag e. Hussein’s aff

idavit indicates that when he j o i n ed L .A. Fitness by signing the membership
ag ree ment, the contents of the contra ct wer e not explained to him other than the provisions
reg arding pay

ment and canc ellation and he was not advised that the ag ree ment i n cluded a rele ase or waiver of liability

. ¶ 7 Due to this exculpatory languag e, the circ uit court g ranted L

. A. Fi t n es s ’ motion to dismiss Hussein’s lawsuit and for the same rea son denied his motion to rec onsider the ruling

. ¶ 8 Hussein’s complaint was di s m i s s ed p u rs u ant to section 2-619 of the Code of Civil Procedur e, which g overns the involuntary dismiss al of a complaint based on cer tain defe cts, defe nses, or other aff

irmative matter s

. 7 3 5 I L CS 5/2-619 (West 2010). The purpose of a section 2-619 motion is to dispose of issues of law and easily p ro v ed i s s u es of fac t at the
outset of litigation. Zerjal v. Daec h &Bauer Construction, Inc.
, 405 I ll. App. 3d 907, 910,

-3-939 N.E.2d 1067, 1071 (2010) . A sec tion 2-619 motion admit s the leg al suffic iency of t he

plaintiff’s cla im “ ‘and r aises def ects, de fense s, or other a ffirmative matters that appea r on the fac e of t h e compl aint or are established by external submissi ons that act to defe at the claim.’ ” Zerjal
, 405 I ll. App. 3d at 910, 939 N.E.2d at 1071 (quoting Krili ch v. American National Bank & Trust Co. of Chicago
, 334 I ll. App. 3d 563, 569-70, 778 N.E.2d 1153, 1160 (2002))

. W h en ru l ing on a section 2-619 motion, a court must construe the pleading s and supporting documents in the light most favor able to the plaintiff. Zerjal
, 405 I ll. App. 3d at 910, 939 N.E.2d at 1071. This appellate court’s role is to revie w the dismiss al de novo and deter mine whether the exist ence of a g enuine issue of m ater ial fac t should have prec luded the ruling or, absent an issue of materia l f act, whether the dismiss al was proper as a matter of law. Zerjal , 405 I ll. App. 3d at 910-11, 939 N.E.2d at 1071-72. ¶ 9 Appellant Hussein argues t h e m em b er s h i p agr ee m ent is confusing
, that the fitness service s ag ree ment is simi larly flawe d, and that the two contra cts are contra dictory , do not ref lect the clea

r format and languag e require d by Minnesota law, and should not be enfor ced. He a lso contends the trial c ourt failed to c onsider the a ffidavit he f iled in oppositi on to the motion to dismiss and that his sworn statement substantiates that the contra cts are defe ctive and should have led to the conclusion that there are materia l issues which cannot be proper ly decide d at t h e p l ea d i ng stag e. Ba sed on these arguments, Hussein seeks reve rsal of the dismiss al order

. Appellee L .A. Fitness responds t h at the exculpatory languag e in the membership ag ree ment is clea r, consistent with Minnesota public policy
, and enfor cea ble as written, despite Hussein’s purported failure to rea d and compre hend the languag e befor e he executed that contra ct. L .A. Fitness also conte n d s the fitness service ag ree ment should be disreg arde d as irre levant in this instance. ¶ 10 We ag ree with L .A. Fitness that the fitness service ag ree ment (re g ardle ss of its c ontent) is not at issue and we decline to addre ss Hussein’s contentions about this contra ct. Hussein’s aff idavit and appellate brief indicate he was not working with a persona l trainer or pursuant to the fitness servic e agree ment when he was injured. ¶ 11 Be fore responding to his specific contentions about the membership agree ment, we must addre ss the parties’ choice of law clause

. A trial court’s choice -of- law deter mination is a leg al i ssue s u b

j ect to de novo revie w. Townsend v. Sears, Roebuc k & Co.
, 227 I ll. 2d 147, 154, 879 N.E.2d 893, 898 (2007); see, e.g. , Roby v. Corporati on ofLloyd’s
, 996 F.2d 1353 (2d Cir. 1993). I llinois ’s public policy “ ‘strong ly favor s fre edom to contra ct’ ” ( Harris v. W a lker
, 119 I ll. 2d 542, 548, 519 N.E.2d 917, 919 (1988) (quoting McClure Engineering Associates, Inc. v. Reube n H. Donne l l ey Co r p. , 95 I ll. 2d 68, 72, 447 N.E.2d 400, 402 (1983)) and broadly allows parties to deter mine their contractual obligations. Restatement (Second) of Conflict of L aws § 187 cmt. e (1989). The primary objectives of contra ct law are to make it possib l e for parties “to fore tell with acc urac y what will be their rights and liabiliti es und er * ** [t heir] contra ct” and then protec t the justified expectations that arise from that ag ree ment. Restatement (Second) of Conflict of L aws § 187 cmt. e (1989). These
two objectives are l i kely to be met when parties are allowed to choose the law that will
g overn the interpre tation of their ag ree ment. Restatement (Second) of Conflict of L aws § 187
cmt. e (1989). In I llinois
, an express choice -of- law provision will be g iven eff ect wher e there is some rea sonable relationship betwee n the chosen forum and the parties or transac tion

-4-(

Potomac Leasing Co. v. Chuck’s Pub, Inc.
, 156 I ll. App. 3d 755, 759, 509 N.E.2d 751, 754 (1987)) and it is “ ‘not dang erous, inconvenient, immoral, nor contra ry to the public policy of o u r l o ca l go v ernment’ ” ( Potomac Leasing
, 156 I ll. App. 3d at 758, 509 N.E.2d at 753 (quoting McAllister v. Smith , 17 I ll. 328, 334 (1856))). ¶ 12 We find there is a suffici en t re l at i o n s hip with Minnesota. Hussein and L .A. Fitness executed the membership ag ree ment in Minnesota while Hussein was residing there and the
contra ct all o wed him to use any branc h of the national chain of health clubs. Hussein has neither confirme d nor denied L .A. Fitness’ statement that he still re s i d es in Minnesota. Hussein is not arguing that the Minnesota choice -of- law cla use is improper. ¶ 13 The question then become s whether enfor ceme nt of th e exculpatory clause is contrar y to the standards of our own juri s d i ct i o n

. I llinois will not “interf ere with the rig hts of two parties to contract with one a nother if they

fre ely and knowing ly

enter into the agree ment” ( Garrison v. Combined Fitness Centre, Ltd.
, 201 I ll. App. 3d 581, 584, 559 N.E.2d 187, 190 (1990))

. They may allocate the risk of neg lige nce as they see fit and rely on their ag ree ment i n t h e absenc e of fra

ud, willful and wanton neg lige nce, or substantial disparity in their barg aining power , or the prese nce of some other fac tor in the social relationship of the parties which milit ates ag ainst upholding their ag ree ment. Garrison
, 201 I ll. App. 3d at 584, 559 N.E.2d at 189; Harris
, 119 I ll. 2d at 54 8, 519 N.E.2d at 919. Ex culpatory clause s may be broadly worde d (

Harris
, 119 I ll. 2d at 549, 519 N.E.2d at 920), but mu s t “c o n tain clea r, expli cit, and unequivoca l languag e ref ere ncing the ty

pes of activities, circ umstances, or situations that [are encompassed]” ( Garrison , 201 I ll. App. 3d at 585, 559 N.E.2d at 190). “In this way the plaintiff will be put on notice of the rang e of dang ers for which he assumes the risk of in

j u ry , enabling him to minimi ze the risks by exercising a g rea ter deg ree of caution

. ” Ga r rison
, 201 I ll. App. 3d at 585, 559 N.E.2d at 190. “The prec ise occur renc e whi ch results in injury need not have been contemplated by the parties at the time the
contra ct was enter ed into.” Garrison
, 201 I ll. App. 3d at 585, 559 N.E.2d at 190. “It should only appea

r th a t th e injury falls within the scope of possible dang ers ordinarily acc ompanying the activity and, thus, rea sonably contemplated by the plaintiff.” Garrison
, 201 I ll. App. 3d
at 585, 559 N.E.2d at 190. Even so, “exculpatory clause s are not favor ed and must be strictly construed ag ainst the benef itting party , particula

rly one who draf

ted the rele ase.” Harris
, 119 I ll. 2d at 548, 519 N.E.2d at 919 (quoting Scott &Fetzer Co. v. Montgomery W ard & Co.
, 112 I ll. 2d 378, 395, 493 N.E.2d 1022, 1029 (1986))

. Hu s s ei n does not sug g est that enfor ceme nt of this particula r exculpatory clause is contra ry to I llinois law and we note that simil ar clause s enfor ced in this jurisdiction have completely barr ed neg lige nce clai ms arising from rec reational activiti es

. C o mpare Garrison
, 201 I ll. App. 3d 581, 559 N.E.2d 187 (enf orcing rele ase ag ainst health club member who sued health club alleg ing his trac hea was crushe d when a 295-pound weig hted bar rolled and dropped off a bench press), Neumann v. Gloria Marshall Figure Salon
, 149 I ll. App. 3d 824, 500 N.E

. 2 d 1011 (1986) (enf orcing rele ase ag ainst health club member alleg ing she rupture d a lumbar disc using an exercise machine that was adjusted and activate d for her by a health club employ ee)
, and Owen v. Vic Tanny’s Enterprises
, 48 I ll. App. 2d 344, 199 N.E.2d 280 (1964) (enf orcing rele ase ag ainst
g y mnasium member alleg ing her wrist was injured in slip and fall on smooth spot on shower

room floor), with Larsen v

. Vic Tanny International
, 130 I ll. App. 3d 574, 474 N.E.2d 729

-5-(1984) (ruling materia l questions of fac t exis ted whether rele ase fairly applied to health club

member’ s claim she suffe red internal injuries from bre at hing nox ious combination of clea ning compounds). See also Schlessman v. Henson
, 83 I ll. 2d 82, 413 N.E.2d 1252 (1980) (enforcing rele ase in suit by amateur rac e car driver who sued speedway opera tor al l egi n g i n j u ri es in a car cra sh prec ipitated by collapse of banked rac e trac k); Hellweg v. Speci a l Eve nts Managem ent , 2011 I L App (1st) 103604, 956 N.E.2d 954 (enf orcing rele ase ag ainst bicycle rac er wh o s u ed rac e org anizers for alleg ed injuries from collision with juvenile bicyclist who was not par ticipating in rac e on the “ ‘ closed c ourse’ ” of municipa l streets); Harris
, 119 I ll. 2d 542, 519 N.E.2d 917 (enf orcing rele ase ag ainst horseba ck rider who sued stables alleging rente d horse became spooked and c aused r ider to fa ll from the horse)

. But

see Calarco v. Y

MCA of Greater Metropolitan Chicago
, 149 I ll. App. 3d 1037, 501 N.E.2d 268 (1986) (finding g ener al languag e of rele ase did not relieve rec reation fac i l i t y fr o m liability for member alleg ing two fi n ger s wer e fra cture d when metal weig hts fell from exercise e quipment she was a djusting for another member)

. ¶ 14 Acc ordingl y , we co n cl u d e t h at Minnesota law g overns this contra ct and will nex t consider whether that state would enfor ce its terms. Our revie w discloses that Minnesota and I llinois share the same pe rspec tive on exculpatory clause s. ¶ 15 Schlobohm was a case of first impression in the Minnesota Supreme Court as to whether

an exculpatory clause in “a health spa or g y mnasium contra ct” should be invalidated on public policy g rounds. Schlobohm v. Spa Petite, Inc

. , 326 N.W.2d 920, 922 (Minn. 1982). About six months afte r joining the Spa Petite health club in Owatonna
, Minnesota, plaintiff Schlobohm was injured while using a leg extension machine which require d her to sit on the edg e of a bench
, p lace her ankles under a padded bar to which weights were attache d by a pulley , and then lift her

leg s straig ht up until t hey wer e par allel with the floor. Schlobohm
, 326 N.W.2d at 922. The plaintiff was lifting an unusually larg e weig ht when she felt a sharp pai n i n h er back which forc ed her to stop her workout and obtain a series of chiropra ctic, orthopedic, and neurolog ical treatments culminating in back surg ery about four y ear s later. Schlobohm
, 326 N.W.2d at 922. Her membership agree ment stated “ ‘all exe rc i s es and
treatments and use of all fac iliti es shall be undertaken by member at member’ s sole risk.’ ” Schlobohm
, 326 N.W.2d at 921. The clause expressly exonerated the defe ndant health club from “ ‘any claims, demands, injuries, damag es, actions or cause s of action, *** arising out of or connec ted with t h e u s e o f any of the service s and fac iliti es *** and from all acts of active or passive neg lige nce.’ ” Schlobohm , 326 N.W.2d at 921-22. ¶ 16 L ike the I llinois authority set out above, the Minnesota Supreme Court indicated that the public interest in fre edom of contra ct is prese rved by rec og nizi ng exc u l p at o ry clause s as valid, exculpatory clause s are n ot favor ed by the courts, they are strictly construed ag ainst the draf ter, and if a clau s e l acks clar ity or purports to rele ase a party from liability for intentional torts or willful or wanton rec klessness, then it will not be enfor ced. Schlobohm
, 326 N.W.2d at 922-23.
“The vice of am b i gu o u s languag e is that it fails prec isely and clea rly to inform

con t racting parties of the meaning of their ostensible agree ment. Be cause ambiguous languag e is susceptible to two or more rea sonable meaning s, eac h party might car ry awa y from the agree ment a differ ent and perha ps contra dictory understanding

. In the context

-6-of a rele ase in connec tion with an athletic, health, or fitness activity
, the consumer surely is entitled to know prec isely what liability is being exonerated. A rele ase that is so vague, g ener al, or broad as to fa i l to specific ally desig nate the particula r nature of liability exonerated is not enfor cea ble.” And e r s o n v

. M cOsk ar Enterprises, Inc.
, 712 N.W.2d 796, 801 (Minn. Ct. App. 2006) (apply ing Schlobohm ). ¶ 17 The court deter mined the Spa Petite clause was unambig uous and that its broadly

- w o r ded rele ase of “ ‘any claims *** from all acts of active or passive neg lige nce’ ” was permissible in that it was limit ed to exoneration from liability fo r o rd i nary rathe r than intentional or willful neg lige nce. Schlobohm , 326 N.W.2d at 921-23. ¶ 18 Even if a rele ase clause is unambig uous in scope and limit ed only to neg lige nce, a cour t must deter

mine whether enfor ceme nt of the clause will contravene Minnesota public policy

. Schlobohm
, 326 N.W.2d at 923. Her e we ag ain point out the simil arity betwee n I llinois and Minnesota law. The Minne s o t a court considere d whether (1) there was a disparity in b arga ining power betwee n the two parties (re sulting in a compulsion to sign a con t ra ct containing an unac c eptable provision) and whether the service s could be obtained elsewhe re,

as well as (2) whether the service s wer e so es s en t i al to the public, they wer e “a prac tical

nece ssity .” Schlobohm
, 326 N.W.2d at 923-26. The first prong would indicate the membership agr eeme nt was an adhesion contr act a nd the sec ond prongwould indicate the service being offe red should be publically regulated instead of g overne d by the principle that parties may contra ct as they see fit. “B y definition, an adh es i o n co n trac t is draf ted unilatera lly by a business enter prise and forced up on an unwilling and often unknowing public for se rvice s that cannot readily be obtained elsewhe re.” Schlobohm
, 326 N.W.2d at 924. “It is a contra ct g ener ally not barg ained for, but which is imposed on the public for

nece ssary service s on a ‘take it or leave it ’ b as i s

. ” (Emphasis omitted.) Schlobohm
, 326 N.W.2d at 924. The Minnesota Supreme Court found that the pla intiff could fre ely choose betwee n becoming a member o f S p a Petite subject to the provisions in the membership
contra ct or not becoming a member and that the provision of g y mnasium or health spa service s was not an essential service that wa s o ff er ed o n a “ ‘take it or leave it basis.’ ” Schlobohm
, 326 N.W.2d at 9 2 4 -25. “Nothing in the rec ord indicates that [pl aintiff] Schlobohm had been dir ecte d to participate in Spa Petite’s program by any health adviser,

nor that simil ar fac iliti es offe ring simil ar programs wer e unavailable .” Schlobohm
, 326 N.W.2d at 925. Fur

thermore
, “Eve n if there wer e a scar city of facilities for gy m n astic and reduc ing activities in t h e area , that fac t alone would not cre ate *** disparity of barg aining
power .” Schlobohm
, 326 N.W.2d at 925. Continui ng with its analy sis, the court conclude d: “It should have been obvious to anyone of Schlobohm’s ag e, education and experience that

an exercise prog ram in a g y mnas i um bear s with a cer tain risk of injury
, and that by the exculpatory clause Spa Petite indicated clea rly that it was unwilling to shoulder that risk for the relatively nominal membership fee it char g ed its members.” Schlobohm
, 326 N.W.2d at 925. Also, “De fenda

nt, a private corpor ation, was under no obligation or leg al duty to acc ept plaintiff as a

‘member ’ or patron. Having consente d to do so, it has the rig ht to insi st upon such terms a s it deeme d appropr iate.” ( Interna l quotation marks omitted.) Schlobohm , 326 N.W.2d at 926. The Minnesota co u rt also indicated it was well-settled in Minnesota and elsewhe re that enfor cing an exculpatory clause in a contra ct reg arding rec reational activities

-7-would not violate public policy

. Schlo b o h m , 326 N.W.2d at 926. The Minnesota court

specific ally held that “the furnishing of g y mnasium or health spa service s is not an activity of g reat pu b lic importance nor of a prac tical nece ssity ,” and thus, there was no overr iding public interest which would demand that the exculpatory languag e, enter ed into b y t wo competent parties, s hould be dis reg arde d. Schlobohm
, 326 N.W.2d at 926. Acc ording ly
, it declined to invalidate the re lease

. Schlobohm , 326 N.W.2d at 926. ¶ 19 In our opinion, the Schlobohm rele ase is rema rkably simil ar to the languag e quoted above from Hussein’s membership contra ct wi th L .A. Fitness and he has failed to identify any circ umstances sug g esting that he had no choice but to join L .A. Fitness and become subject
to the broad exculpatory terms in the membership agree ment or that enfor cing this particula r clause would contravene the public interest. The clause was clea r, explic it
, a

n d u n e q u iv o c ally stated that the “Membe r’s use of L .A. Fitness’ *** equipment *** involves risks of injury ,” “including injury leading to the death of Member,” and “Membe r assumes full responsibility for such risks.” This languag e encompa ssed the most unfort u n a te c irc u ms ta n c e s th a t o c c u r r e d

on J uly 7, 2009, while Hussein was makingunaided use of the e x erc ise equipment at L .A. Fitness’ Canal Street location in Chicag o. Hussein was on notice of the rang e of dang ers he

was exposi ng himself to, that he had assumed the risk of injury
, and that he should exercise

a g reater deg ree of caution in order to minimi ze those risks. L ike Spa Petite, L .A. Fitness is

a private corpor ation which was under no obliga t i o n or leg al duty to acc ept Hussein as a member or client. Having ag ree d t o ac ce p t h i m, it had the rig ht to insist on the terms it d eeme d appropr iate. Schlobohm
, 326 N.W.2d at 926. Also, like p lain ti f f Sc h lo b o hm, Hu s s e in

vo l u n t arily applied for membership in a private org anization and ag ree d to the terms that

came with that membership. Schlobohm
, 326 N.W.2d at 926. Nothing about these parties or the provision of health club service s sug g ests that the exculpatory terms should be neg ated. ¶ 20 Hussein contends, howeve r, that there are cer tain “mater ial defe cts” in the L .A. Fitness membership ag ree ment which rende r the exculpatory clause unclea r and unenfor cea

ble. For instance, he contends that befor e he executed the membership ag ree ment, only the pay ment and canc ellation terms were explained to him and he was not specific ally advised that the
contra ct included liability rele ase languag e. He contends the location of the signature block should distinguish this contra ct from Schlobohm
, since signatures are aff ix ed on the front
pag e of the agr eeme n t d irec tly below langua g e pertaining to the m ember ’s right to canc el. He also points out that the cancellation langua g e is emphasized with a larg er ty p ef ac e. He contends the exculpatory para g raph should have had its own signature block indicating that the terms had been explained to and rea d and understood by the new club member. None of these arguments are persua sive, howeve r. Hussein has not cited any authority indicating L .A. Fitness wa s under a

duty to expl ain any

part of the contra ct to him or that he can avoid the eff ect of the contract by claiming that he did not rea d or und er stand it befor e si g ning it. In fac t, Minnesota law provides that except in instances of fra ud or misrepre sentation, a person who s igns a contra ct ca

nnot invalidate the agree ment by claimingthat he did not rea d it or thought that it containe d differ ent terms. Malec ha v. St. Croix Valley Sk ydiving Club, Inc.
, 392 N.W.2d 727, 731 (Minn. Ct. App. 1986) (dec lining to invalidate excul p at o ry clause wher e injured sky diving client claimed “he was not inf ormed of the eff

ect of the document befor e signing it” and “he did not thoroughly rea d the waiver an d h e claims he did not

-8-u n d er s tand its terms prior to signing it”); Gartner v. Eikill
, 319 N.W.2d 397, 398 (M i n n

.

1982) (“In the absenc e of fra ud or misrepre sentation, a person who signs a contra ct may not avoid i t o n t h e g round that he did not rea d it or thought its terms to be differ ent.”)

. Fur thermore
, at the top of the membership ag ree ment, it is expli citly stated that Hussein was “purc hasing a membership fro m L .A. Fitness acc ording to both pag es of this Membership Ag ree ment and the curr ent M ember ship Policies and Club Rules and Regulations.” This
sentenc e aler

ted Hussein to the fac t that he was ag ree ing to terms printed on the reve rse side of the pag e. Fur

ther down the first pag e, the fourth para g raph of the membership ag ree ment stated that “[b] y signing this ag ree ment” Hussein was acknow ledg ing that he “has rea d and understands the entire Ag ree ment including *** the Release and Waiver of L iabi l i t y and Indemnity *** on the reve rse side” of the pag e. Hussein has not distinguished the Minnesota

case s which the trial judge cited indicating that the membership terms located on the reve rse side of the contra ct are enfor cea ble. See Laurens Mills v. M.M.C., Inc.
, 159 N.W.2d 781, 785 (Minn. 1968) (“The re appea red on the front of the order blank in this case a war ning that the parties ag ree d to the provisions on the back ***.”); Brown v. State Automobile In surance Ass’n
, 12 N.W.2d 712, 717 (Minn. 1944) (“the part above the insurer’ s si gn at u re ref ers to the policy provisions printed elsewhe re” ). In addition, the rele ase para g raph itself is printed in bold font, is offse t by a box ar o u n d t h e entire para g raph, and is the most prominent provision on that pag e. We also emphasize that this languag e was not a minor clause buried in a leng thy or confusing contra ct. I t cover s about one-th ird of a pag e in this three -pag e contra ct. The membership ag ree ment terms are printed on the front and back of a single pag e in a rea dable, normal-sized ty pefa ce or larg er and the membership policies and club rules and
regulations are printed on one side only in a simil ar, rea dable and normal-sized font or larg er. Thus, the presentation, para g raph pla ce m ent, and ty pefa ce are not g rounds for repudiating the re lease clause

. ¶ 21 Hussein also points out that the term “multi-club [m embe rs h i p ] ” an d t h e s u b t i t l e “Relea se and Waiver

of L iability ” ar e undefined i n the m ember ship contrac t. We consider these terms to be self-e x planatory

. In any event, the contra ct does specify the “member ship
t y pes” that L .A. Fitness offe red to Hussein, including “Single ” membership, wh i ch wa s descr ibed as “A single club membership valid only at the club of enrollment”; “Pre m i er” membership, which was described as “A multi-club membership valid at L .A. Fitness clubs in a ll states, except ‘Signature’ c lubs”; and “Signa ture” membership, which was descr ibed

as “A multi-state membership valid at L .A. Fitness clubs in all states, including ‘Signa ture’ clubs.” The contra ct ref

err ed rea ders to L .A. Fitness’ website for complete and curr ent club listi ng s and l ocations. The fac t that Hussein joined at a Minnesota c lub but was exercising in an I llinois club indicates he understood the signific ance of this contra ct languag e. We also fail t o see a

need f or a de finition of the words used in the subtitle, “Rele ase and Waiver of L iability .” Most importantly
, Hussein has failed to identify and discuss any prec edent which
sug g ests these wor ds should have bee n expressly define d and he ha s failed to explain how these supposed “mater ial defe cts ” ar e actua lly “mater ial” to his claim, or “def ects” in the
ag ree ment, or in any other way milit ate ag ainst enfor ceme nt of the expli cit ex cu l p atory languag e. ¶ 22 Hussein also unpersu as i v ely argues t hat contract l anguag e releasing L .A. Fitness from

-9-liability for “the active or passive neg lige nce of defe ndant or otherwise ” rende rs the contra ct

ambi g uous. (Emphasis in orig inal.) The Schlobohm clause was broadly worde d, in t h at i t rele ased “ ‘any claims, demands, injuries, damag es, actions or cause s of action, whatsoever *** and from all acts of active or passive neg lige nce.’ ” (Emphasis added.) Schlobohm
, 326 N.W.2d at 921-22. The Minne s o t a S up reme Court construed this to rele ase only ordinary

n egl i gence. Another pertinent Minnesota case is Malec ha
, 392 N.W.2d at 728, whi ch

conce rned a skydiving student who was injured when his para chute di d not open proper ly afte r he jumped from a plane near Osce ola, Wis consin. A Minnesota appella t e court conclude d that a clause rele asing the sky diving club from liability for “ ‘neg lige nce implied

or otherwise’ ” could have been interpre ted to rele ase more than neg lige nt conduct, but was not ambiguous a

nd unenfor cea

ble wher e the sky diving student was claiming only ordinary
neg lige nce. Malec ha
, 392 N.E.2d at 728. See also A n derson , 712 N.W.2d at 800-01 (following Schlobohm and indicating that languag e in a contra ct which attempts to exempt

a party from liability for g ross neg lige nce or wanton conduct is une nforc eable but doe s not defe at the re lease of ordinar y neg lige nce) . I t is clear that Hussein ag ree d to exonerate L .A. Fitness fr om liabilit y

for ne g lige nce, that beingpart of the express ag ree ment he executed, and that he is alleg ing only ordinary neg lige nce. Minnesota has alre ady reje cted Husse in’s
argument. ¶ 23 W e ac knowledg e that upholding the health club’s exculpatory clause in this inst anc e l eads to a harsh result. Neve rtheless, the law dictates that we reje ct Hussein’s contenti o n s that this portion of the membership ag ree ment is unenfor cea ble du e t o its wording or on public policy g rounds. We aff irm the ruling of the circ uit court that the contra ct aff irmatively barr ed Hussein’ s lawsuit ag ainst L .A. Fitness.

¶ 24 Affir

med.

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