Nor could Life Time cover all possible risks by generally referring to inherent risks or a blanket statement that Life Time cannot be held liable for negligence. SeeCox, 377 Ill.Dec. 930, 2 N.E.3d at 1215, 2013 WL 6699464, at *2 (stating that “[g]eneral language is not sufficient to indicate an intention to absolve a party from liability for negligence”)(internal quotations omitted)(quoting Jewelers Mutual Insurance Co. v. Firstar Bank Illinois, 341 Ill.App.3d 14, 274 Ill.Dec. 906, 792 N.E.2d 1 (2003)). Life Time cites Cox in support of its position. (Reply 4).

In this case, both parties agree that the substantive law of Illinois applies to determine the validity of the Exculpatory Clauses. Illinois courts allow parties to contract away their own negligence through the use of exculpatory clauses. Cox v. U.S. Fitness, LLC, 2 N.E.3d 1211, 1215 (Ill. App. Ct. 2013). Such clauses are valid and enforceable unless: 1) there is a substantial disparity in the bargaining power of the parties, 2) it would violate public policy to uphold the clause, or 3) "there is something in the social relationship between the two parties that would militate against upholding the clause."

Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016) ("[p]oints not argued are waived"). ¶ 33 A court construes a contractual provision which releases liability strictly against the defendant. Hawkins, 2015 IL App (1st) 133716, ¶ 19 (citing Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442, ¶ 14). Although an exculpatory clause may be broadly written (Hussein v. L.A. Fitness International, L.L.C., 2013 IL App (1st) 121426, ¶ 13), it " 'should contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care.

Illinois law is clear that an entity, including a fitness facility, may contract away liability for its own negligence via an exculpatory agreement. See, e.g., Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442, ¶ 14, 2 N.E.3d 1211, 1215. An exculpatory agreement will be upheld under Illinois law unless it violates settled public policy, the parties have a special or substantially disparate bargaining relationship that precludes enforcement, or the type of injury the plaintiff sustained was not reasonably foreseeable or contemplated. See, e.g., Garrison v. Combined Fitness Ctr., Ltd., 201 Ill. App. 3d 581, 584, 559 N.E.2d 187, 189-90 (1990). The first two of these exceptions do not apply; Anast does not argue otherwise.

Locke argues that the alleged negligent conduct in this case was outside the scope of the anticipated conduct addressed in the Exculpatory Clause. Locke also argues that public policy weighs against enforcing the Exculpatory Clause. Under Illinois law, “exculpatory clauses exempting liability for negligence are generally disfavored” and are construed “strictly against the parties they benefit.” Cox v. U.S. Fitness, LLC, 377 Ill.Dec. 930, 2 N.E.3d 1211, 1215, 2013 WL 6699464, at *2 (Ill.App.Ct.2013) ; Hamer v. City Segway Tours of Chicago, LLC, 402 Ill.App.3d 42, 341 Ill.Dec. 368, 930 N.E.2d 578, 581 (2010). Thus, based on the facts in this case, the court finds that the terms of the Exculpatory Clause should be construed against Life Time and in favor of Locke.

“A triable issue of fact precluding summary judgment exists ‘where there is a dispute as to material facts, or where, the material facts being undisputed, reasonable persons might draw different inferences from the facts.’ ” Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442, ¶ 9, 377 Ill.Dec. 930, 2 N.E.3d 1211 (quoting Wolfram Partnership, Ltd. v. LaSalle National Bank, 328 Ill.App.3d 207, 215, 262 Ill.Dec. 404, 765 N.E.2d 1012 (2001) ). “On summary judgment, if ‘the defendant raises an affirmative defense and establishes his [or her] factual position with supporting documents, the plaintiff must present a factual basis arguably entitling [the plaintiff] to a judgment’ * * *.” Cox, 2013 IL App (1st) 122442, ¶ 26, 377 Ill.Dec. 930, 2 N.E.3d 1211 (quoting Ulm v. Memorial Medical Center , 2012 IL App (4th) 110421, ¶ 16, 357 Ill.Dec. 953, 964 N.E.2d 632 ). See also Evans v. Brown, 399 Ill.App.3d 238, 244, 339 Ill.Dec. 144, 925 N.E.2d 1265 (2010) (stating that if the defendant establishes facts with supporting documents entitling judgment on an affirmative defense, the plaintiff must then present a factual basis arguably entitling him to a judgment).

Harris v. Walker, 519 N.E.2d 917, 919 (1988) (quoting McClure Eng'g Assocs., Inc. v. Reuben H. Donnelley Corp., 447 N.E.2d 400, 402 (1983)); see also Garrison v. Combined Fitness Ctr., Ltd., 559, N.E.2d 187, 190 (Ill.App.Ct. 1990) (“courts should not interfere with the right of two parties to contract with one another if they freely and knowingly enter into the agreement.”); Cox v. U.S. Fitness, LLC, 2 N.E.3d 1211, 1215 (Ill.App.Ct. 2013) (“Illinois permits parties to contract away liability for their own negligence.”).

Instead, "the injury must only fall within the scope of possible dangers ordinarily accompanying the activity and, therefore, reasonably contemplated by the parties." Cox v. U.S. Fitness, LLC, 2 N.E.3d 1211, 1215-16 (Ill. App. 2013) (quoting Hamer v. City Segway Tours of Chicago, LLC, 930 N.E.2d 578, 581 (Ill. App. 2010)). "In this way the plaintiff will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution."

Defendant argues that summary judgment is appropriate in this case because Plaintiff's claims are barred by the Exculpatory Clauses. Illinois courts allow parties to contract away their own negligence through the use of exculpatory clauses. Cox v. U.S. Fitness, LLC, 2 N.E.3d 1211, 1215 (Ill. App. Ct. 2013). Such clauses are valid and enforceable unless: 1) there is a substantial disparity in the bargaining power of the parties, 2) it would violate public policy to uphold the clause, or 3) "there is something in the social relationship between the two parties that would militate against upholding the clause."

"Where a contract is interpreted as a matter of law, the contracting parties' subjective intentions are irrelevant; rather, the pertinent inquiry focuses upon the objective manifestations of the parties, including the language they used in the contract." Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442 ¶ 22 (quotation omitted); Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 831 (App. Tex. 1st Dist. 1999). The form contract defendant used with all its drivers can therefore be construed on a class-wide basis.