Hawkins v. Capital Fitness, Inc.

2015 IL App (1st) 133716
No. 1-13-3716
Opinion filed March 4, 2015
Third Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

)
Appeal from the Circuit Court
)
MICHAEL HAWKINS, of Cook County.
)
)
Plaintiff-Appellant,
)
No. 10 L 10072
)
v.
)
)
CAPITAL FITNESS, INC., d/b/a X-Sport Fitness, The Honorable
)
William E. Gomolinski,
)
Defendant-Appellee. Judge, presiding.
)

JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.

OPINION

¶1 Michael Hawkins was at fitness club working out with hand weights when suddenly a

nearby mirror fell from the wall and struck him, causing injuries. Hawkins sued the fitness club,

Capital Fitness, Inc., alleging it negligently failed to secure the mirror or warn patrons about the

mirror and failed to cordon off the area around the mirror. Capital Fitness sought and obtained

summary judgment on the basis of the exculpatory clause in its membership agreement. Hawkins

argues the trial court erred in holding that the exculpatory clause bars his personal injury claim.

Hawkins asserts that the incident is not within the scope of possible dangers ordinarily
 1-13-3716

accompanying the use of a fitness club and a genuine issue of material fact exists as to whether

his injury related to exercise. We agree and reverse.

¶2 BACKGROUND

¶3 Michael Hawkins purchased a membership with X-Sport Fitness, owned and operated by

Capital Fitness. (In his brief, Hawkins states that at the time of the incident, he had a seven-day

trial membership, but the record indicates Hawkins purchased a full membership and signed a

membership agreement on January 5, 2010.) The membership agreement, under "Additional

Terms and Conditions," included a clause entitled, “Disclaimers, Waiver, Release, and

Indemnification." This clause, in bolded capital lettering, provided in relevant part:

"MEMBER ACKNOWLEDGES THAT EXERCISE, TANNING
AND USE OF THE EQUIPMENT AND FACILITIES OF THE
COMPANY OR OF THEIR AFFILIATES NATURALLY
INVOLVES THE RISK OF INJURY AND MEDICAL
DISORDERS, INCLUDING DEATH, WHETHER MEMBER,
SOMEONE ELSE, SOME ACTIVITY OR SOMETHING CAUSES
IT. MEMBER AGREES THAT MEMBER ENGAGES IN ALL
EXERCISE *** AND USES ALL FACILITIES AND SERVICES
OF THE COMPANY AND THEIR FACILITIES, AT SUCH
PERSON'S OWN RISK. SUCH ENGAGEMENT AND USE
INCLUDES, WITHOUT LIMITATION, USE OF THE
EQUIPMENT ***. YOU AGREE THAT YOU ARE
VOLUNTARILY (A) PARTICIPATING IN THESE ACTIVITIES
AND USING THE EQUIPMENT AND FACILITIES BASED ON
SUCH PERSON'S OWN ASSESSMENT OF THE RISKS AND
BENEFITS *** AND (B) ASSUMING ALL RISK OF INJURY ***.

***
MEMBER SHALL HOLD COMPANY AND THEIR
AFFILIATES *** HARMLESS FROM ANY AND ALL LOSS,
CLAIM, INJURY, DAMAGE AND LIABILITY SUSTAINED OR
INCURRED BY MEMBER FROM OR ARISING OUT OF THE
NEGLIGENT ACTS AND OMISSIONS AND ALLEGED
NEGLIGENT ACT AND OMISSIONS AND OTHER ACTS AND

-2-
 1-13-3716

OMISSIONS, OF ANY OF THE RELEASED PARTIES, ANY
PERSON AT THE FACILITY OR ANYONE ELSE, OR ANY
OCCURRENCE ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR ARISING OUT OF OR IN ANY WAY
RELATED TO MEMBER'S PRESENCE AT OR USE OF THIS
FACILITY *** WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, YOU AGREE *** TO RELEASE AND
DISCHARGE RELEASED PARTIES FROM ANY AND ALL
CLAIMS OR CAUSES OF ACTION, AND DO HEREBY WAIVE
ALL RIGHTS THAT YOU MAY HAVE *** TO BRING A LEGAL
ACTION OR ASSERT A CLAIM, FOR INJURY OR LOSS OF
ANY KIND AGAINST ANY OF THE RELEASED PARTIES
ARISING OUT OF THE NEGLIGENT ACTS OR OMISSIONS OR
OTHER ACTS OR OMISSIONS OF ANY OF THE RELEASED
PARTIES OR ANYONE ELSE AT THE FACILITY *** OR
ARISING OUT OF OR RELATING TO PARTICIPATION BY
YOU IN ANY OF THE ACTIVITIES, OR YOUR USE OF THE
EQUIPMENT, FACILITIES OR SERVICES ***. THIS HOLD
HARMLESS FROM AND WAIVER AND RELEASE OF ALL
LIABILITY INCLUDES, WITHOUT LIMITATION, (i) INJURIES,
DAMAGES OR DISEASES WHICH MAY OCCUR AS A RESULT
OF (A) YOUR USE OF ANY FACILITY OR ITS IMPROPER
MAINTENANCE, (B) YOUR USE OF ANY EXERCISE ***
EQUIPMENT, (C) IMPROPER MAINTENANCE OF ANY
EXERCISE *** EQUIPMENT OR FACILITIES *** AND (ii)
INJURIES OR MEDICAL DISORDERS RESULTING FROM
EXERCISE, OR USE OF EQUIPMENT OR FACILITIES, AT THE
FACTILITY OR ANY OF THE OTHER FACILITIES ***."

¶4 Hawkins did not read the agreement before signing it. Instead, he relied only on what a

sales associate told him. According to Capital Fitness, however, sales associates lack sufficient

familiarity with the contents of the agreement to explain it to members and, in any event, are

instructed not to do so. Hawkins was given a copy of the agreement.

¶5 On January 27, 2010, Hawkins was working out at X-Sport's Logan Square gym

(Hawkins's brief states the injury occurred on January 19, but the record indicates January 27).

During his workout, Hawkins sat on a bench in front of a three-foot by eight-foot mirror hanging

-3-
 1-13-3716

from a protruding portion of a wall. As Hawkins performed arm curls with free weights, a

patron bumped into the mirror, dislodging it. Hawkins tried jumping out of the way, but his feet

hit some weights scattered on the floor and he landed on a weight rack at which point the mirror

hit his head.

¶6 An unidentified fitness club patron or employee told Hawkins that a maintenance crew

had been working on the mirror before the accident. Hawkins then noticed a hole in the wall with

supporting wire mesh pulled out and several missing tiles from the wall.

¶7 Hawkins filed a one-count complaint against Capital Fitness alleging negligent conduct

in failing to adequately secure the mirror, failing to warn patrons that the mirror was loose and

likely to fall, and failing to cordon off the area around the mirror. Capital Fitness moved for

summary judgment, arguing that (i) the exculpatory language of the membership agreement

barred Hawkins's claim for personal injury damages and (ii) Capital Fitness could not be held

liable without proof of notice of an actual defect in the premises that proximately caused

Hawkins's accident.

¶8 After a hearing, the trial court granted Capital Fitness's motion for summary judgment.

The trial court enforced the exculpatory clause, finding (i) no substantial disparity in bargaining

power between the parties; (ii) no public policy bar to enforcement; and (iii) nothing in the social

relationship between the parties that would militate against upholding the clause. The trial court

further held that Hawkins failed to provide evidence that Capital Fitness had actual or

constructive notice of any defect concerning the mirror.

¶9 STANDARD OF REVIEW

¶ 10 "Summary judgment is appropriate where the pleadings, depositions, admissions, and

affidavits show that there is no genuine issue of material fact and that the moving party is

-4-
 1-13-3716

entitled to judgment as a matter of law." Direct Auto Insurance Co. v. Beltran, 2013 IL App (1st)

121128, ¶ 43. A triable issue of fact 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." (Internal quotation marks omitted.) Wolfram Partnership, Ltd. v. LaSalle National Bank,

328 Ill. App. 3d 207, 215 (2001). The movant for summary judgment has the initial burden of

proof. Beltran, 2013 IL App (1st) 121128, ¶ 43. An appellate court reviews a disposition of

summary judgment de novo. Id.

¶ 11 ANALYSIS

¶ 12 Execution of Membership Agreement

¶ 13 Hawkins initially claims the sales associates were unfamiliar with the language of the

membership agreement and failed to point out or explain the exculpatory clause. Hawkins

concedes that he did not read the agreement before signing it but suggests Capital Fitness

employees had a duty to explain the release. Hawkins appears to argue that the circumstances

surrounding the execution of the membership agreement should invalidate the exculpatory

clause.

¶ 14 Generally, absent fraud, the act of signing legally signifies that the individual had an

opportunity to become familiar with and comprehend the terms of the document he or she

signed. An individual "who has had an opportunity to read a contract before signing, but signs

before reading, cannot later plead lack of understanding.” Breckenridge v. Cambridge Homes,

Inc., 246 Ill. App. 3d 810, 819 (1993). See also, e.g., Urban Sites of Chicago, LLC v. Crown

Castle USA, 2012 IL App (1st) 111880, ¶ 40 (a person may not avoid legal consequences of an

executed contract on the ground that the signing was done without knowledge of its contents);

State Bank of Geneva v. Sorenson, 167 Ill. App. 3d 674, 681 (1988) (“[f]ailure to read a

-5-
 1-13-3716

[contract] before signing it is normally no excuse for a party who signs it”); Miller v. Wines, 197

Ill. App. 3d 447, 452 (1990) (same).

¶ 15 Hawkins had a duty to read the membership agreement before he signed it. He did not

ask for more time to review the document and no Capital Fitness employee prevented him from

reading the agreement. Hawkins also received a copy of the agreement. There is no evidence,

and Hawkins did not contend otherwise, that the sales associates made false representations to

get him to enter the agreement or about its terms. Hence, nothing is raised by the circumstances

of Hawkins' signing the agreement that would render the exculpatory clause unenforceable.

¶ 16 Scope of Exculpatory Clause

¶ 17 Hawkins primarily argues a question of fact exists as to whether his injury falls within the

contractual limits of the exculpatory clause. Specifically, Hawkins asserts that his injury resulted

from a possible danger beyond the ordinary risks accompanying the use of a fitness club

membership.

¶ 18 A party may contract to avoid liability for his own negligence. Garrison v. Combined

Fitness Centre, Ltd., 201 Ill. App. 3d 581, 584 (1990). Absent fraud or willful and wanton

negligence, a contract's exculpatory clause will be valid and enforceable unless (1) the

bargaining position of the parties reflects a substantial disparity, (2) enforcement violates public

policy, or (3) the social relationship between the parties militates against upholding the clause.

Id. Absent any of these factors, "the question of whether or not an exculpatory clause will be

enforced depends upon whether or not defendant's conduct and the risk of injury inherent in said

conduct was of a type intended by the parties to fall within the scope of the clause." Masciola v.

Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313, 317 (1993).

-6-
 1-13-3716

¶ 19 Because liability release clauses are highly disfavored, courts closely scrutinize them and

they are strictly construed against the party seeking to rely on them. Cox v. US Fitness, LLC,

2013 IL App (1st) 122442, ¶ 14; Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407,

412 (2007). While usually worded broadly, an exculpatory clause "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."

Garrison, 201 Ill. App. 3d at 585. At the time of contract formation, the parties do not have to

contemplate the precise occurrence that later results in injury. Id. Nevertheless, the defendant

must put the plaintiff on notice of the range of dangers for which the plaintiff assumes the risk of

injury. Id. ("It should only appear that the injury falls within the scope of possible dangers

ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.");

Johnson v. Salvation Army, 2011 IL App (1st) 103323, ¶ 36 (danger causing injury must

ordinarily accompany activity covered by release).

¶ 20 The scope of the exculpatory clause depends on the foreseeability of a specific danger.

Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 577 (1984). "The relevant inquiry ***

is not whether plaintiff foresaw defendants' exact act of negligence, but whether plaintiff knew or

should have known the accident was a risk encompassed by his [or her] release." (Internal

quotation marks omitted.) Cox, 2013 IL App (1st) 122442, ¶ 14. Whether the particular injury

ordinarily accompanies a certain activity and whether the plaintiff understands and assumes the

risk associated with the activity often is a question of fact. Hellweg v. Special Events

Management, 2011 IL App (1st) 103604, ¶ 6.

¶ 21 The membership agreement provided that "MEMBER ACKNOWLEDGES THAT

EXERCISE, TANNING AND USE OF THE EQUIPMENT AND FACILITIES ***

-7-
 1-13-3716

NATURALLY INVOLVES THE RISK OF INJURY ***." IT FURTHER PROVIDES THAT

"MEMBER ENGAGES IN ALL EXERCISE *** AND USES ALL FACILITIES AND

SERVICES *** AT SUCH PERSON'S OWN RISK." The agreement lists some uses of the

facility covered by the agreement, including: the use of the equipment, locker room, showers,

pool, basketball court, whirlpool, spa, spa services, sauna, steam room, tanning facilities, rock

climbing wall, parking area, and sidewalk. The agreement holds Capital Fitness harmless from

injury sustained or incurred from negligent acts or omissions "ARISING OUT OF OR IN ANY

WAY RELATED TO MEMBER'S PRESENCE AT OR USE OF THIS FACILITY." The

release includes a member's "USE OF ANY FACILITY OR ITS IMPROPER MAINTENANCE

*** USE OF ANY EXERCISE [EQUIPMENT] *** OR FACILITIES WHICH MAY

MALFUNCTION OR BREAK *** [AND] IMPROPER MAINTENANCE OF ANY

EXERCISE *** EQUIPMENT OR FACILITIES."

¶ 22 A literal reading of the membership agreement reveals that Hawkins released Capital

Fitness of all liability from injury, no matter the source, cause, or circumstance. For example,

the agreement includes injury caused by a patron's use of the exercise equipment itself, such as a

weight machine breaking. Because an exculpatory clause is strictly construed against the party it

benefits (Evans, 373 Ill. App. 3d at 412), the clause must identify the range of dangers for which

risk of injury is being assumed. See Larsen, 130 Ill. App. 3d at 578 (“A plaintiff’s decision to

assume the risk of injury resulting from a defendant’s conduct attains efficacy only in a context

in which the plaintiff may foresee the range of possible dangers to which he subjects himself

***.”).

¶ 23 To be sure, at the time the membership agreement was signed, Hawkins and Capital

Fitness did not contemplate that Hawkins might be struck by a mirror. The record indicates that

-8-
 1-13-3716

the Logan Square X-Sport facility had a number of mirrors. Indeed, two longer mirrors were on

each side of the protruding portion of the wall. Should Hawkins have known a mirror falling off

a wall as within the range of danger ordinarily accompanying the use of a fitness facility?

Nothing in the record shows that Hawkins knew or should have known that this particular danger

accompanied his working out at the facility.

¶ 24 Larsen v. Vic Tanny International, 130 Ill. App. 3d 574 (1984), is instructive. In Larsen,

the plaintiff sustained injuries after inhaling gaseous vapors emitted from the health club's

cleaning compounds. Larsen, 130 Ill. App. 3d at 575. Before joining the health club, the

plaintiff read and signed a broad exculpatory agreement, releasing the health club from any

damages arising from personal injury sustained " 'on or about the premises.' " Id. at 575-76. The

court held that a genuine issue of fact remained as to whether a member's exposure to gaseous

vapors was a danger intended by the parties to be excused by the exculpatory clause. Id. at 577-

78. The court explained that an exculpatory clause "attains efficacy only in a context in which

the plaintiff may foresee the range of possible danger to which [the plaintiff] subjects himself [or

herself]." Id. at 578. The court then found the assertion that a plaintiff could contemplate the

danger of combustible cleaning compounds in a health club, and thereby alter one's behavior

"untenable according to the standards of common experience." Id.

¶ 25 Like Larsen, we are unable to hold, as a matter of law, that a falling mirror is a danger

within the scope of the exculpatory clause. As the court in Larsen explained, "[f]oreseeability of

a specific danger is *** an important element of the risk which a party assumes, and, for this

reason, serves to define the scope of an exculpatory clause. *** No agreement to assume

unknown risks shall be inferred." Id. at 577. As the record illustrates, the Logan Square X-Sport

contains a number of mirrors. If Hawkins foresaw the possible danger of a mirror coming

-9-
 1-13-3716

unhinged, he would need to exercise a proportionately higher degree of caution around them,

which would prevent him, or any member for that matter, from fully using portions of the facility

near a mirror. Should Hawkins have worn protective equipment, like a helmet, to militate

against the risk? Is Hawkins (and every member) expected, for safety purposes, to conduct a

personal, comprehensive investigation of all aspects of the facility, including the quality and fit

of every mirror? Like Larsen, the assertion that Hawkins would necessarily contemplate the

danger of a mirror detaching from the wall and accordingly follow a more rigid standard of

caution, either by avoiding certain areas or in some other way altering habits while present in

those areas, is "untenable according to the standards of common experience." Id. at 578.

¶ 26 Moreover, Hawkins's injury is distinguishable from those suffered in Garrison v.

Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581 (1990), Kubisen v. Chicago Health Clubs,

69 Ill. App. 3d 463 (1979), and Owen v. Vic Tanny's Enterprises, 48 Ill. App. 2d 344 (1964). In

Garrison, the plaintiff's trachea was crushed when a weighted bar fell from a bench press

apparatus the plaintiff was preparing to use. Garrison, 201 Ill. App. 3d at 583. In Kubisen, the

plaintiff suffered injuries after she fell in a steam room within the athletic club. Kubisen, 69 Ill.

App. 3d 463. In Owen, the plaintiff injured her wrist when she slipped and fell as she left the

club's swimming pool. Owen, 48 Ill. App. 2d at 345. In each of these cases, the injuries

occurred while the plaintiffs engaged in activities ordinarily associated with, engaged in, and

performed at the facility at which they were injured. Hence, the plaintiffs could reasonably

contemplate the possibility of injury resulting from a weight lifting apparatus or slippery surfaces

in the steam room and around the swimming pool.

¶ 27 Capital Fitness's reliance on Schlessman v. Henson, 83 Ill. 2d 82 (1980), and Maness v.

Santa Fe Park Enterprises, Inc., 298 Ill. App. 3d 1014 (1998), does not necessitate a contrary

-10-
 1-13-3716

result. In Schlessman, the plaintiff, an experienced amateur stock-car racer, crashed his race car

after a portion of the upper track embankment collapsed. Schlessman, 83 Ill. 2d at 84. Before

the race, the plaintiff signed a release agreeing not to hold the track liable for any injuries

suffered as a result of its negligence or otherwise. Id. The Illinois Supreme Court concluded

that, by adopting the broad language of the release, it was reasonable that the parties

"contemplated the similarly broad range of accidents which occur in auto racing." Id. at 86. The

court reasoned that the racing at high speeds in limited areas gives rise to a "myriad of factors,"

obvious or unknown, which may result in unexpected and freakish accidents. Id. The court

explained that "[e]xperienced race drivers, such as plaintiff, are obviously aware of such

occurrences and the risks attendant to the sport of auto racing." Id. Although the parties may not

have contemplated the precise occurrence, this alone did not render the exculpatory clause

inoperable. Id. Finally, the court noted that as designed, the release encompassed all claims

against the defendant based on its negligence or otherwise because "[t]he very nature of the

parties' activity requires this result." Id.

¶ 28 In Maness, the decedent, a 51-year-old experienced racer, suffered a fatal heart attack

while participating in a stock car race. Maness, 298 Ill. App. 3d at 1016. Before the race, the

decedent signed three broad releases, discharging the defendants "from all liability for his injury

or death whether caused by the negligence or gross negligence of defendants or otherwise." Id.

The court, relying on Schlessman, found that the releases designed to cover all claims against the

defendants based on their negligence, "including their alleged negligent delay in providing

medical assistance." Id. at 1020. The court concluded that the risk of requiring medical attention

during a race ordinarily accompanies the "dangerous sport of auto racing." Id. The court then

reasoned that incidents requiring medical attention are common at racetracks. Id. Thus, the

-11-
 1-13-3716

decedent, "as an experienced racer, expected prompt and adequate medical care at every race.

Likewise, he should have expected that negligence on the part of defendants regarding the

medical care provided was possible and could result in serious injury or death to participants in

the race." Id. Ultimately the court concluded that "[t]he risk of requiring medical attention during

a race *** is one that ordinarily accompanies auto racing ***. [The decedent] accepted this risk

and agreed to exculpate defendants from any alleged negligence in connection with it when he

executed the broad releases ***." Id. at 1021.

¶ 29 Unlike Schlessman and Maness, we cannot conclude, as a matter of law, that the risk of a

mirror falling on a patron ordinarily accompanies the use of a fitness facility. In Schlessman and

Maness, it was reasonable to conclude that auto racing participants accept accidents and medical

attention as part of the sport. But nothing in the record suggests that a mirror falling off a fitness

club's wall is an ordinary or reasonable risk in this case.

¶ 30 True, Hawkins and Capital Fitness did not need to specifically foresee the precise

incident at the time that Hawkins signed the membership agreement. Even so, Schlessman and

Maness do not stand for the proposition that a broad exculpatory clause covers any conceivable

claim. Simpson v. Byron Dragway, Inc., 210 Ill. App. 3d 639 (1991), provides clarification. In

Simpson, the decedent, a licensed and experienced race car driver, was killed when his dragster

collided with a deer during a race. Simpson, 210 Ill. App. 3d at 641. Before the race, the

decedent signed a release in which he agreed to inspect the track and adjacent areas to ensure

that they were properly designed, maintained, and safe for race purposes. Id. at 642. The

decedent also voluntarily assumed " 'all risks arising from conditions related to use of the track

area by myself or others.' " Id. The appellate court reversed the trial court's grant of summary

judgment based on the release. Id. at 649. The court initially noted that to effectively assume

-12-
 1-13-3716

the risk of some occurrence, "it must be demonstrated that the danger which caused the injury

was one which ordinarily accompanied the activity and that the plaintiff knew, or should have

known, that both the danger and the possibility of injury existed before the occurrence." Id. at

647. The court rejected the argument that the decedent, by virtue of his participation in an

inherently dangerous activity, contemplated a wide range of incidents, including the possibility

that an animal would run onto the racetrack. Id. at 648. The court noted that Schlessman "did

not hold that the range of accidents contemplated is without limit." Id. Thus, the court

concluded that the danger of a deer running onto a racetrack was not the type of risk that

ordinarily accompanies auto racing, and, therefore, a question of fact remained. Id. at 649.

¶ 31 Like Simpson, reasonable minds could differ on the issue of whether the incident here is

an ordinary risk associated with the use of a fitness facility. "Whether a particular injury is one

which ordinarily accompanies a certain activity and whether a plaintiff appreciates and assumes

the risks associated with the activity often constitute a question of fact." Simpson, 210 Ill. App.

3d at 647. Because a broad release does not encompass all accidents without limit (Simpson, 210

Ill. App. 3d at 648), a genuine issue of fact arises as to whether the exculpatory clause in the

membership agreement includes potential injury due to a mirror falling off a wall.

¶ 32 Notice of Defect

¶ 33 The trial court also granted summary judgment because Hawkins did not present any

evidence that Capital Fitness had notice of the defective condition of the mirror. A premises

liability plaintiff must prove, among other things, that the "landowner knew or in the exercise of

ordinary care should have known of both the condition and the risk the condition posed to others

lawfully on the property." Smart v. City of Chicago, 2013 IL App (1st) 120901, ¶ 46. In

granting Capital Fitness's motion for summary judgment, the trial court stated, "it is incumbent

-13-
 1-13-3716

upon the plaintiff to show me some affirmative matter, something, a scintilla of evidence to show

that there was some type of actual or constructive notice, and the court cannot find any material

issue of fact that would indicate that there is other than what is pure speculation and conjecture."

¶ 34 The premise underlying this portion of the trial court's ruling and Capital Fitness's

argument is that Hawkins pursued a premises liability cause of action. Our review of Hawkins's

one-count complaint, however, establishes that it sounds in negligence, not premises liability,

and therefore, lack of evidence concerning notice is both inapplicable and irrelevant.

¶ 35 CONCLUSION

¶ 36 The trial court erred in granting defendant's motion for summary judgment.

¶ 37 Reversed and remanded.

-14-