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Illinois Waiver Law Considered in a Muscle Car Injury Case

By Doyice Cotten15236610911_7dbd573373_zIn  2012, Barbara Nesbitt (Nesbitt v. National Muscle Car Association, 2014 Ill. App. Unpub. LEXIS 1848) sued National Muscle Car Association (NMCA), Promedia, National Hot Rod Association (NHRA), Skinny Kid Race Cars, and Ted Peters  alleging multiple claims after her vehicle failed causing her serious injury. The first three defendants were sponsors of the race, Skinny Kid designed the race car, and Ted Peters, an employee of NHRA, had inspected the vehicle prior to the race. He approved it in spite of a lack of a drive train shield. Defendants moved for summary judgement based on the liability waiver signed by Nesbitt.  The waiver read:

“2. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoters, participants, racing associations, sanctioning [**5]  organizations or any affiliated entities thereof, track operators, track owners, officials, car owners, drivers, pit crews, rescue personnel, any persons in any RESTRICTED AREA, promoters, sponsors, equipment and parts manufacturers and suppliers, advertisers, owners and lessees of premises used to conduct the EVENT(S), premises and event inspectors, surveyors, underwriters/brokers, consultants and others who give recommendations, directions, or instructions or engage in risk evaluation or loss control activities regarding the premises or EVENT(S) and for each of them, their directors, officers, agents, and employees, all for the purposes herein referred to as “Releasees” FROM ALL LIABILITY TO THE UNDERSIGNED, his/her personal representatives, assigns, heirs, and next of kin, FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFORE ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.(Emphasis added.)

3. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the RELEASEES and each of them FROM ANY LOSS, LIABILITY, DAMAGE, OR COST they may incur arising [**6]  out of or related in any manner to my attendance at or participation in the EVENT(S) and WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.

4. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) whether caused by the NEGLIGENCE OF THE RELEASEES OR OTHERWISE.

5. HEREBY acknowledges that THE ACTIVITIES OF THE EVENT(S) ARE VERY DANGEROUS and involve the risk of serious injury and/or property damage.”

Likewise, Skinny Kid moved for summary judgement, citing in addition the invoices for the modifications it made to plaintiff’s vehicle all contained a warranty releasing it from liability for failures of racing components or accessories that it had manufactured or sold. The disclaimer on the invoices read:

“There is no warranty stated or implied due to the unusual stresses placed on race cars, modified street cars or components, and because we have no control over how they are maintained, installed, and used. Neither seller [n]or manufacturer will be liable for loss, damage or injury — direct or indirect — arising from the use of any product. Skinny Kid Race Cars make no guarantees to the legality for any specific class. Due to the hazards involved with racing, Skinny Kid Race Cars accepts no liability for failure of racing components or accessories manufactured or sold by Skinny Kid Race Cars and the Customer accepts all risks involved with racing and hazards thereof.”

Nesbitt claimed that the waiver did not protect the defendants because: 1) the release did not name any of the defendants as parties to the agreement; 2) the waiver did not reference the danger that caused her injury; and 3) the incident that caused her injury was not a reasonably foreseeable consequence of drag racing.

Illinois Waiver Law

The appellate court listed several pertinent aspects of Illinois waiver law.

1. Under certain circumstances, a plaintiff may be barred from bringing a claim against a defendant by an exculpatory clause in a contract entered into by the plaintiff and the defendant.

2. Waivers are disfavored and are strictly construed against the benefiting party.

3.  A waiver may be broadly worded, but it must contain clear language referencing the types of activities, circumstances, or situations that are encompassed by the release.

4. While a waiver need not contemplate the precise occurrence which resulted in the plaintiff’s injury, the danger which caused the injury must be one which ordinarily accompanies the activity covered by the release.

5.  Thus, the waiver must give the plaintiff notice of the range of dangers of which she assumes the risk, and the scope of a release is often defined by the foreseeability of a particular danger.

Analysis

Nesbitt claimed the waiver of liability does not protect the defendants from liability because the defendants were not specifically named as parties to the agreement. Illinois law, however, provides that beneficiaries of a waiver do not need to be specifically named in the agreement and the release need only designate a class of beneficiaries covered by the agreement. The defendants were named by class in the waiver:

promoters, participants, racing associations, sanctioning organizations or any affiliated entities thereof, track operators, track owners, officials, car owners, drivers, pit crews, rescue personnel, any persons in any RESTRICTED AREA, promoters, sponsors, equipment and parts manufacturers and suppliers, advertisers, owners and lessees of premises

Nesbitt claimed that the waiver fails because the term “event” is never defined in the agreement. However, at the top of the waiver was a request for “NAME OF TRACK AND/OR EVENTS.” The court ruled that this was sufficient to notify her that the waiver pertained to the drag racing event resulting in injury.  She also claimed that the cause of the injuries was not one ordinarily associated with drag racing.

Nesbitt also contended that the court erred by dismissing her claims against the NMCA, Promedia, the NHRA, and Peters because a genuine issue of material fact existed as to whether the danger that caused her injuries was one which ordinarily accompanied the activity of drag racing. In reviewing case law, the court found that Illinois courts interpreted the scope of racing waivers very broadly. The court ruled that the signer of a waiver did not have to contemplate the precise cause of an injury; it ruled that the waiver was not beyond the scope intended. Finally, Nesbitt said the contract was not valid regarding the NHRA or Peters because they did not provide consideration in exchange for her promise to exculpate them from liability. Unfortunately, this issue was not raised in the trial court and cannot be argued for the first time on appeal.

Skinny Kid claimed to be a releasee because the waiver included equipment and parts manufacturers; the court, however, held that the waiver language was ambiguous as to “equipment and parts manufacturers.” Thus it was not clear whether Skinny Kid was a releasee, thereby creating an issue of material fact.

Skinny Kid also claimed protection from the disclaimer on the parts invoices. The court ruled that they do not bar Nesbitt’s claims against Skinny Kid because the invoices were sent to Adams, not to Nesbitt, and there is no evidence that plaintiff had any knowledge of the warranty in the invoice.

Ruling

The appellate court affirmed the trial court’s order dismissing plaintiff’s claims against the NMCA, Promedia, the NHRA, and Peters based on protection granted by the waiver. The court reversed the ruling in regard to Skinny Kid and remanded the matter for further proceedings.

 

Photo Credit: Thanks to Grand Parc – Bordeau, France on Flickr.