By Doyice Cotten
Note: This posting is not intended to provide a comprehensive presentation on Illinois waiver law, but rather to offer the reader a brief look at what some of the courts have said about waivers and their enforcement.
Illinois courts construe contracts to give effect to the intention of the parties as expressed in the language of the agreement. Illinois law construes contracts as a whole, and generally disallows extrinsic evidence unless an ambiguity exists within the contract’s four corners (Platt v. Gateway International Motorsports Corp. (2004)).
- Illinois permits parties to contract away liability for their own negligence (Hellweg v. Special Events Management (2010)) .
- “We will not invalidate an agreement on public policy grounds unless it is ‘clearly contrary’ to what our statutes or court decisions have declared to be public policy, or unless it is ‘manifestly injurious to the public welfare'” (American Access Casualty Co. v. Reyes (2012)).
- Illinois will not “interfere with the rights of two parties to contract with one another if they freely and knowingly enter into the agreement” (Garrison v. Combined Fitness Centre, Ltd. (1990)).
An exculpatory agreement constitutes an express assumption of risk wherein one party consents to relieve another party of a particular obligation.(Platt)
- Parties are free to allocate the risk of negligence as they see fit and rely on their agreement unless they violate public policy.
- Waivers are against public policy if there is 1) fraud, 2) willful and wanton negligence, 3) substantial disparity in their bargaining power, or 4) the presence of some other factor in the social relationship of the parties which militates against upholding their agreement (Garrison).
- Waivers exempting liability for negligence are generally disfavored and are strictly construed against the party they benefit (Evans v. Lima Lima Flight Team, Inc. (2007)).
- No statute, including the Physical Fitness Services Act, outright voids releases in gymnasium membership such as the version here. Our courts have held that these clauses are enforceable and not against public policy (Kubisen v. Chicago Health Clubs (1979)).
General language is not sufficient to indicate an intention to absolve a party from liability for negligence.
- Exculpatory clauses may be broadly worded, but must contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that are meant to be covered (Garrison).
- “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” (Garrison).
- Waivers may be clear and enforceable without the use of the word “negligence.”
- A person has a general duty to read documents prior to signing; failure to do so does not render the document invalid (Oelze v. Score Sports Venture (2010)).
Scope of the Waiver
The precise occurrence that results in injury need not have been contemplated by the parties at the time of contracting.
- “The injury must only fall within the scope of possible dangers ordinarily accompanying the activity and, therefore, reasonably contemplated by the parties” (Hamer v. City Segway Tours of Chicago, LLC (2010)).
- The foreseeability of a specific danger defines the scope (Hellweg).
- “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.”