By Doyice Cotten
Amber Rady, the wife of a racecar driver, sued Southern Illinois Raceway, Inc., for negligence after being injured while in the pit area of the racetrack. Her husband was driving in the event and she signed a waiver in order to be admitted into the restricted pit area. While in the pit area, she stepped into a hole filled with water and subsequently sued the racetrack for negligence (Rady v. S. Ill. Raceway, Inc., 2019). The racetrack claimed protection from negligence by virtue of the waiver signed by Rady. The waiver read in part (Note the broad language of the waiver emphasized in blue.):
IN CONSIDERATION of being permitted in RACING PROGRAMS, to enter, for any purposes, the RESTRICTED AREAS (herein defined as including, but not limited to, the racing surface, pit areas, infield, burn-out area, approach area, shut-down area, any area where there are tow vehicles or race vehicles, either running or non-running, and all walkways, concessions and other appurtenant areas where any activity related to the Event(s) shall take place, or where special authorization, permission, or credentials are required, or where admittance to the general public is restricted or prohibited), or to compete, officiate, observe, work for, or for any other purpose participate in any way in the Event(s), each of the Undersigned for himself/herself and for his/her personal representatives, assigns, heirs, and next of kin:
HEREBY RELEASES, WAIVES, DISCHARGES, AND COVENANTS NOT TO SUE the promoters, participants, racing associations, sanctioning organizations or any subdivision thereof, track operators, track owners, officials, car owners, drivers, pit crews, Participants, any persons in the Restricted Areas, rescue personnel, sponsors, advertisers, owners and lessees of Premises on which the Event is conducted, premises inspectors, surveyors, underwriters, consultants, and others who offer recommendations, directions, or instructions, or engage in risk evaluation or loss control activities regarding the premises or Event(s) and each of them, their officers, directors, agents, and employees, all for the purposes herein referred to as ‘RELEASEES’, from all liability to the Undersigned, the Undersigned’s personal representatives, assigns, heirs, and next of kin FOR ALL LOSS OR DAMAGE SUSTAINED BY THE UNDERSIGNED, AND ANY CLAIM OR DEMANDS RESULTING THEREFROM, ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED, WHETHER CAUSED BY THE NEGLIGENCE OF RELEASEES OR OTHERWISE, while the Undersigned is in or upon the Restricted Areas and/or competing, officiating, observing, working for, or for any purpose participating in such event;
HEREBY ASSUMES FULL RESPONSIBILITY FOR THE RISK OF BODILY INJURY, DEATH, OR PROPERTY DAMAGE due to negligence of Releasees or otherwise while in or upon the Restricted Areas, and/or while competing, officiating, observing, or working for, or for any purpose participating in such Event(s);
FURTHER expressly agrees that the foregoing Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement extends to all acts of negligence by the Releasees, INCLUDING NEGLIGENT RESCUE OPERATIONS and is intended to be as broad and inclusive as is permitted by the law of the province or state in which the Event(s) is conducted, and that if any portion thereof is held invalid, it is agreed that the balance, notwithstanding, shall continue in full legal force and effect.
I AM 18 YEARS OF AGE OR OLDER, HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT, UNDERSTAND THAT I AM GIVING UP SUBSTANTIAL RIGHTS BY SIGNING THIS AGREEMENT, HAVE SIGNED IT VOLUNTARILY AND WITHOUT ANY INDUCEMENT OR ASSURANCE OF ANY NATURE, ORAL OR WRITTEN, AND INTEND THIS AGREEMENT TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW.”
The plaintiff claimed the racetrack “negligently failed to provide a safe environment for its customers and failed to warn [the] Plaintiff of a dangerous condition, being a hole filled with water and the Plaintiff subsequently fell in the hole and was injured.” Rady claimed the trial court grant of summary judgment was in error because “a hole in the ground filled with water—was not a foreseeable danger typically associated with the event of auto racing and was not contemplated by the parties.”
Illinois Waiver Law
Illinois law in Section 2-619 of the Code “allows for dismissal of a claim that is barred by an affirmative matter or defense that negates the claim.”
- The existence of a valid release is an affirmative matter defeating a plaintiff’s claim.
- It is a plaintiff’s burden to attack the validity of an exculpatory clause.
- The court must then determine ‘whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.’
The court went on to explain that a party is free to contract to avoid liability for its own negligence by waiver.
- “An exculpatory agreement constitutes an express assumption of risk wherein one party consents to relieve another party of a particular obligation.”
- In order for an exculpatory clause to be valid and enforceable, it “must contain clear, explicit, and unequivocal language referencing the type of activity, circumstance, or situation that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care.”
The foreseeability of a danger is an important element of the risk a party assumes and will often define the scope of an exculpatory agreement.
- A plaintiff must be put on notice of the types of danger for which they are assuming the risk of injury so that they can then minimize those potential risks by exercising greater caution.
- Though it is not necessary that the parties contemplated the precise occurrence at the time they entered into the contract, the injury must fall within the scope of possible dangers ordinarily accompanying the activity and therefore reasonably contemplated by the plaintiff.
The Reasoning of the Court
The court explained that stepping in a hole filled with water falls with the range of foreseeable dangers associated with this type of event. It pointed out that the waiver clearly and explicitly states that the plaintiff released the defendant for liability for any harm or bodily injury resulting from the defendant’s negligence while in the restricted pit area. The broad language of the waiver should cause the parties to contemplate a similarly broad range of accidents that occur at auto racing events.
The waiver also put the plaintiff on notice that the restricted pit area was potentially more dangerous than the common areas open to the public; she was only granted access to the area in exchange for releasing the defendant from liability for injuries sustained in the pit area. Further the court pointed out that both parties recognized in oral argument the plaintiff was familiar with these events as her husband was a participant and drove a racecar. Since the pit area consisted of dirt and gravel, it was foreseeable that the area is less than perfect and may not be smooth. For those reasons, the appellate court affirmed the lower court’s grant of summary judgment in favor of the racetrack.
Risk Management Takeaway
This case shows the fundamental value of a waiver of liability for sport, recreation, and fitness activities. The waiver relieved the racetrack of a duty to provide provide a safe environment for its customers and a duty to warn Rady of a dangerous condition.
Photo Credit: Thanks to Bo Nash via Flickr.