Illinois Waiver Law: The Importance of the Language that Defines the Scope of a Waiver

By Doyice J. Cotten

Patricia Cizek visited the North Wall Rock Climbing Gym to attempt some bouldering. She fell or dropped from the wall and landed with one foot on the mat and one off; she broke her ankle. It was her first day of bouldering. She sued alleging negligence as well as willful and wanton conduct (Cizek v. North Wall, Inc., 2018).

Even as a beginner, she understood that rock climbing involved being at a height higher than the ground. She claimed she did not think climbing would involve any risk because she saw kids were doing it. She also thought that she was in a safe zone because they were climbing indoors; however, she had expected to use a harness, but was not offered one. She was injured during her third attempt at climbing that day. She said she was tired and jumped off the wall and landed with one foot on the mat and the other on the floor.

Illinois Law

Illinois waiver law allows parties to contract to limit the liability for negligence. (Oelze v. Score Sports Venture, 2010). Such waivers are generally valid in the absence of fraud or willful and wanton conduct. However, a waiver may fail if there is unequal bargaining power, if it violates public policy, and if there is a special relationship between the parties. The court explained that a waiver of liability constitutes an express assumption of risk since the signer “has expressly consented to relieve the defendant of an obligation of conduct toward him [or her].”

The court added that waivers of liability “must be expressed in clear, explicit and unequivocal language showing that such was the intent of the parties.”(Calarco v. YMCA of Greater Metropolitan Chicago, 1986). “. . . it must appear that its terms were intended by both parties to apply to the conduct of the defendant which caused the harm.” However, the court clarified, “The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract was entered into”(Garrison v. Combined Fitness Centre, LTD., 1990); additionally, a waiver “will excuse a defendant from liability only where an injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.” So, the scope of a waiver depends upon the forseeability of the danger.

Related Illinois Cases

A major issue in this case (Cizek) involved whether the scope of the waiver was specific enough to encompass the Cizek injury. Pay particular attention to the waiver language and how each court determines the scope of the waiver.

In Garrison v. Combined Fitness Centre, LTD. (1990), the plaintiff was injured when a weighted bar rolled off a grooved rest on a bench press and landed on his neck. The plaintiff alleged that the bench press was improperly designed and that Combined Fitness Centre was negligent in that they provided an unsafe bench. The waiver stated:

It is further agreed that all exercises including the use of weights, number of repetitions, and use of any and all machinery, equipment, and apparatus designed for exercising shall be at the Member’s sole risk. Notwithstanding any consultation on exercise programs which may be provided by Center employees it is hereby understood that the selection of exercise programs, methods and types of equipment shall be Member’s entire responsibility, and COMBINED FITNESS CENTER [sicshall not be liable to Member for any claims, demands, injuries, damages, or actions arising due to injury to Member’s person or property arising out of or in connection with the use by Member of the services and facilities of the Center or the premises where the same is located and Member hereby holds the Center, its employees and agents, harmless from all claims which may be brought against them by Member or on Member’s behalf for any such injuries or claims aforesaid.

The plaintiff claimed the waiver did not contemplate a release of liability for defective equipment. The trial court disagreed and granted summary judgment based on the exculpatory agreement. The appellate court agreed quoting language from the waiver. Its comments included “. . . could not have been more clear or explicit;” “. . .  member bore the ‘sole risk’;” “. . . clearly falls within the scope of possible dangers ordinarily accompanying the activity of weight-lifting;” “defendant . . . was aware of the attendant dangers in the activity;” and that the types of equipment shall be “Member’s entire responsibility.”

In another Illinois case (Falkner v. Hinckley Parachute Center, Inc., 1989), Falkner died sustained during a parachute jump. Crucial wording in the waiver was

The Student exempts and releases the [defendant] from any and all liability claims whatsoever arising out of any damage, loss or injury to the Student or the Student’s property while upon the premises or aircraft of the [defendant] or while participating in any of the activities contemplated by this agreement.

The court recognized that the waiver specifically exempts defendant from liability for injuries ”. . . while participating in any activity of defendants. . .” whether the injury resulted from defendant negligence or other causes. Finding the waiver clear and unequivocal, the court granted summary judgment.

Another case turning on the basis of the scope of the waiver was Oelze v. Score Sports Venture, LLC (2010). The plaintiff was injured playing tennis when she tripped on a piece of equipment that was stored behind a curtain near the tennis court she was using. The pertinent waiver language was:

I hereby release SCORE Tennis & Fitness and its owners and employees from any and all liability for any damage or injury, which I may receive while utilizing the equipment and facilities and assume all risk for claims arising from the use of said equipment and facilities.

Oelze claimed that the risk was unrelated to the game of tennis, thereby; it was outside the scope of the waiver. The court, however, said that the language used in the waiver – “from any and all liability for any damage or injury” and “assume all risk for claims arising from the use of said equipment and facilities” – was sufficiently broad to encompass the risk creating the injury.

In contrast, the waiver in Calarco v. YMCA of Greater Metropolitan Chicago (1986) was not enforced. It read:

In consideration of my participation in the activities of the Young Men’s Christian Association of Metropolitan Chicago, I do hereby agree to hold free from any and all liability the [defendant] and do hereby for myself, waive, release and forever discharge any and all rights and claims for damages which I may have or which may hereafter accrue to me arising out of or connected with my participation in any of the activities of the [defendant].

In some ways, the language seems quite broad – “hold free from any and all liability,” “discharge any and all rights and claims,” and “connected with my participation in any of the activities. . .”—however, the appellate court felt it “did not contain a clear and adequate description of covered activities, such as ‘use of the said gymnasium or the facilities and equipment thereof,’ to clearly indicate that injuries resulting from negligence in maintaining the facilities or equipment would be covered by the release.”

 The Ciznek Climbing Wall Waiver

In the critical part of the Cisnek waiver, the plaintiff waived any cause of action

arising out of or in any way related to [her] use of the climbing gym whether that use is supervised or unsupervised, however the injury or damage is caused.

The court found itself in agreement with the reasoning of the trial court which placed great significance in the proposition that the danger of falling from a height is “open and obvious” to an adult; hence, the appellate court presumed “the plaintiff was aware that falling off the climbing wall presented certain obvious dangers.” It then compared the wording and scope of the Cisnek waiver with those aforementioned waivers. The court concluded that it was clear that the climbing gym waiver is sufficiently broad in scope to include falling or jumping from the wall. Consequently, the court affirmed the trial court summary judgment in favor of North Wall.


Providers relying on a waiver of liability should pull out a copy and read it very carefully. Ask if it seems to be broadly written so as to cover a broad range of potential claims. Keep in mind that this post utilizes Illinois waiver law and applies specifically to that state. Courts in other states may interpret waivers differently. In fact, many states require specific reference to the negligence of the provider – so some of these waivers would NOT have been enforced in them. Other states, like Illinois, consider that “any and all claims” includes claims of negligence. So it is important that you know the waiver law for your state. [For your information, more detail on waivers – including waiver law in each state – is covered in Waivers & Releases of Liablity, 9th ed. by Cotten and Cotten. For more information, click here.]

Photo Credit: Thanks to Gary Craig   via Flickr.