Decision concerning bicycle race clarifies Illinois release law.

Hellweg v. Special Events Management, 956 N.E.2d 954; 2011 Ill. App. LEXIS 725; 2011 IL App (1st) 103604; 353 Ill. Dec. 826

Court looked at whether the risk that caused the injury to the plaintiff was listed in the release.

USA Cycling

The facts in this case are pretty simple. The plaintiff was a participant in a cycling raceon a closed course. A closed course in cycling means that no cars or pedestrians are on the course. The cyclists do not have to worry about traffic laws or hitting someone on a closed course.

While practicing for the race, the plaintiff hit a minor on a bicycle who got on the course. The plaintiff had signed the 2009 USA Cycling Event Release Form, which is required before being allowed to race. The plaintiff filed his claim and the defendants, twelve of them, including the minor he hit, moved to dismiss the case based on the release.

The trial court dismissed all twelve defendants, and the plaintiff appealed.

Summary of the case

There are several interesting facts in this case that were not discussed in the appeal that stood out. In the group of twelve defendants, one was the business that put on the race; five were employees and/or agents of the business; one was the city were the race was held and one was a hospital, as well as the minor and his mother.

It is unclear what the claims against the city and the hospital where, however, it appears from the decision that all the plaintiff’s claims were dismissed including those claims. The mother and the minor were all dismissed. The release is the “usually” USA Cycling release, which did not identify the hospital or city individually or in the people protected by the release.


English: 2011 USA Pro Cycling Challenge, Stage...


The second major issue is the event organizer, and all of these people relied on the USA Cycling Release to protect them. The release is a general release that does not cover anyone, specifically except USA Cycling. It has no jurisdiction and venue class to speak off and does not cover any specific issues of the individual courses. If you are running an event that has something different from the normal race, different type of course, participants, etc. that is something that you would want to make sure you have covered. The court even pointed out how important those issues were in the release. In this case, the USA Cycling release did cover the issues generally, which gave the plaintiff the basis for his appeal.

The plaintiff argued that since the minor on the course was not something that was ordinary in a cycling race like this, he could not envision that was a risk he was accepting when he signed the release. He argued it could not be foreseen that the defendants would fail to close the course.

The court found that the phrase “ANY AND ALL CLAIMS ARISING FROM THE [DEFENDANT’S] OWN NEGLIGENCE.” was sufficient to protect the defendants from the suit. The court also said the test of the issue was not whether or not the risk was foreseen by the defendants but whether the broad language of the agreement would allow the court to say the risks were contemplated by the release.

“[A] myriad of factors, which are either obvious or unknown, may singly or in combination result in unexpected and freakish racing accidents. The parties may not have contemplated the precise occurrence which resulted in plaintiff’s accident, but this does not render the exculpatory clause inoperable. In adopting the broad language employed in the agreement, it seems reasonable to conclude that the parties contemplated the similarly broad range of accidents, which occur in auto racing.

In coming to this decision the appellate court reviewed the way Illinois reviews a release. As in the majority of the states, releases are valid. They are not favored and construed against the person requesting protection by the release. However, if a release must be given fair and reasonable interpretation.

The court then when through the three issues that void releases in Illinois.

[A]bsent fraud or wilful and wanton negligence, the contract will be valid and enforceable unless:

(1) there is a substantial disparity in the bargaining position of the two parties;

(2) to uphold the exculpatory clause would be violative of public policy; or

(3) there is something in the social relationship between the two parties that would militate against upholding the clause.

The releases or ways to void a release in Illinois are no different than in the majority of other states that have been discussed here before. The court went on to explain the specifics required for a release to be enforceable in Illinois:

An exculpatory clause, to be valid and enforceable, 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. 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. The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract was entered into. 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.”

This section is a little different from most decisions about releases. The specific language I’m speaking to is “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.…” Many courts mention that the injury was caused by a risk specifically set forth in the release. Here the court said that a release must set forth those risks.

This is a specific issue I push. I believe in doing this for more than a requirement by the courts. 1. If the release is thrown out for any reason, the document may still be used as proof of assumption of the risk. 2. If your guests read the release, it may help them understand the risks or self-filter from the activity.

The court also looked at the argument of the plaintiff, that the risks that caused his injury were not foreseeable and dismissed that argument. The court stated the language stating the release covered all claims arising from the defendants negligence was broad enough to warn the plaintiff of the risks.

So Now What?

This is a great case that is easy to read if you are working in Illinois in preparing a release for your business or activity.

This is also an added point to make sure your release identifies the risks of your activity to warn the guests of what may befall them.

If you are creating, running or the owner of an event that is “sanctioned” so that everyone who attends has signed someone else’s event, has your own release created. You need to make sure that you and your employees, volunteers, etc. are protected from the unique or different risks of your event. The perfect example of this would be any race above 8000 feet. At that level, there are increased issues with altitude. A normal race would not cover that because those issues could only occur in Colorado. However, that is specifically an issue that someone from sea level could argue was an issue that you failed to warn them about and could not prove you had warned them because you had not had them sign a release which reviewed the risks.

Furthermore, let people know that nothing is perfect. No matter how high the fence, how much police or protective the barriers, people will find a way to get on the course, sneak on the hill or break into your program.

Better to waste an extra sheet of paper having guests sign a release than reams of paper to defend a lawsuit.

For General Information on Releases see:

Release/Waivers: The basics, the very basics!

Releases 101

States that allow a parent to sign away a minor’s right to sue

States that do not Support the Use of a Release

What is a Release?

For specific articles about releases and specific activities see:

Connecticut court works hard to void a release for a cycling event

Four releases signed and all of them thrown out because they lacked one simple sentence!

Gross Negligence beats a release…but after the trial

Maine upholds release in a mountain bike race and awards defendants costs and attorney fees

Michigan court upholds release in a climbing wall accident where injured climber sued his belayer for his injuries

Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.

PA court upholds release in bicycle race.

Poorly written release gave the plaintiff’s the only chance they had to win

Release stops suit for falling off horse at Colorado summer Camp.

Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.

Texas makes it easier to write a release because the law is clear.

Tough fight on a case, release used to stop all but one claim for a CO ski accident

Wrong release for the activity almost sinks YMCA

For more articles on the issues of cycling see:

Connecticut court works hard to void a release for a cycling event

Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

How to fight a Bicycle Product Liability case in New York. One step at a time.

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.

PA court upholds release in bicycle race.

Release for training ride at Triathlon training camp stops lawsuit

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

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