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Records help prove even if your release is weak, the plaintiff really understood the risks.
Plaintiff: Eric Walton
Defendant: Oz Bicycle Club
Plaintiff Claims: negligence
Defendant Defenses: (1) that the release signed by Walton bars the present action; (2) that Walton assumed the risk of the injuries received; and (3) that Oz assumed no duty of due care towards Walton
Holding: for the defendant
In Walton v. Oz Bicycle Club of Wichita, the federal district court upheld a release used in a bicycle race. The race was held in Wichita Kansas, by the Oz Bicycle Club of Wichita. The plaintiff was rounding a corner in the lead on an open race course when he swerved to miss a car and crashed. An open bicycle race course means cars are on the roadway. An open course is not closed to traffic or pedestrians. A closed course, all cars have been prohibited on the course.
The defendant bicycle club filed a motion for summary judgment, which was granted by the court. The plaintiff when he signed up for the race was handed a release which he signed. The plaintiff had raced twenty to thirty times before and signed releases each time. He did not read this release but had read others and knew what he was signing. Prior to the start of the race the plaintiff had been informed that the course was not closed. The plaintiff encountered traffic on the race course at least twice prior to his crash.
The plaintiff was an employee of a bicycle manufacturing company which was also a sponsor of the race.
Summary of the case
The court first reviewed the issue of whether Assumption of Risk was a defense at this time in Kansas. The court concluded it probably not because the Kansas Supreme Court had not handed down a decision that was specific in stating assumption of risk was a defense in Kansas.
The court quoted the heading and four paragraphs of the release in its decision. The heading of the release read: “NOTICE: THIS ENTRY BLANK AND RELEASE FORM IS A CONTRACT WITH LEGAL CONSEQUENCES. READ IT CAREFULLY BEFORE SIGNING.”
The plaintiff argued that releases were not favored under Kansas law; however, the plaintiff never showed how the release at issue, was void under Kansas law.
The court in one paragraph summed up the requirements for the release to be valid under Kansas law:
Although exculpatory agreements have an inherent potential for abuse and overreaching, and hence are subjected to close scrutiny by the courts, these agreements have a vital role to play in allowing the individual to participate in activities of his own choice. If the individual has entered into an exculpatory clause freely and knowingly, and the application of the clause violates no aspect of fundamental public policy, the individual’s free choice must be respected. Here, public policy supports, rather than detracts from, the application of the exculpatory clause. “Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.”
The court looked at the release and found it to be valid. The release lacked the word negligence; however, it spoke to “rights and claims” for “any and all damages” sustained by participating in the event. The court concentrated on the fact the plaintiff had signed more than 20 other releases, participated in more than 20 races and had crashed in at least two races. This is another situation where the facts and knowledge of the plaintiff helped seal the release in the mind of the court.
So Now What?
It was obvious that the defendant’s ability to show the court 20-30 other releases for bicycle racing signed by the plaintiff was instrumental in proving the arguments of the plaintiff did not matter. You need to hold on to releases, you never know when one many years old maybe valuable in proving your case.
That does not require that you hold onto each paper copy of a release. Electronic copies are equally valid. Invest in a scanner and take all of your old releases and scan them. You can organize them by date or race or activity. You do not need to identify each release at the time. You cans scan them in a way that they are searchable later, and if you ever need to find one, you can.
Also instrumental was the fact the plaintiff was informed at the beginning of the race that the course was open, going to have cars on the course. Add to that the defendant could prove the plaintiff had avoided cars on the course during the race and had raced on open courses in the past. I would suggest putting important information such as the course being open into the release, so you can prove you gave the rider the information. Having that information in the release, should not, however, remove the responsibility to tell the people about the open course also.
While working at a ski area, we threw in the weather report and an area map into all big accident files. We never knew if any accident would lead to a suit, however, why worry about it. Make sure the file has everything you need, every back reference or proof needed when you build the file so you don’t have to search for it. We had a lot of stored weather reports and ski area maps, but if one was needed in a lawsuit, they were easy to find.
We also included all of the skiing history we had on the injured guest. Any logs from his skiing that year, each time his pass had been scanned if the injured guest had a season pass. Prior season pass or skiing history if we had it. Proof that the injured guest knew how to ski and assumed the risk or proof that the injured guest had signed numerous releases.
That ability to find information, electronically or on paper, saved the day in this bicycle race case.
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Hellweg v. Special Events Management, 956 N.E.2d 954; 2011 Ill. App. LEXIS 725; 2011 IL App (1st) 103604; 353 Ill. Dec. 826Posted: October 22, 2012
Hellweg v. Special Events Management, 956 N.E.2d 954; 2011 Ill. App. LEXIS 725; 2011 IL App (1st) 103604; 353 Ill. Dec. 826
Brian Hellweg, Plaintiff-Appellant, v. Special Events Management; Chicago Special Events Management; Henry Richard Zemola, Individually and as an Agent and/or Employee of Special Events Management and Chicago Special Events Management; Anthony w. Abruscato, Individually and as an Agent and/or Employee of Special Events Management and Chicago Special Events Management; Steven J. Hansen, Individually and as an Agent and/or Employee of Special Events Management and Chicago Special Events Management; Joshua L. Ruston, Individually and as an Agent and/or Employee of Special Events Management and Chicago Special Events Management; Peter G. Vanderhye, Individually and as an Agent and/or Employee of Special Events Management and Chicago Special Events Management; The Village of Elk Grove; Craig B. Johnson, individually and as an Agent and/or Employee of The Village of Elk Grove; Alexian Brothers Hospital Network, and Claudine Quevedo, as Mother and Next of Friend of Greg B. Quevedo, a Minor, Defendants-Appellees.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
956 N.E.2d 954; 2011 Ill. App. LEXIS 725; 2011 IL App (1st) 103604; 353 Ill. Dec. 826
July 8, 2011, Decided
SUBSEQUENT HISTORY: Released for Publication August 26, 2011.
Appeal denied by Hellweg v. Special Events Mgmt., 2011 Ill. LEXIS 1963 (Ill., Nov. 30, 2011)
PRIOR HISTORY: [**1]
Appeal from the Circuit Court of Cook County. 10 L 1057. Honorable James D. Egan, Judge Presiding.
COUNSEL: COUNSEL FOR APPELLANT: Carolyn Daley Scott.
COUNSEL FOR APPELLEE: Ronald G. Zamarin.
JUDGES: JUDGE EPSTEIN delivered the judgment of the court, with opinion. Justices Joseph Gordon and Howse concurred in the judgment and opinion.
OPINION BY: EPSTEIN
[*956] JUDGE EPSTEIN delivered the judgment of the court, with opinion.
Justices Joseph Gordon and Howse concurred in the judgment and opinion.
[***P1] Plaintiff, Brian Hellweg, appeals the involuntary dismissal of his negligence claims pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)). He maintains the trial court relied on an unenforceable release to dismiss his claims. We affirm.
[***P3] Plaintiff filed the instant lawsuit seeking to recover damages he sustained while preparing for a 2009 bicycling race organized by defendants Special Events Management, Henry Zemola, Anthony Abruscato, Steven Hansen, Joshua Ruston, Peter Vanderhye, Village of Elk Grove, Craig Johnson, and Alexian Brothers Hospital Network. The race was held on municipal streets advertised as a “closed course,” an undefined term. Plaintiff was injured [**2] when he collided with a nonparticipating bicyclist, Greg B. Quevedo, a minor, while participating in a warm-up session organized by defendants. Plaintiff alleges they collided as a result of defendants’ failure to close the course as promised prior to the session. Defendants moved to dismiss plaintiff’s negligence claims with prejudice pursuant to section 2-619, arguing, inter alia, that plaintiff signed a “2009 USA Cycling Event Release Form” (the Release) exculpating them from liability. Plaintiff responded the Release was unenforceable because his collision with Quevedo was not foreseeable. The trial court disagreed, granting defendants’ motions. Plaintiff appealed pursuant to Supreme Court Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)).
[***P5] [HN1] “The purpose of a section 2-619 motion to dismiss is to dispose of issues of law and easily proved issues of fact at the outset of litigation.” Van Meter v. Darien Park District, 207 Ill. 2d 359, 367, 799 N.E.2d 273, 278 Ill. Dec. 555 (2003). Section 2-619 allows the involuntarily dismissal of released claims. 735 ILCS 5/2-619(a)(9) (West 2008). We review such dismissals de novo and must determine “whether a genuine issue of material fact exists and whether the defendant [**3] is entitled to judgment as a matter of law.” Saichek v. Lupa, 204 Ill. 2d 127, 134, 787 N.E.2d 827, 272 Ill. Dec. 641 (2003). We accept “as true all well-pleaded facts, along with all reasonable inferences that can be gleaned from those facts,” and we “interpret all pleadings and supporting documents in the light most favorable to the nonmoving party.” Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352, 882 N.E.2d 583, 317 Ill. Dec. 703 (2008).
[***P6] [HN2] Parties in Illinois may generally contract away liability for their own negligence. Garrison v. Combined Fitness Centre, Ltd, 201 Ill. App. 3d 581, 584, 559 N.E.2d 187, 147 Ill. Dec. 187 (1990). Such “agreements are not favored by the law and are strictly construed against the party they benefit.” Falkner v. Hinckley Parachute Center, Inc., 178 Ill. App. 3d 597, 603, 533 N.E.2d 941, 127 Ill. Dec. 859 (1989). However, they “must be given a fair and reasonable interpretation based upon a consideration of all of [the] language and provisions.” Id.
[HN3] “[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 [*957] two parties [**4] that would militate against upholding the clause. [Citations.] The rationale for this rule is that courts should not interfere with the right of two parties to contract with one another if they freely and knowingly enter into the agreement.” Garrison, 201 Ill. App. 3d at 584.
Plaintiff here does not claim fraud, wilful and wanton negligence, a special relationship with defendants, substantial disparity in bargaining power, or a public policy violation. He argues only that the risk at issue was not foreseeable and thus not assumed by him.
[HN4] “[A]n 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. [Citation.] 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. [Citation.] The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract was entered into. [Citation.] It should only [**5] appear that the injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.” Id. at 585.
[HN5] “Foreseeability of a specific danger is thus an important element of the risk which a party assumes, and, for this reason, serves to define the scope of an exculpatory clause. This is but another way of stating that, although the type of negligent acts from which a person expressly agrees to excuse another need not be foreseen with absolute clarity, such acts cannot lie beyond the reasonable contemplation of the parties ***.” Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 577, 474 N.E.2d 729, 85 Ill. Dec. 769 (1984).
[HN6] “Whether a particular injury is one which ordinarily accompanies a certain activity and whether a plaintiff appreciates and assumes the risks associated with the activity often constitute a question of fact.” Simpson v. Byron Dragway, Inc., 210 Ill. App. 3d 639, 647, 569 N.E.2d 579, 155 Ill. Dec. 398 (1991). Here, plaintiff’s release provides, in pertinent part:
“I ACKNOWLEDGE THAT BY SIGNING THIS DOCUMENT, I AM ASSUMING RISKS, AND AGREEING TO INDEMNIFY, NOT TO SUE AND RELEASE FROM LIABILITY THE ORGANIZERS OF THIS EVENT AND USA CYCLING, INC. (USAC), ITS ASSOCIATIONS [**6] *** AND THEIR RESPECTIVE AGENTS, EMPLOYEES, VOLUNTEERS, MEMBERS, CLUBS, SPONSORS, PROMOTERS AND AFFILIATES (COLLECTIVELY ‘RELEASEES’), AND THAT I AM GIVING UP SUBSTANTIAL LEGAL RIGHTS. THIS RELEASE IS A CONTRACT WITH LEGAL AND BINDING CONSEQUENCES AND IT APPLIES TO ALL RACES AND ACTIVITIES ENTERED AT THE EVENT REGARDLESS WHETHER OR NOT LISTED ABOVE. I HAVE READ IT CAREFULLY BEFORE SIGNING, AND I UNDERSTAND WHAT IT MEANS AND WHAT I AM AGREEING TO BY SIGNING.
In consideration of the issuance of a license to me by one or more of Releasees or the acceptance of my application for entry in the above event, I hereby freely agree to and make the following contractual representations [*958] and agreements. I ACKNOWLEDGE THAT CYCLING IS AN INHERENTLY DANGEROUS SPORT AND FULLY REALIZE THE DANGERS OF PARTICIPATING IN THIS EVENT, whether as a rider, official, coach, mechanic, volunteer, or otherwise, and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation: *** dangers of collision with pedestrians, vehicles, other riders, and fixed or moving objects; *** THE RELEASEES’ OWN NEGLIGENCE, the negligence of others ***; and the possibility of serious physical [**7] and/or mental trauma or injury, or death associated with the event. *** I HEREBY WAIVE. RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIFY AND NOT TO SUE the Releasees and all sponsors, organizers, promoting organizations, property owners, law enforcement agencies, public entities, special districts and properties that are in any manner connected with this event, and their respective agents, officials, and employees through or by which the event will be held, (the foregoing are also collectively deemed to be Releasees), FROM ANY AND ALL RIGHTS AND CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES’ OWN NEGLIGENCE, which I have or may hereafter accrue to me, and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event. I agree it is my sole responsibility to be familiar with the event course and agenda, the Releasees’ rules, and any special regulations for the event and agree to comply with all such rules and regulations. I understand and agree that situations may arise during the event which may be beyond the control of Releasees, [**8] and I must continually ride and otherwise participate so as to neither endanger myself nor others.” (Emphasis in original.)
This agreement unambiguously absolves defendants of all claims arising out of the event even if caused by their own negligence. Plaintiff maintains the Release is nevertheless unenforceable because the presence of a nonparticipant bicyclist on the course is not a risk ordinarily attendant to closed course races. According to plaintiff:
“When a cycling race is advertised as closed course, it means that all intersections and streets are closed and barricaded to ensure that no one, other than those participating and involved in the race, are permitted onto the course. This enables the cyclists to ride along the streets and through the intersections on the course without having to worry that there will be another vehicle or non-participating cyclist crossing through the intersection.”
The presence of nonparticipants in bicycle races conducted on municipal streets is an inherent and reasonably foreseeable risk. Even assuming, arguendo, that such risk is absent in closed course races, a matter of dispute, plaintiff nevertheless assumed that allegedly extraordinary risk [**9] here by expressly agreeing to absolve defendants of liability for “collision with pedestrians, vehicles, other riders, and fixed or moving objects.” Closed course or not, plaintiff’s release plainly contemplates the possibility of pedestrians, vehicles, other riders, and/or fixed or moving objects on the course. The Release encompasses plaintiff’s collision.
[***P7] Plaintiff disagrees, arguing that “the language ‘other riders or moving or fixed [*959] objects’ does not reasonably encompass a minor who was able to ride his bicycle onto the course due to the Defendants failing to properly close the streets.” According to plaintiff, he “did not nor could he have foreseen that Defendants would negligently fail to close the course,” and “there is no possible way that he could have contemplated that the Defendants intended that the release encompass their negligent conduct in failing to close the course.” We disagree. The Release unambiguously states plaintiff is relinquishing “ANY AND ALL *** CLAIMS ARISING FROM THE [DEFENDANT’S] OWN NEGLIGENCE.” (Emphasis in original.) Moreover, the relevant inquiry for purposes of enforcing the Release is not whether plaintiff foresaw defendants’ exact act of negligence [**10] or his exact collision. It is whether plaintiff knew or should have known colliding with a nonparticipant on the course was a risk encompassed by his release. As our supreme court explained in the context of automobile racing:
[HN7] “[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.” Schlessman v. Henson, 83 Ill. 2d 82, 86, 413 N.E.2d 1252, 46 Ill. Dec. 139 (1980).
Similarly, bicycle racing on municipal streets undoubtably poses risk of injury to the public, riders, and race personnel, even when the course is closed. Various scenarios could arise in which a rider is injured, including, as in this case, collision with a nonparticipant. All such scenarios need not be enumerated in the release. It is sufficient if the language used therein is broad enough to reasonably demonstrate the parties [**11] contemplated the risk at issue. The release here plainly assigns plaintiff the risk of collision on the course, including, but not limited to, “collision with pedestrians, vehicles, other riders, and fixed or moving objects.” This includes plaintiff’s collision with Quevedo. Even if it did not, the Release was manifestly “designed to encompass all claims against defendant[s] based on [their] negligence, even though the precise cause of the accident may have been extraordinary,” Id. at 86. We affirm the dismissal of plaintiff’s claims with prejudice. The trial court properly concluded as a matter of law that plaintiff’s negligence claims are barred by the Release.
[***P9] We affirm the dismissal of plaintiff’s claims with prejudice. The Release is enforceable.
will compete in the Tour of Utah this year.
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