Bowman v. The Chicago Park District, 2014 IL App (1st) 132122; 2014 Ill. App. LEXIS 648

Bowman v. The Chicago Park District, 2014 IL App (1st) 132122; 2014 Ill. App. LEXIS 648

Artenia Bowman, Individually and as Mother and Next Friend of Cheneka Ross, a Minor, Plaintiff-Appellant, v. The Chicago Park District, a Municipal Corporation, Defendant-Appellee.

No. 1-13-2122

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

2014 IL App (1st) 132122; 2014 Ill. App. LEXIS 648

September 5, 2014, Decided

SUBSEQUENT HISTORY: As Corrected.

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Cook County. No. 11 L 7865. The Honorable Kathy M. Flanagan, Judge Presiding.

Bowman v. Chi. Park Dist., 2014 IL App (1st) 132122-U, 2014 Ill. App. Unpub. LEXIS 1420 (2014)

DISPOSITION: Reversed and remanded.

COUNSEL: For Appellant: Paul A. Greenberg, Briskman Briskman & Greenberg, of Chicago, IL.

For Appellee: George P. Smyrniotis, Risk Management Senior Counsel, Robert L. Raymond, Marie Christelle Levesque (Legal Extern), Chicago Park District, of Chicago, IL.

JUDGES: JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Taylor concurred in the judgment and opinion.

OPINION BY: GORDON

OPINION

[*P1] Plaintiff Artenia Bowman, individually and as mother and next friend of Cheneka Ross, a minor, filed suit in the circuit court of Cook County against the Chicago Park District (CPD) alleging willful and wanton conduct for failing, for almost a year, to repair a damaged slide. Plaintiff’s daughter, Cheneka Ross, age 13, was going down a slide on April 21, 2011, when her foot became caught in a hole in the plastic at the bottom of the slide, resulting in a fractured ankle. Defendant CPD owns the property and maintains the playground equipment, including the slide.

[*P2] Defendant filed a motion for summary judgment (735 ILCS 5/2-1005 (West 2010)) claiming: (1) that it did not owe any duty to Cheneka because she was not an intended user of the slide since she was 13 years old and the slide was intended for children aged under 12; and (2) that the hole at the bottom of the curved slide was an open and obvious risk that the 13-year-old [**2] should have avoided. Plaintiff, in her response to defendant’s motion for summary judgment, claims.

[*P3] The trial court granted defendant’s motion for summary judgment, finding that 13-year-old Cheneka had violated a CPD ordinance by using a slide that had been designed for children under 12 years old, although there were no signs to indicate an age limit. Since the trial court found that Cheneka was not an intended user of the slide, it did not discuss whether the damage was open and obvious or whether CPD’s failure to repair the slide was willful and wanton conduct.

[*P4] On this direct appeal, plaintiff argues: (1) that the trial court erred by granting defendant summary judgment on the basis that 13-year-old Cheneka was not an intended user of defendant’s slide; (2) that the danger created by the hole at the [**3] bottom of the curved slide was not open and obvious; and (3) that CPD’s failure to repair the slide, after being informed of its condition almost a year earlier, constituted willful and wanton conduct.

[*P5] For the following reasons, we find the trial court erred in granting summary judgment on the basis that Cheneka was not the intended user of the slide and reverse. We remand for the trial court to decide whether the slide’s condition was open and obvious and whether CPD’s failure to repair the slide after being notified was willful and wanton conduct.

[*P6] BACKGROUND

[*P7] I. The Complaint

[*P8] The complaint at issue on this appeal is plaintiff’s second amended complaint, which was filed on March 1, 2012. The suit seeks damages for injuries sustained by plaintiff’s daughter, Cheneka, when she damaged her ankle on a park slide on April 21, 2011. The complaint alleges that Cheneka was using the slide when her foot came in contact with a hole that caused a fracture in her ankle; and that defendant CPD was aware that the slide was dangerous and had failed to repair it. Count I alleges defendant acted willfully and wantonly toward users of the slide by failing to repair the slide even though it had received [**4] numerous complaints from the community. Count II sought recovery on behalf of her daughter’s medical expenses under the Rights of Married Persons Act, commonly known as the Family Expense Act. 750 ILCS 65/15 (West 2010).

[*P9] II. Defendant’s Motion for Summary Judgment

[*P10] On January 13, 2013, defendant, as noted, filed a motion for summary judgment, claiming: (1) that it did not owe any duty to Cheneka because she was not an intended user of the slide; and (2) that the slide was an open and obvious risk that the 13-year-old should have avoided.

[*P11] CPD argued that it had an ordinance stating that children age 12 and older should not use playground equipment designed for children under the age of 12. CPD claims that, since Cheneka was 13 years old, she violated the ordinance, and CPD was immune from liability.

[*P12] CPD also claimed that the danger at the bottom of the curved slide was open and obvious, and that the 13-year-old should not have used the slide because a reasonable child would have avoided it. CPD also claimed that, since the 13-year-old was unsupervised, she should be old enough to appreciate obvious risks; however, issues of supervision were not raised on appeal.

[*P13] Plaintiff responded to the motion contending [**5] that defendant had failed to establish that the 13-year-old was not the intended user of the slide. She claimed that the park was open to the public and no sign was present in the park prohibiting children age 12 and older from using the slide. Plaintiff also contended that the hole at the bottom of the curved slide was not open and obvious because she was unable to see the hole prior to being injured. The slide was curved, which made it difficult for children to observe what was in front of them.

[*P14] III. Exhibits

[*P15] A. Cheneka Ross’s Deposition

[*P16] Cheneka testified in a discovery deposition that, on April 21, 2011, she went with friends to a park located at 1420 North Artesian Avenue1 to play a game of tag. Most of her friends were several years younger than her, including her brother. It was around 7 p.m. and starting to become dark. She had played at this park before and had been there several times. While playing tag, Cheneka ran to the slide to avoid being tagged by one of her friends. She went up the slide and when she descended, her foot became caught in a hole in the plastic, at the bottom of the slide, causing a fractured ankle requiring surgery.

1 The parties agree that the park is known [**6] as Park 399.

[*P17] Cheneka testified that she did not observe the hole at the bottom of the slide before her foot became caught. She did not observe the crack from the top of the slide and identified a photograph of the slide. The photograph, which was introduced at the deposition, showed that the slide was curved, and the top of the slide did not line up with the bottom.

[*P18] B. Artenia Bowman’s Affidavit and Deposition

[*P19] Artenia Bowman is Cheneka’s mother. In an affidavit attached to plaintiff’s response to the motion for summary judgment, Cheneka’s mother alleges that there were no signs posted which designated the age group for the playground. Specifically, there were no signs stating that the play equipment was intended for those 2 to 12 years old2 and that those 13 years or older were prohibited.

2 We note that this age range conflicts with the Chicago Park District Code (CPD Code), which states certain parks are designated for children under age 12. Chicago Park District Code ch. 7, § B(3)(e) (amended July 28, 1992).

[*P20] Cheneka’s mother testified that, after the incident, the park had been renovated, and after the renovation, new signs were posted stating that the park was intended for children [**7] under the age of 12.

[*P21] C. Juan Moreno’s Deposition

[*P22] Juan Moreno lives about 300 feet away from the park. Moreno testified in a discovery deposition that he goes to the park on a daily basis for a walk and some fresh air. He observed the damage to the slide for about a year and a half. He testified that the slide was “cracked really bad,” and it had a lot of water buildup at its bottom. Moreno had called 311 and was directed to CPD several times to report the broken slide’s condition before Cheneka was injured. Moreno testified that he spoke to an unnamed CPD supervisor in person, about a year prior to the incident, to complain about the slide. He also has contacted Alderman Roberto Maldonado’s office three times regarding the condition of the slide.

[*P23] Moreno testified that he still observed children playing on the broken slide despite its condition. He also mentioned that he observed older children at the park.

[*P24] D. Kathleen Oskandy’s Deposition

[*P25] Kathleen Oskandy, Alderman Maldonado’s chief of staff, spoke to Cheneka’s mother after the incident. Oskandy testified in a discovery deposition that she informed Cheneka’s mother that Moreno had already filed complaints with the alderman’s office [**8] about the slide before the incident. Oskandy reported the condition of the slide to CPD in July 2010 after being informed by Moreno.

[*P26] Oskandy provided a computer printout of the complaints regarding the park maintained by her office. It was a timeline of Moreno’s initial complaint, along with subsequent comments. The log showed a complaint made on July 29, 2010, about the slide’s condition and additional comments when CPD was contacted. On August 24, 2010, the log stated: “slide boarded up and waiting for repair.” One week prior to the incident in April 2011, the log stated, “slide west of park still broken.” On April 25, 2011, the log mentioned that Cheneka was injured and “[CPD] replaced slide for repair.”

[*P27] E. Gladys Ruiz’s Deposition

[*P28] Gladys Ruiz works in Alderman Maldonado’s office answering calls and inputting data. Ruiz explained in a discovery deposition the procedure of how staff entered complaints in the office computer. On July 29, 2010,3 Moreno had called the office, and Ruiz logged his complaint about the slide. She made a note about the damaged slide in the computer log. Ruiz interpreted the log provided by Oskandy and explained that Oskandy was the one that closed out the [**9] file on August 27 when Oskandy contacted CPD.

3 The computer printout of the log shows a date of July 29, but Ruiz’s deposition testimony states July 19.

[*P29] F. Robert Rejman’s Affidavit and Deposition

[*P30] Robert Rejman is the director of development and planning for CPD. His duties include developing policies for park district facilities and establishing and improving playgrounds. In an affidavit attached to defendant’s motion for summary judgment, Rejman stated that “he was personally familiar with Park 399” and he “reviewed the plaintiff’s photographs of the playground equipment and can say that this equipment is commonly in the design of playgrounds that are intended for users between the ages of two to twelve.” He additionally stated that a sign was posted at the park indicating that playground equipment is designed for children aged 2 to 124; however, his affidavit did not state when the sign was posted or whether the sign was posted at the time of 13-year-old Cheneka’s injury.

4 We note that this age range conflicts with the CPD Code, which states certain parks are designated for children under age 12. Chicago Park District Code ch. 7, § B(3)(e) (amended July 28, 1992).

[*P31] Rejman later testified [**10] in a discovery deposition that he visited the park only once at some unknown point before the incident. He stated that he was unaware if there were any signs posted outside the park designating the age range when he was there. We observe that this testimony conflicts with the affidavit, where he stated that a sign was posted in the park. Rejman also stated that he was unaware if there had been any recent improvements to the park. Rejman characterized the park as a “play lot,” a park with most equipment for children age 12 and under. He testified there are different areas for younger children because “it’s safer for kids within a certain age groups to have space to play *** within that age group. *** It’s important to [parents] to provide that safe zone of play for younger children.”

[*P32] G. John Shostack’s Deposition

[*P33] John Shostack is a maintenance foreman for CPD’s natural resources landscape maintenance department. He testified in a discovery deposition that he was assigned to the park in 2010, but was not assigned there at the time of the incident in 2011. Shostack claimed to have stopped by the park at least once a week when he was assigned to the park. He admitted that he was aware [**11] of the slide’s damaged condition in 2010. Shostack placed a work order in 2010 to have the slide repaired; however, it was not his job to follow up, as that task was assigned to a different department. Shostack testified that he remembered seeing a wooden board placed at the top of the slide to prevent use, and yellow caution tape surrounded the slide. Shostack could not recall how long the board or caution tape was present on the slide. He would put up caution tape as a courtesy on one day, and it would be absent the next time he was there. He also testified that he could not recall if any actual repairs were done on the slide while he was assigned to the park.

[*P34] IV. Trial Court’s Order Granting Summary Judgment

[*P35] On June 10, 2013, the trial court granted summary judgment to defendant CPD, finding that Cheneka had violated a CPD ordinance and was not an intended user:

“Here, there is a dispute as to whether the subject playground displayed a sign restricting the use of the playground to persons under the age of twelve. However, the Chicago Park District enacted an ordinance restricting the use of playgrounds to children under the age of twelve. The ordinance itself is the manifestation [**12] of the Park District’s intent vis-a-vis the use of the playground. As such, whether or not there was a sign on the subject playground, the minor Plaintiff here was not an intended user of it.”

[*P36] The trial court did not discuss whether the damage to the slide was open and obvious, or whether CPD’s failure to repair the slide was willful and wanton conduct. The trial court granted summary judgment solely on the ground that the 13-year-old was not an intended user because of her age.

[*P37] On July 13, 2013, plaintiff filed a notice of appeal, and this appeal followed.

[*P38] ANALYSIS

[*P39] Plaintiff Artenia Bowman appeals from an order of the circuit court of Cook County granting summary judgment in favor of defendant Chicago Park District.

[*P40] On this appeal, plaintiff argues: (1) that the trial court erred by granting defendant summary judgment on the basis that 13-year-old Cheneka was not an intended user of defendant’s slide; (2) that the danger created by the hole at the bottom of the curved slide was not open and obvious; and (3) that CPD’s failure to repair the slide, after being informed of its condition almost a year earlier, constituted willful and wanton conduct.

[*P41] With respect to the first issue, defendant [**13] claims that Cheneka was not the intended user of the slide, and therefore, it is not liable. For the following reasons, we find the trial court erred in granting summary judgment on this ground and reverse. We remand for the trial court to decide whether the slide’s condition was open and obvious, and whether CPD’s failure to repair the slide after being notified was willful and wanton conduct.

[*P42] I. Standard of Review

[*P43] [HN1] A trial court is permitted to grant summary judgment only “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2010). The trial court must view these documents and exhibits in the light most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315, 821 N.E.2d 269, 290 Ill. Dec. 218 (2004). We review a trial court’s decision to grant a motion for summary judgment de novoOutboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992). De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578, 948 N.E.2d 132, 350 Ill. Dec. 63 (2011).

[*P44] [HN2] “Summary judgment is a drastic measure and should only be granted if the movant’s right to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102. However, “[m]ere speculation, conjecture, or guess is insufficient [**14] to withstand summary judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328, 722 N.E.2d 227, 242 Ill. Dec. 738 (1999). A defendant moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624, 872 N.E.2d 431, 313 Ill. Dec. 448 (2007). The defendant may meet his burden of proof either by affirmatively showing that some element of the case must be resolved in his favor or by establishing “‘that there is an absence of evidence to support the nonmoving party’s case.'” Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). In other words, there is no evidence to support the plaintiff’s complaint.

[*P45] “‘The purpose of summary judgment is not to try an issue of fact but *** to determine whether a triable issue of fact exists.'” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708, 767 N.E.2d 376, 262 Ill. Dec. 916 (2002) (quoting Luu v. Kim, 323 Ill. App. 3d 946, 952, 752 N.E.2d 547, 256 Ill. Dec. 667 (2001)). “‘To withstand a summary judgment motion, the nonmoving party need not prove his case at this preliminary stage but must present some factual basis that would support his claim.'” Schrager, 328 Ill. App. 3d at 708 (quoting Luu, 323 Ill. App. 3d at 952). We may affirm on any basis appearing in the record, whether or not the trial court relied on that basis or its reasoning was correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50, 594 N.E.2d 1344, 171 Ill. Dec. 824 (1992).

[*P46] II. Intended User of Slide

[*P47] CPD argues that, since Cheneka was not the intended user of the slide, it cannot be liable for her injuries. [HN3] As a local public entity, CPD is entitled to the protection of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/1-101 et seq. (West 2010)). [**15]

[*P48] In order for a municipality to have immunity under the Act, a duty must be owed under section 3-102 (745 ILCS 10/3-102 (West 2010)) for any of the subsequent immunity sections to apply. Swett v. Village of Algonquin, 169 Ill. App. 3d 78, 95, 523 N.E.2d 594, 119 Ill. Dec. 838 (1988). Section 3-102(a) states:

[HN4] “Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” (Emphasis added.) 745 ILCS 10/3-102(a) (West 2010).

[*P49] Thus, [HN5] according to the Act, a municipality owes a duty of care only to those who are both intended and permitted users of municipal property. 745 ILCS 10/3-102(a) (West 2010). Because “the Act ‘is in derogation of the common law,'” we must construe it strictly against the municipal defendant. Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 158, 651 N.E.2d 1115, 209 Ill. Dec. 667 (1995) (quoting Curatola v. Village of Niles, 154 Ill. 2d 201, 208, 608 N.E.2d 882, 181 Ill. Dec. 631 (1993)). “[A]n intended user of property is, by definition, also a permitted user; [**16] a permitted user of property, however, is not necessarily an intended user.” Boub v. Township of Wayne, 183 Ill. 2d 520, 524, 702 N.E.2d 535, 234 Ill. Dec. 195 (1998).

[*P50] “[T]he duty of a municipality depends on whether the use of the property was a permitted and intended use. [Citation.] Whether a particular use of property was permitted and intended is determined by looking to the nature of the property itself. [Citation.]” (Emphasis omitted.) Vaughn, 166 Ill. 2d at 162-63. “Intent must be inferred from the circumstances.” Sisk v. Williamson County, 167 Ill. 2d 343, 351, 657 N.E.2d 903, 212 Ill. Dec. 558 (1995).

[*P51] Defendant contends that, as a 13-year-old, Cheneka was not the intended or permitted user of the slide at the park. CPD claims, first, that this park was intended only for children 12 and younger. Second, chapter 7, section B(3)(e), of the CPD Code states:

“Playgrounds Designated for Persons under Twelve Years of Age.

[HN6] No person the age of twelve years or older shall use playground equipment designed for persons under the age of twelve years.” Chicago Park District Code ch. 7, § B(3)(e) (amended July 28, 1992).

[HN7] The CPD Code has the same force as a municipal ordinance. Chicago Park District v. Canfield, 382 Ill. 218, 223-24, 47 N.E.2d 61 (1943). Defendant claims it is immune from liability, because the 13-year-old violated the CPD Code by allegedly using equipment “designed” for younger children.

[*P52] [HN8] To determine whether plaintiff was an intended user of property, we [**17] look to the property itself to determine its intended use. Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 426, 592 N.E.2d 1098, 170 Ill. Dec. 418, (1992).

[*P53] Defendant cites Montano v. City of Chicago, 308 Ill. App. 3d 618, 624, 720 N.E.2d 628, 242 Ill. Dec. 7 (1999), where this court ruled that the defendant city was not liable when an adult pedestrian, who was injured on the pavement in an alleyway, had been violating an ordinance governing the use of alleys. The court found that there is no duty owed to pedestrians on thoroughfares not intended for pedestrian traffic. Montano, 308 Ill. App. 3d at 625.

[*P54] In Prokes v. City of Chicago, 208 Ill. App. 3d 748, 750, 567 N.E.2d 592, 153 Ill. Dec. 634 (1991), this court found the defendant city not liable when an adult bicyclist had been injured on a sidewalk. The city had an ordinance stating, “‘No person twelve or more years of age shall ride a bicycle upon any sidewalk in any district ***.'” Prokes, 208 Ill. App. 3d at 749 (quoting Chicago Municipal Code § 27-296 (1984)).

[*P55] In both Prokes and Montanto, the adult plaintiffs were not found to be intended users of the premises on which they were injured because they had violated a Chicago ordinance. However, defendant does not cite a case where a child was charged with the responsibility of knowing municipal ordinances, without a sign or other notice.

[*P56] In addition, nothing in the record shows that even adult members of the public had any means of knowing that CPD had allegedly designated this particular park for a certain age group. [HN9] Publication [**18] of ordinances is necessary so that the public can be informed of the contents of ordinances. City of Rockford v. Suski, 90 Ill. App. 3d 681, 685, 413 N.E.2d 527, 46 Ill. Dec. 87 (1980). It is a long-established principle that members of the public must have a reasonable opportunity to be informed of an ordinance so that they may conform their conduct accordingly and avoid liability under the ordinance. Schott v. People, 89 Ill. 195, 197-98 (1878). While the CPD Code prohibited children age 12 and over from playing on playgrounds “designed” for children younger than 12, nothing in the CPD Code stated that this particular park was designated for children under age 12 or that this slide was designed for children under age 12. The CPD website for the park, attached to plaintiff’s response to defendant’s motion for summary judgment, mentions no age range, only stating: “This park features a playground and swings and green space. It is an active community park.”

[*P57] There were also no signs on the playground or any other indications that the playground was designated or designed for children under 12 years old. Plaintiff states in her affidavit that the park did not have a sign designating the playground for younger children. Robert Rejman, CPD’s director of development and planning, admitted at his deposition that he did not [**19] know whether there was a sign posted. Nothing in the record shows that CPD took any measures to prevent children age 12 and older from using this park. Playgrounds are designed for children. What would prompt a 13-year-old child to observe a slide and think, “am I really the intended user of this slide?”

[*P58] CPD stated that plaintiff presented no case or legal authority to support the assumption that all community members are intended users of a park called a “community park.” However, [HN10] it is the defendant’s burden to prove that it is immune from liability. Bubb v. Springfield School District 186, 167 Ill. 2d 372, 377-78, 657 N.E.2d 887, 212 Ill. Dec. 542 (1995); Van Meter v. Darien Park District, 207 Ill. 2d 359, 370, 799 N.E.2d 273, 278 Ill. Dec. 555 (2003). In addition, CPD has pointed to no legal authority claiming that the public generally is not allowed to use public parks.

[*P59] Plaintiff contends that CPD did not follow the administrative provisions in chapter 7, section C, of the CPD Code for designating the playground as solely for children under the age of 12 years old. However, we do not consider this issue, because [HN11] issues not raised in the trial court are waived and may not be considered for the first time on appeal. Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536, 662 N.E.2d 1248, 215 Ill. Dec. 108 (1996). Nothing in plaintiff’s complaint or her response to defendant’s motion for summary judgment argued that CPD failed to follow its own administrative procedures under [**20] chapter 7, section C, of the CPD Code.

[*P60] Defendant argues that placing signage is discretionary, and it has no duty to post its ordinances at every park. The CPD Code is available online; however, the Code does not state which parks have been designated for a certain age group. [HN12] An ordinance is invalid if a municipality cannot prove it was published (Suski, 90 Ill. App. 3d at 685), and here there is no showing that it was published.

[*P61] CONCLUSION

[*P62] We must reverse the trial court’s grant of summary judgment which was granted solely on the basis that a 13-year-old was not an intended user of the slide.

[*P63] First, the defendant does not cite a case where a child was charged with the responsibility of knowing municipal ordinances, without a sign or other notice, nor can we find such a case.

[*P64] Second, defendant failed to inform park users of any age, by any means, that this park and the slide were intended for children younger than age 12.

[*P65] For these reasons, we must reverse. We remand for the trial court to decide whether the slide’s condition was open and obvious, and whether CPD’s failure to repair the slide after being notified was willful and wanton conduct.

[*P66] Reversed and remanded.


Mack v. Viking Ski Shop, Inc., 2014 IL App (1st) 130768; 2014 Ill. App. LEXIS 684

Mack v. Viking Ski Shop, Inc., 2014 IL App (1st) 130768; 2014 Ill. App. LEXIS 684

Matthew Mack, Plaintiff-Appellant, v. Viking Ski Shop, Inc., an Illinois Corporation, Defendant-Appellee (Salomon North America, Inc., a Delaware Corporation, Defendant).

No. 1-13-0768

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

2014 IL App (1st) 130768; 2014 Ill. App. LEXIS 684

September 24, 2014, Opinion Filed

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Cook County. No. 06 L 11817. The Honorable Lynn M. Egan, Judge Presiding.

Mack v. Viking Ski Shop, Inc., 2014 IL App (1st) 130768-U, 2014 Ill. App. Unpub. LEXIS 1812 (2014)

JUDGES: JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Epstein concurred in the judgment and opinion.

OPINION BY: LAVIN

OPINION

[*P1] This interlocutory appeal arises from the trial court’s order granting summary judgment in a negligence action to defendant Viking Ski Shop, Inc. On appeal, plaintiff Matthew Mack contends that the trial court erroneously granted defendant’s motion for summary judgment as to plaintiff’s negligence claim because a genuine issue of material fact existed regarding the element of proximate cause. Specifically, plaintiff contends that defendant set plaintiff’s ski bindings too high for his ability level, and as a result, his bindings failed to release, causing his knee injury. We affirm.

[*P2] BACKGROUND

[*P3] This case arises from injuries sustained in a ski accident in Steamboat Springs, Colorado. Plaintiff fell approximately halfway down an intermediate ski run and sustained a severe knee fracture of his left tibial plateau. Plaintiff purchased the skis and ski bindings used at the time of injury from defendant. Plaintiff commenced this action [**2] in November 2006, alleging negligence against defendant and third-party Salomon North America (Salomon). Plaintiff alleged, in pertinent part, that defendant failed to make a reasonable inspection before selling the ski equipment to plaintiff. In addition, defendant failed to properly adjust the ski equipment, specifically the bindings, to plaintiff’s height, weight, and ski type. Generally, in the ski industry, skiers are classified as type I (beginner), type II (intermediate), or type III (advanced).

[*P4] Several depositions were taken during discovery. Plaintiff testified that in November, 2004, he purchased new skis, boots, and bindings from defendant based on his size and ability. He told defendant’s sales representative that he was an intermediate to advanced skier. On March 10, 2010, plaintiff traveled to Steamboat Springs, Colorado, where he had skied numerous times. On the day of the incident, he had one or two beers at lunch, and then resumed skiing. Approximately halfway down the Vagabond ski run, plaintiff was initiating a left turn when his right ski crossed over his left ski, causing him to fall on his back. He did not recall if any ski released from the binding. Believing [**3] his leg was broken, he radioed his ski companion Jody to call the ski patrol. Glenn Jones, a ski patroller, splinted plaintiff’s injured leg and used a toboggan to transport him off the mountain. The ski patrol immediately transferred plaintiff to the Yampa Valley Medical Center, where Henry F. Fabian, M.D., an orthopedic surgeon, operated on plaintiff. He remained hospitalized for 12 days and then resumed postoperative care in Chicago. Since the incident, plaintiff has endured five or six hospitalizations, due to infection, as well as extensive physical therapy.

[*P5] Peter R. Leffe, plaintiff’s mechanical engineering expert, testified that in his opinion, plaintiff was a type II or intermediate skier. Leffe also inspected plaintiff’s ski equipment using the standard industry Salomon manual and found that plaintiff’s bindings were set too high for a type II skier. Thus, Leffe concluded that defendant’s fitting of plaintiff’s ski equipment fell below the standard of care for a ski shop. Leffe noted that he had no intention to testify about the causal relationship between the subject injury and the binding functions because he did not hold himself out to be a biomechanical engineer.

[*P6] Defendant [**4] also submitted an affidavit of its engineering expert Jasper Shealy, who inspected and tested plaintiff’s ski equipment. He attested that over the course of his career he studied and conducted research on the relation between ski binding function and knee injuries. Based on defendant’s records, plaintiff selected a type III skier preference and his bindings were adjusted accordingly. Plaintiff, however, contends that he selected a type II skier preference. Despite this discrepancy, Shealy concluded that a lower ski type setting would not have prevented plaintiff’s injury because plaintiff’s bindings were not designed to protect against tibial plateau fractures. He stated with a reasonable degree of engineering certainty that the valgus/varus bending forces that cause tibial plateau fractures were not sufficient to cause a binding to release at any setting. Therefore, a lower setting of plaintiff’s bindings would not have prevented his knee injury.

[*P7] In April 2010, defendant filed a motion for summary judgment arguing that plaintiff failed to establish that his ski bindings’ setting was the proximate cause of his knee injury. In plaintiff’s response, he attached an affidavit by Leffe [**5] addressing the issue of causation, even though plaintiff failed to make this disclosure in Leffe’s Ill. S. Ct. R. 213(f) interrogatories or discovery deposition. After further briefing, the trial court granted defendant’s motion, finding that plaintiff’s claims were conclusory and speculative.

[*P8] Following this ruling, two more discovery depositions were taken. Jones, a part-time ski patroller for 23 years in Steamboat Springs, Colorado, testified that when he arrived on the scene, he physically released plaintiff’s left ski binding from his injured leg. Jones then aligned the injured leg and splinted it before placing plaintiff on a toboggan. The incident report indicated that plaintiff was an advanced skier, who caught his left ski tip in a slush pile.

[*P9] In addition, Dr. Fabian testified that beyond being an orthopedic surgeon, he held a biomechanical engineering degree and was a team doctor for the United States ski team. Plaintiff sustained a severe knee injury, specifically a grade six comminuted fracture of the tibial plateau. Dr. Fabian recalled the injury being one of the worst fractures he had ever seen. He noted that generally ski bindings did not prevent knee injuries, because from an engineering [**6] standpoint, the forces that were at the knee would not do anything to release the toe or heel of the binding until a certain force was reached. Although based on plaintiff’s fracture pattern, the supposed speed, and location on the mountain, “it would be very likely that bindings set too high were consistent with [plaintiff’s] injury.”

[*P10] Thus, in October 2010, plaintiff filed a motion to reconsider the court’s summary judgment ruling, and in February 2011, the trial court granted the motion. The court concluded, that based upon the new deposition testimony of Jones and Dr. Fabian, there was a genuine issue of material fact as to whether the left ski binding did or did not release and, therefore, whether the alleged negligence on the part of defendant was the proximate cause of plaintiff’s injury.

[*P11] In March 2011, defendant filed a motion to bar plaintiff’s expert Leffe from testifying at trial on issues of causation. The court granted the motion, noting that plaintiff failed to disclose this line of testimony in his Rule 213 disclosures. In addition, during Leffe’s discovery deposition, he testified that he did not intend to be an expert in the causal relationship between plaintiff’s injury and [**7] the binding function. Therefore, the court concluded Leffe’s new opinions would be prejudicial to defendant and were barred pursuant to Ill. S. Ct. R. 213. See Rule 213(g) (eff. Jan. 1, 2007).

[*P12] In January 2012, defendant then filed a renewed motion for summary judgment including a motion in limine to bar Leffe’s testimony at trial on issues of causation. Defendant also attached a subsequent evidence deposition of Dr. Fabian, who testified that plaintiff’s injury “could be and also could not be” consistent with a ski binding that did not release. Dr. Fabian noted that if plaintiff’s binding was set too high and did not release “it could contribute” to the fracture, but he also observed that this type of fracture could be obtained with an “optimally functioning binding.” Thus, Dr. Fabian could not say with any degree of medical certainty whether plaintiff’s injuries were caused or not caused by the ski bindings. Further, he testified that he was not an expert on issues of causation with respect to knee injuries and ski bindings.

[*P13] In October 2012, the trial court granted defendant’s motion for summary judgment, concluding that “the record before us [was] devoid of any affirmative and positive evidence that would create [**8] a question of fact regarding proximate cause.” The court also observed that in regards to Leffe’s barred testimony, plaintiff’s response brief failed to provide any substantive argument in support of a generic request to “vacate all previous orders regarding evidentiary matters.” Accordingly, it constituted waiver of this contention. Plaintiff now appeals.

T [*P14] ANALYSIS

[*P15] Plaintiff contends that the trial court erroneously granted defendant’s motion for summary judgment with regard to plaintiff’s negligence claim because a genuine issue of material fact existed regarding the element of proximate cause. [HN1] Summary judgment is proper where the pleadings, admissions, depositions and affidavits demonstrate there is no genuine issue as to any material fact so that the movant is entitled to judgment as a matter of law. Ioerger v. Halverson Construction Co., Inc., 232 Ill. 2d 196, 201, 902 N.E.2d 645, 327 Ill. Dec. 524 (2008); 735 ILCS 5/2-1005 (West 2010). In determining whether a genuine issue of material fact exists, the court must consider such items strictly against the movant and liberally in favor of its opponent. Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 320 Ill. Dec. 784 (2008). We review the trial court’s order granting summary judgment de novo. Weather-Tite, Inc. v. University of St. Francis, 233 Ill. 2d 385, 389, 909 N.E.2d 830, 330 Ill. Dec. 808 (2009).

[*P16] [HN2] In order to recover damages based upon a defendant’s alleged negligence, a plaintiff must prove that (1) the defendant owed the [**9] plaintiff a duty; (2) that the defendant breached the duty; and (3) that the breach was the proximate cause of the plaintiff’s injuries. Perfetti v. Marion County, 2013 IL App (5th) 110489, ¶ 16, 985 N.E.2d 327, 368 Ill. Dec. 754.

[*P17] Plaintiff first contends that the trial court erred by barring Leffe’s testimony on proximate cause. Initially, we note that plaintiff fails to cite to any relevant authority or develop his argument on this matter in violation of Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013). See First National Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 208, 872 N.E.2d 447, 313 Ill. Dec. 464 (2007). [HN3] This court is entitled to clearly defined issues, cohesive legal arguments and citations to relevant authority. Country Mutual Insurance Co. v. Styck’s Body Shop, Inc., 396 Ill. App. 3d 241, 254-55, 918 N.E.2d 1195, 335 Ill. Dec. 382 (2009). Accordingly, plaintiff has forfeited his contention on appeal. See TruServ Corp. v. Ernst & Young, LLP, 376 Ill. App. 3d 218, 227, 876 N.E.2d 77, 315 Ill. Dec. 77 (2007).

[*P18] Setting forfeiture aside, the purpose of discovery rules, governing the timely disclosure of expert witnesses, “is to avoid surprise and to discourage strategic gamesmanship” amongst the parties (internal quotation marks omitted). Steele v. Provena Hospitals, 2013 IL App (3d) 110374, ¶ 92, 996 N.E.2d 711, 374 Ill. Dec. 1016. As a result, Rule 213(g) states as follows:

[HN4] “The information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition, limits the testimony that can be given by a witness on direct examination at trial. Information disclosed in a discovery deposition need not be later specifically identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the proponent of the witness to [**10] prove the information was provided in a Rule 213(f) answer or in the discovery deposition. Except upon a showing of good cause, information in an evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or in a discovery deposition shall not be admissible upon objection at trial.” Ill. S. Ct. R. 213(g) (eff. Jan. 1, 2007).

[HN5] Pursuant to the rule, the decision of whether to admit or exclude evidence, including whether to allow an expert to present certain opinions, rests solely within the discretion of the trial court and will not be disturbed absent a demonstrated abuse of discretion. Cetera v. DiFilippo, 404 Ill. App. 3d 20, 36-37, 934 N.E.2d 506, 343 Ill. Dec. 182 (2010). Such an abuse of discretion occurs only if no reasonable person would take the view adopted by the trial court. Foley v. Fletcher, 361 Ill. App. 3d 39, 46, 836 N.E.2d 667, 296 Ill. Dec. 916 (2005).

[*P19] Here, plaintiff did not disclose Leffe’s intention to testify regarding proximate cause in his Rule 213(f) interrogatory. In addition, in Leffe’s discovery deposition, he testified that he had no intention to testify about the causal relationship between the subject injury and the binding functions because he did not hold himself out to be a biomechanical engineer. Moreover, plaintiff provided no explanation or showing of good cause below or on appeal for his failure to disclose Leffe’s opinions on causation. In granting [**11] the motion, the trial court specifically noted its concern of unfair prejudice to defendant because defense counsel was unable to question Leffe regarding his “opinions” on the matter, “qualification to offer such opinions,” or “the factual, scientific, or technical basis for his opinions.” Therefore, we cannot say that the trial court abused its discretion in this matter.

[*P20] We now turn to whether a genuine issue of material fact exists regarding the element of proximate cause. [HN6] In order to establish proximate cause, a plaintiff must establish both “cause in fact” and “legal cause.” Rivera v. Garcia, 401 Ill. App. 3d 602, 610, 927 N.E.2d 1235, 340 Ill. Dec. 224 (2010). Cause in fact is established if the occurrence would not have happened “but for” the conduct of the defendant. Bourgonje v. Machev, 362 Ill. App. 3d 984, 1007, 841 N.E.2d 96, 298 Ill. Dec. 953 (2005). Legal cause, by contrast, is largely a question of foreseeability, and the relevant inquiry is whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct. Feliciano v. Geneva Terrace Estates Homeowners Ass’n, 2014 IL App (1st) 130269, ¶ 37, 14 N.E.3d 540. Furthermore, proximate cause must be established to a reasonable certainty and may not be based upon mere speculation, guess, surmise or conjecture. Bourgonje, 362 Ill. App. 3d at 1007. Because this case hinges on cause in fact, we need not consider legal cause. See Salinas v. Werton, 161 Ill. App. 3d 510, 515, 515 N.E.2d 142, 113 Ill. Dec. 333 (1987).

[*P21] In the case sub judice, the inference plaintiff seeks to establish [**12] is that defendant’s failure to properly set his ski bindings to plaintiff’s weight, height, and intermediate ability level prevented his ski bindings from properly releasing which directly caused his knee injury. This inference, while facially appealing, finds no support in the record. Dr. Fabian’s testimony as a whole fails to definitively establish, to any degree of medical certainty, a causal link between plaintiff’s bindings’ failure to release and his knee injury. In fact, Dr. Fabian testified that he was not an expert on the issues of causation with respect to injuries relating to ski bindings, and at best, the failure of plaintiff’s bindings to release “could be and also could not be” the proximate cause of plaintiff’s injury. Accordingly, Dr. Fabian’s testimony is speculative and not enough to withstand dismissal on summary judgment. See Johnson v. Ingalls Memorial Hospital, 402 Ill. App. 3d 830, 843, 931 N.E.2d 835, 341 Ill. Dec. 938 (2010) (an expert’s opinion was only as valid as the basis for the opinion and conclusory opinions based on sheer, unsubstantiated speculation were not enough to survive the summary judgment stage); Wiedenbeck v. Searle, 385 Ill. App. 3d 289, 299, 895 N.E.2d 1067, 324 Ill. Dec. 352 (2008) (at the summary judgment stage, the plaintiff must present affirmative evidence that the defendant’s negligence was a proximate cause of the plaintiff’s [**13] injuries, and the mere possibility of a causal connection was not sufficient to sustain the burden of proof).

[*P22] In addition, even if we take Leffe’s testimony as true that defendant incorrectly set plaintiff’s bindings too high for his skier preference, plaintiff still fails to provide substantial evidence that if his bindings were at a lower setting his injury would not have occurred. Plaintiff and ski patroller Jones did not testify regarding the element of proximate cause, and Dr. Fabian’s testimony was demonstrably equivocal. See Salinas, 161 Ill. App. 3d at 515 (although a plaintiff may rely on reasonable inferences that may be drawn from the facts considered on a motion for summary judgment, the circumstances must justify an inference of probability as distinguished from mere possibility). Furthermore, plaintiff has presented no additional evidence to rebut defense expert Shealy, who concluded, with a reasonable degree of engineering certainty, that a lower binding setting would not have prevented plaintiff’s knee injury because plaintiff’s bindings were not designed to protect against tibial plateau fractures. Consequently, plaintiff fails to establish that but for defendant’s negligence in setting his ski bindings [**14] too high, plaintiff’s injury would not have occurred. See Abrams v. City of Chicago, 211 Ill. 2d 251, 258, 811 N.E.2d 670, 285 Ill. Dec. 183 (2004) (a defendant’s conduct was only a material element and substantial factor in bringing about the injury if, absent that conduct, the injury would not have occurred).

[*P23] Moreover, plaintiff’s reliance on cases addressing the admissibility of expert testimony is misplaced, as defendant does not dispute that Dr. Fabian’s expert opinion regarding causation would be admissible at trial. See Torres v. Midwest Development Co., 383 Ill. App. 3d 20, 889 N.E.2d 654, 321 Ill. Dec. 389 (2008); Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 702 N.E.2d 303, 234 Ill. Dec. 137 (1998); Geers v. Brichta, 248 Ill. App. 3d 398, 618 N.E.2d 531, 187 Ill. Dec. 940 (1993); Mesick v. Johnson, 141 Ill. App. 3d 195, 490 N.E.2d 20, 95 Ill. Dec. 547 (1986). Here, no reasonable inferences can be drawn to establish that but for defendant’s negligence the incident would not have occurred. See McCraw v. Cegielski, 287 Ill. App. 3d 871, 873, 680 N.E.2d 394, 223 Ill. Dec. 661 (1996). Because the record presents no genuine issue of material fact, defendant was entitled to summary judgment as a matter of law.

[*P24] CONCLUSION

[*P25] Based on the foregoing, we affirm the judgment of the circuit court of Cook County.

[*P26] Affirmed.


Illinois Sales Representative

ILLINOIS COMPILED STATUTES ANNOTATED

CHAPTER 820. EMPLOYMENT

WAGES AND HOURS

SALES REPRESENTATIVE ACT

GO TO THE ILLINOIS STATUTES ARCHIVE DIRECTORY

820 ILCS 120/0.01 (2012)

[Prior to 1/1/93 cited as: Ill. Rev. Stat., Ch. 48, para. 2250]

§ 820 ILCS 120/0.01. Short title

Sec. 0.01. Short title. This Act may be cited as the Sales Representative Act.

§ 820 ILCS 120/1. [Terms defined]

Sec. 1. As used in this Act:

(1) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales or as a percentage of the dollar amount of profits.

(2) When a commission becomes due shall be determined in the following manner:

(A) The terms of the contract between the principal and salesperson shall control;

(B) If there is no contract, or if the terms of the contract do not provide when the commission becomes due, or the terms are ambiguous or unclear, the past practice used by the parties shall control;

(C) If neither (A) nor (B) can be used to clearly ascertain when the commission becomes due, the custom and usage prevalent in this State for the parties’ particular industry shall control.

(3) “Principal” means a sole proprietorship, partnership, corporation or other business entity whether or not it has a permanent or fixed place of business in this State and which:

(A) Manufactures, produces, imports, or distributes a product for sale;

(B) Contracts with a sales representative to solicit orders for the product; and

(C) Compensates the sales representative, in whole or in part, by commission.

(4) “Sales representative” means a person who contracts with a principal to solicit orders and who is compensated, in whole or in part, by commission, but shall not include one who places orders or purchases for his own account for resale or one who qualifies as an employee of the principal pursuant to the Illinois Wage Payment and Collection Act [820 ILCS 115/1 et seq.].

§ 820 ILCS 120/2. [Commissions due after termination of contract]

Sec. 2. All commissions due at the time of termination of a contract between a sales representative and principal shall be paid within 13 days of termination, and commissions that become due after termination shall be paid within 13 days of the date on which such commissions become due. Any provision in any contract between a sales representative and principal purporting to waive any of the provisions of this Act shall be void.

§ 820 ILCS 120/3. [Exemplary damages; payment of attorney’s fees and court costs]

Sec. 3. A principal who fails to comply with the provisions of Section 2 [820 ILCS 120/2] concerning timely payment or with any contractual provision concerning timely payment of commissions due upon the termination of the contract with the sales representative, shall be liable in a civil action for exemplary damages in an amount which does not exceed 3 times the amount of the commissions owed to the sales representative. Additionally, such principal shall pay the sales representative’s reasonable attorney’s fees and court costs.

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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.

… RELEASE FROM LIABILITY THE ORGANIZERS OF THIS EVENT AND USA CYCLING, INC. (USAC), ITS ASSOCIATIONS AND THEIR RESPECTIVE

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

AGENTS, EMPLOYEES, VOLUNTEERS, MEMBERS, CLUBS, SPONSORS, PROMOTERS AND AFFILIATES (COLLECTIVELY ‘RELEASEES’)….

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.

What do you think? Leave a comment.

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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. 826

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.

No. 1-10-3604

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.

DISPOSITION: Affirmed.

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

OPINION

[*956] JUDGE EPSTEIN delivered the judgment of the court, with opinion.

Justices Joseph Gordon and Howse concurred in the judgment and opinion.

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.

[***P2] BACKGROUND

[***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)).

[***P4] ANALYSIS

[***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.

[***P8] CONCLUSION

[***P9] We affirm the dismissal of plaintiff’s claims with prejudice. The Release is enforceable.

[***P10] Affirmed.