Releases Signed Before an Injury

In the case of Spears v. The Association of Illinois Electric Cooperatives, the Appellate Court discussed the Release of Liability signed by a party prior to an injury. The plaintiff was enrolled at Lincoln Land Community College to learn to be a lineman. As part of the program, plaintiff took a pole climbing class, which the defendant taught. Prior to enrolling in the lineman program, the plaintiff watched a climbing class. Plaintiff also signed an Indemnification and Release of Liability. Plaintiff did not read the release. There was a dispute as to whether the instructor explained the release and the possibility of injury. Plaintiff was climbing the pole, became tired, and stopped to rest. Once plaintiff attempted to continue her descent, she lost her footing, fell to the ground, and injured herself.

The plaintiff sued for injuries. The plaintiff’s second amended complaint alleged negligence in that the defendant provided her with a damaged pole, failed to provide her with safety equipment and failed to remove her from the pole upon realizing she was too tired to climb. Count two alleged willful and wanton conduct in that defendant failed to institute procedures to ensure poles were safe.

The trial court ruled on a motion for summary judgment. It found that the bargaining position of the parties militated against the enforcement of the release. The court found that there were factual issues as to whether the defendant’s conduct was willful and wanton. The defendant argues that the release is valid.

The court discussed the enforceability of exculpatory clauses in Illinois. It indicated that liability releases are not favored and are strictly construed against the benefiting party. However, Illinois courts will enforce a liability release if the terms are (1) clear, explicit, and precise; (2) the exculpatory clause discusses the activity contemplated by the parties to relieve the defendant from a duty of care; (3) It is not against settled public policy; and (4) nothing in the relationship of the parties militates against upholding the agreement.

The court also discussed situations where Illinois voids exculpatory clauses as a matter of law, including situations involving employer/employee, and situations such as common carrier, innkeeper, public warehouseman or public utility. The court indicates these are not a full list of the situations in which exculpatory clauses are unenforceable. The court also said that a release may be invalid where there is such a disparity of bargaining power that the agreement does not represent a free choice on part of the plaintiff.

In considering whether a release is one of disparity of bargaining power, courts look into (1) the sophistication of the parties, (2) whether plaintiff was or should have been aware of the risks, (3) whether the plaintiff was under economic or other compulsion to agree to the release, (4) whether plaintiff had a reasonable alternative.

The court notes that there was no reported Illinois decision considering whether or not a student/teacher relationship voids the exculpatory clause.

The court decided not to do decide this on a matter of law and remanded it to the trial court to determine the parties bargaining power. The court declined to answer the certified question and did not address the willful and wanton misconduct claim.

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