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09/26/88 Lawrence P. Koch, v. Wilbur Spalding

September 26, 1988

LAWRENCE P. KOCH, PLAINTIFF-APPELLEE

v.

WILBUR SPALDING, DEFENDANT-APPELLANT (EARNEST LOFFELHOTZ, A/K/A EARNIE LOFFELHOTZ, DEFENDANT)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

529 N.E.2d 19, 174 Ill. App. 3d 692, 124 Ill. Dec. 302 1988.IL.1446

Appeal from the Circuit Court of Madison County; the Hon. George J. Moran Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. CALVO, J., concurs. PRESIDING JUSTICE HARRISON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The present cause comes before this court as a permissive appeal filed by defendant, Wilbur Spalding, pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308) and concerns whether a release and waiver of liability executed by the plaintiff, Lawrence Koch, is a bar to a cause of action for negligence against the defendant. Plaintiff's underlying complaint consisted of two counts. The first count of plaintiff's complaint alleged that defendant Spalding directed plaintiff to perform his activities as a flagman at an automobile racing event in such a manner as to cause plaintiff bodily harm when he was struck by a racing vehicle and that his injuries were a proximate result of defendant's negligence. The second count of the complaint alleged that defendant Earnest Loffelhotz was also negligent when the vehicle that Loffelhotz was driving struck plaintiff. Defendant Spalding filed a motion to dismiss and/or a motion for summary judgment with regard to count one of plaintiff's complaint based upon the fact that plaintiff had signed a release and waiver of liability on the night of the occurrence prior to going into the restricted areas of the racetrack. The circuit court denied defendant Spalding's motion for summary judgment in a one-sentence order entered on February 27, 1986, in which the court gave no reasons for the denial. Subsequently, defendant Spalding filed a motion asking that the circuit court certify an order pursuant to Supreme Court Rule 308 so that defendant Spalding could seek an interlocutory appeal. On August 4, 1987, the circuit court filed a statement finding that its order entered on February 27, 1986, involved a question of law as to which there is a substantial ground for difference of opinion and the resolution of which would materially advance the ultimate termination of the litigation. This court granted the appeal. The action for negligence against defendant Loffelhotz remains pending below. Prior to considering the circuit court's certified question of law, a statement of the facts is necessary.

On May 28, 1982, plaintiff arrived at the Jacksonville racetrack located on the Morgan County Fairgrounds to act as a flagman for the automobile races that were to be conducted that evening at the racetrack. He had come to the racetrack in a vehicle with five or six other persons and they had arrived late. According to plaintiff, he came to the pit shack at approximately 10 minutes to 8 o'clock. When he entered the pit shack, Tina Tyler, defendant Spalding's daughter, handed him a clipboard upon which there was a track release and waiver of liability form so that he might sign the form. Tyler did not explain the form to the plaintiff nor did plaintiff ask Tyler any questions about the form prior to his signing it. Plaintiff signed the release and left the pit shack to undertake his duties as a flagman.

Plaintiff's first duty that evening was to flag the "hot laps." At the Jacksonville racetrack there were two tracks, a quarter-mile track and a half-mile track. The quarter-mile track was inside the half-mile track. On May 28, 1982, the hot laps were being held on the area between the quarter-mile and the half-mile track. Plaintiff had run the first hot laps and was "shutting them down" when the last car on the track lost control and slid off the end of the quarter-mile track. When the vehicle lost control, it slid sideways. Plaintiff moved out of the path of the vehicle by going to the inside of the track, but the driver, Earnest Loffelhotz, had regained control of the car and had come onto the track where he struck plaintiff.

As a result of this accident, plaintiff suffered a broken leg, which required surgery and the insertion of a plate. The racetrack's insurance carrier paid for all of plaintiff's medical bills. However, plaintiff was unable to work for approximately 14 months and he lost almost $25,000 in wages. Plaintiff, in the first count of his complaint, alleged that defendant Spalding was negligent and sought in excess of $15,000 in damages. The second count of plaintiff's complaint alleged that defendant Loffelhotz was negligent and sought damages in excess of $15,000 under that count as well.

The circuit court's statement entered August 4, 1987, certified the following question of law to this court:

"Whether or not the release and waiver of liability executed by the Plaintiff is a bar to said Plaintiff's action against said Defendant where:

(a) Plaintiff has admitted executing said document;

(b) Plaintiff has indicated that said document was not covered up at the time of execution;

(c) Plaintiff has indicated that no person prevented him from reading said document at the time of execution;

(d) Plaintiff has indicated that defendant, [ sic ] Spalding did not make any statements to him indicating the nature of said documents;

(e) Plaintiff has indicated that no one at the Morgan County Fairground or on behalf of defendant Spalding told him that Defendant's Deposition Exhibit Two (the original of which is attached and incorporated by reference) was anything other than a release or a release and waiver of liability and indemnity agreement;

(f) Plaintiff has indicated that, at the time of said execution, he was told nothing by the person at the entry gate of said facility, other than that ...


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