Appeal from the Circuit Court of Cook County 10 L 1057Honorable James D. Egan, Judge Presiding.
The opinion of the court was delivered by: Judge Epstein
JUDGE EPSTEIN delivered the judgment of the court, with opinion. Justices Joseph Gordon and Howse concurred in the judgment and opinion.
¶ 1 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.
¶ 3 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 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)).
¶ 5 "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 (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 is entitled to judgment as a matter of law." Saichek v. Lupa, 204 Ill. 2d 127, 134 (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 (2008).
¶ 6 Parties in Illinois may generally contract away liability for their own negligence. Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 584 (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 (1989). However, they "must be given a fair and reasonable interpretation based upon a consideration of all of [the] language and provisions." Id.
"[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. [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.
"[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 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.
"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 (1984). "Whether a particular injury is one which ordinarily accompanies a certain activity and whether a plaintiff appreciates and assumes the risks associated with the ...