Appeal from Circuit Court of Sangamon County No. 09L273 HonorableJohn Schmidt, ) Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
Carla Bender 4th District Appellate Court, IL
JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Turner and Harris concurred in the judgment and opinion.
¶ 1 In October 2009, plaintiff, Nichole Spears, sued defendant, the Association of Illinois Electric Cooperatives, for personal injuries resulting from a fall on October 16, 2007. In September 2010, defendant filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2010)). In November 2010, plaintiff filed a second amended complaint alleging one count of negligence and one count of willful and wanton conduct. In December 2010, defendant asserted affirmative defenses based on an April 2007 liability release and contributory negligence. In February 2011, the circuit court denied defendant's motion for summary judgment on both counts and granted plaintiff's motion to strike defendant's affirmative defense based on the release. In April 2011, defendant filed a motion to certify a question of law pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). In March 2012, the court certified a question pursuant to Rule 308. We conclude the certified question requires resolution of factual predicates and decline to answer the certified question.
¶ 3 In 2007, plaintiff enrolled at Lincoln Land Community College (College) in Springfield, Illinois, in the College's "Electrical Distribution Lineman Maintenance" associate degree program (Lineman Program). Defendant provides instructional services at the College, including a pole climbing class. As a part of the Lineman Program, plaintiff enrolled in the pole climbing class taught by defendant. Prior to enrolling in the Lineman Program, plaintiff met with Roger Larkin at the climbing course and viewed a climbing class in session.
¶ 4 On April 9, 2007, plaintiff signed a document titled "INDEMNIFICATION AND RELEASE OF LIABILITY," which provided in relevant part as follows:
"NOW THEREFORE, for the consideration of participating in the coursework/programs offered by the Association of Illinois Electric Cooperatives through the Lincoln Land Community College, the receipt of which is hereby acknowledged, I, the undersigned, hereby RELEASE, RELINQUISH, INDEMNIFIY [sic], AND HOLD HARMLESS the Association of Illinois Electric Cooperatives, its directors, officers, employees, and agents from any and all claims arising from my participation in the courses/programs offered by the Association of Illinois Electric Cooperatives."
The record is not clear whether April 9, 2007, was plaintiff's first day of classes for the Lineman Program or the first day for the climbing class.
¶ 5 Plaintiff concedes she did not read the release. The parties dispute whether Larkin, her instructor, explained the release and the possibility of injury. Plaintiff concedes she understood, at the time she signed the release, there was a risk of injury as a result of climbing poles. According to plaintiff, she did not know the particular activities she would be requested to perform in the climbing class or that she would be required to perform some activities without a fall restraint device.
¶ 6 On October 16, 2007, plaintiff performed a "teardown" on one of the poles on the climbing course as a part of the climbing class. As plaintiff descended the pole, she became tired and stopped to rest. Once plaintiff attempted to continue her descent, she lost her footing and fell to the ground, suffering injury to her right knee.
¶ 7 In October 2009, plaintiff sued defendant for her injuries. In September 2010, defendant filed a motion for summary judgment pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2010)). In November 2010, plaintiff filed a second amended complaint. Count I of the complaint alleged a claim of negligence against defendant, alleging defendant provided her with a damaged pole that was unsafe to climb, failed to provide her with safety equipment, and failed to remove her from the pole upon realizing she was fatigued. Count II of the complaint alleged defendant engaged in willful and wanton conduct in that it failed to institute procedures to ensure its poles were safe to climb and failed to exercise ordinary care despite the knowledge students were in imminent danger of injury. In December 2010, defendant asserted affirmative defenses based on the April 2007 release and contributory negligence.
¶ 8 In February 2011, the circuit court held a hearing on defendant's motion for summary judgment. The court's February 4, 2011, written order states, "The Court finds the bargaining positions of the parties militates against enforcement of the Exculpatory Release signed by Plaintiff on 4/9/07 and therefore Plaintiff's Motion to Strike the First Affirmative Defense is granted." The record does not contain plaintiff's motion to strike. Further, the court found the case presented factual issues as to whether defendant's conduct was willful and wanton.
¶ 9 In March 2011, defendant filed a motion to certify a question of law pursuant to Rule 308. In March 2012, the circuit court made a written finding under Rule 308(a) that its February 2011 order involved a question of law as to which there are substantial grounds for difference of opinion and an immediate appeal from that order may materially advance the ultimate termination of the litigation.
¶ 11 A. The Certified ...