Illinois Appellate Court Upholds Exculpatory Agreement in Raceway Accident
September, 2004
The Illinois Appellate Court, Fifth District, upholds application of a broad exculpatory agreement to negate plaintiff’s negligence claims in Platt v. Gateway Int’l Motorsports Corp., 813 N.E.2d 279 (Ill. App. 2004).
Facts
As a Marlboro Team Penski public relations employee of Philip Morris, plaintiff attended various stock and Indy car races, including Championship Auto Racing Teams, Inc. (CART) events. At a CART racing event held at Gateway in May 1998, plaintiff was responsible for hospitality services. Plaintiff’s base of operations was a Marlboro media trailer located on the infield. Plaintiff was required to cross the racetrack to enter or exit.
On May 22, 1998, prior to qualifying rounds, multiple tow trucks traveling from 55 to 70 miles per hour circled the Gateway racetrack to dry it, a standard post-rain practice in the auto racing industry. After being signaled to cross by a Gateway employee, plaintiff exited the infield by driving across the racetrack and collided with a tow truck driven by defendant Fred Grueber.
A few months prior to the collision, plaintiff executed a 1998 CART “ANNUAL RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT,” providing in part as follows:
“IN CONSIDERATION of my being granted a membership, license[,] and/or competition privileges in Championship Auto Racing Teams, Inc. (hereinafter known as CART)[,] sanctioned EVENT(S) as a CART and/or American Racing Series, Inc., participant or being permitted to compete, practice, officiate, observe, work for, or for any purpose participate in any capacity in the EVENT(S) for and during the calendar year of 1998 or being permitted to enter for any purpose or in any capacity any RESTRICTED AREAS (defined as any area requiring special authorization, credentials, or permission to enter any area to which admission by the general public is restricted or prohibited), I***
2. HEREBY RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE Championship Auto Racing Teams, Inc., American Racing Series Inc., the promoters, organizers, participants, racing associations, sanctioning organizations or any subdivision thereof, track operators, track owners, *** any persons in any RESTRICTED AREAS, promoters, sponsors, advertisers, [and] owners, lessees, designers[,] and constructors of premises used to conduct the EVENT(S), *** all for the purpose herein referred to as the RELEASEES, FROM ALL LIABILITY TO ME *** FOR ANY AND ALL LOSS OR DAMAGE AND ANY CLAIM OR DEMANDS THEREFORE ON ACCOUNT OF INJURY TO ME OR MY PROPERTY OR RESULTING IN MY DEATH ARISING OUT OF OR RELATED TO THE EVENT(S) from any cause whatsoever, including without limitation, the failure of anyone to enforce rules and regulations, the failure to make inspections, the condition of any portion of the track or premises, defective products, and any act or omission of the RELEASEES or any of them or any other act WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE AND WHETHER OR NOT OCCURRING IN RESTRICTED AREAS.
***
6. HEREBY AGREE that this ANNUAL RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK[,] AND INDEMNITY AGREEMENT extends to all acts of negligence by the RELEASEES *** and is intended to be as broad and inclusive as is permitted by the laws of the Municipality, Province, State[,] and/or Country in which the EVENT(S) is/are conducted***.
Plaintiff filed suit alleging that Gateway negligently constructed and maintained its premises; that defendant Grueber and his employer negligently operated the tow truck that collided with plaintiff’s automobile; and that defendant CART negligently operated, controlled, and maintained the racetrack. Plaintiff later added allegations of willful and wanton conduct.
The circuit court entered summary judgment for defendants on plaintiff’s negligence claims based upon the exculpatory agreement. The Fifth District allowed an interlocutory appeal under Illinois Supreme Court Rule 308 and affirmed.
Analysis
Plaintiff argued on appeal that the exculpatory agreement failed to bar his negligence action against defendants because a race was not in progress at the time of his injury and his injury resulted from an occurrence unrelated to an “event,” a term which is undefined, ambiguous, and thereby construed in his favor. The Appellate Court disagreed.
Although exculpatory agreements are not favored and will be strictly construed against the benefiting party (Scott & Fetzer Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 395 (1986)), parties may allocate the risk of negligence as they see fit, and exculpatory clauses do not violate public policy as a matter of law. Rueben H. Donnelley Corp. v. Krasny Supply Co., 227 Ill. App. 3d 414, 419 (1991).
An exculpatory clause, to be valid and enforceable, must contain clear, explicit, and unequivocal language referencing the type of activity, circumstance, or situation that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care. Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 585 (1990). Exculpatory agreements have been upheld in the auto racing context where an injured driver or participant has brought suit against an owner or operator of a raceway. Schlessman v. Henson, 83 Il. 2d 82, 86 (1980); Maness v. Santa Fe Park Enterprises, Inc., 298 Ill. App. 3d 1014, 1019-20 (1998); Morrow v. Auto Championship Racing Ass’n, 8 Ill. App. 3d 682, 685-86 (1972).
Accepting plaintiff’s definition of “event” as “any one of the contests in a program of sports” (see Webster’s Third New International Dictionary 788 (2002)), the court concluded that the term “event” is not ambiguous but clear and explicit. The contract as a whole was broad and inclusive and barred liability for negligence claims “arising out of or related to the event(s),” caused not only by “participants, racing associations, *** car owners, drivers, [and] pit crews” but also by “promoters, organizers, [and] any persons in any restricted areas.” The time trials qualified as an “event” as provided for in the exculpatory agreement. The tow trucks were preparing for the event by driving around the racetrack, and therefore, the plaintiff’s resulting negligence claim arose out of or was related to an event. The court found plaintiff’s contrary argument that the exculpatory agreement does not apply because no race was in progress, “untenable.”
The court also rejected plaintiff’s contention that the exculpatory agreement failed to bar his negligence action because the parties did not contemplate the risk involved. As the court explained:
The record reveals that the plaintiff had been involved in automobile racing for years and that he had signed similar agreements prior to entering restricted areas of the racetracks... The parties were aware that the common practice to dry a track for auto racing consisted of tow trucks driving at high speeds around the racetrack, and the parties were aware that the plaintiff must cross the racetrack to reach his base of operations. By adopting the broad language employed in the exculpatory agreement, the parties contemplated the similarly broad range of accidents that occur in auto racing… Plaintiff’s injury fell within the scope of possible dangers ordinarily accompanying auto racing activities and, thus, was reasonably contemplated by the plaintiff… Although the parties may not have contemplated the precise occurrence that resulted in the plaintiff’s accident, we do not render the exculpatory agreement inoperable. (citations omitted)
The court accordingly affirmed the entry of summary judgment for defendants on plaintiff’s negligence claims.
Learning Point:
A comprehensive, well-drafted exculpatory clause such as that at issue in this case will usually be enforced in Illinois, even where the precise injury-producing “occurrence” may not have been contemplated by the parties at the time of signing.
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