Spears v. The Association of Illinois Electric Cooperatives , 2013 IL App (4th) 120289 ( 2013 )


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  •                            ILLINOIS OFFICIAL REPORTS
    Appellate Court
    Spears v. Association of Illinois Electric Cooperatives, 
    2013 IL App (4th) 120289
    Appellate Court            NICHOLE SPEARS, Plaintiff-Appellee, v. THE ASSOCIATION OF
    Caption                    ILLINOIS ELECTRIC COOPERATIVES, Defendant-Appellant.
    District & No.             Fourth District
    Docket No. 4-12-0289
    Filed                      March 13, 2013
    Held                       In an action for the injuries plaintiff suffered when she fell from a pole in
    (Note: This syllabus       a college class for electrical line maintenance after she had signed a
    constitutes no part of     release of liability, the appellate court declined to answer a certified
    the opinion of the court   question as to whether the release was enforceable, since the answer
    but has been prepared      would depend on the resolution of many questions of fact, and Supreme
    by the Reporter of         Court Rule 308 only allows the certification of questions of law.
    Decisions for the
    convenience of the
    reader.)
    Decision Under             Appeal from the Circuit Court of Sangamon County, No. 09-L-273; the
    Review                     Hon. John Schmidt, Judge, presiding.
    Judgment                   Certified question not answered; cause remanded.
    Counsel on                 Brad A. Elward (argued) and Rex K. Linder, both of Heyl, Royster,
    Appeal                     Voelker & Allen, of Peoria, and John O. Langfelder, of Heyl, Royster,
    Voelker & Allen, of Springfield, for appellant.
    Ryan Reguly (argued), of Lipsky & Reguly, of Petersburg, for appellee.
    Panel                      JUSTICE KNECHT delivered the judgment of the court, with opinion.
    Justices Turner and Harris concurred in the judgment and opinion.
    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.
    ¶2                                         I. BACKGROUND
    ¶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
    -2-
    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.
    ¶ 10                                       II. ANALYSIS
    ¶ 11                                 A. The Certified Question
    ¶ 12      The circuit court certified the following question pursuant to Illinois Supreme Court Rule
    308(a) (eff. Feb. 26, 2010):
    “Does the fact that the Plaintiff was a student at Lincoln Land Community College
    -3-
    and the Defendant was the Association of Illinois Electric Cooperatives providing
    instructional services to community college students in climbing utility poles create an
    uneven bargaining position thereby militating against the enforcement of the exculpatory
    release at issue when the economic positions of the parties as well as all other undisputed
    facts concerning the timing and manner in which such release was presented to Plaintiff
    by Defendant are taken into consideration?”
    ¶ 13                                   B. Standard of Review
    ¶ 14        Supreme Court Rule 308(a) provides in relevant part:
    “When the trial court, in making an interlocutory order not otherwise appealable, finds
    that the order involves a question of law as to which there is substantial ground for
    difference of opinion and that an immediate appeal from the order may materially
    advance the ultimate termination of the litigation, the court shall so state in writing,
    identifying the question of law involved.” Ill. S. Ct. R. 308(a) (eff. Feb. 26, 2010).
    ¶ 15        The scope of review in an interlocutory appeal brought under Rule 308 is limited to the
    certified question. Long v. Elborno, 
    397 Ill. App. 3d 982
    , 988, 
    922 N.E.2d 555
    , 560 (2010).
    A reviewing court should only answer a certified question if it asks a question of law and
    decline to answer where the ultimate disposition “will depend on the resolution of a host of
    factual predicates.” Dowd & Dowd, Ltd. v. Gleason, 
    181 Ill. 2d 460
    , 469, 
    693 N.E.2d 358
    ,
    364 (1998); Bauer v. Giannis, 
    359 Ill. App. 3d 897
    , 902, 
    834 N.E.2d 952
    , 957 (2005). This
    court refrains from answering a certified question where it calls for a hypothetical answer
    with no practical effect. Lawndale Restoration Ltd. Partnership v. Acordia of Illinois, Inc.,
    
    367 Ill. App. 3d 24
    , 27, 
    853 N.E.2d 791
    , 794 (2006); see also Giangiulio v. Ingalls Memorial
    Hospital, 
    365 Ill. App. 3d 823
    , 829, 
    850 N.E.2d 249
    , 255 (2006) (“With rare exceptions, we
    do not expand the question under review to answer other, unasked questions.”). A certified
    question pursuant to Rule 308 is reviewed de novo. Barbara’s Sales, Inc. v. Intel Corp., 
    227 Ill. 2d 45
    , 57-58, 
    879 N.E.2d 910
    , 918 (2007).
    ¶ 16                                C. The Parties’ Arguments
    ¶ 17       Defendant contends the circuit court erred in striking its affirmative defense and the April
    2007 release is valid. Defendant argues the release is valid because (1) exculpatory
    agreements are generally enforceable, (2) the case law relied on by plaintiff is not controlling
    or persuasive, (3) plaintiff understood the risks in climbing the pole, and (4) the release
    contemplated the injury. Further, defendant asserts, “[t]he contention a person taking a
    course for self-improvement and economic opportunity creates an unfair bargaining position
    sufficient to nullify exculpatory agreements is fundamentally untenable.”
    ¶ 18       Plaintiff asserts the certified question requires resolution of factual issues–a point
    clarified at oral argument–but, upon those facts, the release is invalid because an uneven
    bargaining position existed between her and defendant. Plaintiff contends an uneven
    bargaining position existed because (1) she made significant time and financial commitments
    to pursue an education, (2) her decision to sign the release was “clouded” by the fact she (a)
    trusted the College and defendant, and (b) believed they were going to provide her with a
    -4-
    safe, quality education, and (3) refusal would have required her to (a) forgo over $1,100 in
    equipment costs that defendant required her to bring to the first day of class, (b) forgo
    employment as an electrical lineman, and (c) have futilely incurred student loans to finance
    her education and training. Plaintiff asserts she did not fully understand the level of risk of
    serious bodily harm defendant’s release requested her to waive.
    ¶ 19       Plaintiff asserts this case is similar to White v. Village of Homewood, 
    256 Ill. App. 3d 354
    , 
    628 N.E.2d 616
    (1993), where the court struck a liability release between a firefighter
    applicant and a potential employer. Plaintiff argues this case is akin to the plaintiff in White
    because the release placed her at the mercy of defendant’s negligence, no matter its
    magnitude, because (1) she needed an education to pursue a career as an electrical lineman
    and (2) she was required to sign the release on the first day of classes in order to participate
    in certain Lineman Program courses and complete the Linemen Program. Defendant
    responds White is not controlling or persuasive because (1) plaintiff “voluntarily chose to
    pursue education that could potentially lead to employment” (emphasis in original), (2)
    defendant “did not stand in the place of a potential employer,” and (3) successful completion
    of the climbing course did not guarantee employment with defendant or any other employer.
    Defendant cites to Johnson v. Salvation Army, 
    2011 IL App (1st) 103323
    , 
    957 N.E.2d 485
    ,
    and a series of cases where the court upheld the exculpatory release against the plaintiff.
    ¶ 20                D. Does the Certified Question Present a Question of Law?
    ¶ 21       Defendant and plaintiff disagree whether the certified question is a pure question of law.
    The certified question initially appears as if it can be answered as a matter of law, i.e.,
    whether the relationship between a student and an educator creates an uneven bargaining
    position thereby militating against enforcing the release. Most of defendant’s argument is
    structured around refuting the conclusion such a relationship militates against enforcing the
    release. At oral argument the parties suggested the word “militate” may have been an inartful
    choice of words but was chosen to reflect the circuit court’s order. We note “militate” is
    defined as “to have weight or effect” (Webster’s New World Dictionary 1433 (3d ed. 1976))
    and “[t]o exert a strong influence” (Black’s Law Dictionary 1014 (8th ed. 2004)). See also
    Bryan A. Garner, A Dictionary of Modern Legal Usage 569 (2d ed. 1995) (discussing usage
    of “militate”). At the same time, the certified question asks whether the relationship between
    plaintiff and defendant, including “undisputed facts” such as the particular circumstances
    surrounding the clause’s execution and the economic positions of the parties, causes the
    exculpatory clause to be unenforceable. Our review of the record and the parties’ arguments
    shows the following are undisputed: (1) plaintiff was enrolled in the Lineman Program at the
    College; (2) defendant provides instructional services, including the pole climbing class, at
    the College; (3) plaintiff participated in the climbing class taught by defendant; (4) defendant
    taught the climbing class at a pole climbing course on the College’s campus; (5) plaintiff
    signed, without first reading, a purported liability release on April 9, 2007; (6) at the time she
    signed the release, plaintiff was aware electrical linemen can fall from poles; (7) plaintiff
    would not have been permitted to complete the climbing class–which required physically
    climbing poles–if she did not sign the release; (8) plaintiff would have lost her equipment
    investments (the actual expenses are disputed); and (9) on October 16, 2007, while
    -5-
    participating in the climbing class, plaintiff fell from a pole to the ground and suffered injury
    to her right knee.
    ¶ 22       The circuit court’s order provides no illumination to whether its decision was based on
    a matter of law or the particular circumstances of the case. The basis for plaintiff’s motion
    to strike defendant’s affirmative defense is not contained within the record on appeal. To
    untangle whether the certified question presents a question of law or a question of fact, it is
    necessary to examine how Illinois courts review the enforceability of exculpatory releases.
    ¶ 23                            1. Enforceability of Exculpatory Clauses
    ¶ 24        In Illinois, parties may contractually release liability for their own negligence. Hellweg
    v. Special Events Management, 
    2011 IL App (1st) 103604
    , ¶ 6, 
    956 N.E.2d 954
    ; McKinney
    v. Castleman, 
    2012 IL App (4th) 110098
    , ¶ 14, 
    968 N.E.2d 185
    (quoting Johnson, 2011 IL
    App (1st) 103323, ¶ 19, 
    957 N.E.2d 485
    ). Liability release contracts are not favored and are
    strictly construed against the benefitting party. Harris v. Walker, 
    119 Ill. 2d 542
    , 548, 
    519 N.E.2d 917
    , 919 (1988). An exculpatory clause places two public policy interests at conflict:
    (1) a person should be liable for his or her negligent conduct, and (2) contracting parties may
    freely contract about their affairs. Simmons v. Columbus Venetian Stevens Buildings, Inc.,
    
    20 Ill. App. 2d 1
    , 11-12, 
    155 N.E.2d 372
    , 377 (1958); Evans v. Lima Lima Flight Team, Inc.,
    
    373 Ill. App. 3d 407
    , 412, 
    869 N.E.2d 195
    , 201 (2007).
    ¶ 25        In general, Illinois courts enforce a liability release if (1) the terms of the exculpatory
    clause are clear, explicit, and precise; (2) the exculpatory clause encompasses the activity,
    circumstance, or situation 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 “social relationship
    of the parties militat[es] against upholding the agreement.” Jackson v. First National Bank
    of Lake Forest, 
    415 Ill. 453
    , 460, 
    114 N.E.2d 721
    , 725 (1953); Chicago Steel Rule & Die
    Fabricators Co. v. ADT Security Systems, Inc., 
    327 Ill. App. 3d 642
    , 645, 651, 
    763 N.E.2d 839
    , 842, 846-47 (2002); 
    Evans, 373 Ill. App. 3d at 414-15
    , 869 N.E.2d at 203; Falkner v.
    Hinckley Parachute Center, Inc., 
    178 Ill. App. 3d 597
    , 602, 
    533 N.E.2d 941
    , 944 (1989). See
    also Farm Credit Bank of St. Louis v. Whitlock, 
    144 Ill. 2d 440
    , 447, 
    581 N.E.2d 664
    , 667
    (1991) (“A release is a contract, and therefore is governed by contract law.”); Restatement
    (Second) of Contracts § 195 (1981) (terms exempting from liability for negligent harm
    violating public policy); Restatement (Second) of Torts § 496B (1965); Perrine v. E.I.
    du Pont de Nemours & Co., 
    694 S.E.2d 815
    , 847 n.31 (W.Va. 2010) (collecting cases on
    preinjury releases); Tunkl v. Regents of the University of California, 
    383 P.2d 441
    , 444-46
    (Cal. 1963) (setting forth six characteristics of the transaction and exculpatory clause that
    may weigh against enforcement).
    ¶ 26        Illinois courts have identified categories of social relationships where enforcing an
    exculpatory clause between the parties would violate public policy as a matter of law,
    including (1) an employer and employee, and (2) the public and those charged with a duty
    of public service, such as “ ‘a common carrier, an innkeeper, a public warehouseman or a
    public utility.’ ” Hamer v. City Segway Tours of Chicago, LLC, 
    402 Ill. App. 3d 42
    , 45-46,
    
    930 N.E.2d 578
    , 581-82 (2010) (quoting 
    White, 256 Ill. App. 3d at 358-59
    , 628 N.E.2d at
    -6-
    619-20); see also 
    Simmons, 20 Ill. App. 2d at 17-33
    , 155 N.E.2d at 380-87 (discussing in
    detail four social relationships–employer-employee, common carrier, innkeeper, and bailor-
    bailee–and the varying rationales for invalidating liability releases in these relationships);
    Restatement (Second) of Contracts § 195(2)(b) (1981) (same). These categories are not an
    exhaustive list of the social relationships in which exculpatory clauses are unenforceable, and
    a liability release may be invalid “ ‘where there is such a disparity of bargaining power that
    the agreement does not represent a free choice on the part of the plaintiff.’ ” Hamer, 402 Ill.
    App. 3d at 
    45-46, 930 N.E.2d at 581-82
    (quoting 
    White, 256 Ill. App. 3d at 358-59
    , 628
    N.E.2d at 619-20); see also Restatement (Second) of Torts § 496B cmt. j (1965) (“The basis
    for such a result is the policy of the law which relieves the party who is at such a
    disadvantage from harsh, inequitable, and unfair contracts which he is forced to accept by
    the necessities of his [or her] situation.”).
    ¶ 27        In considering whether an exculpatory release–the contractual relationship–is the result
    of a disparity of bargaining power between the parties, Illinois courts have noted (1) the
    sophistication of the contracting parties 
    (Jackson, 415 Ill. at 462-63
    , 114 N.E.2d at 726
    (commercial lease); Reuben H. Donnelley Corp. v. Krasny Supply Co., 
    227 Ill. App. 3d 414
    ,
    419-20, 
    592 N.E.2d 8
    , 12 (1991) (agreement between restaurant supply wholesaler and
    advertiser)); (2) whether the plaintiff was or should have been aware of the risks involved
    in the activity 
    (Falkner, 178 Ill. App. 3d at 602-03
    , 533 N.E.2d at 945 (risk of fatal injury is
    apparent in parachute jumping); Maness v. Santa Fe Park Enterprises, Inc., 
    298 Ill. App. 3d 1014
    , 1021, 
    700 N.E.2d 194
    , 199 (1998) (risk of requiring medical attention accompanied
    auto racing); Hellweg, 
    2011 IL App (1st) 103604
    , ¶ 7, 
    956 N.E.2d 954
    (risk of injury with
    another bicyclist was foreseeable)); (3) whether the plaintiff was under economic or other
    compulsion to agree to the release 
    (Harris, 119 Ill. 2d at 550
    , 519 N.E.2d at 920 (quoting
    Schlessman v. Henson, 
    83 Ill. 2d 82
    , 87, 
    413 N.E.2d 1252
    , 1254 (1980))) and (4) whether the
    plaintiff had a reasonable alternative. See also Restatement (Second) of Torts § 496B cmt.
    j (1965) (uneven bargaining position “may arise [(1)] from the defendant’s monopoly of a
    particular field of service, [(2)] from the generality of use of contract clauses insisting upon
    assumption of risk by all those engaged in such a field, so that the plaintiff has no alternative
    possibility of obtaining the service without the clause; or [(3)] it may arise from the
    exigencies of the needs of the plaintiff himself, which leave him no reasonable alternative
    to the acceptance of the offered terms”).
    ¶ 28                 2. Liability Releases Between a Student and an Educator
    ¶ 29       The parties concede, and our research confirms, no reported Illinois decision has directly
    considered whether an educator-student relationship factors against enforcing a liability
    release. A student and her educator may have an enforceable contractual relationship. See
    Eisele v. Ayers, 
    63 Ill. App. 3d 1039
    , 1045-46, 
    381 N.E.2d 21
    , 27 (1978) (contract between
    student and a school is not per se contract of adhesion); Raethz v. Aurora University, 346 Ill.
    App. 3d 728, 732, 
    805 N.E.2d 696
    , 699 (2004) (terms of contractual relationship generally
    set forth in school catalog).
    ¶ 30       Our research shows several sister states considering exculpatory clauses between an
    -7-
    educator and a student have held such clauses are categorically void as matter of public
    policy. See Wagenblast v. Odessa School District No. 105-157-166J, 
    758 P.2d 968
    , 971-73
    (Wash. 1988) (applying the six Tunkl characteristics 
    (Tunkl, 383 P.2d at 444-46
    ) to find
    liability release for Washington public school interscholastic sports against public policy);
    Kyriazis v. University of West Virginia, 
    450 S.E.2d 649
    , 655 (W. Va. 1997) (because
    university performs a “public service,” it is against public policy to enforce preinjury liability
    release between student and university). Other state courts have looked at the particular
    relationship between the educator and student in determining whether to uphold the release.
    See Merten v. Nathan, 
    321 N.W.2d 173
    , 178 (Wis. 1982) (deciding case on language of the
    exculpatory contract between riding student and instructor); Whittington v. Sowela Technical
    Institute, 
    438 So. 2d 236
    , 242 (La. Ct. App. 1983) (based on circumstances attending the
    execution of release before field trip, nursing student was not “upon an equal footing” with
    school); Reed v. University of North Dakota, 
    1999 ND 25
    , ¶ 27, 
    589 N.W.2d 880
    , 887
    (collegiate athlete not under economic compulsion to participate in charity road race that was
    part of sports team’s conditioning program).
    ¶ 31                                  3. The Parties’ Cited Cases
    ¶ 32        Plaintiff contends this case is comparable to White where the exculpatory agreement was
    stricken. In White, the plaintiff fell and was injured while participating in an agility test to
    become a firefighter. 
    White, 256 Ill. App. 3d at 355
    , 628 N.E.2d at 617. The First District
    found the exculpatory agreement unenforceable because it lacked consideration because the
    defendants were statutorily required to administer the physical agility test and the plaintiff
    had a legal right to participate. 
    White, 256 Ill. App. 3d at 357
    , 628 N.E.2d at 618-19. In the
    alternative, the court concluded the exculpatory agreement was against public policy because
    the plaintiff was required to sign the exculpatory agreement in order to complete her
    employment application. 
    White, 256 Ill. App. 3d at 359
    , 628 N.E.2d at 620. The court
    rejected the defendants’ arguments the plaintiff freely chose to apply for the position, she
    could have applied elsewhere, and the defendants did not have a monopoly on the job
    market. The court stated “[t]hese arguments ignore the economic compulsion facing those
    in search of employment. To suppose that plaintiff here had any bargaining power
    whatsoever defies reality.” 
    White, 256 Ill. App. 3d at 359
    , 628 N.E.2d at 620. The court noted
    the relationship, “as potential employer and job applicant, is akin to the relationship between
    an employer and employee” and its decision was “merely an extension” of the public policy
    against exculpatory agreements between an employer and employee. 
    White, 256 Ill. App. 3d at 359
    , 628 N.E.2d at 620.
    ¶ 33        Defendant asserts this case resembles the contractual relationship represented by
    Johnson, 
    2011 IL App (1st) 103323
    , 
    957 N.E.2d 485
    . In Johnson, 
    2011 IL App (1st) 103323
    ,
    ¶ 1, 
    957 N.E.2d 485
    , the plaintiff was injured in a car accident while a passenger in a
    Salvation Army-owned vehicle. The First District rejected the plaintiff’s argument his
    position as a beneficiary in the Salvation Army’s adult rehabilitation program was
    tantamount to an employee-employer relationship. Johnson, 
    2011 IL App (1st) 103323
    ,
    ¶¶ 20-22, 
    957 N.E.2d 485
    . Further, the court rejected the plaintiff’s argument a disparity in
    bargaining positions existed between him and the Salvation Army because as an unemployed
    -8-
    and homeless applicant he had to accept the agreement or be denied food and shelter.
    Johnson, 
    2011 IL App (1st) 103323
    , ¶ 24, 
    957 N.E.2d 485
    . The court concluded the plaintiff
    was offered food and shelter as an incidental benefit of the rehabilitation program and could
    have chosen not to agree to the terms and not entered the program or entered another
    program. Johnson, 
    2011 IL App (1st) 103323
    , ¶¶ 24-28, 
    957 N.E.2d 485
    . The court rejected
    the plaintiff’s argument White controlled, noting the plaintiff was not under the same
    economic compulsion as the White plaintiff because he could have sought rehabilitative
    services elsewhere. Johnson, 
    2011 IL App (1st) 103323
    , ¶ 31, 
    957 N.E.2d 485
    . It further
    noted “[i]n White, the disparity [of bargaining power] was found between an individual who
    needed employment and an entity that could provide her with employment, an essential
    economic necessity.” Johnson, 
    2011 IL App (1st) 103323
    , ¶ 32, 
    957 N.E.2d 485
    . See also
    McKinney, 
    2012 IL App (4th) 110098
    , 
    968 N.E.2d 185
    (following Johnson on similar facts).
    ¶ 34       Additionally, defendant cites Hamer, 
    402 Ill. App. 3d 42
    , 
    930 N.E.2d 578
    , where the
    court upheld a liability release between a tour participant, who had been injured while riding
    a Segway, and the tour operator. There, the court rejected the plaintiff’s claim there was a
    disparity of bargaining power because if she “disagreed with the exculpatory clause, she
    could simply refuse to join the tour.” 
    Hamer, 402 Ill. App. 3d at 46
    , 930 N.E.2d at 582.
    ¶ 35      4. The Cited Cases Do Not Resolve the Certified Question as a Matter of Law
    ¶ 36       The parties’ cited cases are distinguishable. The First District in White recognized its
    conclusion was “merely an extension” of the policy that exculpatory agreements between an
    employee and employer are void as a matter of public policy. 
    White, 256 Ill. App. 3d at 359
    ,
    628 N.E.2d at 620. Plaintiff was not an applicant for employment with defendant, nor has
    she claimed the climbing class is statutorily mandated, as the agility test was in White, for
    her to obtain employment as an electrical lineman. We decline to decide whether an
    exculpatory clause between a student and an educator represents another extension of this
    public policy. First, the legislature is in a superior position than the judiciary to determine
    whether exculpatory agreements between a student and an educator should be categorically
    void. Second, we cannot determine public policy based on the hardship of an individual case.
    See 
    Simmons, 20 Ill. App. 2d at 33
    , 155 N.E.2d at 387.
    ¶ 37       The line of cases relied on by defendant are distinguishable by the voluntary nature of
    activity engaged in, which is typically a recreational hobby or sport. This court in McKinney
    and the First District in Johnson concluded the rehabilitation programs at issue were not
    employment and the plaintiff “enjoyed the option of rejecting the exculpatory clause by not
    admitting himself” to the program. McKinney, 
    2012 IL App (4th) 110098
    , ¶ 18, 
    968 N.E.2d 185
    ; Johnson, 
    2011 IL App (1st) 103323
    , ¶ 28, 
    957 N.E.2d 485
    (the plaintiff “could have
    chosen not to agree to the terms of the program and not to enter into the program”).
    Underlying those cases is the understanding that if the individual disagrees with the service
    provider’s liability release she can (1) forgo the particular activity or (2) find an alternative
    service provider, or (3) the parties can adjust the cost of the service to maintain the risk of
    injury on the provider. See 
    Hamer, 402 Ill. App. 3d at 46
    , 930 N.E.2d at 582 (if plaintiff
    disagreed with exculpatory clause “she could simply refuse to join the tour”); see also Mann
    -9-
    v. Wetter, 
    785 P.2d 1064
    , 1066-67 (Or. Ct. App. 1990) (diving school did not provide an
    essential public service and customers had a multitude of alternatives); Tayar v. Camelback
    Ski Corp., 
    47 A.3d 1190
    , 1202 n.11 (Pa. 2012) (collecting cases on voluntary recreational
    activities). Plaintiff’s claim is different from a claim where she would merely have been
    denied access if she did not agree to the release. She was engaged in a career training class
    that is part of an educational curriculum, and made an economic investment in her academic
    degree prior to being presented with the liability release. Had she declined to sign the release,
    she would have lost part of this investment–the extent of which we do not know. This prior
    investment goes to her ability to freely walk away from the liability release.
    ¶ 38               5. This Court Cannot Resolve Whether an Unequal Bargaining
    Position Existed as This Is a Question of Fact
    ¶ 39       The analysis to determine whether a liability release is enforceable can be a fact-intensive
    endeavor involving consideration of a multitude of variables impacting the bargaining
    position of the parties. As discussed above, to determine whether the plaintiff had a
    reasonable alternative–i.e., whether the plaintiff could simply walk away–courts look at
    whether (1) the defendant possessed a monopoly over the service, (2) the plaintiff could
    obtain the service without the exculpatory clause, and (3) the plaintiff’s exigencies left him
    or her with no reasonable alternative. Whether plaintiff had a reasonable alternative is at
    issue in this case. Pertinent questions and considerations can aid in the resolution of this
    difficult inquiry, such as the following: (1) What is the value of plaintiff’s investment,
    measured in both time and money, in her educational degree that could potentially be lost?
    (2) Could plaintiff resell the equipment to offset her financial investment? (3) Is successful
    completion of the climbing course a required prerequisite for the Lineman Program? (4)
    Would forgoing the climbing course negatively impact the marketability of her academic
    degree in the Lineman Program? (5) Would plaintiff’s financial aid, such as student loans,
    grants, or scholarships, be negatively affected by not taking the course as a result of declining
    the release? (6) Could plaintiff’s financial aid be used for a different academic degree or
    program? (7) Could plaintiff have enrolled in a different academic degree or program after
    being presented with the liability release? (8) Could plaintiff independently obtain the same
    vocational training in her community? (9) Where else could plaintiff obtain this training?
    (10) Could plaintiff pay an additional fee to maintain defendant’s liability and participate in
    the climbing course? (11) The realities of those facing employment (see White, 
    256 Ill. App. 3d
    at 
    359, 628 N.E.2d at 620
    ), such as a shift toward an educated workforce–before
    employment–that place costs of training on the job seeker, who in turn is requested by a
    community college to accept the risk of injury to obtain an education necessary for
    employment. The fact the educator is providing educational services, acting akin to a public
    service monopoly, is a reason some states have decided this issue categorically. See 
    Kyriazis, 450 S.E.2d at 655
    . These questions and considerations are not an exhaustive list–nor do we
    imply they should be given greater weight than those not identified–and are provided to assist
    the trial court in resolving this difficult inquiry.
    ¶ 40       It is apparent the parties dispute the following: (1) whether and when defendant explained
    -10-
    the release’s significance; (2) whether plaintiff knew the full extent of the physical and
    climbing requirements at the time she signed the release; (3) whether plaintiff knew she
    would be required to climb down a pole without a fall restraint device; (4) the extent of
    plaintiff’s financial obligation to prepare for the class; and (5) the benefit to plaintiff’s
    employment opportunities as a result of the class. It is not our role to resolve these factual
    questions. These disputed facts may weigh against whether plaintiff understood the release
    (see Mulliken v. Lewis, 
    245 Ill. App. 3d 512
    , 516, 
    615 N.E.2d 25
    , 28 (1993) (“[W]hether an
    exculpatory clause is binding due to the circumstances surrounding its execution is a question
    of fact for the trier of fact to decide.”)) and whether plaintiff stood at an inferior bargaining
    position.
    ¶ 41       To resolve whether an uneven bargaining position existed in this case it is necessary to
    consider a host of factual predicates. Questions about the parties’ bargaining positions remain
    unanswered and disputed and we cannot resolve them as a matter of law. We decline to
    answer the certified question.
    ¶ 42                           6. Defendant’s Affirmative Defense
    ¶ 43       Based on the parties’ arguments and the circuit court striking the April 2007 release, it
    appears the court concluded an exculpatory release between a student and an educator is void
    as a matter of law. Because further development is necessary to resolve the disputed factual
    issues, the court prematurely struck defendant’s affirmative defense, which is subject to
    reinstatement. Given our role under Rule 308, defendant has the burden to move the trial
    court for reconsideration of its decision and reinstatement of the affirmative defense.
    ¶ 44                          E. Plaintiff’s Willful and Wanton Claim
    ¶ 45       Defendant urges us to consider plaintiff’s claim its conduct was willful and wanton. Here,
    the circuit court’s finding the case presented a question of material fact on plaintiff’s willful
    and wanton claim was not included in the certified question. That issue is not intertwined
    with the certified question. See P.J.’s Concrete Pumping Service, Inc. v. Nextel West Corp.,
    
    345 Ill. App. 3d 992
    , 999, 
    803 N.E.2d 1020
    , 1026 (2004) (“the propriety of the class [action]
    certification *** is intertwined with the certified question”). The merit of plaintiff’s willful
    and wanton claim is not before this court, and we will not consider defendant’s argument.
    ¶ 46                                  III. CONCLUSION
    ¶ 47      We decline to answer the certified question as resolution of the certified question
    depends upon questions of fact. We remand for further proceedings.
    ¶ 48       Certified question not answered; cause remanded.
    -11-
    

Document Info

Docket Number: 4-12-0289

Citation Numbers: 2013 IL App (4th) 120289

Filed Date: 3/13/2013

Precedential Status: Precedential

Modified Date: 10/22/2015

Authorities (28)

Tunkl v. Regents of University of California , 60 Cal. 2d 92 ( 1963 )

Jackson v. First National Bank , 415 Ill. 453 ( 1953 )

Dowd & Dowd, Ltd. v. Gleason , 181 Ill. 2d 460 ( 1998 )

Harris v. Walker , 119 Ill. 2d 542 ( 1988 )

Farm Credit Bank of St. Louis v. Whitlock , 144 Ill. 2d 440 ( 1991 )

Schlessman v. Henson , 83 Ill. 2d 82 ( 1980 )

Mulliken v. Lewis , 245 Ill. App. 3d 512 ( 1993 )

Maness v. Santa Fe Park Enterprises , 298 Ill. App. 3d 1014 ( 1998 )

Hamer v. CITY SEGWAY TOURS OF CHICAGO, LLC , 402 Ill. App. 3d 42 ( 2010 )

Chicago Steel Rule & Die Fabricators Co. v. ADT Security ... , 327 Ill. App. 3d 642 ( 2002 )

Eisele v. Ayers , 63 Ill. App. 3d 1039 ( 1978 )

Giangiulio v. Ingalls Memorial Hospital , 365 Ill. App. 3d 823 ( 2006 )

Bauer v. Giannis , 359 Ill. App. 3d 897 ( 2005 )

Barbara's Sales, Inc. v. Intel Corp. , 227 Ill. 2d 45 ( 2007 )

Raethz v. Aurora University , 346 Ill. App. 3d 728 ( 2004 )

White v. Village of Homewood , 256 Ill. App. 3d 354 ( 1993 )

Evans v. Lima Lima Flight Team, Inc. , 373 Ill. App. 3d 407 ( 2007 )

Reuben H. Donnelley Corp. v. Krasny Supply Co., Inc. , 227 Ill. App. 3d 414 ( 1991 )

P.J.'s Concrete Pumping Service, Inc. v. Nextel West Corp. , 345 Ill. App. 3d 992 ( 2004 )

Hellweg v. SPECIAL EVENTS MANAGEMENT , 353 Ill. Dec. 826 ( 2011 )

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