Schlessman v. Henson

• Decision Date: 11 February 1980
• Docket Number: No. 15575,15575
• Citation: 80 Ill.App.3d 1139,400 N.E.2d 1039,36 Ill.Dec. 459
• Parties: , 36 Ill.Dec. 459 Elmer E. SCHLESSMAN III, Plaintiff-Appellant, v. Max HENSON, d/b/a Champaign Motor Speedway, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1039

400 N.E.2d 1039

80 Ill.App.3d 1139, 36 Ill.Dec. 459

Elmer E. SCHLESSMAN III, Plaintiff-Appellant, v. Max HENSON, d/b/a Champaign Motor Speedway, Defendant-Appellee.

No. 15575.

Appellate Court of Illinois, Fourth District.

Feb. 11, 1980.

Marvin Gerstein, Kahr & Gerstein Law Offices, Champaign, for plaintiff-appellant.

Vance I. Kepley, Reno, O'Byrne & Kepley, Champaign, for defendant-appellee.

GREEN, Justice.

This case concerns the validity of an exculpatory agreement purporting to release the operator of a motor speedway from liability to an amateur race driver for damages for injuries resulting from the operator's negligence and occurring while the driver was in a restricted area consisting of the track and the area close by.

On May 24, 1978, the driver, plaintiff Elmer E. Schlessman filed suit in the circuit court of Champaign County against the operator, Max Henson, d/b/a Champaign Motor Speedway, seeking recovery for injuries he purportedly received on June 4, 1976. During the second lap of a race in which he was participating a banked portion of the track caved in causing the plaintiff's vehicle to go out of control. Negligence in the design and maintenance of the track was alleged. There was no allegation of wilful and wanton misconduct. Defendant answered denying many of the material allegations of the complaint and affirmatively alleging: (1) plaintiff had assumed the risk, and (2) the previously entered into exculpatory agreement released defendant from any liability. On April 20, 1979, the trial court granted a defense motion for summary judgment basing its decision upon the exculpatory agreement.

Plaintiff appeals asserting that the summary judgment cannot be sustained upon a theory that he assumed the risk and that the exculpatory agreement should not be given effect because: (1) the negligent acts complained of were beyond the parties' contemplation; (2) the agreement was an "adhesion" contract; and (3) the agreement was unconscionable in scope and contrary to public policy. We need not consider the question of assumption of the risk because we deem the exculpatory agreement to have been shown to be valid and sufficient in breadth to cover the occurrence complained of. We affirm.

In Morrow v. Auto Championship Racing Association, Inc. (1972), 8 Ill.App.3d 682, 291 N.E.2d 30, a trial court judgment for personal injuries obtained by a race driver against a track operator for injuries resulting from negligent operation of the track was reversed. In that case, the appellate court enforced an exculpatory agreement releasing the operator from negligence liability to the driver. The opinion discussed the Illinois cases and statutes which prohibit such agreements between carriers and passengers (Checkley v. Illinois Cent. R. Co. (1913), 257 Ill. 491, 100 N.E. 942), employees and employers (Jackson v. First National Bank (1953), 415 Ill. 453, 114 N.E.2d 721), innkeeper and guests(Ill.Rev.Stat.1971, ch. 71, par. 1 et seq.), and landlord-tenant (Ill.Rev.Stat.1971, ch. 80, par. 91). The court noted that the then more recent Illinois cases had upheld agreements exculpating a party for its subsequent negligence unless the agreements were prohibited by statute. The court concluded that because (1) the driver raced as a hobby and had other employment, and (2) racing was not of a public or semipublic nature, the agreement was, as a matter of law, consistent with public policy. Here, too, the driver was admittedly an amateur not dependent upon racing for a living.

One respect in which Morrow differs from the instant case is that there the breach of safety was that the pit area was not sufficiently protected from out of control cars. The likelihood of such negligence occurring was much greater than the likelihood of the banked portion of the track caving in. This distinction is the basis of plaintiff's argument that the exculpatory agreement did not contemplate releasing defendant for negligence of such an unforeseen nature. No cases cited by plaintiff supports such an agreement. In Davis v. Marathon Oil Co. (1975), 28 Ill.App.3d 526, 330 N.E.2d 312, rev'd on other grounds (1976), 64 Ill.2d 380, 1 Ill.Dec. 93, 356 N.E.2d 93, the question arose as to whether the plaintiff had assumed the risk which gave rise to his injuries by contracting to perform the work which he was performing when injured but both the appellate and supreme courts concluded that there was no basis for an instruction on that issue when the risk arose from violation of a state regulation. In that case, an indemnity agreement which did not state that it was indemnifying the defendant from its own negligence was held not to do so. Here, the exculpatory agreement expressly stated that it intended to cover negligent acts of the defendant. While foreseeability is obviously an important element of the risks which a party impliedly assumes in undertaking an activity, the exact type of negligence which a person expressly agrees to excuse another from need not be foreseen with such clarity. Plaintiff also relies upon Ruggles v. Selby (1960), 25 Ill.App.2d 1, 165 N.E.2d 733, but there the court affirmed the setting aside of a release given to a tort-feasor after injuries had been incurred. The grounds for the relief was a mutual mistake of existing fact as to the extent of the injuries.

By describing the exculpatory agreement as an "adhesion" contract plaintiff means that it was one whereby defendant received all of the benefits. This argument and the contention that the agreement was contrary to public policy involves the same principles. This case differs from Morrow in that there, in addition to being permitted to race, the driver also received certain insurance coverage providing him with benefits if injured or killed while racing. However, the Morrow court did not consider the benefits to be the reason for its decision.

In addition to the sport of racing, agreements exculpating operators of sport facilities from negligence liability to users of the facilities have been upheld in this state in connection with stabling of horses (Rutter v. Arlington Park Jockey Club (7 Cir. 1975), 510 F.2d 1065; Erickson v. Wagon Wheel Enterprises, Inc. (1968), 101 Ill.App.2d 296, 242 N.E.2d 622) and providing gymnasium and swimming facilities (Owen v. Vic Tanny's Enterprises (1964), 48 Ill.App.2d 344, 199 N.E.2d 280). In none of those opinions is there any indication that the party granting the exculpation...