Schlessman v. Henson

• Decision Date: 01 December 1980
• Docket Number: No. 53259,53259
• Citation: 83 Ill.2d 82,413 N.E.2d 1252
• Parties: , 46 Ill.Dec. 139 Elmer E. SCHLESSMAN III, Appellant, v. Max HENSON, Appellee.
• Court: Illinois Supreme Court

Page 1252

413 N.E.2d 1252

83 Ill.2d 82, 46 Ill.Dec. 139

Elmer E. SCHLESSMAN III, Appellant, v. Max HENSON, Appellee.

No. 53259.

Supreme Court of Illinois.

Dec. 1, 1980.

Marvin Gerstein of Kahr & Gerstein Law Office, Champaign, for appellant.

Vance I. Kepley and Nancy M. Riddle of Reno, O'Byrne & Kepley, Champaign, for appellee.

KLUCZYNSKI, Justice:

Plaintiff, Elmer E. Schlessman III, brought this personal injury action in the circuit court of Champaign County, charging defendant, Max Henson, doing business as Champaign Motor Speedway, with negligence in design and operation of his racetrack. The circuit court granted summary judgment for defendant because plaintiff had signed an agreement exculpating defendant from liability. A majority of the appellate court affirmed (80 Ill.App.3d 1139, 36 Ill.Dec. 459, 400 N.E.2d 1039), and we granted leave to appeal. Plaintiff raises issues generally concerning whether the occurrence in question presents factual questions about the exculpatory agreement which preclude a summary judgment procedure and whether the agreement was an adhesion contract that should not be enforced.

On June 4, 1976, plaintiff, who was a participant in numerous amateur stock-car races, was auto racing on defendant's racetrack when a portion of the upper track embankment collapsed, causing plaintiff's car to crash. Prior to using the racetrack, plaintiff had signed a document captioned "Waiver and Release from Liability and Indemnity Agreement." In general, the terms of the agreement provided, inter alia, that, in consideration for use of the racing surface, plaintiff would not hold defendant liable for any injuries plaintiff sustained as a result of defendant's negligence or otherwise while plaintiff was using the racing surface. The relevant portion of the agreement reads as follows:

"IN CONSIDERATION of being permitted to enter for any purpose the RESTRICTED AREA (herein defined as the area to which admission for the general public is prohibited, including but not limited to the pit area, racing surface and infield, including walkways, concessions and other appurtenances therein) each of the Undersigned, for himself and personal representatives, assigns, heirs and next of kin, agrees, and on the direct representation that he has, or will prior to the inception of the racing program, inspect such RESTRICTED AREA and he does further warrant that his participation in the scheduled racing program and his entrance upon the RESTRICTED AREA, constitute an acknowledgment that he had inspected the RESTRICTED AREA and that it is safe and reasonably suited for the purposes of the racing program:

1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the Promoter, Participants, Racing Association, Track Operator, Track Owner, Landowner, and each of them, their officers, and employees, all for purposes herein referred to as RELEASEES, from all liability to the Undersigned, his personal representatives, assigns, heirs and next of kin for all loss or damage, and any claim or demands therefor, on account of injury to the person or property or resulting in death of the Undersigned, whether caused by the negligence of Releasees or otherwise while the Undersigned is upon the Restricted Area * * *."

Plaintiff now contends that the circuit and appellate courts were in error because the collapse of the track embankment culminating in his crash was completely outside the scope of plaintiff's expectations and the sweeping language in the release. Plaintiff maintains that a question of fact was presented concerning whether the scope of the occurrence was within the terms of the parties' release and that this question should be decided by the trier of fact and not in a proceeding for summary judgment. He also suggests that the parties did not realize the conditions of the track, which amounted to a mutual mistake of fact, thus preventing application of the release agreement. Plaintiff further contests defendant's claim that he assumed the risk, which would...