Spears v. Ass'n of Ill. Elec. Cooperatives

• Decision Date: 13 March 2013
• Docket Number: No. 4–12–0289.,4–12–0289.
• Parties: Nichole SPEARS, Plaintiff–Appellee, v. The ASSOCIATION OF ILLINOIS ELECTRIC COOPERATIVES, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (4th) 120289

986 N.E.2d 216

369 Ill.Dec. 267

Nichole SPEARS, Plaintiff–Appellee,

v.The ASSOCIATION OF ILLINOIS ELECTRIC COOPERATIVES, Defendant–Appellant.

No. 4–12–0289.

Appellate Court of Illinois, Fourth District.

March 13, 2013.

Brad A. Elward (argued) and Rex K. Linder, both of Heyl, Royster, 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.

OPINION

Justice KNECHT delivered the judgment of the court, with opinion.

[369 Ill.Dec. 269]¶ 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 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 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, 337 Ill.Dec. 432, 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, 230 Ill.Dec. 229, 693 N.E.2d 358, 364 (1998); Bauer v. Giannis, 359 Ill.App.3d 897, 902, 296 Ill.Dec. 147, 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, 304 Ill.Dec. 714, 853 N.E.2d 791, 794 (2006); see also Giangiulio v. Ingalls Memorial Hospital, 365 Ill.App.3d 823, 829, 302 Ill.Dec. 812, 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, 316 Ill.Dec. 522, 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 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 Plain...