Will this clause capping or excluding our liability for our own negligence be enforced in Illinois?
Usually yes, with a narrow reading. Regarding contracts that shift the risks of one's own negligence to another contracting party, the general rule is to enforce exculpatory contracts unless (1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement; but exculpatory clauses are not favored and must be strictly construed against the benefitting party, particularly one who drafted the release (Harris v. Walker). Two statutes void the clause outright in common settings: a lease-related covenant exempting the lessor from liability for negligence causing injury to person or property is void as against public policy, except a non-residential lease provision exempting the lessor from liability for PROPERTY damage (765 ILCS 705/1); and in construction contracts a promise to indemnify or hold harmless ANOTHER person from that person's own negligence is void (740 ILCS 35/1), by its words that reaches shifting the other party's negligence onto the promisor, not a cap or exclusion of the promisor's own liability.
The trap
Illinois' limits bite at opposite ends. Strict construction reads the clause against its drafter, but Harris also shows its limit: the court enforced a horse-riding release because, when parties adopt broad language, 'it is reasonable to interpret the intended coverage to be as broad as the risks that are obvious to experienced participants', and '[e]ven if the release in this case is strictly construed against the defendant, its terms are broad enough to cover the situation at issue here'; the parties 'may not have contemplated the precise occurrence which resulted in plaintiff's accident, but this does not render the exculpatory clause inoperable'. The injured rider LOST: the appellate court's judgment for him was reversed and the circuit court's judgment affirmed. Harris does apply its second branch, and the way it applies it is the useful part: having found no public policy offended, the court said it saw "nothing in the relationship between the contracting parties that suggests that the exculpatory agreement should not be enforced" because "[t]his is not a case where the plaintiff is in an unequal bargaining position" and, quoting Schlessman, that a person in that position is "under no economic or other compulsion to sign the release" in order to take part. So the branch is about bargaining position and compulsion, and on those facts it cut for the drafter. Note also how little language did the work: the release was two sentences on a sign-in sheet, telling the signer that his signature "shall release Ky-Wa Acres and employees of any liabilities you may incur while on the premises or for any injury which may result from horseback riding", with the rules posted separately. The two statutory voids operate without regard to drafting or sophistication: in a lease, only the non-residential property-damage exemption survives § 705/1(b), and the personal-injury half of the same sentence is void.
10 authorities
The words that state the rule
Regarding contracts that shift the risks of one’s own negligence to another contracting party, the general rule is to enforce exculpatory contracts “unless (1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.”
The words that state the rule
exculpatory clauses are not favored and must be strictly construed against the benefit-ting party, particularly one who drafted the release.
The words that state the rule
The court also concluded that when the parties adopt broad language in a release, it is reasonable to interpret the intended coverage to be as broad as the risks that are obvious to experienced participants. Even if the release in this case is strictly construed against the defendant, its terms are broad enough to cover the situation at issue here.
The words that state the rule
As the court stated, “[t]he parties may not have contemplated the precise occurrence which resulted in plaintiff’s accident, but this does not render the exculpatory clause inoperable.”
The words that state the rule
For the foregoing reasons, we reverse the judgment of the appellate court, and affirm the decision of the circuit court. Appellate court reversed; circuit court affirmed.
- statute765 ILCS 705/1enactment date not established
The words that state the rule
(a) Except as otherwise provided in subsection (b), every covenant, agreement, or understanding in or in connection with or collateral to any lease of real property, exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his or her agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.
- statute765 ILCS 705/1enactment date not established
The words that state the rule
(b) Subsection (a) does not apply to a provision in a non-residential lease that exempts the lessor from liability for property damage.
- statute740 ILCS 35/1enactment date not established
The words that state the rule
With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person's own negligence is void as against public policy and wholly unenforceable.
The words that state the rule
In addition to finding no public policy that is offended by enforcing the exculpatory contract here, we see nothing in the relationship between the contracting parties that suggests that the exculpatory agreement should not be enforced. This is not a case where the plaintiff is in an unequal bargaining position. Again, Schlessman is instructive, for in that case it was stated, “[w]hile it is obvious that plaintiff would not have been allowed to use the racetrack had he not signed the release, plaintiff was under no economic or other compulsion to sign the release in order to engage in amateur auto racing.
The words that state the rule
Your signature below indicates that you have read the posted rules and will abide by them. Also, your signature shall release Ky-Wa Acres and employees of any liabilities you may incur while on the premises or for any injury which may result from horseback riding. If your signature is not reliable please do not sign or ride.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.