Sports waivers and their enforceability in the state of Illinois is very complex and can be a very fact-specific issue.
Today, most sports and sporting events will require either an express or implied waiver of liability for the participants or fans to participate in the event. For example, a visit to a climbing wall, a go-kart track or batting cage in the state of Illinois usually requires the execution of a written waiver that attempts to shield the provider from liability in the event of an injury.
When are waivers enforceable?
In Illinois, waivers are generally disfavored, but they are enforceable under the right circumstances.
Under certain circumstances, a party may be barred from bringing a claim against the provider by an exculpatory clause in the contract entered into by a potential plaintiff. In general, waivers are disfavored and are strictly construed against the benefiting party. This is especially true where a waiver has been broadly worded. Waivers must contain clear language referencing the types of activities, circumstances or situations that are encompassed by the release.
While a waiver need not contemplate the specific occurrence which resulted in a participant’s injury, the danger that caused the injury must be one which ordinarily accompanies the activity covered by the release. Thus, a waiver must give a participant notice of a range of dangers of which they assume the risk.
The scope of the waiver is often defined by the foreseeability of the particular danger.
For example, as a spectator in a muscle car race, the appellate court in Nesbitt v. National Muscle Car Association, 2014 ILL. App. Unpub. affirmed the trial court’s order in dismissing the plaintiff’s claim for injuries, rejecting the plaintiff’s argument that the waiver was not specific enough.
What should be considered in a case that involves a signed waiver?
In considering a case where there was an injury that involves a signed waiver, the main issue is going to be the specificity of the waiver and whether or not the potential injury listed in the waiver is the one that the plaintiff actually incurred.
Also remember that waivers are very state specific. For example, the state of Wisconsin is much more likely to protect the provider of the activity and, in general, is more likely to find a waiver enforceable in recreational activities as compared to the state of Illinois. I often refer to this as the “Wisconsin Dells Rule”, which provides that if you bungee jump, go go-kart driving or take a “duck” ride in Wisconsin and injure yourself, you are probably going to face a much higher hurdle than if those same activities had occurred in Illinois.
The best way to circumvent a waiver from the plaintiff’s perspective is to try to establish policies and standards within the industry and prove that the provider of the service did not comply with industry standards of policy, thus arguing the waiver should not be used to protect a provider from liability when they did not comply with their own industry standards.
In general, if you are presented with a case that involves a waiver of liability, look at it closely. Demand to see a copy of the written waiver that was signed and then review it carefully to determine if it is a case for your office.