Our Chicago personal injury attorneys are sometimes asked to represent clients whose injuries may have been contemplated by a contract between the client and the possible defendants. Where a potential plaintiff has signed a waiver or release that may cover the claims at issue, obtaining relief can become more difficult.
Experienced personal injury attorneys such as those at Passen & Powell know that a release does not
make recovery impossible. But we also know that the best way to ensure that a release does not prevent you from obtaining the compensation you deserve after an accident is not to sign the release at all.
A recent opinion from the Illinois Appellate Court, First District confirms that the onus is on the consumer to avoid signing releases which might prevent recovery down the road – even when the consumer is affirmatively misinformed as to what she is signing.
In Oelze v. Score Sports Venture, 09-1476, the Circuit Court of Cook County was faced with an injury sustained by Ms. Oelze while playing tennis at the defendant sports club. Each of the tennis courts at the club was separated from a walkway area by a heavy curtain. When a player ran back to intercept a ball, he or she could run into the curtain, moving in up to a couple of inches.
This is precisely what happened to Ms. Oelze. Unfortunately, when Ms. Oelze ran into the curtain, a rope ladder used for conditioning had been left directly behind the curtain. Ms. Oelze’s foot became entangled in the ladder, and she fell, breaking her elbow and tearing her rotator cuff.
Ms. Oelze brought suit against the club for its negligence in leaving the rope ladder directly behind the curtain. Prior to her accident, however, Ms. Oelze had signed a membership agreement containing a release of liability broad enough to cover such a claim.
Ms. Oelze attempted to avoid the application of the release she signed by asserting that when she signed the release, she was informed by the club employee who presented it to her that it was an authorization for automatic payments of club dues. This was, in fact, correct – but the form also contained the terms of membership, including the release, facts not mentioned to Ms. Oelze by the club employee. But this information was contained on the form itself, and Ms. Oelze admitted that she did not read the form except to confirm that the payment amount listed was accurate.
The Circuit Court held on summary judgment that Ms. Oelze could not avoid the application of the release, and the Illinois Appellate Court affirmed. In doing so, the Appellate Court had harsh words for consumers such as Ms. Oelze. The court concluded that even where a consumer is affirmatively misinformed or mislead as to the contents of a form, the consumer has a duty to read that form before signing.
If a consumer does not read language contained on the form, according to the Appellate Court, then it is her own fault that she was mislead and she cannot avoid the application of the release which she had no knowledge of signing.
While this conclusion has some surface appeal, it threatens to swallow the rules of contract. The appellate court rejected the plaintiff’s assertion that she was forced to sign an “involuntary waiver” agreement. The Court noted that defendants may contract to avoid liability for its own negligence unless (1) there is substantial disparity in bargaining power between the parties; (2) to enforce the contract would violate public policy; and (3) there is something in the social relationship between the parties that would militate against upholding the contract. None of these exceptions were found to apply.
The Appellate Court expressly noted that fraud in the inducement (“when the party is induced to enter into the release by false representations by the other party”) and fraud in the execution (“when the plaintiff was induced to sign the agreement not knowing it was a release, but believing it to be another type of document”) allow a plaintiff to avoid a signed release. Yet the court still concluded that a failure to read is the death-knell of a plaintiff’s claims.
Our Chicago personal injury lawyers are disappointed with this opinion, which places an unreasonable burden on consumers. To think that corporations may contract-away their own negligence through boilerplate language on some release that most consumers don’t even read, and even if they did read, would be forced to sign in order to use the corporation’s facilities, is plainly unfair. Companies that open their property and their facilities to the public should be responsible for injuries sustained on their property caused by their own negligence. Period.
The Oelze opinion teaches consumers a valuable lesson. The sheer number of forms presented to consumers in our modern world can be overwhelming at times. Yet it behooves consumers to carefully read, or at least read, each of these forms before signing – even if told what it contains. While this can be burdensome, impractical, and unrealistic, the alternative is much worse. If you are seriously injured on the property of another, your unknowing release may preclude recovery, notwithstanding the negligence of the corporate defendant.
Our accident attorneys in Chicago will continue to represent those seriously injured or killed due to the negligence of another, even in instances where those injured signed release of liability agreements. We believe corporate accountability remains, and will use all our resources and creativity to hold those responsible accountable.
For a free consultation with an experienced Chicago personal injury lawyer at Passen & Powell, call us at (312) 527-4500.