Simpson v. Byron Dragway, Inc. - 210 Ill. App. 3d 639, 155 Ill. Dec. 398, 569 N.E.2d 579 (1991)

Rule:

An exculpatory agreement constitutes an express assumption of risk in that one party is consenting to relieve another party of a particular obligation. In order to effectively assume the risk of some occurrence, it must be demonstrated that the danger which caused the injury was one which ordinarily accompanied the activity and that the plaintiff knew, or should have known, that both the danger and the possibility of injury existed before the occurrence. Foreseeability of a specific danger is an important element of the risk which a party assumes and will often serve to define the scope of an exculpatory agreement.

Facts:

Decedent hit a deer and was killed while racing on the racetrack owner's property in an event sponsored by the racing association. The administrator of decedent's estate brought a wrongful death action against the racetrack owner and the racing association and contended that the parties had been negligent because they had knowledge of there having been deer in the area of the racetrack. The circuit court granted summary judgment in favor of the racetrack owner and the racing association.

Issue:

Was the grant of summary judgment to the racetrack owner proper?

Answer:

No.

Conclusion:

The court agreed with the grant of summary judgment as to the racing association having determined that it owed no duty to decedent. The court determined that the enforceability of the release signed by the decedent presented a question for the jury of whether striking the deer was foreseeable by the decedent when he signed the exculpatory agreement. The willful and wonton nature of the racetrack owner's conduct was also found to have been a question of fact for the jury.