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Law School Case Brief

White v. Vill. of Homewood - 256 Ill. App. 3d 354, 195 Ill. Dec. 152, 628 N.E.2d 616 (1993)


The general rule is to enforce exculpatory agreements unless: (1) it is against 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. Exculpatory agreements that are contrary to public policy include those: (1) between an employer and employee; (2) between the public and those charged with a duty of public service, such as involving a common carrier, an innkeeper, a public warehouseman, or a public utility; and (3) between parties where there is such a disparity of bargaining power that the agreement does not represent a free choice on the part of a plaintiff, such as a monopoly or involving a plaintiff without a reasonable alternative.


Plaintiff's amended complaint against defendants arose from personal injuries she sustained in June 1990 while taking a physical agility test to become a firefighter/paramedic for the Homewood Fire Department. While traversing horizontal bars as part of the test, plaintiff fell and was injured. Count II of the amended complaint, the only count relevant to this appeal, alleged that defendants were negligent in administering the test. Plaintiff, Angela White, appealed the dismissal of her negligence action as barred by an exculpatory agreement that she signed. 


Was the negligence action barred by an exculpatory agreement signed by plaintiff?




The appellate court reversed. The court held the agreement unenforceable for lack of consideration because pursuant to 65 Ill. Comp. Stat. 5/10-2.1-6 (1992), defendant had a pre-existing duty to administer the agility test, and plaintiff had a legal right to participate. Furthermore, the court held the agreement had violated public policy because the disparity in bargaining power was such that the agreement had not represented plaintiff's free choice. Finally, the court held that because the relationship between defendant and plaintiff, as potential employer and job applicant, was akin to the relationship between an employer and employee, public policy would not permit defendant to contract with plaintiff to relieve defendant from liability for injuries caused by defendant's negligence.

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