Fourth Division June 10, 2010

No. 1-08-3371

SHELL E HAMER, ) Appeal from the ) Circuit Court of Plaintiff -Appella nt, ) Co ok Co un ty.

) v. ) 07 L 6439 ) CITY SEGWAY TOU

RS OF CHI CAGO, L

LC, ) Honorab le

) Kathy M. Flana

gan, Defendant-Appellee. ) Judge Presi ding.
JUSTICE NEVILL E deliver ed the opi nion of the

court: Plaintiff , Shelle Hamer, filed a complaint to recover for injuries she suffered on a tour run by de fendant , City

Segway Tours of Chicago

(CST). The

trial cou rt gra nted CST’s

moti on fo r summary judgment based upon a release Hame r signed before participating in the tour. Because we find the r elease enforc eable, w e affir

m. BACKGROUND Hamer arranged to take he r son on a tour of downtown Chicago on March 30, 2007. She signed up with CST. C ST conduc ts t ours and i ts partic ipants rid

e Segwa y H uman Tra nsporters, called “Segway s.” Each participant rides a separa te Segway . CST’s tour guide taught the tour participants how to use the Segway s. All tour participants signed releases which provided:

“ I do hereby *** release *** the CST Indemnitees from any and all lo sses, claims, suits, causes of action, etc. for *** personal injuries *** I may have, suffer1-08-3371

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or sustain while riding or operating the Se gw ay, whether

arising from my own acts , actions, activitie s and/or o mi ssion s or those of other s, except only

those ar ising sol ely from the g

ross neg ligenc e of the CS T Ind

emnitees
. *** I underst

and and ac

knowledg e that this * ** releas e will apply even in circumstances where a CST Indemnitee may be

*** released and absolved from the consequences of their own negligence. I*** understand that ridinga Segwa y will *** expos e me to various hazards and risks, including, among

other s, *** dangers arising from irre gular road and pavement surfaces, *** which present a risk of injury, including *** the risk that I coul d fa ll and *** suffer contusions, lacerations, sprains, fracture s, and other, potentially more serious, injuries.” (Emphasis in original.) According

to the rele ase, the

"CST I ndemnite es" inc lude all CST employees, including

its officers and tour g

uides. During the tour, Hamer rode her Segway onto a small grassy

hill. On her way up the hill, the Segway threw her off. She sustained injuries which prevented her from working for four months. Hamer sued CST. She alleg ed in her complain t that CST

negligently

permitted her to operate her Segway in adange

rous loca tion, witho

ut proper ly instructing her about the danger. She a lleged that CS T’ s n eg li ge nc e c au se d h er to fa ll of f h er Se gw ay. Inher deposition, Hamer admitted that she read and understood the release before she signed it. She testified

that the tour guide encourage d her to ride the Segway up the hill. The guide in

his deposition swore he said nothing of the sort. An offic er of CST s aid CST had an unwritten policy1-08-3371

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of instructing tour participan ts to st ay on the pav ement. Th e offic er agr eed “[i]t wo

uld be tota

lly reckle ss” for the guide

to sugg est that a

novice Se gway

user rid e up a hill
. CST moved for

summary judgme

nt based on the release. I

n her response, Hamer asked for leave to amend t

he compla

int to state

a cause of action for wilful and wanton misconduct. The court granted CST’s motion

for summa

ry judgmen t but denie d H amer’s motion for leave to amend, finding that the evidence could not support a finding of wilful and wanton misconduct. Hamer now appeals
. ANA LYSIS Inorder to decide this case, we must review a r elease, which is a contract, and the construction, interpre

tation or l egal e ffect o f a contr act is a ma

tter to be decid ed by

th e court a s a question of law. Avery v. State F arm Mutual Automobile Insurance Co. , 216 Ill. 2d 100, 129 (2005). We review or ders granting motions for summary judgmen ts de novo , stri ctly cons truin g the pl eadin gs and depositions against the movant. Avery , 216 I ll. 2d at 12 9; Williams v. Manchester , 228 Ill. 2d 404, 417 (2008). The trial court should no t grant a motio n for summary judg ment if the parties dispute any materia

l facts. Williams , 228 Ill. 2d at 417. The trial court here found

the exculp atory

clause i n the rel easeenforceable. I llinois law does notfavor exculpatory c lauses. Scott & Fetzer Co. v. Montgomery Ward & Co. , 112 Ill. 2d 378, 395 (1986). Courts construe the clauses strictly against the parties they

benefit. Scott

& Fetzer , 112 I ll. 2d at 395. “S uch clau ses must spe ll out the intention of the pa rties with great particu larity and will not be construed to defeat a claim which is not explicitly covered by

their terms.” Scott &Fetzer , 112 Ill. 2d at 395. However, if the c lauses clearly a pply, courts will ge

nerally enf

orce them, “un

less1-08-3371

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(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 ag reement.” Jackson v. F irst National Bank of Lake Forest , 415 Ill. 453, 460 (1953). Hamer argue s that the c lause in th is c ase lacks the requisite clarity. I llinois courts have explained the tests a court should use to determine whether an exculpatory agreement applies as follows: “An

exculpatory ag

reement must contain clear, explicit, and uneq uivoca l langua ge refer

encing the ty pe of ac tivit

y, circum stance, or situati on that it encompasses and for w

hich the p laintiff

agree s to relieve the defenda nt from a d

uty of c are . [Citation.] H owever , the par ties nee d not have

contempl ated the

precise
occurrencewhich results in injury. [Citation.] The injury must only fall within the
sc ope of possible dangers ordinarily accompany

ing the activity a

nd, therefore,
reasona bly contemplated by the pa

rties.” Evans v. L

ima Li ma Flig ht Team, Inc. , 373 Ill. App. 3d 407, 414-15 (2007). Inthe rele ase, Ha

mer acc epted the

risk that she c ould fall; in her complaint she alleged that she fell. In the release , she acc epted the risks of r iding on i rregu lar roa ds and pa vement su

rface s; inher deposition she admitted that she rode on an unpaved, irregular s urface. In the release, she accepted the risk of personal injury c aused by the actions of others, excepting only gross negligence by CST employees; in her complaint she alleged that the injury

resulted from CST’s acts of ordinary negligence. We find that t he rele ase cle arly

applies to the occurrences complained about in Hamer ’s complaint as well as those described in her deposition.1-08-3371

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Next, Hame

r conten ds that he r social r elationsh ip with CST and its tour guide should lead the court to find the r ele ase unenforceable. Special re lationships that make exculpatory clauses unenfor ceable include “those (1) between an employ er and employ ee; ( 2) between the public and those charg ed with a d

uty of publi c servi ce, such as involving a common carrier, a n innkeeper, a public wareho

useman or

a public u

tility ; and (3) betwee

n partie s where

there is such a disparity of bargaining

power that the agreement does not represent a free choice on the part of the plaintiff, such
as a monopoly or involving a pla intiff witho ut a reasonable alternative.” White v. Village of Homewood , 256 Ill. App. 3d 354, 358-59 (1993). Hamer was not an employee of C ST, an d CST
was not a common carr

ier, an i nnkeepe r, or a pu blic utility

charg ed with a d

uty of publi c s ervice. Moreover, there was no disparity of bargaining power be cau se if Hamer disagreed with the exculpatory

clause, she could

simply refuse to join the tour. See Harrisv. Walker , 119 Ill. 2d 542, 550 (1998). The instructiongiven to Hamer did not create a re lationship that would overcome the exculpatory lang

uage of the release. See Harris , 119 Ill. 2d at 548. Fi na ll y, Hamer a sks us to re verse so that she c an amend

her comp laint to state a cause of actionfor wilful and wanton misconduct. Hamer has not included a proposed amended complaint inthe record on a

ppe al. Our supreme court held in Kirk v. Michael Reese Hospital & Medical Center , 117 Ill. 2d 507, 521 ( 1987), tha t “[t]he plaintiff's proposed amended complaint does not appear in the record ; the plain

tiff's f ailure to make it a part of the recor

d waives his righ t to have t his court review the trial court's denial of his motion.” Accor dingly, by failing to include the amended complain t in the re cord on a

ppeal, H amer ha s forfe ited her right to have this court review

the trial court’s denial of her motion for leave to amend her complaint. Kirk , 117 Ill. 2d at 521.1-08-3371

- 6 - CONCLUSIO

N Inconclusion, we find that the rele ase cove

rs the all eged o ccurre

nce comp lained a

bout in the complaint with sufficient particularity . We further find that no special relationship between Hamer and CST preve

nts this cou

rt from e nfo rcing the release. Hamer has not included in the record an amended complain t which sta

tes a cla im fo r w il fu l a nd wa nt on mi sc on du ct . A cc or di ng ly, we hold that the trial court

d id not err when it granted CST’s motion for summary judgment and denied Hamer’s motion to amend her complaint. Affirmed. O'BRIEN and GALL

AGHER, JJ., concur.