This is a brief review of the enforceability of assumption of risk agreements in Illinois and their impact on the amusement ride/waterpark industry. This review is limited to express or written assumption of risk agreements. Typically a patron, as a precondition to entry upon the premises or upon a ride, agrees to “voluntarily assume all risk, loss, damages, liability and danger for injury or damage.” Such language is typically on the admission ticket or posted for the public at the entry point for the ride or the premises. Such language requires that the patron agree that the owner/operator owe the patron no duty if say, the patron is injured by a ride while on the premises. Illinois holds writings requiring a patron to agree that an owner/operator is free to be negligent without consequence, in disfavor.
Illinois courts will enforce such writings in favor of health clubs and in favor of owner/operators of race car tracks upon evidence that the patron knew what he was doing. Illinois courts won’t enforce if a ‘special social relationship’ between owner/operator and patron, bars enforcement (First Financial v Purolator, 69 Ill. App.3d 413 (First District, 1979).
Illinois courts hold that common carriers bear such a ‘special social relationship’ of a, ‘semi-public nature’ such that a common carrier has,” unique control over its passengers’ safety” sufficient to make express assumption agreements unenforceable. This Illinois trend amplifies the need for defense counsel to argue forcefully and early that a mechanical amusement ride or a water ride cannot be a common carrier any more than a health club or race car track is a common carrier. Where common carrier status is not plead against the owner/operator or defeated by defense counsel, knowing consent to ‘assumption’ language by the patron must be in evidence. Where assumption of risk language is on the admit ticket, it is a good idea to post like language at the ride itself or at the premises entryway to meet the defense burden of proof for summary disposition of the case. At this writing, this attorney is aware of no precedential Illinois case testing the enforceability of assumption of risk language in an amusement ride or water park context.