Hinch Law

I previously wrote about the law of hold harmless or legal release contracts in Illinois, but an update of recent court cases is timely. The general rule has not changed. Illinois views such agreements as valid and legally binding, under the public policy of allowing freedom of contract.  But because Illinois also has a strong policy that a person should be liable for their own negligence, courts strictly construe such contracts against the benefitting party, and carve out some exceptions to enforceability. Generally a release is enforceable if (1) its terms are clear, explicit, and precise; (2) the release language (sometimes called the "exculpatory clause") encompasses the activity, circumstance, or situation contemplated by the parties to relieve the defendant from a duty of care; (3) it is not against settled public policy; and (4) nothing in the "social relationship of the parties militates against upholding the agreement." Regarding the final factor, co...

The legal "Release" is a document by which one agrees to "release from" or waive liability from another, potentially even if the liability results from the released party's own negligence.  A broader contract will often contain a release provision, sometimes called a "hold harmless" clause.  The Release is an essential part of countless contractual documents.  In fact, one could argue that a Release should at least be considered as a part of any contract. Two recent Illinois appellate cases (both out of the First District) provide good examples of how courts analyze a Release, both in the context of personal injury claims involving not-for-profit, charitable activities in which an accident occurred.  The cases are sobering reminders that without the proper legal documents, charitable organizations and other parties involved in an event can be held liable  for injuries that occur despite the best of intentions or the unquestioned good of the cause sup...