The Journal of The DuPage County Bar Association

Back Issues > Vol. 16 (2003-04)

When Contracts Meet Torts: A Comparative Study of the Basic Law of Exculpatory Clauses in the Health and Recreation Context
By James Cavenagh


The system of justice in the United States is inextricably intertwined with our history and our culture. When two long-standing tenets of our law meet head to head the results are always interesting. We shall examine one of those instances, i.e., the use and application of contractual waiver and release in the adult recreation industry. When the basic idea that people are responsible for incidents that occur due to their negligence butts up against the basic freedom of adults to make contracts, many subtexts of the law come into play. Public policy, economic impact, statutory schemes, and social standing are just a few areas that are implicated. We shall examine the development and current state of the basic law dealing with exculpatory clauses in Illinois and compare it to some developments in other U.S. jurisdictions in recent years.1 

When the issue of waiver and release arises the courts generally ask three questions. A positive answer to any of these three questions generally results in the court choosing not to enforce the clause. The questions are:

1. Is the waiver and release inconspicuously placed in the overall agreement?

2. Is the language used ambiguous or unclear about the intentions of the parties to the agreement?

3. Would enforcement of the waiver and release violate public policy?


We have all heard the axiom that the large print giveth and the small print taketh away. The courts faced with waivers will not allow that axiom to operate. The large print must match the small print and the operative language must be conspicuous.

The Washington state courts have a very well developed body of law specifically dealing with this issue. In Baker v. City of Seattle,2  the court was faced with an exculpatory clause placed in the middle of a golf rental agreement. Nothing set the clause apart from any other part of the agreement. The court invalidated the waiver because "the releasing language is so inconspicuous that reasonable persons could reach different conclusions as to whether the document was unwittingly signed." 3 

In Chauvlier v. Booth Creek,4  the court compared and contrasted the contract which it was interpreting with that in Baker. The language at issue in Chauvlier was set out in capital letters. Additionally, there was language just above the signature line drawing the signer’s attention to the fact that a release was contained in the document. The Chauvlier court upheld the release finding that the language "was not hidden within part of the larger agreement."5 

However, even when an exculpatory clause is set out in a paragraph that has a separate heading which is conspicuous, it may still be invalidated. In McCorkle v. Hall,6  the court reversed a summary judgment granted on the strength of a waiver and release which was contained in a paragraph boldly titled "LIABILITY STATEMENT." The paragraph first dealt with liability for damages caused by the member, but then went on to exculpate the club from liability to the member. The court reasoned that there was nothing to warn the member of the shift in topics.

This entire issue was dealt with squarely in Stokes v. Bally’s PacWest, Inc.,7  In that case, the plaintiff contended that the waiver and release was inconspicuous and should have been contained solely within a separate document. The court stated that "no authority supports the proposition that an exculpatory clause must be contained in a separate document to be enforceable."8  The court described the contract language. There were repeated references to the waiver and release throughout the contract, some in bold and/or capital letters. One such reference was placed just above the signature line. The signer was also warned, in bold capital letters, to read the entire contract before signing. And the exculpatory paragraph itself dealt only with that topic. When those elements all converge in a single document, the clause is conspicuous as a matter of law.9 

The Illinois courts have not dealt with this issue in the same detail as Washington. However, the same types of elements showing the contract language to be conspicuous in Washington cases have been applied here. In Kubisen v. Chicago Health Clubs,10  the Plaintiff alleged that the exculpatory clause was inconspicuous because it was in fine print on the back of the document, while the signature was on the front. The court rejected the argument because there were "provisions on the front side of the contract where, just above her signature, the following words are clearly printed: ‘NOTICE TO THE BUYER’; and, adjacent thereto, the following: ‘Do not sign this agreement before you read it or if it contains any blank spaces.’ Further, provision A on the front side of the contract appears as follows: ‘A. Enrollment: Seller agrees to, and does hereby, sell, and Buyer agrees to, and does hereby, buy, on the terms and conditions hereinafter set forth (including the terms and conditions contained on the reverse side hereof) a membership in Seller’s gymnasiums * * * .’"11 

When the reader’s attention is drawn to the part of the agreement containing the exculpatory clause, courts are more likely to find it to be conspicuous. Regardless how conspicuous the clause is within a contract, the language used must be clear and understandable.


The basic statement of the law on this issue is deceptively simple. Exculpatory clauses, to be enforceable, "must be in clear and explicit language or expressed in unequivocal terms."12  The rationale for this rule is that unambiguous language puts the releasor on notice of the range of dangers for which he or she is releasing liability.13 

Those who employ exculpatory clauses in their prepared agreements generally want to protect themselves from liability for the broadest range of risks. However, if that is not clearly stated courts will refuse to enforce the language. In Calarco v. YMCA,14  a member injured her hand while helping another person with a weight machine. The release freed YMCA from liability "arising out of or connected with my participation in any of the activities of the YMCA..."15  The court found the language unclear because the phrase "participation in any of the activities of the YMCA" was open to more than one reasonable interpretation.16 

Another ambiguity arises when the contract does not set out all the covered risks. In Larsen v. Vic Tanny International,17  Larsen sued to recover for damages incurred when he inhaled dangerous fumes at the health club. The health club raised the exculpatory clause as a defense. The exculpatory clause did not specifically cover any and all damages caused by defendant’s negligence. The court stated, "[T]he question of whether defendant’s conduct and the danger to which plaintiff was subjected was of a type intended by the parties to be excused by the exculpation clause in plaintiff’s membership contract presents a genuine issue of fact which cannot be resolved by the evidence of record. The enforceability of the exculpatory provision is not, therefore, established as a matter of law."18 

In contrast is the case of Garrison v. Combined Fitness Centre, Ltd.19  In that case, the Plaintiff was injured when a barbell fell off a benchpress support and crushed his neck. The Plaintiff tried to defeat the exculpatory clause by alleging that the incident occurred because the equipment provided by Defendant was defective. The waiver and release included "all exercises including the use of weights, ..., and use of any and all machinery, equipment, and apparatus designed for exercising...[and] any claims, ... arising due to injury to Member’s person ... arising out of or in connection with the use by Member of the services and facilities of the Center..."20  The court ruled that because the agreement was clear and explicit the "injury was of a type that would normally be contemplated by the parties at the time the contract was made and, therefore, it clearly falls within the parameters of the exculpatory clause."21 

Illinois is in harmony with other jurisdictions on this issue. In Owen v. Vic Tanny’s Enterprises,22  the waiver language did not specifically refer to negligence. The contract did set out a fairly comprehensive, but specific, range of risks that were being addressed so the contract was enforced. Illinois does not require specific use of the word negligence, but "[w]here an exculpatory clause specifically sets forth in clear language the range of activities to which it applies, the clause is enforceable."23 

Even though many jurisdictions say that use of the word negligence is not required, it is always a good idea to use that specific word. As we look at cases across the country where exculpatory clauses were involved, we see that, generally, they are ineffective when they fail to set out the broadest range of dangers and often if they fail to make specific reference to the releasee’s negligence.24  In contrast, cases where the exculpatory clause specifically uses the word negligence and/or sets out, with some degree of specificity, the risks released, the clause is enforced.25 


When the issue of public policy is considered some states take a more mechanically designed approach. Illinois courts formulate the issue in a more open, amorphous fashion. Ultimately, both methods make the same considerations and reach basically the same results. Courts first look to see if there is a statute that covers the situation. If not, the relationship of the parties is examined to determine if something therein strongly militates against enforcing an exculpatory contract.

For an application of the more mechanical approach, we again look to the state of Washington. In Shields v. Sta-Fit, Inc.,26  the court set out a six part test for deciding if an exculpatory clause violates public policy. "Factors... considered by the court are whether: (1) the agreement concerns a business of a type generally thought suitable for public regulation; (2) the person seeking exculpation is engaged in a service which is of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) the party seeking exculpation holds himself or herself out as willing to perform this service for any member of the public seeking it, or at least any member of the public coming within certain established standards; (4) because of the essential nature of the service, the party seeking exculpation possesses a decisive advantage of bargaining strength against members of the public seeking the service; (5) in exercising superior bargaining power the party seeking exculpation confronts the public with a standardized adhesion contract of exculpation and makes no provision for the purchaser to pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of the public purchaser seeking such services is placed under the control of the seller or his or her agents."27 

The Shields court went through each element in order. Even where there is some public regulation of these types of businesses, such regulation is geared toward financial aspects of the relationship, not the way in which services are provided, i.e., safety regulations. While health and fitness is generally a good thing for the public, it falls short of having great importance or being a matter of practical necessity such as medical care, public utilities, or education.28  Health and fitness clubs generally make their services available to all people willing to meet the club’s conditions for membership. Because no member of the public is required to participate in health or recreation activities, and because there are almost always several competing providers of similar recreational services, there can be no disparate bargaining power between the parties. While the contract may be considered one of adhesion,29  the non-essential nature of the services provided negates that concern. Finally, because the participation in such activities is truly voluntary, the degree of control by the service provider over the purchaser is negligible.30  The court ruled that, in the health and recreation setting, the waiver and release was enforceable.

Illinois courts formulate this issue in more general terms. "[T]he general rule is to enforce exculpatory contracts ‘unless (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 agreement.’"31  "The concept of public policy is a ‘principle of law which declares that no one may lawfully do that which has a tendency to be injurious to the public welfare.’"32 

Public policy is easy to discern when there is a statute setting out the policy. In Harris v. Walker33  the Plaintiff tried to overcome an exculpatory clause by reference to the Illinois Animal Control Act. The court rejected the argument because the history of the act set out a public policy different than that espoused by the Plaintiff. The act dealt with situations in which the injured party had little or no relationship with the owner of the animal. Where a person voluntarily enters such a relationship the contract controls.34 

Where no statute sets forth public policy, Illinois courts start with the basic public policy statement: "Public policy strongly favors freedom to contract [citation], as is manifest in both the United States Constitution and our constitution."35  Inherent in that freedom to contract is the assumption that the parties are voluntarily entering the agreement. Therefore, even more than the courts in the other jurisdictions noted above, Illinois courts concentrate on the relationship between the contracting parties.

Enforceability of exculpatory language "depends on whether there exists a substantial disparity of the parties bargaining positions."36  When parties voluntarily enter into contracts for services which are not necessary, the courts of Illinois will not easily invalidate the agreement. Again and again, the Illinois courts look to the voluntary nature of the parties relationship when upholding exculpatory clauses in the health and recreation context. Where there is a voluntary relationship there is no disparity in bargaining power.37 

Owen v. Vic Tanney concisely sets out the Illinois courts’ position. "The scarcity of facilities for gymnastic and reducing activities hardly creates such a disparity of bargaining power that plaintiff is forced to accept such terms without alternatives. If the public interest is involved, it is for the legislature to make such pronouncements."38  That reasoning is even stronger today than it was in 1964. As the industry has grown and the population has become more sophisticated, it can hardly be said that there is any scarcity of alternatives for the general public to obtain recreational health and fitness services anywhere in the United States.


With the expansion of the health and recreational exercise service industry over the last forty years, the body of law interpreting the contracts controlling the relationship between providers and consumers of such services has grown. Contracts containing exculpatory clauses have become the norm. Contracts which make the waiver obvious and conspicuous are preferred. Using language that is clear, unambiguous and comprehensive usually will result in enforcement of those agreements.

Health and recreational activities are non-essential services. Therefore, any public policy considerations militating against the enforcement of exculpatory clauses in that context are negligible. Because there are so many alternatives from which the general public may procure such services, no disparity in bargaining position exists between sellers and purchasers of those services.

Across the country, the trend has been toward accepting and enforcing exculpatory agreements in the health and recreation context. Concurrently, the language used in those agreements has become more conspicuous, clear, and comprehensive. The goal that has been repeatedly set forth by courts across the country is slowly but surely being achieved. Competent contracting parties are now very well equipped to know their respective rights and responsibilities when entering recreational health and exercise relationships.

1 Well drafted exculpatory clauses generally contain both an express assumption of the risk and a waiver and release of liability. As one reads the cases dealing with this issue, it is apparent that courts often confuse the two or identify a waiver as a type of assumption of the risk. There is a distinction which has applicability in some types of cases. The express assumption of the risk absolves one party of a duty of care to another. The waiver, on the other hand, implicitly recognizes the duty of care, but the releasor waives and releases his right to bring an action based on a breach of that duty. For an example of how this distinction creates important effect see Madison v. Superior Court, 250 Cal. Rptr. 299 (1988).

2 Baker v. City of Seattle, 484 P.2d 405 (Washington, 1971)

3 Id. at 406

4 Chauvlier v. Booth Creek Ski Holdings, Inc., 35 P.3d 383 (Washington, 2001)

5 Id. at 386

6 McCorkle v. Hall, 782 P.2d 574 (Washington, 1989)

7 Stokes v. Bally’s PacWest, Inc., 54 P.3d 161 (Washington, 2002)

8 Id. at 166

9 Id.

10 Kubisen v. Chicago Health Clubs, 69 Ill. App. 3d 463, 388 N.E.2d 44 (1979)

11 Id. at 465

12 Owen v. Vic Tanny’s Enterprises, 48 Ill. App. 2d 344, 199 N.E.2d 280 (1964),

quoting from Moss v. Hunding, 47 Ill. App. 2d 189, 169 N.E.2d 396 (1960)

13 Neuman v. Gloria Marshall Figure Salon, 149 Ill. App. 3d 824, 500 N.E.2d 1011 (1986)

14 Calarco v. YMCA, 149 Ill. App. 3d 1037, 501 N.E.2d 268 (1986)

15 Id. at 1039

16 Id. at 1043

17 Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 474 N.E.2d 729 (1984)

18 Id. at 577, 578

19 Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 559 N.E.2d 187 (1990)

20 Id. at 584

21 Id. at 585, 586

22 Owen v. Vic Tanny’s Enterprises, 48 Ill. App. 2d 344, 199 N.E.2d 280 (1964)

23 Neuman v. Gloria Marshall Figure Salon, 149 Ill. App. 3d 824, 827 citing to Poskozim v. Monnacep, 131 Ill. App. 3d 446, 475 N.E.2d 1042 (1985)

24 See for example Leon v. Family Fitness Center, 71 Cal. Rptr.2d 923 (1998); Alack v. Vic Tanney International of Missouri, Inc., 923 S.W.2d 330 (Missouri, 1996); Powell v. American Health Fitness Center of Ft. Wayne, Inc., 694 N.E.2d 757 (Indiana, 1998)

25 See Lund v. Bally’s Aerobic Plus, Inc., 93 Cal. Rptr.2d 169 (2000); Madison v. Superior Court, 250 Cal. Rptr. 299 (1988); Sanchez v. Bally’s Total Fitness Corp, 79 Cal. Rptr.2d 902 (1998); Seigneur v. National Fitness Institute, Inc., 752 A.2d 631 (Maryland, 1988); Banfield v. Lewis, 589 So.2d 441, (Florida, 1991); Skotak v. Vic Tanny International, Inc., 513 N.W.2d 428 (Michigan, 1994)

26 Shields v. Sta-Fit, Inc., 903 P.2d 525 (Washington, 1995)

27 Id. at 527

28 Some other industries often referred in this context are innkeepers, common carriers, housing, and construction.

29 While some courts simply declare these to be contracts of adhesion, it is more accurate to describe them as non-negotiable clauses. Non-negotiable clauses bear some similarity with true contracts of adhesion, but one critical element of the true adhesion contract is missing. The service is not an essential necessity, nor even a practical necessity, so the purchaser is not at the mercy of the seller. Any contract entered into on a wholly voluntary basis cannot be one of adhesion.

30 For an additional thorough analysis of this issue see Seigneur v. National Fitness Institute, Inc., 752 A.2d 631 (Maryland, 1988)

31 Harris v. Walker, 119 Ill. 2d 542, 519 N.E.2d 917 (1988), quoting from Jackson v. First National Bank, 415 Ill. 453, 115 N.E.2d 721 (1953)

32 Kubisen v. Chicago Health Clubs, 69 Ill. App. 3d 463, 388 N.E.2d 44 (1979), quoting from People ex. rel. Nelson v. Wiersema State Bank, 361 Ill. 75, 197 N.E.537 (1935)

33 Harris v. Walker, 119 Ill. 2d 542, 519 N.E.2d 917 (1988)

34 Id.

35 Id. quoting from McClure Engineering Associates, Inc. v. Reuben H. Donnelley Corp., 95 Ill. 2d 68, 447 N.E.2d 400 (1983)

36 Schlessman v. Henson, 83 Ill. 2d 82, 413 N.E.2d 1252 (1988)

37 Harris v. Walker, 119 Ill. 2d 542, 519 N.E.2d 917 (1988); Kubisen v. Chicago Health Clubs, 69 Ill. App. 3d 463, 388 N.E.2d 44 (1979); Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 559 N.E.2d 187 (1990); Masciola v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313, 628 N.E.2d 1067 (1993)

38 Owen v. Vic Tanny’s Enterprises, 48 Ill. App. 2d 344, 199 N.E.2d 280 (1964)

James Cavenagh is currently with AON/Cambridge Integrated Services Group, Inc. where he manages general casualty and liability defense litigation across North America on behalf of Bally Total Fitness Corporation and its affiliates and subsidiaries. He formerly was a principle in Cavenagh & Matek, P.C. where he concentrated his practice in commercial, bankruptcy, and insurance litigation and the provision of litigation management services to insurers, state agencies, and large U.S. companies. Mr. Cavenagh received his B.A from the University of Illinois at Chicago in 1983, and his J.D. from the University of Illinois at Urbana/Champaign College of Law in 1986.

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