Carried Away – Woman Injured on Zip Line; Enforcement of Release Dependent on “Common Carrier” Factual Determination (IL)


Dodge v. Grafton Zipline Adventures, LLC (Illinois)

Plaintiff was a paying guest on an aerial zip line course operated by the defendant.  Like the other guests, plaintiff was outfitted with a harness and pulley system that attached to the suspended cables and was supposed to allow her to control her speed by braking on descents.  However, on the eighth run on the zip line course, the plaintiff’s braking system failed.  She approached the landing platform as a high rate of speed, and she struck the trunk of the tree on which the lading platform was mounted.  Plaintiff filed a complaint against the defendant alleging that the defendant was a common carrier that breached its duty of care by negligently designing and operating the zip line course, intentionally and recklessly violating safety regulations promulgated by the Illinois Department of Labor, and thereby engaging in willful and wanton misconduct.  Plaintiff also alleged that defendant was negligent in instructing her, inspecting and maintaining the braking system, and failing to prevent the incident.

The defendant filed a motion to dismiss the complaint on the grounds that the plaintiff’s claims were barred by an exculpatory agreement signed by the plaintiff prior to her participation in the zip line activity.  Plaintiff opposed the motion, arguing that that agreement was unenforceable because under Illinois law, a common carrier cannot exempt itself from liability for its own negligence.  The trial court denied the defendant’s motion, holding the exculpatory clause to be unenforceable against someone injured by the ordinary negligence of a common carrier.  The trial court recognized that the parties disagreed as to whether the defendant was a common carrier, but in reviewing the pleadings, the court found that plaintiff had alleged sufficient facts to establish that the defendant was a common carrier in that zip lines fell within the definition of amusement park rides pursuant to the Illinois Carnival and Amusement Rides Safety Act, and they were “akin to merry-go-rounds or other amusement rides that had been held to be common carriers.”  The trial court then certified the following question for appeal:

“Is an exculpatory agreement signed by a participant on a zip[ ]line course, that released the zip[ ]line operator and its employees from their own negligence, enforceable to bar the participant’s suit for negligence, or is the zip[ ]line course a common carrier such that the exculpatory agreement is unenforceable?”

On appeal, the Appellate Court of Illinois declined to answer the certified question because “its ultimate disposition depend[ed] on the resolution of multiple factual predicates.”  Defendant argued that it was not, as a matter of law, a common carrier, but the court agreed with plaintiff that “that the circuit court’s certified question [was] not ripe for determination because there [were] unresolved questions of fact.”  The Court recognized:

“Exculpatory agreements between the public and those charged with a duty of public service, such as those involving a common carrier, an innkeeper, a public warehouseman, or a public utility, have been held to be unenforceable as contrary to public policy. . . .  Courts have alternatively recognized that exculpatory agreements between common carriers and passengers are unenforceable because of the special social relationship of a semipublic nature that permeates the transaction between the parties.”

Common carriers possess unique control over passenger safety.  The Illinois courts had characterized the following as common carriers: owners or buildings with elevators, a scenic railway at an amusement resort, a merry-go round, a taxicab, and a Ferris wheel.  Whether the subject zip line was a common carrier was a question of fact, and based on the applicable caselaw, the Court explained that it required the determination of “whether [defendant] had control and regulation of the passengers’ conduct and of the operation of the carriage . . . ; whether the plaintiff actively participated in the transportation and contributed to her own safety . . . ; whether there was a disparity of bargaining power between the parties . . . ; and whether [defendant] made a profession to carry all who applied for carriage.”

The Court remanded the matter for further proceedings.

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