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~ March 1993
Vol.28.No.4
or of
Statements expressions opinion or comments appearing herein are thoseof
the editors or contributors, and not necessarilythoseof the associationor section.
From the editors
By Loren S. Golden, Brady, McQueen, Martin, Collins & Jensen
Dear Readers,
of
I. Theproblem. You are in the process representing a
This early 1993 issue of Tort Trends clearly demon-
plaintiff who was injured in an automobile accident.
strates the commitment of the members of our Tort Section
During the courseof litigation, you arrive at a good faith
Council to deliver a top quality newsletter. All the follow-
settlement with one of the parties.At the time of this settle-
ing articles are written by our members. They cover vari-
ment:
ous current topics.
A. You have a concernthat one or more of the doc-
1. We start with an article by Loren S. Golden, of Elgin,
tors or hospital personnel who subsequently treated
entitled "A Release By Any Other Name," which discusses
plaintiff were negligent;
the impact of a general release on future litigation with
B. You are not aware of any medical negligenceat
future parties. Loren also provides a sample release.
the time of execution of the releasebut you learn of
2. James P. Ginzkey, of Bloomington, discusses the ap-
at
suchnegligence a later date.
plication of the statute of limitations applied to the construc-
The releasethat is executedby your client has the fol-
tion casesin his article: "Judicial Abuse of Section 13-214."
lowing salientlanguage:I herebyreleasedefendantand all
3. We have an article by Mark L. Kamo, of Chicago, enti-
otherpersons, firms or corporationswho might be liable...
tled "Written Exculpatory Clauses as a Defense to Tort
You file a malpractice suit against the medical
Claims: A Survey of Illinois Case Law and Pointers to the
providers.The defendant medicalprovidersfile a motion to
Practitioner."
dismiss basedupon the generalreleaseexecutedby your
4. Next, our co-editor, the Honorable Lester D. Foreman,
client. Before you check to seeif your malpracticepremi-
presents "Supreme Court Does Not Detour In Giving
um is paid or beforeyou explorea careerchangeas a cow-
Direction To Straighten Out Curve Issue," an in-depth analy-
boy on the outbackof Australia, considerthis. All may not
2d
sis of Hutchings v. Bauer, 149111. 568 (1992).
be lost.
5. Finally, we close with two pieces by this editor (one
II. Pre-January20, 1984.Prior to January20, 1984,the
with the assistance of my colleague, David Macksey),
releaseof the original tortfeasoracted as a releaseof the
which we hope will assist our readers in avoiding being
parties to lawsuits.
subsequently negligentphysician.!However,prospectively
from January20, 1984,under section302(c) of the Illinois
Again, we invite our readership to submit written com-
Joint Tortfeasors Act (111. Rev. Stat. 1991, ch. 70, par.
ments or rebuttal articles on anything that you feel is
302(c), ILCS 1992,740 ILCS 100/2),the releaseis effec-
appropriate. If the materials meet with our editorial policy,
tive only as to thosepersonsspecifically identified in the
they will be published for all to share. Please send written
release! Therefore, the first thing to consider is the date
comments to Joseph Marconi, Suite 2200, 222 North
that the releasewas executed.If the releasewas executed
LaSalle Street, Chicago, Illinois 60603.
on or after January20, 1984, then the release probably
Sincerely,
Joseph R. Marconi, co-editor
- -
agreement.Harris v. Walker, 119 Ill.2d 542, 548, 519
N.E.2d917,919, 116Ill. Dec. 702, 704 (1988).
a defense to tort claims: a held
Illustrative of exculpatoryagreements to be void on
groundsof public policy arethoseby which a commoncar-
survey of Illinois case law and rier of goods or passengers attemptsto avoid liability for
pointers to the practitioner loss or damage or
arising from its negligence that of its ser-
vants.Jacksonv. First National Bank of Lake Forest, 415
By Mark L. Karno, Robert Schey & Associates 111.453,114 N.E. 721, 725 (1953). (But cf., In Re: Bell
An exculpatory agreement constitutes an express SwitchingStationLitigation, 234 Ill. App.3d 457 (1st Dist.,
assumption of risk in that one party is consenting to relieve 1992)whereexculpatorylanguage found in the company's
another party of an obligation of conduct toward him.
tariff was found to properly limit the company's liability
Falkner v. Hinckley Parachute Center, 178 Ill. App.3d
for disruption of serviceto a rebateof the costsof missed
597,533 N.E.2d 941,945,127 Ill. Dec. 859, 863 (2d Dist.,
service.)Among the contractsheld to be void because of
1989). This article will survey Illinois case law dealing
the social relationships of the parties are those between
with exculpatory clauses and will also give some practical
employer and employee which would exonerate the
employerfrom liability for future negligence either of him-
pointers to the practitioner who is faced with an exculpato-
self or other employees. Jacksonv. First National Bank of
ry clause when litigating the issue. This article does not
Lake Forest,Id.
address the related issues of an implied assumption of risk
As betweenprivate parties,the validity of an exculpato-
or voluntarily encountering a known risk which amounts to
ry contract dependson whether there exists a substantial
contributory negligence. disparity of the parties' bargainingpositions.Schlessman v.
The following is an example of an exculpatory agree-
Henson,83 1ll.2d 82, 413 N.E.2d 1252, 1254,46 Ill. Dec.
ment contained in the application for membership to a pop-
139, 141(1980).
ular health club in Chicago:
The issueof an exculpatorycontract has come up in a
WAIVER OF LIABILITY numberof contextsin Illinois courts:
I understand that although the Club's facilities, equip-
Landlord/tenant relationships
ment, services and programs are designed to provide a
safe level of beneficial exercise and enjoyment, there is In O'Callaghan v. Waller and Beckwith Realty
an inherent risk that use of such facilities, equipment, Company,15 Ill. 2d 436, 155N.E.2d 545 (1959),the court
services and programs may result in injury to me. rejectedthe plaintiff's contentionthat due to a shortageof
Therefore, I hereby agree to specifically assume all risk housing that a disparity of bargaining power existed
of injury to me while using any of the Club's facilities, between lessorsof residential property and their lessees
equipment, services or programs and I hereby waive any giving the lessorsan unconscionable advantage over ten-
and all claims or actions I may have against the Club or ants. In upholding the validity of the exculpatory agree-
its owners and employees as a result of such injury. The ment, the court reasonedthat the relationship of landlord
risks include, but are not limited to: and tenant does not have monopolistic characteristics that
1. Injuries arising from my use of any exercise equip- have characterizedsome other relations with respect to
ment, machines, and tanning booths.
which exculpatory clauseshave been held invalid due to
2. .Injuries arising from my participation in supervised of
the existenceof thousands landlords.(Seealso,Jackson
or unsupervised activities and programs in the swim-
v. First National Bank of Lake Forest, 415 Ill. 453, 114
ming pool or on the running track, the courts, the
N.E. 721 (1953).)
exercise rooms, the sun deck, or any other areas of Horseback riding
the Club.
3. Injuries or medical disorders resulting from exercis- The court also rejectedthe plaintiff's contentionthat an
ing at the Club, including, but not limited to, heart exculpatorycontractwas invalid in Harris v. Walker, 119
attacks, strokes, heat stress, sprains, broken bones 1ll.2d 542,519 N.E.2d 917, 116 Ill. Dec. 702 (1988).
and tom muscles or ligaments. There, the plaintiff, an experiencedrider, injured himself
4. Accidental injuries within the facilities, including but
when he fell from a horserentedfrom the defendant.The
court found no public policy being offendedby enforcing
not limited to, the locker rooms, steam rooms,
whirlpool, sauna, showers and dressing rooms.
the signedexculpatorycontractsincethere was no unequal
I also acknowledge the existence and the need for Rules that
bargainingpower.The court reasoned the plaintiff vol-
and Regulations including those governing the use of
untarily choseto enter into a relationship with the defen-
Club's equipment and facilities and participation in pro-
dant, whereby plaintiff agreed to accept the rules
associated with horseback riding. The court also held that
grams and services. I hereby agree to comply with the
an exculpatory contract was a permissible defenseto an
Rules and Regulations and to amendments or additions
action brought under the Animal Control Act. (See also
to them as the Club deems necessary.
Vanderlei v. Heideman, 83 Ill. App.3d 158, 403 N.E.2d
/S/ Member
756, 38 Ill. Dec. 525 (2d Dist., 1980) (horseshoer kicked
Generally,in Illinois, contractsexculpatinga party from by horse he was shoeing); Gray v. Pflanz, 341 Ill. App.
liability from common law negligence claims will be 527, 94 N.E.2d 693 (4th Dist., 1950) (jockey hired to ride
enforced unless it would be againsta settled public policy horse in a single race fell off horse in that race); Clark v.
of the state to do so or there is something in the social rela- Rogers, 137 Ill. App.3d 591, 484 N.E.2d 867, 92 Ill. Dec.
tionship of the parties militating against upholding the 136 (4th Dist., 1985),(experienced trainer of stallions fell
'7
off when mountinga stallion who becameexcitedby mares Calarco v. YMCA of Greater Metropolitan Chicago, 149
in the vicinity). Ill. App.3d 1037,501 N.E.2d 268, 103 Ill. Dec. 247 (2d
Dist., 1986).There,the plaintiff was injured when a weight
Auto racing in the weight room hit her in the hand while shewas help-
A fertile area of litigation involving exculpatory con- ing anotherpatron. She had signedan exculpatory clause
tracts has evolved around the sport of automobile racing. In releasingthe YMCA for injury claims "arising out of or
Schlessman v. Henson, 83 111.2d 82, 413 N.E.2d 1252, 46 connectedwith (her) participation in any activities of the
111. Dec. 139 (1980), the plaintiff, an experienced amateur YMCA of MetropolitanChicago."The court, in construing
race car driver signed a very broad release and waiver the terms of the contractstrictly, held that the languageof
agreement releasing all claims in favor of the operator of the clausewasnot sufficiently clear,explicit and unequivo-
the motor speedway. He was injured when a banked por- cal to showan intention to protectthe YMCA from liability
tion of the racetrack caved in during a race. In affirming arising from the use of its equipment. In reaching this
the summary judgment entered in favor of the operator of result the court cited case law from other jurisdictions
the speedway, the court rejected the driver's claim that the which standfor the propositionthat a limit on liability for
agreement was a contract of adhesion. The court reasoned negligence will not be inferred unless such intention is
that he was under no economic or other compulsion to sign and of
clearly expressed the language an agreement clearly
the release in order to engage in amateur auto racing. The notifies the prospective releasorof the effect of signing the
court also rejected the driver's claim that the release was agreement.
signed by plaintiff when the parties were operating under a In Larsen v. Vic Tanny International, 130 Ill. App.3d
mutual mistake of fact (concerning the condition of the 574,474 N.E.2d 729,85 Ill. Dec. 769 (5th Dist., 1984),the
track). The court reasoned that the release was intended to court affirmed the trial court's denial of the health club's
cover all claims. Finally, the court rejected his claim that motion for summary judgment,holding that a fact question
the collapse of the embankment was outside the scope of existed as to whetherthe exculpatorycontract clauseof a
the release reasoning that the release was very broad in its health club membershipagreementencompassed situa- a
language and there could be a myriad of factors, known or tion where a member sustainedinjury when he inhaled
unknown, singly or in combination which could result in dangerousgas generatedby a combination of cleaning
unexpected and freakish accidents. (See also: Rudolph v. compounds. There,the court focusedin on the foreseeabili-
Santa Fe Park Enterprises, Inc., 122 111. App.3d 372, 461 ty issue as raised by Illinois Pattern Jury Instruction-
N.E.2d 622, 78 111.Dec. 38 (1st Dist., 4th Div., 1984), Civil, No. 13.01 which deals with assumption of risk
exculpatory contract upheld where plaintiff was required to pursuantto a contractualrelationshipwhich requiresproof
sign it prior to entering pit area and denied reading it that "the plaintiff knew thesedangers[which causedthe
before he was injured while watching the race in the injury] existed and realized the possibility of injury from
infield; Koch v. Spalding, 174111.App.3d 692, 529 N.E.2d them or the exerciseof ordinary care would have known
19, 124 Ill. Dec. 302 (5th Dist., 1988), exculpatory contract the dangersexisted and realized the possibilities of injury
barred the lawsuit of a racetrack flagm~; Morrow v. Auto from them and enteredinto the contractvoluntarily." I.P.I.
Championship Racing Association, Inc., 8 Ill.App.3d 682, Civil, No. 13.01.(Cf., Owenv. Vic Tanny'sEnterprises,48
291 N.E.2d 30 (1st Dist., 3d Div., 1972), lawsuit of auto- Ill. App.2d 344, 199N.E.2d 280 (1st Dist., 1st.Div. 1964),
mobile racer barred where he was injured in the pit area plaintiff signing an exculpatory agreementcould reason-
when a wheel from another vehicle struck him; Provence v. ably contemplatethe possibility of injury resulting from
Doolin, 91 Ill. App.3d 271, 414 N.E.2d 786, 46 Ill. Dec. slippery surfacesin or around swimming pool; Kubisen v.
733 (5th Dist., 1980), court reversed a judgment on a jury ChicagoHealth Clubs, 69 Ill. App.3d 463, 388 N.E.2d 44,
verdict in favor of pit crew member struck by an automo- 26 Ill. Dec. 420 (1st Dist., 5th Div., 1979)wherethe plain-
bile. There the court determined that the plaintiff assumed tiff fell on a slippery surfacein the steamroom; andBers v.
the risk of injury and was contributorily negligent as a mat- Chicago Health Clubs, Inc., 11 Ill. App.3d 590, 297
ter of law without considering the terms of the signed N.E.2d 360 (1st Dist., 2d Div., 1973), exculpatoryclause
exculpatory contract; and Lohman v. Morris, 146 111. releasinghealth club from all liability for injuries suffered
App.3d 457, 497 N.E.2d 143, 100 111. Dec. 263 (3d Dist., by customeron its premiseswas not void as againstpublic
1986), exculpatory contract signed by driver of race car policy.)
who was sued by a pit crew member for injuries suffered
when driver struck pit crew member served to bar driver's Amusement rides
third-party complaint for indemnity filed against racetrack In Russo v. The Range. Inc., 76 Ill. App.3d 236, 395
owners.) (Cf. Simpson v. Byron Dragway, Inc. 210 N.E.2d 10, 32 Ill. Dec. 63 (1st Dist., 4th Div., 1979), the
Ill.App.3d 639, 569 N.E.2d 579, 155 Ill. Dec. 398 (2d plaintiff who was injured while going down a giant slide
Dist., 1991), a fact question exists as to whether a race car admitted reading the reverse side of his ticket which read:
driver whose fatal collision with a deer on the racetrack "The person using this ticket so assumes all risks of per-
was a reasonably foreseeable risk which ordinarily accom- sonal injury..." At the top of the slide a sign warned "slide
panied auto racing.) at own risk-not responsible for personal injury." The sign
also instructed patrons in the proper way to ride the slide
Health clubs and not to use their hands or feet to slow their descent. The
The necessity that an exculpatory contract be clear, plaintiff, who used his hands and feet to slow himself down
explicit and unequivocally show an intent to protect the while going down after his body left the slide after going
party seeking to be relieved of a certain obligation of con- over a dip admitted that he read and understood the sign.
duct towards the other party is demonstrated by the case of There, the court reversed the trial court order granting sum-
8
.
mary judgment in favor of the defendant. They found that a entered on the jury verdict i~ favor of the defendant, the
fact question existed as to what the plaintiff was reasonably court concluded that there was sufficient evidence for the
aware of after reading and understanding the "slide at own jury to conclude that the possession of CO2 guns on the free
risk" sign and whether the danger Russo encountered was zone was contemplated by the rental agreement and was a
one which ordinarily accompanied the riding of the slide. risk assumed by the plaintiff, especially considering that he
They reasoned that based on the facts presented that it was was an experienced hunter and the risk was obvious to a
possible to infer that Russo's ride down the slide was an person experienced with weapons.
abnonnal occurrence caused by some danger unknown to In Falkner v. Hinckley Parachute Center, 178 Ill.
him and a risk he did not assume. (Cf., Murphy v. White App.3d 597,533 N.E.2d 941, 127 Ill. Dec. 859 (2d Dist.,
City Amusement Co., 242 111. App. 56 (1st Dist., 1926).) 1989), the court affirmed the trial court's granting of a
summary judgment on the negligence counts in favor of the
Spectator sports parachute training center and its president. There, the court
In Yates v. Chicago National League Ball Club, Inc., held that the exculpatory clause was valid and encom-
230 Ill. App.3d 472,595 N.E.2d 570,172111. Dec. 209 (1st passed the risks of unsafe equipment and negligent instruc-
Dist., 1st Div., 1992) where the plaintiff, a spectator at a tion. The court concluded as a matter of law that some risks
major league baseball game was struck in the face by a foul of fatal injury is ordinarily attendant to the sport of
ball, the defendant raised the defense of ~n express parachute jumping and that the decedent, a former officer
assumption of risk based on a disclaimer of liability printed and pilot in the Army Air Corps, would have been aware of
on the back of plaintiff's ticket. The appellate court these risks. However, the court reversed the summary judg-
affinned the trial court's ruling that because the disclaimer ment in favor of the defendants on the counts of the com-
on the back of the plaintiff's ticket was so small that it plaint alleging wilful and wanton misconduct on their part.
could not be legibly reproduced by photocopying that it The court held that agreements exculpating one from the
was not effective. The court relied upon the Restatement results of wilful and wanton misconduct are illegal and
(Second) of Torts, §496B Comment "c" which provides against the public policy of Illinois.
that:
c. In order for an express agreement assuming the risk to Practical pointers
be effective, it must appear that the plaintiff has given When a client enters your office with a case involving
his assent to the tenns of the agreement. Particularly an exculpatory clause, you must first look at the relative
where the agreement is drawn by the defendant, and the bargaining power of the parties to the agreement. If it is
plaintiff's conduct with respect to it is merely that of a apparent the exculpatory agreement is a contract of adhe-
recipient, it must appear that the terms were in fact sion or that the releasee has monopolistic characteristics
brought home to him and understood by him, before it then the agreement will probably be set aside by a court.
can be found that he has accepted them. Restatement Conversely, if the plaintiff was a willing participant in an
(Second) of Torts, §496B Comment "c." activity and had equal bargaining power with the releasee,
and Restatement (Second) of Torts, §496B, Comment "c." the agreement will be upheld. This is especially true where
Illustration 1 which provides: the person signed the agreement.
1. A, attending a theater, checks his hat in B's check Second, examine the agreement to determine if it clearly
room. He is handed a ticket, on the back of which, in and unequivocally encompasses the cause of the injury.
fine print, it is stated that B will not be liable for any Remember that it is a contract and that all of the traditional
loss or damage to the hat. Reasonably believing the tick- rules of contract construction will apply. (E.g., a contract
et to be a mere receipt, A accepts it without reading it. B will be strictly construed against the drafter.)
negligently loses the hat. A is not bound by the provi- Third, was the manner in which the injury occurred a
sion on the back of the ticket. reasonably foreseeable event in light of the language con-
Thus, in Coronel v. Chicago White Sox, Ltd., 230 Ill. tained in the exculpatory agreement? This not only
App.3d 734, 595 N.E.2d 45, 171111.Dec. 917 (1st Dist., 2d involves an inquiry into who the plaintiff is and his/her life
Div., 1992), the court held that language on the back of the experiences, but also whether the eveniproducing the
admission ticket that the holder assumed all risks and dan- injury is one which ordinarily accompanies the activity.
ger incidental to the game of baseball, including batted I.P.I. Civil No. 13.01 requires a defendant to prove:
balls and further agreed that the participating clubs, their First, that defendant and the plaintiff had an agree-
agents and players would not be liable for injury claims ment under which the plaintiff was to participate in
arising out of the holder being a spectator merely presented activities which exposed him to the danger that resulted
a jury question as to whether the plaintiff, a spectator, in the injury of which he complains;
injured by a foul ball, received adequate warning that he Second, that the danger was one that ordinarily
could be struck by one. accompanies the activities contemplated in the agree-
ment;
Other recreational activities Third, that the plaintiff had actual knowledge of this
In Moran v. Lala, 179 Ill. App.3d 771,534 N.E.2d danger and understood and appreciated the nature and
1319, 128 Ill. Dec. 714 (2d Dist., 1989), a participant in a extent of the risk;
survival sport involving the use of a paint pellet CO2 gun Fourth, that the plaintiff voluntarily subjected him-
was shot in the eye prior to the start of the game while self to this danger; and
standing in the "free zone." Prior to the incident, the plain- Fifth, that this danger was the cause of the plaintiff's
tiff, an experienced hunter, signed a very broad and encom- injuries. Illinois Pattern Jury Instruction, Civil No.
passing exculpatory contract. In affinning the judgment 13.0J.
9
Fourth, has the releasee in
engaged either intentional or its foundation bottomed solely upon foreseeability. Lamkin
wilful and wanton conducttowardsthe injured party. If so, 2d
v. Towner, 138111. 510,522-23, _N.E.2d- (1990).
the exculpatory clause will be found invalid as violating Conversely, following the teaching of that often cited
public policy. negligence case of Cunis v. Brennan, 56 Ill. 2d 372, 375,
Finally, if you are seekingto attack the validity of an - N.E.2d - (1974), it is required that the foreseeability
be
exculpatoryagreement, creative.Each casehas its own of the harm must be balanced against the "burdens and
peculiar circumstances. Shut the office door, turn off the consequences" which result from a recognition of or regard
telephone intercomswitch and carefully scrutinizethe facts for the duty.
of your case.You may come up with a well reasoned and In observance of the doctrine of foreseeability, the opin-
novel approach dealingwith your client's problem.
to ion suggests that in retrospect everything is foreseeable.
Citing numerous cases wherein both the supreme court and
appellate court have, with respect to artificial conditions
placed on private property near roadways, assumed the
Supreme court does not foreseeability of injury arising therefrom but courts
detour in giving direction to nonetheless did not impose a duty upon the landowners, the
majority concluded that if foreseeability, exclusively, were
straighten out curve issue the test of duty, in each of the cases cited the landowner
By Hon. Lester D. Foreman,Circuit Judge, Circuit Court of would have been exposed to recovery, since just the fact
Cook County, Chicago that a person was injured would suggest it was a foresee-
able accident with attendant liability.
Hutchings v. Bauer, 149111.2d 568, - N.E.2d - The supreme court, in recognizing the basic right of the
(1992) merits the attention of the bar, firstly, becauseit property owner to protect and use his property, concluded
presentsan interestingfactual scenariowhich could touch that the defendants had the right to use and protect their
the practiceof many lawyersrepresenting landownersand, property in the fashion in which they did. The erection of a
secondly,becauseit appearsfrom the number of expres- barrier to prevent the "incursions" of wayward motorists
sionsby the supreme court justices that this casepresented from crossing over the defendants' property was a right
a lively problem,with a curve. and a lawful activity. More importantly, it was observed
The defendant propertyownersoperateda horsefarm in that a contrary holding would constitute a taking of defen-
Lake County which was adjacent to the roadway and a dants' property without compensation, resulting in denial
curve therein which presented a difficulty to many of substantive due process under both the federal and state
motorists in attempting to negotiate the same,the result constitutions. Unquestionably, the defendants were under
being that many cars left the road at the curve and persis- no obligation to dedicate and donate a part of their land to
tently crashed throughthe defendants'fence.The township the public for use as part of the roadway.
refused a request to erect a protective guardrail, which It is most important at this point to take note of the
prompted defendantsto construct their own barrier. The determination by the court that the barrier erected by the
of
barrier wasconstructed vertical postsconnected hori- by defendants was a reasonable one. This was based on the
zontalpostsor logs. observation that the barrier was not designed as a trap or to
Defendants notified the county highway department cause harm or injury and basically was visible, at l.east in
with respect to the "barricade" they had put up on their part.
property. The county posted "advisory" speedlimit signs Bringing the majority position to a termination, it was
denotinga 25 miles per hour speedlimit in this areawhich stated that the plaintiff drove his motorcycle at a speed in
had an overall 35 miles per hour speedlimit. In addition, excess of the advisory speed limit. Plaintiff went off the
the county erectedchevron signs to warn motorists of the road and then chose to drive between the vertical posts,
upcomingcurve in the road. coming into contact with a barrier that was intended as a
The plaintiff's injuries resulted from traveling on the barrier, solely to prevent vehicles from coming onto the
roadway in questionand failing to successfullyround the defendants' property. Comparing the rights of the parties,
curve while on his motorcycle, thereby necessitating a the court observed that the defendant had a right to erect
maneuverwhereby he attemptedto pass betweentwo of the barrier while the plaintiff was without a right to drive
defendants' vertical posts. Unfortunately, plaintiff was onto the defendants' land.
unableto seeone of the horizontallogs joining the vertical The case did not stop at this point. Justice Freeman
by
posts,sincethe log had becomeobscured grassthat had advanced a special concurrence joined by Justice
grown up aroundit. The inevitable occurred;the motorcy- Cunningham. Justice Clark dissented, joined by Justices
cle crashedinto the horizontal log, causingthe plaintiff to Bilandic and Miller. Justice Miller then presented a sepa-
sustainseriousinjuries. rate dissent.
JusticeHeiple, in writing for the majority, wasconfront- In Justice Freeman's concurring opinion, he suggestedthat
ed with the issue of the property owners' duty to persons foreseeability is a troublesome concept, citing the classic case
who deviate from the public way and are injured by 2d
of Lance v. Senior, 36 111. 516, - N.E.2d - (1967),
devices,fencesor abutmentser~ctedby the landownerto involving a hemophiliac child swallowing a needle picked up
protect his property againstthe very deviation which pre-
cipitatesthe injury.
on the floor at a home his mother was visiting for tea.
In exploring the foreseeability concept, Justice Freeman JJ
At the onset of the majority opinion, Justice Heiple took note of Section 368 of the Restatement (2d) of Torts.
observedthat while foreseeabilityis an important factor in This section deals precisely with the issue presented by the
ascertainingwhethera duty exists,legal duty doesnot have factual situation in the case at bar. The restatement sug-
11\
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