                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                       McKinney v. Castleman, 2012 IL App (4th) 110098




Appellate Court            DANIEL L. McKINNEY, Plaintiff-Appellant, v. JEFF CASTLEMAN,
Caption                    Individually and as Agent of THE SALVATION ARMY; and THE
                           SALVATION ARMY, a Not-for-Profit Corporation, Defendants-
                           Appellees.



District & No.             Fourth District
                           Docket No. 4-11-0098


Filed                      April 6, 2012


Held                       In an action for the injuries plaintiff suffered while performing “work
(Note: This syllabus       therapy” in a drug and alcohol rehabilitation program operated by
constitutes no part of     defendant Salvation Army and for retaliatory discharge based on his
the opinion of the court   discharge from the program after he filed a workers’ compensation claim,
but has been prepared      the trial court properly entered summary judgment for defendant, since
by the Reporter of         plaintiff signed a “Beneficiary’s Admittance Statement” and another
Decisions for the          statement regarding the work therapy before joining the program and the
convenience of the         exculpatory clause contained in those documents constituted an
reader.)
                           unambiguous waiver of liability by plaintiff for any claims against
                           defendant for loss or damage arising from plaintiff’s participation in the
                           program.


Decision Under             Appeal from the Circuit Court of Sangamon County, No. 09-L-99; the
Review                     Hon. Patrick W. Kelley, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Daniel L. McKinney, of Springfield, appellant pro se.
Appeal
                           James W. Ford, of Brenner, Ford, Monroe & Scott, Ltd., of Chicago, for
                           appellees.


Panel                      JUSTICE COOK delivered the judgment of the court, with opinion.
                           Presiding Justice Turner and Justice Steigmann concurred in the
                           judgment and opinion.




                                              OPINION

¶1          In April 2009, plaintiff, Daniel L. McKinney, sued defendants, the Salvation Army and
        Jeff Castleman, whom McKinney calls its “director of operations,” for injuries McKinney
        sustained while performing “work therapy” tasks related to his drug and alcohol
        rehabilitation in a Salvation Army program. McKinney alleged that defendants’ negligence
        caused his injuries and that they wrongfully discharged him from the program in retaliation
        for his filing a workers’ compensation claim. In July 2009, the trial court dismissed
        McKinney’s retaliatory-discharge claims. In January 2011, the trial court entered summary
        judgment in favor of defendants on McKinney’s remaining negligence claims. McKinney
        appeals, arguing summary judgment was inappropriate. We disagree with McKinney and
        affirm.

¶2                                         I. BACKGROUND
¶3          In March 2008, McKinney entered the adult rehabilitation program at the Salvation Army
        in Springfield. The Salvation Army, a religious and charitable organization, operates the
        adult rehabilitation program for “the social and physical rehabilitation and the spiritual
        regeneration” of the program’s beneficiaries. Beneficiaries in the program are offered
        religious, educational, and therapeutic services, housing, and food for 12 months, so long as
        they participate actively in their rehabilitation and continue to require such services. As part
        of the rehabilitation program, beneficiaries are expected to participate in “work therapy” by
        performing assigned tasks under the supervision of Salvation Army employees.
¶4          As a condition of his admission into the Salvation Army rehabilitation program,
        McKinney was required to agree to the terms of a one-page document entitled “Beneficiary’s
        Admittance Statement” and another one-page statement regarding work therapy. The
        beneficiary’s admittance statement defined McKinney’s relationship with the Salvation
        Army. In relevant part, the statement contained a clause providing, “I agree for myself, my
        heirs or assigns, that should any accident occur involving personal injury to myself or loss


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       or damage to my property during my residence in this Center, to hold The Salvation Army
       free and harmless from any and all liability in connection therewith.” It further indicated
       beneficiaries are not considered employees of the Salvation Army but are expected
       voluntarily to perform “such duties as may be assigned.” The work-therapy statement
       provided that work therapy is essential to a beneficiary’s rehabilitation and is “never to be
       considered employment.”
¶5         The director of the rehabilitation program, Lance Marshall, explained the nature of the
       program and the terms of these agreements to McKinney. Marshall reviewed the statements
       with McKinney and signed them as a witness. McKinney’s signature appears on both
       documents, dated March 11, 2008.
¶6         In July 2008, McKinney suffered wrist injuries when he fell from a ladder in the
       warehouse at the rehabilitation center while performing tasks as part of his work therapy.
       Later that year, McKinney filed a claim for workers’ compensation benefits against the
       Salvation Army. An arbitrator who heard McKinney’s claim found McKinney could not
       recover workers’ compensation benefits because he was not an employee of the Salvation
       Army. In September 2008, after McKinney had filed his workers’ compensation claim,
       McKinney was involuntarily discharged from the rehabilitation program.
¶7         In April 2009, McKinney sued the Salvation Army, Inc., Castleman, and Salvation Army
       Services, Inc., in a six-count complaint. McKinney claimed he was harmed by (1) each
       defendant’s negligence and (2) his retaliatory discharge from the program after he filed for
       workers’ compensation benefits. The claims against Salvation Army Services, Inc., were later
       dismissed without objection, and McKinney proceeded on his claims against the Salvation
       Army and Castleman.
¶8         In July 2009, the trial court granted defendants’ motion to dismiss McKinney’s
       retaliatory-discharge claims. The court made no specific findings. Defendants had argued
       McKinney could not make out a claim of retaliatory discharge because he was at no time an
       employee of the Salvation Army–a fact that could not be relitigated, defendants contended,
       after it was conclusively found by the workers’ compensation arbitrator. As employment was
       an essential element of retaliatory discharge, defendants argued, McKinney would be unable
       to prove these claims.
¶9         In July 2010, defendants moved for summary judgment on the remaining negligence
       counts. They argued McKinney’s claims were barred by the exculpatory clause of the
       beneficiary’s admittance statement, whereby McKinney agreed to hold the Salvation Army
       free from liability for injuries sustained while he was in the rehabilitation program. In
       January 2011, the trial court granted defendants’ motion, finding the exculpatory clause
       “constitutes an unambiguous waiver of liability by Plaintiff of a claim against Defendant of
       loss or damage during Plaintiff’s residence at the Salvation Army facility.”
¶ 10       This appeal followed.

¶ 11                                    II. ANALYSIS
¶ 12       On appeal, McKinney, now proceeding pro se, argues summary judgment was
       inappropriate. Defendants argue the trial court properly enforced the exculpatory clause in

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       the beneficiary’s admittance statement. They cite the First District Appellate Court’s decision
       in Johnson v. Salvation Army, 2011 IL App (1st) 103323, 957 N.E.2d 485, as persuasive
       authority. Because we find Johnson persuasive and controlling, we affirm.
¶ 13        “Summary judgment is proper when the pleadings, affidavits, depositions and admissions
       of record, construed strictly against the moving party, show there is no genuine issue as to
       any material fact and that the moving party is entitled to judgment as a matter of law.” Id.
       ¶ 18, 957 N.E.2d at 490. We review the trial court’s grant of summary judgment de novo. Id.
¶ 14       “An exculpatory agreement constitutes an express assumption of risk wherein one party
       consents to relieve another party of a particular obligation.” (Internal quotation marks
       omitted.) Id. ¶ 19, 957 N.E.2d at 490. Courts disfavor such agreements and construe them
       strictly against the benefitting party, particularly one who drafted the release. Scott & Fetzer
       Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 395, 493 N.E.2d 1022, 1029 (1986).
       Nevertheless, contracting parties are free to “allocate the risk of negligence as they see fit,
       and exculpatory agreements do not violate public policy as a matter of law.” Evans v. Lima
       Lima Flight Team, Inc., 373 Ill. App. 3d 407, 412, 869 N.E.2d 195, 201 (2007). Accordingly,
       an otherwise valid exculpatory agreement is generally enforceable “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.” (Internal quotation
       marks omitted.) Harris v. Walker, 119 Ill. 2d 542, 548, 519 N.E.2d 917, 919 (1988).
       Principally at issue in this respect is whether the exculpatory clause in the beneficiary’s
       admittance statement was against public policy. Public policy dictates that parties cannot
       enter into an enforceable exculpatory agreement if they are (1) employer and employee; (2)
       “the public and those charged with a duty of public service, such as a common carrier or a
       public utility”; or (3) persons or entities enjoying “a disparity of bargaining power so that the
       agreement does not represent a free choice on the part of the plaintiff,” such as an agreement
       with a monopoly. Johnson, 2011 IL App (1st) 103323, ¶ 19, 957 N.E.2d at 491.
¶ 15        “An agreement in the nature of a release or exculpatory clause is a contract, and the legal
       effect is to be decided by the court as a matter of law.” Id. To be enforceable, “[a]n
       exculpatory agreement must contain clear, explicit, and unequivocal language referencing
       the type of activity, circumstance, or situation that it encompasses and for which the plaintiff
       agrees to relieve the defendant from a duty of care.” (Internal quotation marks omitted.) Id.
       ¶ 36, 957 N.E.2d at 495. However, it is not required that the parties contemplated “the
       precise occurrence which results in injury.” (Internal quotation marks omitted.) Id. Rather,
       “[t]he injury must only fall within the scope of possible dangers ordinarily accompanying the
       activity and, therefore, reasonably contemplated by the parties.” (Internal quotation marks
       omitted.) Id. That is, “it must be demonstrated *** that the plaintiff knew, or should have
       known, that both the danger and the possibility of injury existed before the occurrence.”
       (Emphasis added.) Id.
¶ 16        In Johnson, 2011 IL App (1st) 103323, ¶ 1, 957 N.E.2d at 487, the First District enforced
       an identical exculpatory clause in a “beneficiary’s admittance statement” between the
       Salvation Army and the plaintiff, a participant in a Chicago rehabilitation program. The
       plaintiff, who was injured in a car accident during his work therapy, advanced two arguments
       that his claims were not barred by the exculpatory agreement. First, he argued the

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       exculpatory agreement was against public policy as (1) he was an employee of the Salvation
       Army and (2) he did not freely enter into the agreement as he was disadvantaged by having
       relatively little bargaining power. Id. ¶¶ 20, 24, 957 N.E.2d at 491-92. The appellate court
       concluded the plaintiff was not a Salvation Army employee by virtue of his participation in
       work therapy because (1) the plaintiff’s work therapy was essential to his rehabilitation and
       (2) the plaintiff acknowledged that work therapy did not constitute employment by signing
       the admissions documents. Id. ¶¶ 21-22, 957 N.E.2d at 491. Instead, the court considered the
       plaintiff’s relationship with the Salvation Army to be “that of a beneficiary and [a] charitable
       organization.” Id. ¶ 21, 957 N.E.2d at 491. The appellate court further found the parties’
       bargaining power was not so disparate as to preclude enforcement of the exculpatory clause
       because, in short, “(1) the food and shelter offered by [the] defendant were merely incident
       to the rehabilitation program; and (2) [the plaintiff] could have sought rehabilitation services
       elsewhere.” Id. ¶ 24, 957 N.E.2d at 492.
¶ 17        Second, the plaintiff argued his injury occurred outside the scope of the exculpatory
       clause’s unambiguous terms, in a gray area where the agreement was not enforceable against
       him. The appellate court rejected this argument, concluding the clause clearly and
       unambiguously applied “to [the] plaintiff’s participation in the program, as a whole,
       including any work therapy he may perform.” Id. ¶ 37, 957 N.E.2d at 496. It held, “The
       clause clearly states that the plaintiff agrees to hold [the] defendant free and harmless from
       any and all liability in connection with any personal injuries that occur while he is a
       beneficiary in the adult rehabilitation program,” including the injury he suffered during work
       therapy. Id. ¶ 38, 957 N.E.2d at 496.
¶ 18        The reasoning in Johnson is persuasive and applicable in this case. McKinney has not
       articulated any reason for us not to follow it. McKinney argued before the trial court that the
       exculpatory agreement here was unenforceable as against public policy because (1) he was
       an employee of the Salvation Army and (2) he suffered a lack of bargaining power that
       prevented him from negotiating around the exculpatory clause. These arguments were
       convincingly resolved in Johnson in favor of the Salvation Army. As with the plaintiff in that
       case, McKinney signed an agreement indicating he understood his participation in work
       therapy did not amount to employment, and McKinney enjoyed the option of rejecting the
       exculpatory clause by not admitting himself into the Salvation Army program. The Salvation
       Army is clearly at liberty to impose conditions on admissions into its rehabilitation programs,
       including constraints on its liability for negligent acts or omissions, and McKinney’s
       participation in the program was not mandatory, even if it seemed essential to him at the
       time.
¶ 19        McKinney further argued below that the exculpatory clause was impermissibly
       ambiguous. This argument, too, was satisfactorily addressed in Johnson. To the analysis in
       that case, we would add that the work-therapy statement read and signed contemporaneously
       with the beneficiary’s admittance statement adequately put McKinney on notice that the
       rehabilitation program entailed a risk that he would be injured while participating in work
       therapy. Specifically, a section of that document concerned the immediate reporting of work-
       therapy injuries to the beneficiary’s supervisor. While McKinney asserts he did not know
       what particular duties he would be assigned, we conclude, based on Johnson and our review

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       of the relevant documents, that he was sufficiently informed of the risk of injury by the
       exculpatory clause and the work-therapy form. The exculpatory clause in the beneficiary’s
       admittance statement was unambiguous and covered any injury McKinney suffered while a
       participant in the rehabilitation program, including work therapy, which McKinney knew or
       should have known carried a risk of injury. McKinney’s injury while performing work-
       therapy tasks was not so unforeseeable that the exculpatory agreement should not be enforced
       in this case.
¶ 20       McKinney raises several new arguments on appeal. These arguments have been forfeited.
       See Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486, 500, 475 N.E.2d 872, 879
       (1985) (“It is axiomatic that questions not raised in the trial court are deemed waived and
       may not be raised for the first time on appeal.”). Moreover, they lack merit. Initially in this
       discussion of his claims raised for the first time on appeal, we note that some of McKinney’s
       arguments, concerning the fiduciary duties of trustees, have no apparent relevance to the
       issues before us, and indeed, their relevance is never explained.
¶ 21       McKinney attacks the authenticity of his signatures appearing on the admissions forms
       at issue and on those grounds asks us to reverse both the dismissal of his retaliatory-
       discharge claims and the summary judgment on his negligence claims. His argument seems
       to be based on an affidavit executed by Marshall, the director of the rehabilitation program,
       who inaccurately stated McKinney had signed the documents on March 8, 2008–a date when
       McKinney claims he was not even present at the Salvation Army. However, Marshall later
       corrected this error in an affidavit stating McKinney signed the documents on March 11,
       2008, the handwritten date accompanying McKinney’s signatures. McKinney points to no
       statement of record before the trial court that refuted the genuineness of McKinney’s
       signatures or indicated the signatures were forged or fabricated. Any question regarding the
       date of the signatures was resolved by Marshall’s corrective affidavit. This issue was
       forfeited because it was not raised below, and alternatively, without any evidence to support
       his claims, McKinney fails to persuade us he did not sign the admissions forms.
¶ 22       Next, McKinney argues the exculpatory agreement should not be enforced because at the
       time of his injury defendants had assigned an ultrahazardous activity and were grossly
       negligent. We will not allow McKinney effectively to amend his complaint on appeal to
       include what is essentially an entirely new cause of action. These claims should have been
       presented to the trial court in the form of a request to amend his complaint if McKinney
       wanted them to be addressed on their merits. Were we to consider the merits of these claims
       notwithstanding the forfeiture, we would find them unpersuasive as McKinney presents no
       coherent argument containing citation to relevant law and concerning its application in this
       case.
¶ 23       Finally, we note that this court has granted several of McKinney’s motions to cite
       additional authority filed after the parties’ briefs. Among them, McKinney has cited a bill
       recently introduced in the Illinois House of Representatives concerning contracts of adhesion.
       97th Ill. Gen. Assem., House Bill 4676, 2012 Sess. As this bill has not been enacted, it has
       no effect and cannot be enforced in this action. McKinney has also cited in these motions
       numerous cases from out-of-state jurisdictions, but none of these is as persuasive as Johnson,
       which is particularly on point as it applies Illinois law and concerns facts and issues

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       compellingly similar to those presented in this case.
¶ 24       As McKinney raised no genuine issue of material fact and, under Johnson and existing
       principles, defendants were entitled to judgment as a matter of law, the trial court did not err
       in entering summary judgment in favor of defendants.

¶ 25                                   III. CONCLUSION
¶ 26       For the foregoing reasons, we affirm the trial court’s judgment.

¶ 27       Affirmed.




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