JOHNSON v. SALVATION ARMY (2011)

OPINION

¶ 1 Plaintiff Andre Johnson appeals from an order of the circuit court granting summary judgment against him and in favor of defendant the Salvation Army.¹ Plaintiff was injured in a single-car crash while a passenger in a Salvation Army-owned vehicle being driven by a Salvation Army employee. Plaintiff filed this action against defendant alleging that its employee, Dennis Rushing, negligently drove a truck causing plaintiff's injuries. Defendant filed an affirmative defense alleging that plaintiff's claims are barred because he signed an exculpatory agreement, contained in a beneficiary's admittance statement, when he entered the Salvation army's adult rehabilitation program, agreeing to hold defendant free and harmless from any and work week. The beneficiaries are assigned a room to live in, fed three meals per day, and given a $7–per–week “gratuity” for the purchase of discretionary items.

¶ 5 Plaintiff applied to the rehabilitation program at 506 North Des Plaines Street in August 2007. He had previously participated in the same program at the adult rehabilitation center located at 2358 North Clybourn in Chicago. He chose to apply to the program at North Des Plaines in 2007 instead of the program at North Clybourn because he heard that the North Des Plaines program was larger and had more opportunities.

¶ 6 Plaintiff voluntarily reentered defendant's program in 2007 because he “wanted the miracle.” According to his deposition, he was “healed” when he participated in the program on North Clybourn in 2004, and he “wanted the miracle” again. Plaintiff has participated in other rehabilitation programs, including those offered through the Department of Veterans Affairs (hereafter VA).

¶ 7 Robert St. Julien completed the intake process for plaintiff and admitted plaintiff into the rehabilitation program in 2007. As part of the intake process, St. Julien read the beneficiary's admittance statement out loud to plaintiff prior to plaintiff signing the form in St. Julien's presence. The beneficiary's admittance statement in question reads as follows:

“THE SALVATION ARMY ADULT REHABILITATION CENTER

BENEFICIARY'S ADMITTANCE STATEMENT

I recognize my need for assistance and hereby apply for admission to the Adult Rehabilitation Center. I understand that The Salvation Army is a religious and charitable organization and influence of intoxicants or enter the building with such in my possession.”

The statement was signed and dated by plaintiff and a witness.

¶ 8 Plaintiff also signed a “Room & Board Agreement,” which reads:

“I understand that The Salvation Army is a religious, charitable and non-profit organization and that this Adult Rehabilitation Center is dedicated solely to the social and physical rehabilitation and the spiritual regeneration of those persons who are in need of such assistance.

I understand that while ability to pay for service is not a criterion for admission to the Adult Rehabilitation Center program, beneficiaries admitted to the Center for rehabilitation shall be required to pay room and board when receiving outside income such as social security, state and local welfare, military or other disability benefits.

I understand that the room and board fee shall be established at 75% of the outside income, but shall not exceed the cost of room and board as determined annually by an approved formula. Room and board is payable monthly, due by the 5th of each month.

The established amount of room and board as of today's date is $75 [handwritten amount] per week.

¶ 12 Defendant and Rushing filed their first affirmative defense, alleging that plaintiff was a beneficiary in the Salvation Anny's drug and alcohol rehabilitation program, that plaintiff agreed to perform work therapy as a part of his voluntary participation in the rehabilitation program, and that upon entering the program, plaintiff agreed via the exculpatory statement to hold defendants free from any and all liability for any injuries sustained as a result of his participation in the program. Defendants plead that plaintiff was not an employee of the Salvation Army.

¶ 13 Plaintiff and defendants filed cross-motions for summary judgment on the issue of whether the exculpatory statement signed by plaintiff acts as a waiver of defendants' liability for allegedly injuring plaintiff in the automobile accident. Plaintiff voluntarily dismissed Rushing as a defendant prior to the circuit court's ruling on the parties' cross-motions for summary judgment. Defendant argued that the exculpatory clause is a complete bar to plaintiff's claim, while plaintiff maintains that the waiver is unenforceable because it not only violated public policy, but the accident at issue was not covered by the exculpatory language of the agreement.

¶ 14 The circuit court granted defendants' motion for summary judgment and denied plaintiff's motion for summary judgment on the affirmative defense, finding that the exculpatory clause in the beneficiary's admittance statement was a complete bar to plaintiff's claims. Plaintiff appeals.

¶ 15 II. ANALYSIS

¶ 16 1. The Exculpatory Clause Was Not Against Public Policy

¶ 17 On appeal, plaintiff first contends that the trial court erred in granting summary judgment against him where there are genuine issues of material fact present in this case. Specifically, represent a free choice on the part of the plaintiff, such as a monopoly. White v. Village of Homewood, 256 Ill.App.3d 354, 358–59 (1993). An agreement in the nature of release or exculpatory clause is a contract, and the legal effect is to be decided by the court as a matter of law. Earner v. Segway Tours of Chicago, LLC, 402 Ill.App.3d 42, 44 (2010).

¶ 20 Initially, plaintiff argues that his relationship with defendant is “akin” to an employment relationship. Specifically, plaintiff argues that he was working in exchange for the “necessities of life” and that upholding the exculpatory agreement here would allow defendant to “employ” workers without giving them the protection of workers' compensation. We disagree.

¶ 21 The relationship between plaintiff and defendant was that of a beneficiary and charitable organization. Plaintiff was a resident and beneficiary of the rehabilitation center at the time of injury. As such, plaintiff was required to participate in defendant's established rehabilitation program. Plaintiff testified at his deposition that, as part of the rehabilitation program, he was required to make his bed, keep his area clean, attend drug and alcohol meetings at the Center, and participate in work therapy. While performing work therapy, plaintiff received training in skills necessary to secure employment upon leaving the program. The work therapy and skills training were necessary for plaintiff, who had not held a job in over thirty years.

¶ 22 Moreover, the beneficiary's admittance statement, which plaintiff signed, sets forth the conditions under which the beneficiary enters the rehabilitation program, including: “I am a beneficiary and not an employee of this Center.” Also, the work therapy statement plaintiff signed sets forth that “work therapy is to be considered an essential part of [the beneficiary's] rehabilitation.” The work therapy program is not employment and beneficiaries are not paid for their work. Plaintiff voluntarily entered into the rehabilitation program, had a meeting during

circumstances, the basic relationship between the Salvation Army and plaintiff was not one of employment but was one of rehabilitation. The work element of the rehabilitation program was to give the beneficiaries a sense of worth, responsibility and accomplishment, and was not used as a source of cheap labor for defendant.” Williams, 837 F.Supp. at 1053–54.

As in Williams, plaintiff here was not an employee of the Salvation Army.

¶ 24 Nor do we find that there existed such a disparity in bargaining positions between plaintiff and defendant that the agreement did not represent plaintiff's free choice. See White, 256 Ill.App.3d at 358–59. Plaintiff contends that he and other beneficiaries of the program, as unemployed, homeless, and substance-abusive applicants, had no free choice or reasonable alternative in bargaining with defendant over the conditions of enrollment in the program. Plaintiff argues that he had no free choice because, “[e]ssentially, the applicant must accept the terms of the Salvation Army, including the exculpatory agreement, or be denied food and shelter. If an applicant rejects the ‘agreement,’ he is returned to the homeless and foodless environment from which he came.” Plaintiff's argument fails where: (1) the food and shelter offered by defendant were merely incident to the rehabilitation program; and (2) defendant could have sought rehabilitation services elsewhere.

¶ 25 First, defendant did not offer plaintiff food and shelter, or “the necessities of life.” Rather, these benefits were merely incident to the rehabilitation program. Defendant does not offer room and board to individuals, but offers its beneficiaries an opportunity to participate in the rehabilitation program. In signing the agreements and being accepted into the program, remain in the program only as long as they choose to do so.

¶ 27 Plaintiff, however, decided to enter into and remain in the program, knowing that he had to meet certain program requirements including participation in work therapy, and with the knowledge that he signed a waiver of liability. The beneficiary's admittance statement signed by plaintiff explains the conditions under which the beneficiary enters the rehabilitation program. In order to be admitted and to remain in the program, plaintiff must need assistance, be willing to help himself and others, voluntarily perform any duties assigned him, attend religious services, remain sober, and refrain from bringing intoxicants into the center. In addition, plaintiff agreed by signing the beneficiary's admittance statement that, “should any accident occur involving personal injury to myself or loss or damage to my property during my residence in this Center, [he would] hold The Salvation Army free and harmless from any and all liability in connection therewith.”

¶ 28 This agreement represents plaintiff's free choice, where plaintiff was aware of and agreed to all of the program requirements, including the exclusionary clause. Plaintiff was not required to enter into the program, but rather, could have chosen not to agree to the terms of the program and not to enter into the program. Instead, plaintiff voluntarily agreed to the requirements and became a beneficiary of the program.

¶ 29 Plaintiff urges us to find that White v. Village of Homewood, 256 Ill.App.3d 354, where a different division of this court found that economic compulsion facing those in search of employment can represent a disparity of bargaining power between a job applicant and a potential employer, is dispositive here. White, however, is inapposite to the case at bar. In White, the plaintiff participated in a physical agility test as part of her application to become a to sign the exculpatory agreement in order to complete her job application for the position of firefighter/paramedic. White, 256 Ill.App.3d at 359. The White court was not persuaded by the defendants' assertion that they did not have a monopoly on the job market and that the plaintiff could apply for work elsewhere, and instead reasoned that the plaintiff really had no bargaining power due to the economic compulsion facing those in search of employment. White, 256 Ill.App.3d at 359. The court also found that the exculpatory agreement was against public policy because the relationship between the defendants and the plaintiff, as potential employer and job applicant, was similar to the relationship between an employer and an employee. White, 256 Ill.App.3d at 359.

¶ 31 White does not persuade us differently. First, plaintiff in the case at bar does not make an argument regarding consideration, which was the backbone of the White decision. Moreover, plaintiff was not under the same economic compulsion as the plaintiff in White. Rather, plaintiff here could have sought rehabilitation services at another facility, including at a VA facility. Having previously completed a rehabilitation program, plaintiff was familiar with the landscape of rehabilitation services available in the area, and in fact had spent the days prior to entering defendant's program in a rehabilitation program offered at another facility, Haymarket. Had plaintiff chosen not to become a beneficiary in defendant's program, plaintiff could have found other alternatives for treatment, food and shelter.

¶ 32 Moreover, plaintiff entered defendant's rehabilitation program with the expectation that he would receive assistance with his drug and alcohol addiction. In White, the disparity was found between an individual who needed employment and an entity that could provide her with employment, an essential economic necessity. First, as discussed above, the case at bar does not before the occurrence. Thus, foreseeabihty of a specific danger is an important element of the risk which a party assumes and will often serve to define the scope of an exculpatory agreement. However, “ ‘[t]he parties may not have contemplated the precise occurrence which resulted in plaintiff's accident, but this does not render the exculpatory clause inoperable.’ “ Harris, 119 Ill.2d at 549 (quoting Schlessman v. Henson, 83 Ill.2d 82, 86 (1980)). This court has noted:

“An 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. [Citation.] However, the parties need not have contemplated the precise occurrence which results in injury. [Citation.] The injury must only fall within the scope of possible dangers ordinarily accompanying the activity and, therefore, reasonably contemplated by the parties.” Evans v. Lima Lima Flight Team, Inc., 373 Ill.App.3d 407, 414–15 (2007).

¶ 37 Here, the terms of the beneficiary's admittance statement, including the exclusionary clause, are clear and unambiguous. The statement sets forth that the beneficiary agrees to participate in the rehabilitation program, including performing work therapy, attending religious services, and refraining from using or brining intoxicants into the building. The beneficiary knows that he will be given work therapy assignments and that he cannot hold defendant liable for any injuries sustained while participating in work therapy. The statement contains a waiver of liability for any personal injuries the plaintiff may incur while in the rehabilitation program:

¶ 39 Because we find the exclusionary clause at issue to be unambiguous, we need not consider extrinsic evidence in order to ascertain the parties' intent. See Meyer, 273 Ill.App.3d at 888.

¶ 40 The trial court did not err in granting summary judgment where no genuine issue of material fact exists.

¶ 41 III. CONCLUSION

¶ 42 For all of the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 43 Affirmed.

FOOTNOTES

1.  Plaintiff initially brought suit against both The Salvation Army and Dennis M. Rushing. Plaintiff voluntarily dismissed Rushing from the action on September 29, 2010.

Presiding Justice FITZGERALD SMITH delivered the judgment of the court, with opinion:

Justices JOSEPH GORDON and HOWSE concurred in the judgment and opinion.