Illinois Appellate Court Affirms Denial of Dismissal of Personal Injury Lawsuit Where a Binding Arbitration Was Unenforceable

The Illinois 1st District Appellate Court affirmed a decision of Cook County Judge Patricia Sheahan regarding a motion to dismiss the lawsuit brought by Charles Arbogast who was injured working as a photographer in a designated photo well at Wrigley Field.  Arbogast fell on a stack of pallets that photographers stood on to take photographs during the game. He was injured when  he fell.

Arbogast filed suit against the Chicago Cubs Baseball Club LLC, Chicago National League Baseball Club Inc. and Chicago Cubs Inc. (collectively, Cubs).

The Cubs moved to dismiss, arguing that the media credentials Arbogast possessed contained language that constituted a contract with a valid and enforceable arbitration agreement mandating that the case be resolved through binding arbitration in New York.

The back of the media credentials stated that “Bearer assumes all risks incidental to the performance of his/her services and/or incidental to Games, including the risk of being injured by thrown bats, bat fragments and thrown or batted balls,” and that “Bearer acknowledges receipt and review of, and agrees to be bound by, the further terms and conditions contained on the website of the Office of the Commissioner of Baseball at”

The further terms and conditions included that “Unless prohibited by federal law, Bearer and the MLB Entities agree to arbitrate any and all Claims, except for Claims concerning the validity, scope of enforceability of this MANDATORY ARBITRATION AGREEMENT & CLASS ACTION WAIVER (the ‘Arbitration Agreement’), through BINDING INDIVIDUAL ARBITRATION.”

The trial judge denied the motion to dismiss and the Cubs appealed. On appeal, the Cubs argued that a contract existed between the two parties indicated by Arbogast accepting and using the media credentials and that the arbitration provision was simply an enforceable provision of that contract.

Arbogast argued that there was no contract between himself and the Cubs, and even if the media credentials constituted a contract, the arbitration provision was a procedural unconscionability as the credential said nothing on the topic and there was no was no ability to opt out or any link provided to the specific part of the website that contained the terms and conditions.

The appellate court first looked at whether a contract was formed. Although Arbogast’s co-worker clicked a box indicating that he had read and agreed to the terms and conditions, it is undisputed that Arbogast did not.  Agreement by Arbogast’s co-worker does not constitute Arbogast’s assent to terms and conditions he had not read. Moreover, Arbogast, wearing the media credential, was not a clear assent to the contract, as they were not clearly indicated as contractual, requiring no signature agreement on his part and not given as part of any transaction with him.

While this statement by the appellate panel did not amount to a clear denial of a contract, the appellate court did find that it sufficed to provide a genuine issue of material fact as to whether a contract existed in this case, making the Cubs’ motion to dismiss on the basis of the putative contract improper.

Accordingly, the appellate court affirmed the trial court’s denial of the motion to dismiss.

Charles Arbogast v. Chicago Cubs Baseball Club, LLC, et al., 2021 IL App (1st) 210526 (Nov. 16, 2021).

Kreisman Law Offices has been handling personal injury lawsuits, contract disputes, commercial litigation, and jury trial for more than 45 years in and around Chicago, Cook County and its surrounding areas, including Elgin, Aurora, Naperville, Bolingbrook, Schaumburg, Homer Glen, Tinley Park, Chicago Ridge, Berwyn, Melrose Park, Des Plaines, Northbrook, Chicago (Humboldt Park, Garfield Ridge, West Town, East Garfield Park, Lakeview, Lincoln Square, Andersonville, Edgewater, Bronzeville, Rogers Park, Jefferson Park, South Loop, Chinatown, Douglas, Gage Park, Little Italy, McKinley Park, Bridgeport), Cicero, Forest Park, LaGrange Park and Bedford Park, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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