delivered the opinion of the court:
Plаintiff appeals from a judgment entered by the circuit court of Madison County granting defendant’s motion to dismiss plaintiff’s cоmplaint praying for damages arising from personal injuries sustained when plaintiff fell at defendant’s racetrack. Wе reverse.
Appellant, Richard Earl Sexton, entered the Madison County Fairgrounds Racetrack on July 2, 1977, to act as a “pitman” in the pit area of the racetrack and was engaged by a participant in a race sponsored that day by appellees Southwestern Auto Racing Association and Madison County Fair Association. Aрpellee Helvetia Sharpshooters of Highland, Inc., owned the racetrack. Appellant was required to pay a *3 fee to obtain a pass to gain access to the pit area on the infield of the track and was told to sign a paper before the pass would be issued. Appellant signed a form styled, “Waiver and Release From Liability and Indemnity Agreement,” which allegedly released appellees from all losses and damages аrising from personal injury, death or property damage suffered by appellant while in the pit area.
Appellant allegedly slipped and fell in a mud hole on the infield of the racetrack and filed suit against appellеes claiming injuries as the direct and proximate result of their independent and/or concurrent negligence. Aрpellees filed a motion to dismiss, pleading the above-mentioned agreement as a bar to appellant’s suit. Appellees filed the affidavit of Thomas Frange, treasurer of Southwestern Auto Racing Association, which stated that Frange had issued appellant a pit pass based on his signature on the agreement.
Appellant thеreafter filed a memorandum in opposition to defendant’s motion to dismiss, claiming that the agreement was not suрported by consideration and that the agreement was void as against public policy. Appellant’s memorandum also incorporated an affidavit of appellant claiming that the agreement was not explained to him, that he did not know what it was, that the written portion of the agreement containing the exculpatory languаge was covered by another paper when he signed on one of the numerous signature lines provided, that there was no time to read the agreement, that he did not intend to so release appellees, and that no consideration was given him for signing the instrument.
The trial court ordered appellant’s complaint dismissed with prejudicе and affirmed that decision after a motion to reconsider was filed. Appellant concedes that the gеneral rule in Illinois is that exculpatory agreements are enforceable unless voided by statute (Erickson v. Wagоn Wheel Enterprises, Inc. (1968),
Appellant in his memorandum in opposition to defendant’s motion to dismiss incorporated his affidavit which raised questionable circumstances relating to execution. We find that bаsed on the Illinois Supreme Court Rules and the case law, these issues were questions of fact which should have beеn submitted to a jury.
Section 48(3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(3)) states with regard to involuntary dismissals:
“If a material аnd genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidencе offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time.” (Emphasis added.)
We note that appellant requested a jury trial at the same time his complaint was filed, and was, therefore, timely.
This is a case at law. Appellant attacks the circumstances surrounding the execution of the agreement. Whether appellant knew or should have known that what he was signing was a release of liability was a question' of fact for the jury. (Kusturin v. Chicago & Alton R.R. Co. (1919),
All of these matters are material facts аnd are disputed by the parties. Contrary to appellees’ contention, the circumstances surrounding the execution of the release, including the issues of bargaining power, fraud and misrepresentation were raised in aрpellant’s memorandum and affidavit. The affidavit contained facts admissible in evidence. These are material facts because a jury should have considered them in determining whether the release was valid, not the trial judge. Finаlly, since these issues are submissible to a jury, evidence relating to them does not violate the parol evidenсe rule as appellees suggest.
By granting appellees’ motion to dismiss, the trial court committed reversible еrror. These are material and genuine issues of fact which are in dispute and which should be resolved by a jury. Therefore, the judgment of the circuit court of Madison County dismissing appellant’s complaint is reversed.
Judgment reversed.
JONES, P. J., and KASSERMAN, J., concur.