The Gunthorps argue that the insertion of different language in change order 21 coupled with the fax transmission indicates that the release was not fairly made. The Gunthorps cite Willis v. Reum, 64 Ill. App.3d 146, 147 (1978), and Northern Trust Co. v. Brentwood North Nursing Rehabilitation Center, 225 Ill. App.3d 1039 (1992), in support of the proposition that a release does not prevent a court from looking into the circumstances to ascertain whether the release was fairly made and accurately reflects the intent of the parties. However, the cases cited by the Gunthorps are not helpful in the instant case.
This court has held that "[i]n Illinois the words of a release will not prevent inquiry into the circumstances to ascertain whether the release was fairly made and accurately reflected the intentions of the parties." Willis v. Reum, 64 Ill.App.3d 146, 147 (1978). Initially, a defendant bears the burden of establishing the existence of a release that is legal and binding on its face before the burden shifts to the plaintiff to prove it is invalid by clear and convincing evidence. Simmons v. Blauw, 263 Ill.App.3d 829, 832 (1994).
This court has held that "[i]n Illinois the words of a release will not prevent inquiry into the circumstances to ascertain whether the release was fairly made and accurately reflected the intentions of the parties ***." Willis v. Reum, 64 Ill.App.3d 146, 147 (1978). Initially, a defendant bears the burden of establishing the existence of a release that is legal and binding on its face before the burden shifts to the plaintiff to prove it is invalid by clear and convincing evidence.
• 4 In interpreting whether a contractual indemnity clause protects a party against its own negligence, the trial court must apply the "rule of interpretation which requires that the agreement be given a fair and reasonable interpretation based upon a consideration of all its language and provisions." ( Tatar v. Maxon Construction Co. (1973), 54 Ill.2d 64, 67, 294 N.E.2d 273, 274.) It is within the province of the trial court to determine, as a matter of law, that a release was not unconscionable or executed under a mutual mistake of fact. Willis v. Reum (1978), 64 Ill. App.3d 146, 381 N.E.2d 46. • 5 In the instant case, the language of the exculpatory release entered into by Lohman and Morris clearly states that the parties release Peoria Speedway and its employees from "any and all claims and liability."
"The wording or form of the document, no matter how all-encompassing the language appears to be, will not preclude it from being set aside." In Willis v. Reum (1978), 64 Ill. App.3d 146, 147, 381 N.E.2d 46, the court noted: "In Illinois the words of a release will not prevent inquiry into the circumstances to ascertain whether the release was fairly made and accurately reflected the intentions of the parties [citations] and releases of personal injury claims may be set aside when there is a mutual mistake of fact and the circumstances, when finally known, present unconscionable results."
Since a release is a contract, its construction is governed by the rules of law that prevail in contract cases ( Affiliated Realty Mortgage Co. v. Jursich (1974), 17 Ill. App.3d 146, 308 N.E.2d 118), and no form of words, no matter how all encompassing, will foreclose scrutiny of a release ( Florkiewicz of Gonzalez (1976), 38 Ill. App.3d 115, 347 N.E.2d 401) or prevent a reviewing court from inquiring into surrounding circumstances to ascertain whether it was fairly made and accurately reflected the intention of the parties. Willis v. Reum (1978), 64 Ill. App.3d 146, 381 N.E.2d 46. Accordingly, we have carefully examined, in toto, the circumstances surrounding the execution of the release which were raised by the pleadings.
• 1 We do not consider the settlement in this case to have been either made under a mutual mistake of fact or to have been unconscionable under the circumstances and background of the case. In Willis v. Reum (1978), 64 Ill. App.3d 146, 148, the court said: "While the law seeks to avoid unconscionable results, it is also the policy of the law to favor the compromise of claims.
We believe it is proper to consider the facts that occur subsequent to the execution of the release in determining the conscionability of the release and whether it was the result of a mutual mistake of fact. Numerous cases have considered the extent and nature of the injury as eventually manifested in determining conscionability and mutual mistake. ( E.g., Meyer v. Murray (1979), 70 Ill. App.3d 106, 387 N.E.2d 878; Willis v. Reum (1978), 64 Ill. App.3d 146, 381 N.E.2d 46; Kiest v. Schrawder (1978), 56 Ill. App.3d 732, 372 N.E.2d 442; Reede v. Treat (1965), 62 Ill. App.2d 120, 40 N.E.2d 833; Ruggles v. Selby (1960), 25 Ill. App.2d 1, 165 N.E.2d 733.) "The modern trend is to set aside releases of personal injury claims in situations where the facts, when finally known, present an unconscionable result because of the equitable principle of doing justice under the circumstances of each case." ( Scherer v. Ravenswood Hospital Medical Center (1979), 70 Ill. App.3d 939, 942, 388 N.E.2d 1268.)
( Ruggles v. Selby (1960), 25 Ill. App.2d 1, 18, 165 N.E.2d 733.) Because settlement and compromise are favored and the release is an abandonment of a claim by a person against whom the claim exists when the release is executed with knowledge of its meaning, a party who contends that the release was secured by fraud, misrepresentation or mistake must prove his case by clear and convincing evidence. ( Ogren v. Graves (1976), 39 Ill. App.3d 620, 622, 350 N.E.2d 249; Willis v. Reum (1978), 64 Ill. App.3d 146, 148, 381 N.E.2d 46.) A unilateral or self-induced mistake is insufficient to void a release; the mistake of fact with respect to the injuries suffered by plaintiff must be mutual. ( Florkiewicz v. Gonzalez (1976), 38 Ill. App.3d 115, 120, 347 N.E.2d 401.