dissenting:
I agree with the majority’s holding that the “Release and Waiver of Liability and Indemnity Agreement” signed by plaintiff does not contravene public policy and that there was no fraud in the inducement or fraud in the execution of that agreement. Unlike the majority, however, I believe that this court can and must consider the additional question of whether the agreement was invalid for lack of adequate consideration.
Supreme Court Rule 308 (107 Ill. 2d R. 308), the provision pursuant to which this appeal has been brought, authorizes the appellate court, in its discretion, to allow an appeal from an interlocutory order not otherwise appealable when the trial court has made a written finding that “the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Under the rule, the trial court is to identify the question of law involved. This does not mean, however, that the appellate court must accept, without deviation, the trial court’s formulation of the legal questions at issue. Indeed, our court has recently held that appellate review may be made under Rule 308, in certain circumstances, even where the trial court has made no identification at all of the particular question of law involved. See Cooper v. Bi-State Development Agency (1987), 158 Ill. App. 3d 19, 22, 510 N.E.2d 1288, 1290.
That the trial court’s formulation of the relevant legal questions is not controlling becomes evident when one considers that the basic purpose of a Rule 308 appeal is not to review the trial court’s reasoning, but to test the propriety of the trial court’s decision in granting or refusing the requested interlocutory relief (cf. Kellerman v. MCI Telecommunications Corp. (1985), 134 Ill. App. 3d 71, 73-74, 479 N.E.2d 1057, 1059, aff'd (1986), 112 Ill. 2d 428, 493 N.E.2d 1045, cert, denied (1986), 479 U.S. 949, 93 L. Ed. 2d 384, 107 S. Ct. 434), where immediate resolution of that issue may materially advance the ultimate termination of the litigation. If the trial court’s formulation were binding, a situation might result where the trial court’s order would have to be reversed on interlocutory appeal simply because its analysis of the case was defective even though the result it reached would ultimately have to be sustained as correct on appeal following entry of final judgment. In such a situation, the interlocutory appeal, rather than speeding resolution of the case, would have operated simply to protract it, and to have protracted it unnecessarily.
The approach adopted by the majority here exemplifies this problem. By focusing on the issues as framed by the circuit court, rather than examining the correctness of the order itself, the majority leaves unresolved the question of the adequacy of the consideration supporting the agreement signed by plaintiff. If, on remand, the circuit court were to find in favor of plaintiff on this question, then the majority’s opinion as to the validity and effect of the agreement would be rendered meaningless. Meaningless opinions scarcely serve to “materially advance the ultimate termination of the litigation” as required by Rule 308 (107 Ill. 2d R. 308).
Rule 308 is derived from a Federal statute, 28 U.S.C.A. § 1292(b) (West 1966). (See 107 Ill. 2d R. 308, Committee Comments, at 415.) In applying that statute, the Federal courts of appeal have avoided the foregoing problem. They have done so by recognizing that the nature and scope of review are not determined by the precise question certified by the trial court. Rather, under Federal law, the appellate court is free to consider “such questions as are basic to and underlie the order supporting the appeal.” (In re Oil Spill by Amoco Cadiz (7th Cir. 1981), 659 F.2d 789, 793 n.5; see also Merican, Inc. v. Caterpillar Tractor Co. (3d Cir. 1983), 713 F.2d 958, 962 n.7 (“[o]n a §1292(b) appeal we consider all grounds which might require a reversal of the order appealed from”), cert, denied (1984), 465 U.S. 1024, 79 L. Ed. 2d 682, 104 S. Ct. 1278.) In my view, the approach taken by the Federal courts is applicable to interlocutory appeals under Rule 308. Such an approach is necessary to prevent Rule 308 appeals from becoming a wasted exercise. In reviewing the circuit court’s interlocutory order here denying summary judgment, I must' therefore conclude that this court can and must consider the question of whether the agreement signed by plaintiff was supported by adequate consideration.
Once this question is reached, I would hold that adequate consideration was given in exchange for signing the agreement. Plaintiff was, after all, granted access to a restricted area at the racetrack which members of the general public were not authorized to enter. Because the agreement was supported by adequate consideration, because the agreement did not violate public policy, and because there was no fraud in the inducement or fraud in the execution of the agreement, I would not simply vacate the circuit court’s order. I would reverse that order and remand the case with directions to enter summary judgment in favor of defendant Wilbur Spalding on count I of plaintiff’s complaint.