Evans v. Lima Lima Flight Team Inc.

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-05-3423 Rel

Case Date: 04/24/2007

Preview:SECOND DIVISION FILED: April 24, 2007

No. 1-05-3423 WILLIAM C. EVANS, as Executor of the Estate of KEITH J. EVANS, Deceased, Plaintiff-AppellantCross-Appellee, v. LIMA LIMA FLIGHT TEAM, INC, Individually; WILLIAM CHERWIN, LOU DRENDEL, JAMES J. MARTIN and JAMES O. MARTIN, Individually and as Agents of LIMA LIMA FLIGHT TEAM, INC., Defendants-AppelleesCross-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

No. 01 L 011514

HONORABLE DONALD DEVLIN, JUDGE PRESIDING.

JUSTICE HOFFMAN delivered the opinion of the court: The plaintiff, William C. Evans, executor of the estate of Keith J. Evans, appeals from orders of the circuit court granting summary judgment in favor of the defendants, Lima Lima Flight Team, Inc. (Lima Lima) and its individual members, William Cherwin, Lou Drendel, James J. Martin (J.J. Martin), and James O. Martin (J.O. Martin), on the plaintiff's claims of negligence. The defendants

cross-appeal from orders of the circuit court denying their motion for summary judgment based on the defense of assumption of the risk and denying J.O. Martin and Lima Lima's motion to transfer venue on the grounds of forum non conveniens. For the reasons which follow, we affirm the order of the circuit court granting summary judgment

No. 1-05-3423 in favor of the individual defendants, reverse the summary judgment granted in favor of Lima Lima, dismiss the defendants' crossappeal, and remand this cause for further proceedings. The plaintiff commenced the instant action, seeking damages as a consequence of the death of Keith J. Evans which occurred on October 1, 1999. Evans died as the result of an airplane crash

during a practice session with Lima Lima, a Chicago-based formation flight team. Lima Lima performed for air shows throughout the Evans, J.O.

country in restored, World War II era aircraft.

Martin, and the other pilots were flying in a six-aircraft delta formation, performing a maneuver known as a "pop-top break," when the aircraft piloted by J.O. Martin and the aircraft piloted by Evans came into contact with each other, damaging Evans' aircraft and causing it to crash. Evans was killed instantly.

The plaintiff initially brought suit in the Circuit Court of Cook County, against J.O. Martin and Lima Lima, asserting a claim pursuant to the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2000)), and a survival action under section 27-6 of the Probate Act of 1975 (755 ILCS 5/27-6 (West 2000)). The initial complaint also

named "Gene D. Martin," Cherwin, Drendel, Hank Krakowski, Stan Robinson, "Jim Martin," Ray Morin and United Airlines as

respondents in discovery pursuant to section 2-402 of the Code of Civil Procedure (735 ILCS 5/2-402 (West 2000)). J.O. Martin filed,

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No. 1-05-3423 and Lima Lima subsequently joined, a motion to transfer this case to the Circuit Court of DuPage County on the grounds of forum non conveniens, but the motion was denied. Thereafter, the plaintiff

filed a motion to convert some of the respondents in discovery to defendants and for leave to file his first amended complaint, seeking recovery against the individual defendants and Lima Lima. The plaintiff's motion was granted in part, and Cherwin, Drendel and J.J. Martin were converted to defendants.1 The defendants filed a motion for summary judgment premised upon the doctrine of assumption of the risk, which the circuit court denied. Thereafter, the defendants filed a motion for

summary judgment on all survival claims, asserting that Evans died instantly. The circuit court granted the motion.

The individual defendants moved for summary judgment on the remaining Wrongful Death Act claims, relying upon an exculpatory agreement signed by Evans on July 3, 1999. in relevant part: "RELEASE/HOLD HARMLESS The undersigned Holder/Applicant of/for The agreement stated,

The plaintiff's motion to convert also included respondents in discovery Krakowski and United Airlines, but the motion was denied as to those parties. The order denying the plaintiff's motion to convert Krakowski and United Airlines was affirmed by this court in Evans v. Lima Lima Flight Team, Inc., No. 1-02-2495 (March 31, 2003) (unpublished order under Supreme Court Rule 23), and they are not parties to this appeal. -3-

1

No. 1-05-3423 the X Wingman, ___ Leader, ___ Check Pilot Qualification Card hereby

Formation

acknowledges, and attests to that he/she is an active member of at least one of the signatory organizations listed below. As an active

member of one of the signatory organizations, I hereby agree to be familiar with, and abide by, the Guidelines, Rules and Regulations

established by the Confederation of Signatory Organizations known as F.A.S.T. *** I further

recognize that formation flight training and formation flying is inherently dangerous

wherein there is a possibility of injury or death, and in consideration of my acceptance of this Formation issued by I, Qualificatio n participating for myself, my

Card/Evaluation, Signatory

Organizations

heirs, executor, administrators, and assigns do hereby release and forever discharge the Signatory Organizations listed below each and every one of them and F.A.S.T., its members, employees, representatives suppliers, of and from agents any and or all

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No. 1-05-3423 claims, demands, losses, or injuries incurred or sustained by me as a result of instruction, training, practicing attending, for, and participating to and in, from

traveling

activities involving formation flights. *** F.A.S.T. (A Corporation to be Formed) Signatory Organizations (Holder/Applicant must check all applicable organizations): (1) ___E.A.A. Warbirds of America, (2)

___Confederate Air Force, Inc., (3) ___North American Trainer Association, (4) T-34

Association, Inc.2, (5) ___Canadian Harvard Aircraft Association." The circuit court considered the language of the exculpatory agreement as well as an affidavit by Cherwin, dated June 4, 2005, in which he averred that he, J.O. Martin, J.J. Martin, and Drendel were members of F.A.S.T. at the time of the accident. The circuit

court granted the motion for summary judgment, finding that the exculpatory agreement was specific and definite enough to release the individual defendants from liability for Evans' death. Lima Lima filed a subsequent motion for summary judgment,

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The T-34 Association option is circled. -5-

No. 1-05-3423 maintaining that its liability was solely predicated upon the acts of the individual defendants and that, because all claims against the individual defendants had been dismissed, it was entitled to summary judgment as a matter of law. See Towns v. Yellow Cab Co., The circuit court granted

73 Ill. 2d 113, 382 N.E.2d 1217 (1978).

Lima Lima's motion for summary judgment, and the plaintiff filed the instant appeal. Lima Lima and the individual defendants filed a cross-appeal in which they challenged the circuit court's denial of their motion for summary judgment based upon the defense of assumption of a known risk. The defendants also appealed the circuit court's

denial of J.O. Martin and Lima Lima's motion to transfer venue pursuant to the doctrine of forum non conveniens. We first address the issues raised by the plaintiff's appeal. In urging reversal of the summary judgment in favor of the

individual defendants, the plaintiff argues that a genuine issue of material fact exists on the question of whether the exculpatory agreement signed by Evans effectively released defendants from liability for negligent conduct. the individual We disagree.

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000); Carruthers v. B.C. Christopher & Co., 57 Ill. 2d 376, 380, 313 N.E.2d 457 (1974). In

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No. 1-05-3423 determining whether there exists a genuine issue of material fact, courts must and consider the pleadings, on file, depositions, the admissions, evidentiary

exhibits,

affidavits

construing

material strictly against the movant and liberally in favor of the opponent of the motion. N.E.2d 867 (1986). Purtill v. Hess, 111 Ill. 2d 229, 240, 489

If a genuine issue of material fact exists, the

motion for summary judgment must be denied. In re Estate of Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736 (1993). A triable issue of

fact exists where there is a dispute as to material facts or where the material facts are undisputed but reasonable persons might draw different inferences from those facts. Ill. 2d at 411. In re Estate of Hoover, 155

As in all cases involving summary judgment, our Outboard Marine Corp. v. Liberty Mutual

review is de novo.

Insurance, 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992). Although exculpatory agreements are not favored and are

strictly construed against the party they benefit, (Scott & Fetzer Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 395, 493 N.E.2d 1022 (1986)), parties may allocate the risk of negligence as they see fit, and exculpatory agreements do not violate public policy as a matter of law. Platt v. Gateway International Motorsports Corp., An exculpatory

351 Ill. App. 3d 326, 330, 813 N.E.2d 279 (2004). agreement will be enforced if:

"(1) it clearly spells out the

intention of the parties; (2) there is nothing in the social

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No. 1-05-3423 relationship between the parties militating against enforcement; and (3) it is not against public policy." Chicago Steel Rule & Die

Fabricators Co. v. Travelers Indemnity Co. of Ill., 327 Ill. App. 3d 642, 645, 763 N.E.2d 839 (2002). The plaintiff has made no argument that the social relationship between Evans and the individual defendants militates against Rather, the plaintiff

enforcement of the exculpatory agreement.

argues both that the language of the agreement does not clearly reflect the intention of the parties and that the agreement is contrary to public policy. The plaintiff contends that the exculpatory agreement did not specifically name Lima Lima or its individual members, and, thus, the document is too indefinite to extinguish the individual

defendants' liability.

Contrary to

the plaintiff's argument,

however, an exculpatory agreement need not specifically name the individuals to which it applies. Poskozim v. Monnacep, 131 Ill. Rather, the exculpatory

App. 3d 446, 449, 475 N.E.2d 1042 (1985).

agreement may designate a class of beneficiaries covered under the agreement. Poskozim, 131 Ill. App. 3d at 449; see also Polsky v.

BDO Seidman, 293 Ill. App. 3d 414, 422, 688 N.E.2d 364 (1997). In the exculpatory agreement at issue in this case, Evans agreed to "release and forever discharge the Signatory Organizations listed below each and every one of them and F.A.S.T., its members,

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No. 1-05-3423 employees, suppliers, agents or representatives." The agreement

also states that F.A.S.T. is a confederation composed of five signatory organizations. signatory organizations The plaintiff maintains that it is the that are the "members" of F.A.S.T.

exonerated by the exculpatory agreement. however, would render the phrase

This interpretation, releasing the

specifically

signatory organizations superfluous.

Contractual terms should be

construed so as to avoid the conclusion that other terms are redundant. Forty-Eight Insulations, Inc. v. Acevedo, 140 Ill. App. Accordingly, we read the who are "members" of

3d 107, 115, 487 N.E.2d 1206 (1986). exculpatory F.A.S.T. agreement to include

pilots

In determining whether the exculpatory agreement applied to the individual defendants, the circuit court relied upon an affidavit from Cherwin in which he identified all of the individual defendants as members of F.A.S.T. at the time of the accident. However, the

plaintiff maintains that this evidence was inadmissable pursuant to the parol evidence rule, and, thus, the circuit court erred in considering it. Under the Again, we disagree. parol evidence rule, extrinsic evidence is

inadmissable to vary or modify the unambiguous provisions of a written contract. Main Bank of Chicago v. Baker, 86 Ill. 2d 188, The affidavit by Cherwin was not

199, 427 N.E.2d 94 (1981).

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No. 1-05-3423 presented to vary or modify the terms of the exculpatory agreement, but merely to identify Cherwin and the other individual defendants as members of F.A.S.T. Consequently, consideration of Cherwin's See In re

affidavit was not barred by the parol evidence rule.3

Petition to the Village of Round Lake Park, 29 Ill. App. 3d 651, 658, 331 N.E.2d 602 (1975) (holding that parol evidence may be admitted for the purpose of identifying the parties to an

agreement). The exculpatory agreement lists F.A.S.T. as "a corporation to be formed." Therefore, when Evans signed the agreement, F.A.S.T. It

could not have had any members, as there was no entity to join.

follows that, if the class of beneficiaries covered under the exculpatory agreement is determined at the time the contract was signed, the members of F.A.S.T. cannot be identified. However, in

his affidavit, Cherwin averred that the individual defendants were members of F.A.S.T. when the accident occurred. Accordingly, it

In a related argument, the plaintiff maintains that the circuit court erred in considering evidence which was inadmissable pursuant to the Dead-Man's Act (735 ILCS 5/8-201 (West 2002)). Under the Dead-Man's Act, an adverse party or person directly interested in an action, where a deceased person is represented, cannot testify on his own behalf regarding any conversation with the deceased or an event which took place in the presence of the deceased. 735 ILCS 5/8-201 (West 2002). The plaintiff, however, has failed to specify any particular testimony that was allegedly admitted in violation of this statute, instead merely referencing arguments made by the defendants before the circuit court. Consequently, we reject the plaintiff's argument that the Dead-Man's Act applies. -10-

3

No. 1-05-3423 appears that F.A.S.T. was in existence on the date of the accident, and, therefore, its members are identifiable. A beneficiary to a contract need not be named, identifiable, or yet in existence at the time the contract is executed. Bernstein v. Lind-Waldeck & Co., 153 Ill. App. 3d 108, 111, 505 N.E.2d 1114 (1987); Board of Education of Community School District No. 220 v. Village of Hoffman Estates, 126 Ill. App. 3d 625, 629, 467 N.E.2d 1064 (1984). It is sufficient that he or she be identified as a

member of the class intended to be benefitted when the contract becomes operative. Altevogt v. Brinkoetter, 85 Ill. 2d 44, 55-56,

421 N.E.2d 182 (1981). The uncontradicted evidence establishes that the individual defendants were members of F.A.S.T. when the

exculpatory agreement became operable, the date of the accident. Consequently, the individual defendants are clearly included within the class of beneficiaries covered by the agreement and are, thus, entitled to its protection. The plaintiff also argues that the exculpatory agreement did not clearly and specifically exonerate the individual defendants from injuries caused by their negligent conduct. The plaintiff

maintains that the language of the agreement, namely a release "from any and all claims" incurred as a result of participating in activities involving formation flying, was too broad and vague to notify Evans of the types of conduct from which he was releasing the

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No. 1-05-3423 individual defendants. The exculpatory agreement warned that formation flying is "inherently dangerous" and exempted members of F.A.S.T. from "any and all claims" sustained as a result of participating in activities involving such flying. inherent dangers of The plaintiff argues that referencing the formation flying demonstrates that the

exculpatory agreement does not apply to negligent conduct.

Citing

to Bear v. Power Air, Inc., 230 Ill. App. 3d 403, 595 N.E.2d 77 (1992), the plaintiff contends that "inherently dangerous" only refers to "that type of danger which inheres in the instrumentality or the condition itself at all times thereby requiring special precautions to be taken with regard to it to prevent injury and does not mean danger which arises from mere casual negligence with regard to it under the particular circumstances." (Emphasis added.) Bear, 230 Ill. App. 3d at 409. This definition of "inherently dangerous," however, is used to determine whether to impose strict liability for ultrahazardous activities (Traudbe v. Freund, 333 Ill. App. 3d 198, 202, 775 N.E.2d 212 (2002)), or vicarious liability for the acts of independent contractors (Bear, 230 Ill. App. 3d at 409)), and, therefore, is inapplicable to this case. 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

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No. 1-05-3423 to relieve the defendant from a duty of care. 3d at 330. Platt, 351 Ill. App.

However, the parties need not have contemplated the Schlessman v. Henson, The injury must only

precise occurrence which results in injury. 83 Ill. 2d 82, 86, 413 N.E.2d 1252 (1980).

fall within the scope of possible dangers ordinarily accompanying the activity and, therefore, reasonably contemplated by the parties. Garrison v. Combined Fitness Center, Ltd., 201 Ill. App. 3d 581, 585, 559 N.E.2d 187 (1990). Whether an injury accompanies a certain activity is ordinarily a question of fact, precluding summary judgment. Falkner v.

Hinckley Parachute Center, Inc., 178 Ill. App. 3d 597, 602, 533 N.E.2d 941 (1989). In this case, however, we conclude, as a matter

of law, that Evans' death fell within the scope of possible dangers ordinarily accompanying formation flying, namely a collision with another aircraft. See Goodlett v. Kalishek, 223 F. 3d 32, 38 (2nd

Cir. 2000) (holding that the risk of a collision is plainly inherent in airplane racing). The exculpatory agreement clearly exempted

members of F.A.S.T. from "any and all claims" sustained by Evans as a result of participating in activities involving formation flying. We find that the exculpatory agreement signed by Evans was not rendered unenforceably vague, although the precise occurrence which caused Evans' death might not have been foreseen. broad language in the exculpatory By adopting the the parties

agreement,

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No. 1-05-3423 contemplated the similarly broad range of accidents that might occur in formation flying. See Schlessman, 83 Ill. 2d at 86.

Consequently, we reject the plaintiff's contention that the language in the exculpatory agreement did not clearly and specifically exonerate the individual defendants from liability for their alleged negligent conduct. The plaintiff next argues that the exculpatory violates public for policy injuries because caused it by exonerates their the agreement individual conduct."

defendants

"unlawful

Specifically, the plaintiff contends that, because J.O. Martin violated Federal Aviation Regulation 91.113 (14 C.F.R.

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