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Levenson v. Lake-to-lake Dairy Cooperative





APPEAL from the Circuit Court of Cook County; the Hon. JACQUES F. HEILINGOETTER, Judge, presiding.


Plaintiff brought an action to recover damages for personal injuries sustained as a result of the alleged negligence of defendant's pilot when the airplane operated by the pilot crashed into an apartment building in which plaintiff resided. Following a jury trial, judgment was rendered in favor of defendant and plaintiff's post-trial motion was subsequently denied. On appeal plaintiff contends that: (1) the trial court committed reversible errors; and (2) defense counsel's closing argument was improper. We affirm the judgment of the trial court. The following evidence was adduced at trial.

On the morning of February 15, 1967, a single engine aircraft owned by defendant Lake-to-Lake Dairy Cooperative and operated by defendant's pilot, Clarence J. Elliott, took off from Chicago Meigs Field and shortly thereafter crashed into a high-rise apartment building known as Hollywood Towers located at 5701 N. Sheridan Road in Chicago. The point of impact occurred at the 16th floor and plaintiff, Roberta Levenson, lived in an apartment on the 15th floor. As a result of the crash, Elliott was killed and plaintiff allegedly suffered a heart attack and subsequent strokes. In plaintiff's first amended complaint, she alleged res ipsa loquitur and specific negligence.


Irving Rutz, an air traffic control specialist for the Federal Aviation Association (FAA), testified that on February 15, while working at the Joliet Flight Service Station, he received a telephone call at 6 a.m. from Elliott requesting local weather and weather for Visual Flight Rules (VFR) en route to Sheboygan, Wisconsin. He gave the 5:50 a.m. O'Hare weather as a measured ceiling of 900 feet overcast and an 8-mile visibility. He also gave a forecast calling for ceilings of 1000 feet overcast and a 5-7 mile visibility and fog. He then gave the 4:58 a.m. Milwaukee forecast as a ceiling of 1100 feet and a 12-mile visibility and the 4:55 a.m. Green Bay forecast as a ceiling of 1600 feet and a 15-mile visibility.

At 6:51 a.m., Rutz received another telephone call from Elliott requesting weather information. Rutz gave him the 5:55 a.m. Meigs' forecast as an estimated ceiling of 800 feet overcast and a 7-mile visibility; the 5:58 a.m. Milwaukee forecast as a ceiling of 1000 feet overcast and a 12-mile visibility; and the 5:55 a.m. Green Bay forecast as a ceiling of 1500 feet overcast and a 15-mile visibility. In addition, Rutz gave Elliott certain weather advisories which warned of possible turbulence, icing, and low ceilings in the area. He also told Elliott that the Chicago area weather was for Instrument Flight Rules (IFR) and Elliott advised him that he could get a special VFR clearance *fn1 to depart. Rutz further stated that to his knowledge the information given to Elliott was such that it came within the limits of a special VFR clearance.

Bernard L. Stitch, an air traffic control specialist at Meigs Field, testified that on the morning of February 15, he received a telephone call at 7:07 a.m. and a radio transmission at 7:17 a.m. from Elliott. During the telephone conversation, Elliott requested weather information and Stitch gave him the 6:55 a.m. Meigs' forecast which was a ceiling of 500 feet overcast and a 2 1/2-mile visibility with haze. At the time, the weather was IFR, which meant that the ceiling was less than 1000 feet and the visibility was less than 3 miles.

At 7:23 a.m. Elliott radioed the tower ready for takeoff and Stitch cleared him and requested a report from him upon leaving the control zone. At 7:26 a.m. Elliott reported leaving the control zone and at about 7:30 a.m. the crash occurred.

Thomas J. Minoia, an experienced pilot since 1942, testified that on February 15 he observed defendant's airplane in flight from his apartment which was located near Montrose Avenue (4400 north) and Marine Drive. He estimated the weather to be a ceiling of 350-400 feet and a visibility of 3 blocks. When he first observed the airplane, it was flying at about 350-400 feet above the Outer Drive in a northerly direction. When the airplane passed his building it was flying at its cruising speed. He later observed the airplane as it disappeared from view into the haze, flying in a slightly nose-down attitude. According to Minoia, the pilot was probably using the shoreline of the lake as a guide. Under the prevailing weather conditions, the only way the pilot could maintain a view of the shoreline would be to look straight down because he would not be able to see anything ahead of him.

After the airplane disappeared from view, Minoia left the room and about 10 minutes later his wife informed him that there had been an airplane crash. He arrived at the scene of the crash at about 9:30 a.m. and spoke with an FAA investigator whereupon he identified the wreckage as the same airplane he had observed from his apartment.

The evidence deposition of Victor Lazar was read to the jury and into the record. In February of 1967, he was an investigator for the Civil Aeronautics Board (CAB). He was assigned to investigate the crash and arrived at the scene at approximately 8 a.m. Through witnesses, he determined that the crash occurred at approximately 7:30 a.m. Upon an examination of the trajectory and wreckage scatter pattern, he determined that the primary point of impact occurred at the 16th floor of 5701 N. Sheridan Road and the secondary point of impact occurred at approximately the same level of 5733 N. Sheridan Road. He further determined that at the time of impact, the airplane was in a right turn with an angle of bank of approximately 30° and a 10° nose-down attitude. An examination of the remains of the aircraft structure and systems revealed no factual evidence of in-flight structural failure or systems malfunction. Also, the condition of the spark plugs indicated that the engine was functioning properly.

Jesse W. Stonecipher, a professor and associate director of the Institute of Aviation of the University of Illinois, testified as an expert witness. He stated that a pilot who does not hold an IFR or instrument rating is not authorized to operate an aircraft under IFR conditions. A special VFR clearance acts as a waiver of the basic IFR minimums and will enable the pilot to clear the control zone. The minimum required for a special VFR clearance is a visibility of at least 1 mile and the operation must be conducted clear of clouds. A controller is required to grant a special VFR clearance where visibility is 1 mile or more unless there is conflicting traffic within the control zone. The VFR minimums outside the control zone in a congested area are a 3-mile visibility and an altitude of at least 1000 feet above the highest building within 2000 feet horizontally. There are no altitude restrictions where a pilot is flying over the open water more than 2000 feet from any building, so long as he does not come within 500 feet of a ship or vessel.

According to Stonecipher, a takeoff and a flight executed in the weather conditions existing at the time the pilot took off and the route he flew could not be conducted with a reasonable degree of safety. He based his opinion on the fact that the pilot overlooked certain important signposts prior to departure. First, he failed to obtain the area forecast for the area in which he planned his flight. Secondly, he failed to note that the weather at Green Bay had deteriorated considerably in the space of one hour just prior to takeoff. Thirdly, the significant decrease in ceiling and visibility at Meigs Field should have been an indication that the weather was deteriorating in the general area of Chicago.

In Stonecipher's opinion, a non-instrument-rated pilot should not have attempted the flight. Nonetheless, the pilot in this instance should have either executed a 180° turn and returned to Meigs Field or contacted air traffic control by radio, declared an emergency and requested radio guidance to an airport for landing.

Plaintiff, Roberta Levenson, testified that on the morning in question, as she was going into the dining room of her apartment, she heard a tremendous explosion and fell to the floor. She then experienced a gripping and tightness in her chest which continued throughout that day. By evening, her condition had become more pronounced and had spread to her arms. After her regular doctor's appointment on the following day, plaintiff was admitted to Edgewater Hospital. She stated that prior to that time she had never experienced a similar tightness in her chest or pain in her arms.

Herman Levenson testified that on the day in question he left his apartment for work at about 7:10 a.m. It was extremely foggy and there was still a lot of snow on the ground from the snowstorm. While waiting outside of his building for a friend to pick him up, he heard a tremendous explosion and saw an enormous amount of debris and various objects falling down the corridor between the two buildings. He ran to the east end of the building and saw the fuselage of an airplane falling in the direction of where he was standing. As he looked up, he saw some debris, part of a window frame, and part of the building hanging in the general area of where his apartment was located and it appeared as though the airplane had hit his apartment. He then went immediately to his apartment and upon arriving, he saw plaintiff standing between a chair and the dining room table and she appeared to be in a state of shock. He gave her a Librium tablet, some medication that had been prescribed for his heart condition, in hopes that it would help relax her.

At about 11 p.m., Levenson was awakened by plaintiff and was told by her that she was not feeling well. She appeared to be perspiring heavily and her feet were cold. Levenson gave her another Librium tablet and tried to comfort her. On the following day, he accompanied plaintiff on her regular doctor's appointment, after which time she was admitted to Edgewater Hospital and 9 days later she suffered a stroke. As a result, plaintiff lost complete control of her right side and she could no longer speak.

During her convalescence, plaintiff was taken care of by a practical nurse and she began to show some slight improvement in her speech and in the paralysis of her right side. However, 3 weeks after her discharge from the hospital, Levenson came home one evening and found plaintiff lying in bed unable to move her legs, her speech was impaired and her jaw had dropped. He called Dr. Rosenblum, who came to their apartment, examined plaintiff and suggested that she return to the hospital. After her discharge on this occasion, plaintiff was transferred to the Chicago Rehabilitation Institute where she remained for 3 1/3 months. Over the next several years plaintiff showed gradual improvements in her condition.

Levenson further stated that prior to the accident, plaintiff's activities were the same as any other woman her age and that she experienced ailments similar to those of other women. Since the accident, plaintiff has experienced mood changes, lapse of memory, and her ability to write has been greatly impaired.

Dr. Alfred Rosenblum, plaintiff's family physician since 1960 and treating physician following the crash, testified that plaintiff had a medical history of thyroid deficiency and hypertension. In 1962, plaintiff was admitted to Edgewater Hospital with a diagnosis of tracheobronchitis. During the course of that hospitalization, EKG's were taken and the results suggested some coronary insufficiency.

Plaintiff was next hospitalized under Dr. Rosenblum's care in 1965 for a recurrence of her previous condition. EKG's were also taken, however, the results revealed no coronary insufficiencies. Plaintiff was next hospitalized from February 16, 1967, until April 29, 1967, diagnosed as having suffered a heart attack and a stroke. After her discharge, Dr. Rosenblum saw plaintiff on May 22 at which time the results of her EKG indicated that her condition had slightly improved. On that same day, however, plaintiff developed a recurrence of her stroke which resulted in the complete loss of control of her right arm and leg. Thereafter, plaintiff was hospitalized and discharged on July 12 to the Rehabilitation Institute of Chicago for further rehabilitation treatments. Plaintiff remained under Dr. Rosenblum's care until July 18, 1969, shortly before her relocation to Florida.

During cross-examination the court permitted defense counsel, over the objection of plaintiff's counsel, to question Dr. Rosenblum as to the contents of a medical history of plaintiff which was prepared by another physician and ...

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