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08/31/87 Deborah Coleman, As v. Windy City Balloon Port

August 31, 1987





DEBORAH COLEMAN, as Personal Representative of the Estate

513 N.E.2d 506, 160 Ill. App. 3d 408, 112 Ill. Dec. 92 1987.IL.1267

Appeal from the Circuit Court of Lake County; the Hon. Lawrence D. Inglis, Judge, presiding.


JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and DUNN, JJ., concur.


This case concerns a hot air balloon disaster which occurred on August 15, 1981, near Northwest Highway (Route 14) in Barrington Hills, Illinois. The balloon was carrying six passengers, including plaintiff Harry Evans and the decedents of plaintiffs Deborah Coleman, Sandra Ritter, Lily Ann Baker, and Wendy Keating. The balloon contacted defendant Commonwealth Edison's electrical power lines, ignited and crashed. Save for plaintiff Evans who jumped from the balloon, all aboard perished, including the balloon pilot, James A. Bickett. Plaintiffs brought this action for personal injury and wrongful death against Windy City Balloon Port, Ltd., the hired carrier from which port the balloon took off, and Dean Stellas, its owner; The Balloon Works, the designer, manufacturer and seller of the balloon; the Rego Company, the designer, manufacturer, and seller of the balloon's gas valves; and Commonwealth Edison.

In their amended complaint against Commonwealth Edison, plaintiffs alleged that Commonwealth Edison was negligent in its maintenance and installation of the power lines in that it (1) located power lines in an area trafficked by hot air balloons without adequate signs, lights or other warnings to enable balloonists to avoid said lines; (2) did not insulate the power lines in order to protect anyone who came in contact with them; and (3) did not install on the power lines circuits or other devices which would cut off the flow of electricity when the lines were severed. It was alleged that as a direct and proximate result of Commonwealth Edison's negligence, the various plaintiffs' decedents suffered their deaths, and plaintiff Evans suffered extensive personal injuries and conscious pain, and incurred substantial medical expenses and loss of wages.

Prior to trial, the court granted Commonwealth Edison's motion for summary judgment and denied plaintiffs' motion to reconsider or, in the alternative, to make the order immediately appealable. The court's order became final and appealable on April 29, 1986, when the court approved the plaintiffs' pretrial negotiated settlement with defendants The Balloon Works and the Rego Company. Windy City Balloon Port, Ltd., was voluntarily dismissed without prejudice and without costs, pursuant to section 2-1009 of the Civil Practice Law. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009.) The instant appeal is brought by the plaintiffs from the court's order granting Commonwealth Edison's motion for summary judgment and from its order denying their motion to reconsider.

At the outset, we note that we have no appellee's brief. Commonwealth Edison's attempt to file its brief instanter three weeks after the final extended filing date was rejected by this court, and there was no oral argument in this cause. (107 Ill. 2d R. 352.) Prior to the court's decision in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, appeals in which no appellee's brief was filed were often reversed pro forma. (63 Ill. 2d 128, 131.) Talandis eschewed this practice, stating that "[a] considered judgment of the trial court should not be set aside without some consideration of the merits of the appeal." (63 Ill. 2d 128, 131.) Accordingly, "if the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee's brief, the court of review should decide the merits of the appeal." 63 Ill. 2d 128, 133.

The five common law record volumes here contain over 2,100 pages of pleadings filed by the numerous plaintiffs and defendants, and plaintiffs' appendix, which this court had to order be filed in compliance with Supreme Court Rule 342(a) (107 Ill. 2d R. 342(a)), fails in most instances to indicate which pleading emanates from which party. Moreover, although the trial court allowed the filing of the depositions of 10 different persons in conjunction with the motion for summary judgment, those depositions have not been filed with this court. As a consequence, page references to such depositions in plaintiffs' memorandum supporting their answer to Commonwealth Edison's motion for summary judgment are meaningless, since the testimony they purport to support cannot be verified. Likewise, the "Statement of Facts" provided this court in plaintiffs' brief cannot be verified since the record references provided are to pages of the various parties' depositions which this court does not have.

Inasmuch as the record in this cause is essential to a resolution of the court's alleged error in granting Commonwealth Edison's motion for summary judgment, we do not find this case falls within the class of "simple" ones described by Talandis. In such instances, Talandis directs that we utilize the "other cases" approach outlined therein, to wit:

"In other cases if the appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record the judgment of the trial court may be reversed." First Capitol Mortgage Corp. ...

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