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08/09/96 BRENDA WELLS v. DOUGLAS A. ENLOE AND

August 9, 1996

BRENDA WELLS, ADMINISTRATOR OF THE ESTATE OF DANNY J. WELLS, DECEASED, PLAINTIFF-APPELLANT,
v.
DOUGLAS A. ENLOE AND GOSNELL, BENECKI, BORDEN AND ENLOE, LTD., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lawrence County. No. 93-L-5. Honorable John I. Lundmark, Judge, presiding.

Presiding Justice Hopkins delivered the opinion of the court. Chapman, J., and Maag, J., concur.

The opinion of the court was delivered by: Hopkins

PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

Plaintiff, Brenda Wells, as administrator of the estate of her deceased husband, Danny J. Wells, appeals from the Lawrence County circuit court's entry of summary judgment in favor of defendants, Douglas A. Enloe and his law firm, Gosnell, Benecki, Borden and Enloe, Ltd. In her lawsuit against defendants, plaintiff alleges legal malpractice, claiming that Enloe incorrectly advised her regarding the applicable statute of limitations for her wrongful death lawsuit against Vincennes University.

On appeal, we consider whether plaintiff is barred from pursuing her malpractice suit by her application for and receipt of workers' compensation benefits from Vincennes University (University), the decedent's employer at the time of his death. Additionally, we construe the application of the exclusionary provision of section 11 of the Workers' Compensation Act, which provides as follows:

"Accidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of employment even though the employer pays some or all of the cost thereof. This exclusion shall not apply in the event that the injured employee was ordered or assigned by his employer to participate in the program." 820 ILCS 305/11 (West 1992).

For reasons we will fully explain, we reverse and remand. Before we summarize the relevant facts, however, we first set forth the standard for our review of the trial court's grant of summary judgment.

I. STANDARD OF REVIEW

A motion for summary judgment is to be granted if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1992).

"The pleadings, depositions, admissions, and affidavits on file must be construed against the movant and in favor of the opponent of the motion, although the opponent cannot rely simply on his complaint or answer to raise an issue of fact when the movant has supplied facts which, if not contradicted, entitle him to a judgment as a matter of law. [Citation.] Summary judgment is a drastic means of disposing of litigation, so the right of the moving party to obtain summary judgment must be clear and free of doubt. [Citation.] Where doubt exists as to the right of summary judgment, the wiser judicial policy is to permit resolution of the dispute by a trial." Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249, 198 Ill. Dec. 786, 633 N.E.2d 627 (1994).

In appeals from rulings on summary judgments, the reviewing court conducts a de novo review. Jewish Hospital of St. Louis v. Boatmen's National Bank of Belleville, 261 Ill. App. 3d 750, 199 Ill. Dec. 276, 633 N.E.2d 1267 (1994). If the reviewing court determines that there is a genuine issue of material fact, then the summary judgment is to be overturned. Thompson v. Platt, 116 Ill. App. 3d 662, 72 Ill. Dec. 480, 452 N.E.2d 733 (1983). Based upon these rules, we summarize the facts presented to the trial court in the light most favorable to plaintiff, as the opponent of the motion for summary judgment.

II. FACTS

On October 31, 1987, Danny J. Wells was killed in a plane crash at the Lawrenceville/Vincennes Airport in Lawrenceville, Illinois. Wells was a passenger in a plane piloted by James Jernigan. Both Wells and Jernigan were employed by Vincennes University's Department of Aviation Flight Technology as flight instructors. The plane crashed during an aerobatics demonstration, which was part of the University's "Dad's Day" weekend. As part of the Dads' Day weekend, the Alpha Eta Rho fraternity sponsored an event which was held at the Lawrenceville/Vincennes Airport. The event included a picnic lunch and flight competitions between the students. As was the custom for several years, the aerobatics demonstration took place during the event's lunch break. Wells and Jernigan were both killed when the plane crashed during the demonstration.

Plaintiff submitted her affidavit and other evidence in support of her opposition to defendants' motion for summary judgment. In her affidavit, plaintiff stated that her husband was "not required as part of his employment" to attend the event. Plaintiff further stated in her affidavit:

"Danny was only there as a spectator, and was not even going to attend the event until requested to do so by a friend. *** Danny was never instructed or required to be present at this event as part of his employment. He voluntarily attended the event with me and the children as part of a family outing at a social event put on by the Alpha Eta Rho Fraternity. The family purchased a picnic lunch and planned to watch the aerobatics show as part of the picnic. Danny received no compensation for attending the 'Dad's Day' weekend party."

Plaintiff's deposition testimony essentially corroborated her affidavit.

Plaintiff also submitted the affidavit of David Frazier, the chief flight instructor for the University from 1980 until 1986 and a faculty member of the University's aviation department from August 1969 until May 1988. In his affidavit, Frazier stated, in relevant part, as follows:

"3. That on October 31, 1987 Alpha Eta Rho Fraternity at Vincennes University sponsored a competition at Lawrenceville-Vincennes Airport near Lawrenceville, Illinois and had in prior years conducted a similar social program for fraternity members and their ...


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