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Anderson v. Alberto-Culver USA

December 07, 2000

CRAIG ANDERSON, SPECIAL ADMINISTRATOR OF THE ESTATE OF CATHERINE ANDERSON, DECEASED, PLAINTIFF,
v.
ALBERTO-CULVER USA, INC., A CORPORATION, DEFENDANT-APPELLANT, AON CORPORATION, A CORPORATION, DEFENDANT, VILLAGE OF WHEELING, A MUNICIPAL CORPORATION; CITY OF PROSPECT HEIGHTS, A MUNICIPAL CORPORATION; AND PALWAUKEE MUNICIPAL AIRPORT COMMISSION, DEFENDANTS-APPELLEES. TERESA P. WHITENER, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ROBERT HAMPTON WHITENER, DECEASED, PLAINTIFF,
v.
CITY OF PROSPECT HEIGHTS, A MUNICIPAL CORPORATION; VILLAGE OF WHEELING, A MUNICIPAL CORPORATION; AND PALWAUKEE MUNICIPAL AIRPORT COMMISSION, DEFENDANTS. LAURA NEWCOMER, PLAINTIFF,
v.
VILLAGE OF WHEELING, A MUNICIPAL CORPORATION, CITY OF PROSPECT HEIGHTS, A MUNICIPAL CORPORATION; AND PALWAUKEE MUNICIPAL AIRPORT COMMISSION, DEFENDANTS. JACQUELINE QUERN, INDEPENDENT EXECUTOR OF THE ESTATE OF ARTHUR F. QUERN, DECEASED, PLAINTIFF-APPELLANT,
v.
VILLAGE OF WHEELING, A MUNICIPAL CORPORATION; CITY OF PROSPECT HEIGHTS, A MUNICIPAL CORPORATION; AND PALWAUKEE MUNICIPAL AIRPORT COMMISSION, DEFENDANTS-APPELLEES. KALYN ALWIN AND DAVID KOPPIE, CO-ADMINISTRATORS OF THE ESTATE OF MARTIN LARRY KOPPIE, DECEASED, PLAINTIFFS-APPELLANTS,
v.
VILLAGE OF WHEELING, A MUNICIPAL CORPORATION; CITY OF PROSPECT HEIGHTS, A MUNICIPAL CORPORATION; AND PALWAUKEE MUNICIPAL AIRPORT COMMISSION, DEFENDANTS-APPELLEES.



Consolidated Cases Under No. 97 L 13527 Appeal from the Circuit Court of Cook County. No. 97 L 13527; No. 97 L 13636; No. 97 L 13628; No. 97 L 13715; No. 97 L 13716 Honorable Julia M. Nowicki, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Hartman

Not Released For Publication

CRAIG ANDERSON, SPECIAL ADMINISTRATOR OF THE ESTATE OF CATHERINE ANDERSON, DECEASED, PLAINTIFF,
v.
ALBERTO-CULVER USA, INC., A CORPORATION, DEFENDANT-APPELLANT, AON CORPORATION, A CORPORATION, DEFENDANT, VILLAGE OF WHEELING, A MUNICIPAL CORPORATION; CITY OF PROSPECT HEIGHTS, A MUNICIPAL CORPORATION; AND PALWAUKEE MUNICIPAL AIRPORT COMMISSION, DEFENDANTS-APPELLEES. TERESA P. WHITENER, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ROBERT HAMPTON WHITENER, DECEASED, PLAINTIFF,
v.
CITY OF PROSPECT HEIGHTS, A MUNICIPAL CORPORATION; VILLAGE OF WHEELING, A MUNICIPAL CORPORATION; AND PALWAUKEE MUNICIPAL AIRPORT COMMISSION, DEFENDANTS. LAURA NEWCOMER, PLAINTIFF,
v.
VILLAGE OF WHEELING, A MUNICIPAL CORPORATION, CITY OF PROSPECT HEIGHTS, A MUNICIPAL CORPORATION; AND PALWAUKEE MUNICIPAL AIRPORT COMMISSION, DEFENDANTS. JACQUELINE QUERN, INDEPENDENT EXECUTOR OF THE ESTATE OF ARTHUR F. QUERN, DECEASED, PLAINTIFF-APPELLANT,
v.
VILLAGE OF WHEELING, A MUNICIPAL CORPORATION; CITY OF PROSPECT HEIGHTS, A MUNICIPAL CORPORATION; AND PALWAUKEE MUNICIPAL AIRPORT COMMISSION, DEFENDANTS-APPELLEES. KALYN ALWIN AND DAVID KOPPIE, CO-ADMINISTRATORS OF THE ESTATE OF MARTIN LARRY KOPPIE, DECEASED, PLAINTIFFS-APPELLANTS,
v.
VILLAGE OF WHEELING, A MUNICIPAL CORPORATION; CITY OF PROSPECT HEIGHTS, A MUNICIPAL CORPORATION; AND PALWAUKEE MUNICIPAL AIRPORT COMMISSION, DEFENDANTS-APPELLEES.

Consolidated Cases Under No. 97 L 13527 Appeal from the Circuit Court of Cook County. No. 97 L 13527; No. 97 L 13636; No. 97 L 13628; No. 97 L 13715; No. 97 L 13716 Honorable Julia M. Nowicki, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Hartman

A small private aircraft crashed at Palwaukee Municipal Airport (Palwaukee), killing all four people aboard. Plaintiffs, the estates of two pilots, one flight attendant and one passenger, filed wrongful death and survival actions, which were consolidated. Alberto-Culver USA, Inc. (Alberto-Culver), the registered owner of the airplane, was made a defendant, as were the village of Wheeling, the city of Prospect Heights and Palwaukee Municipal Airport Commission (municipal defendants). Municipal defendants moved for and were granted summary judgment upon a claim of immunity under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101, et seq. (West 1998) (Act)). Plaintiffs and Alberto-Culver appeal, raising as an issue whether the circuit court erred in granting the motion for summary judgment to municipal defendants, because plaintiffs can prove that municipal defendants failed to maintain the runway area in a reasonably safe condition, contrary to the requirements of section 10/3-102 of the Act (745 ILCS 10/3-102 (West 1998) (section 3-102)). On October 30, 1996, a Gulfstream G-IV aircraft, registered to Alberto-Culver and piloted by Martin Larry Koppie and Robert Hampton Whitener, crashed while attempting its takeoff from Runway 16/34 at Palwaukee. Two other people, Arthur F. Quern, a passenger, and Catherine Anderson, the flight attendant, were aboard the airplane at the time of the fatal accident. After the pilots had received clearance for takeoff, the airplane began to roll down the runway, but started to veer to the left side of the runway in the middle of its takeoff roll. According to the National Transportation Safety Board (NTSB), the aircraft rolled onto the grass off to the left side of the runway, traversing a shallow ditch that paralleled the runway, which resulted in the separation from the aircraft of landing gear, flight control surfaces and other airplane components. The ditch was about two and one-half feet deep at its deepest point and 20 feet wide. A 90 foot wide spray of mud fanned out onto the runway parallel to where the airplane entered the ditch. The airplane then slid on its belly and became airborne after it encountered a small berm at the departure end of the runway. Once airborne, the airplane flew over Hintz Road, contacted the embankment along Wolf Road and skipped over Wolf Road. The aircraft then slid across a field and stream gully and came to rest on the edge of an apartment complex parking lot where it was consumed by flames.

 Examination of the aircraft by NTSB indicated no pre-existing anomalies of the engines, flight controls or aircraft systems. The NTSB concluded that the drainage ditch paralleling Runway 16/34 was a factor relating to the accident. Municipal defendants purchased Palwaukee with federal and state funds on December 26, 1986. Palwaukee encompasses land located within both the village of Wheeling and the city of Prospect Heights. Municipal defendants signed an Intergovernmental Agreement (Agreement) on February 26, 1985, providing for the joint acquisition, operation, maintenance and development of the airport. The Agreement also provided for the creation of an Airport Commission. Section 7 of the Agreement declared all activities of municipal defendants relating to Palwaukee, including the elimination of airport hazards, development, construction, improvement, maintenance and operation "to be public and governmental functions exercised for a public purpose, and are municipal functions."

Prior to December 1986, Palwaukee was privately owned and developed with private capital. By the mid-1980s, federal and state airport regulators perceived a risk that too many privately owned airports located in Chicago's northwest suburbs were being closed and developed for alternative uses. Because of Palwaukee's importance to regional air traffic demands, the Federal Aviation Administration (FAA) and the Illinois Department of Transportation (IDOT) requested that municipal defendants purchase the airport with federal and state funds.

Palwaukee originally did not serve scheduled air carriers. The FAA and IDOT at that time had not required Palwaukee to comply with airport design standards provided in the FAA Airport Design Advisory Circular (Advisory Circular). After municipal defendants purchased Palwaukee, however, the FAA required that certain aspects of the airport's design be modified to comply with FAA standards. Other than specific changes required by the FAA, municipal defendants were not obligated to make any other changes, although additional aspects of the airport design did not comply with the Advisory Circular. Municipal defendants were not required to make other changes because Palwaukee still did not serve scheduled air carriers and, therefore, did not need to be certified under Part 139 of the Federal Aviation Regulations.

Although no further changes were required, one of the purposes of acquiring Palwaukee was to use federal funds to plan and implement a program to improve the airport so that it could more efficiently and safely serve the region's air traffic needs. Municipal defendants engaged in detailed discussions with Palwaukee patrons, community leaders, IDOT and the FAA on how best to proceed with the improvements. As a result of these discussions, Palwaukee received federal and state funding to institute an Airport Layout Plan (ALP). The ALP, dated September 2, 1992, depicted numerous development projects scheduled for improvement.

An airport seeking federal funds for an airport improvement project (AIP) must submit a project application requesting such funds and must include therewith a set of "Assurances," requiring the airport to comply with all applicable federal laws, regulations and guidelines, including Advisory Circulars issued by the FAA for AIP projects. The Assurances also prescribe that an airport "shall be operated at all times in a safe and serviceable condition and in accordance with the minimum standards as may be required or prescribed by applicable Federal, state and local agencies for maintenance and operation." (Emphasis added.)

Advisory Circular AC 150/5300-13 of February 24, 1992, sets forth guidelines for airport design, including surface grading requirements for runway shoulders and safety areas. A Runway Safety Area (RSA) refers to an area surrounding a runway designed to enhance the safety of airplanes which undershoot, overrun or veer off the runway, and it provides greater accessibility for firefighting and rescue equipment during such incidents. The RSA must be capable, under normal (dry) conditions, of supporting airplanes without causing structural damage to the airplanes or injury to their occupants.

The Advisory Circular mandates that the RSA shall be:

"(1) cleared and graded and have no potentially hazardous ruts, humps, depressions, or ...


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