Appeal from the Circuit Court of Cook County. No. 00 L 87802 Honorable Randye A. Kogan Judge Presiding.
The opinion of the court was delivered by: Justice Murphy
MODIFIED UPON REHEARING May 4, 2006
Plaintiff Barry Willett, individually and as representative of the estate of Dr. Debra Zukof, appeals from an order of the circuit court granting summary judgment in favor of Cessna Aircraft Company in plaintiff=s personal injury action against Cessna, Teledyne Continental Motors, Inc., Joliet Avionics Inc., James Dirker, Michael Bross, and Lionel Fritz (collectively, Joliet Avionics). Teledyne and Joliet Avionics appeal from an order of the circuit court denying summary judgment in their favor on plaintiff=s negligent spoliation of evidence claims in the same civil action. This court has consolidated these two appeals. Plaintiff contends on appeal that the trial court erred in granting summary judgment for Cessna when (1) Cessna did not meet its burden of proof on a motion for summary judgment, (2) an existing question of fact precludes summary dismissal, and (3) the trial court based its grant of summary judgment upon an erroneous interpretation of the governing General Aviation Revitalization Act (Act) (49 U.S.C. *40101, Note (2000)). Teledyne and Joliet Avionics contend on appeal that the trial court erred in denying them summary judgment because plaintiff=s negligent spoilation claim, the only claim against either Teledyne or Joliet Avionics, was duly barred by the Act.
Briefly stated, plaintiff=s claims arose from the crash of a Cessna Model 340A aircraft into Lake Michigan on August 1, 1998, which killed Zukof and injured plaintiff. Plaintiff alleged that the aircraft experienced a Asudden and unexpected loss of left engine power* during takeoff from Meigs Field, causing it to crash into the lake beyond the runway. During the investigation by the National Transportation Safety Board (NTSB), the aircraft was recovered from the lake bottom and its two engines were sent to Teledyne for testing under NTSB supervision.
In his fifth amended complaint, *fn1 plaintiff brought both strict product liability and negligence claims against Cessna, alleging that the left-engine power failure resulted from a design defect in a portion of the exhaust system for the left engine called an exhaust turbo wye (wye). Plaintiff alleged that both of the aircraft=s engines were replaced in May 1987 and that the left engine=s wye had been replaced in September 1995. Plaintiff also brought a claim of negligent spoilation of evidence against Teledyne and Joliet Avionics, alleging that the wye was present when the aircraft was recovered from the lake on August 2, 1998, but missing when plaintiff=s experts examined the aircraft wreckage in December 1998. Joliet Avionics had crated the wreckage in early August 1998 for shipment to Teledyne. Teledyne tested the wreckage in August and September 1998 and then shipped the wreckage to the pilot=s insurer in late September 1998.
Attached to the fifth amended complaint were copies of the maintenance log of the aircraft in question for a May 1987 engine replacement, with a remanufactured engine, and a September 1995 overhaul of the left engine. Also attached was the expert witness affidavit of mechanical engineer and pilot Donald Sommer, averring that the wye would have been built to defendant Cessna=s specifications regardless of its actual manufacturer. Sommer also averred that the aircraft in question had logged 3,036 hours at the time of the crash, which Awould have exceed the *** normal useful life* of the wye. Lastly, it was Sommer=s opinion that, in an overhaul such as the 1995 overhaul of the left engine, Athe turbo wyes would have been removed and most likely been replaced or overhauled.*
Cessna filed a motion for summary judgment, arguing that plaintiff=s claims were barred by two statutes of repose, the Act and section 13-213 of the Illinois Code of Civil Procedure (Code), 735 ILCS 5/13-213 (West 2002)). The Act applies to the manufacturer of a general aircraft or the manufacturer of any system or part of such an aircraft, barring any civil action arising from an accident more than 18 years after the initial sale of the aircraft or the installation of the replacement system or part. Similarly, section 13-213 bars strict liability product claims brought more than 12 years after the product=s first sale, with the exception that the installation of a new part, which caused the injury, within 12 years of the lawsuit would not be barred. It was undisputed that the aircraft in question was more than 18 years old -- it was sold initially in March 1979 -- so plaintiff=s suit would comply with the Act only if the wye had been replaced with a new wye within 18 years of the crash. The only evidence introduced by plaintiff to that effect was Sommer=s affidavit, which Cessna argued did not show that the wye had been replaced. Sommer had at best opined that the wye would have been either replaced or overhauled during the 1995 overhaul of the left engine, Cessna argued, and at worst his opinion had no factual basis. Sommer=s affidavit had not acknowledged that aircraft mechanics are required by law to record all aircraft parts replaced, so that a mechanic who failed to record the replacement of a part such as the wye would risk losing his or her mechanic=s license.
Plaintiff responded to Cessna=s motion, arguing that Cessna, as the party invoking the statutes of repose as an affirmative defense, bore the burden of showing that the wye was more than 18 years old at the time of the crash. While a defendant may seek summary judgment on the basis that no evidence supports plaintiff=s claims, Illinois law requires more than merely pointing out the absence of evidence, without a supporting affidavit or other evidence. Plaintiff also argued that Sommer=s affidavit, to the effect that the wye would have been replaced on an aircraft the age of the one in question, established an issue of fact regarding the age of the wye.
Cessna replied in support of its summary judgment motion. Cessna argued that it had shown that the statutes of repose applied to it as the aircraft=s manufacturer. Cessna also argued that the Act imposed the burden upon plaintiff to show that the wye had been replaced within 18 years of the crash. Similarly, under section 13-213, it is not defendant=s burden to negate the possibility that the part in question was installed within the statutory period, but instead plaintiff=s burden to show that the part was installed within the statutory period. Cessna argued that this interpretation is fair because it places the burden on the party that owned or operated the aircraft, or that at least knew who did, rather than the manufacturer, which ordinarily has no access to the aircraft maintenance records.
Cessna lastly argued that it had satisfied the burden, assuming arguendo that it bore it in the first place: maintenance records showed no replacement of the wye, and Sommer=s opinion was Anothing more than an unsupported ipse dixit.* While the aircraft=s engines had been replaced in 1987, Cessna argued that the wye is not part of the engine and thus the left wye was not necessarily replaced along with the left engine. In support of its contention that the wye is not part of the engine, Cessna attached to its reply brief relevant portions of the parts catalog for the model of aircraft in question. Also, as noted earlier, Sommer had opined that the 1995 overhaul of the left engine would have entailed either replacement or overhaul of the left wye. Cessna acknowledged that the court had denied its motion to strike the Sommer affidavit but argued that nothing in the court=s order Aindicat[ed] the existence of a fact question.*
The court held a hearing on Cessna=s summary judgment motion on February 24, 2004. Cessna argued that, once it was established that the aircraft in question was more than 18 years old and subject to the Act, the burden fell upon plaintiff to prove that the wye had been replaced with a new wye within 18 years of the crash. Cessna argued that the maintenance logs for the aircraft in question were complete and did not indicate that the wye had been replaced. Cessna also argued that Sommer=s affidavit was unsupported by evidence that the left-engine replacement or overhaul included replacement of the wye with a new wye. Indeed, Cessna argued, Sommer had stated that remanufactured and overhauled parts, as well as new parts, are installed on aircraft. Plaintiff told the court that he needed no more discovery or evidence to respond to Cessna=s motion, arguing that Sommer=s affidavit created an issue of fact that defeated the summary judgment motion. The court told plaintiff that the Aissue here is [whether] you meet an exception to the 18-year rule [under the Act], and if you do, you have to be able to support it with proof.* The court also noted that Athe burden shifts to you to show that, not by a maybe but with proof, that you fit outside the 18-year requirement.* When the parties rested on their briefs, the court ruled that Sommer=s affidavit was speculative. As to the new engine in 1987, Athere is nothing that has been produced that says that an entirely new engine was produced,* including a new wye. The log stated that some parts of the engine were overhauled and some were replaced with new parts. Similarly, Sommer averred that the wye would likely have been replaced or overhauled in 1995 during the engine overhaul. This evidence does not establish that the wye had been replaced with a new wye. The court specifically found Athat all of this could have been resolved if you had the wye.* Without the wye itself, or a record that the wye had been replaced with a new wye, the Act barred plaintiff=s claims against Cessna. The court therefore granted Cessna=s motion for summary judgment.
Teledyne and Joliet Avionics then reminded the court that only the spoliation claim against them remained. The court replied that AI just ruled that if [plaintiff] had had the wye, he would be able to prove the case. So how do you plan on bringing in a motion to dismiss?* The parties and the court agreed to set a status hearing on the remaining claim. Plaintiff timely filed his appeal from the order granting summary judgment to Cessna.
In May 2004, Teledyne and Joliet Avionics filed a joint motion for summary judgment, arguing that, in light of the summary judgment in favor of Cessna, plaintiff could no longer satisfy the elements of his spoliation claim. Specifically, they argued that plaintiff=s claim against Cessna did not fail due to the loss of the wye but because it was barred under the Act. Therefore, even if plaintiff could show that Teledyne and Joliet Avionics had a duty to preserve the wye, and then breached that duty, plaintiff could not establish causation or damages.
In June 2004, plaintiff responded to the joint summary judgment motion. He argued that he could establish causation in his spoliation claim, because Ahad the defendants not lost these specific exhaust systems, one could tell for certain* whether or not the wye was less than 18 years old. More specifically, he asserted that Ahad the turbo wyes been found, their age could have been determined.* Teledyne and Joliet Avionics duly replied in support of their joint motion, reiterating their earlier argument that plaintiff=s claim failed due to the Act and not their actions, and further arguing that plaintiff had not factually supported his allegation that the wye could have been dated had it not been lost. They also argued that a trial court cannot merely presume for purposes of a spoliation claim that a lost part would have been found defective.
On August 26, 2004, the circuit court issued an order denying the joint motion for summary judgment by Teledyne and Joliet Avionics. The court noted that the only claim against these defendants was negligent spoliation of evidence, namely, the loss of the wye. The court also recited that it had granted summary judgment in favor of Cessna pursuant to the Act on the basis that plaintiff had not introduced evidence supporting that the wye had been replaced with a new wye within the 18 years preceding the crash. Teledyne and Joliet Avionics argued that plaintiff=s claims against Cessna failed due to the repose period of the Act, not their loss of the wye, while plaintiff argued that the age of the wye could have been determined from the wye itself had it not been lost. The court agreed with ...