Appeal from the Circuit Court of Cook County. Nos. 97 L 13527, 97 L 13636,97 L 13715 & 97 L 13716 Honorable Thomas E. Flanagan, Judge Presiding.
The opinion of the court was delivered by: Justice Robert E. Gordon
In October 1996 a private jet aircraft crashed while attempting a takeoff from Palwaukee Municipal Airport (Palwaukee). The plane was consumed by flames. All four persons on board (two pilots, a flight attendant and one passenger) were killed.
Palwaukee is owned by defendants Village of Wheeling and City of Prospect Heights and is managed through defendant Palwaukee Municipal Airport Commission (collectively, municipal defendants). The plane was owned by defendant Alberto-Culver USA, Inc., and/or defendant Alberto-Culver International, Inc., and/or defendant Alberto-Culver Company (Alberto-Culver). One of the pilots, Robert Whitener, was employed by Alberto-Culver, and the other, Martin Larry Koppie, was employed by Aon Aviation, Inc. The passenger, Arthur Quern, was an employee of Aon Risk Services, Inc., and an executive of Aon Corporation. (The flight was intended to transport Quern to Burbank, California.) Aon Aviation had secured the services of the flight attendant, Catherine Anderson.
The estates of the four decedents (Koppie, Whitener, Quern and Anderson) brought wrongful death and survival actions in the circuit court of Cook County against, inter alia, municipal defendants and Alberto-Culver. These actions were consolidated for trial. Prior to trial, Alberto-Culver settled with two of the four decedents' estates (Anderson and Quern) on behalf of Alberto-Culver and Aon Aviation, but not municipal defendants. Alberto-Culver subsequently filed contribution claims against Aon Aviation in the Anderson and Quern cases.*fn1
Also prior to trial, the circuit court granted summary judgment in favor of municipal defendants on their claim of immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 2002)). This decision effectively removed municipal defendants from the litigation. The plaintiffs and Alberto-Culver appealed under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). While this appeal was pending, trial began on the claims of the remaining two decedents' estates (Whitener against Aon Aviation, and Koppie against Alberto-Culver). In January 2001, the circuit court entered judgment on a jury verdict in favor of the Whitener estate in the amount of $18.9 million. However, the jury was "hopelessly deadlocked" on the Koppie case, and the circuit court declared a mistrial.
Meanwhile, in December 2000 this court reversed the circuit court's previous granting of summary judgment in favor of municipal defendants. Anderson v. Alberto-Culver USA, Inc., 317 Ill. App. 3d 1104 (2000). Municipal defendants filed a petition for leave to appeal to the Illinois Supreme Court. On April 4, 2001, the petition was denied. Anderson v. Alberto-Culver USA, Inc., 194 Ill. 2d 565 (2001). Following this denial, the appellate court issued its mandate, and municipal defendants were brought back into the litigation.
The Koppie estate's claims against municipal defendants and Alberto-Culver were tried before a jury beginning in February 2003. On May 5, 2003, the jury found in favor of the Koppie estate and against municipal defendants and Alberto-Culver in the amount of $11 million. In allocating the relative fault of the parties, the jury found that municipal defendants were 90% at fault, and Alberto-Culver and "Martin Larry Koppie/Aon Aviation, Inc." were each 5% at fault. On May 6, 2003, the circuit court entered judgment on this verdict. The circuit court denied municipal defendants' posttrial motions. Municipal defendants appeal. We affirm the judgment of the circuit court.
In its opinion in Anderson, this court stated the factual background regarding the crash:
"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 21/2 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." Anderson, 317 Ill. App. 3d at 1106-07.
In their third amended complaint, plaintiffs Kalyn Alwin and Devin Koppie,*fn2 co-administrators of the estate of Martin Larry Koppie, alleged negligence on the part of municipal defendants*fn3 in that they: (1) "[m]aintained their airport property and runways in such a condition as to pose a danger to aircraft taking off on said runways," (2) "[m]aintained ditches, hills, embankments and other uneven surfaces immediately alongside and adjacent to runway 34 so as to pose a hazard and danger to the landing gear and other component parts of aircraft departing on said runway," and/or (3) "[m]aintained ditches, hills, embankments and other uneven surfaces immediately alongside and adjacent to runway 34 so as to prevent aircraft from safely returning to the runway surface after straying from the center line during take-off."
In April 1998, prior to the first trial on the wrongful death claims of the decedents' estates, municipal defendants moved for summary judgment. In their motion, municipal defendants noted that the estates claimed, among other things, that the crash was caused by "certain facilities *** provided at the airport, such as *** uneven ground surfaces adjacent to the runway." According to municipal defendants, this claim referred to the runway safety area (RSA) surrounding Palwaukee's runway 16/34, the runway from which the plane at issue attempted to take off. (It is undisputed that the 20-foot-wide drainage ditch that the aircraft traversed after it veered off runway 16/34 was within the RSA). Municipal defendants explained that, pursuant to the Federal Aviation Administration's (FAA) airport design advisory circular (Advisory Circular No. 150/5300-13, Change 2), an RSA is "an area surrounding a runway that has been prepared to reduce the risk of damage to airplanes in the event of an undershoot, overshoot, or excursion from the runway." While municipal defendants acknowledged that the RSA surrounding runway 16/34 did not comply with the FAA's airport design circular, they argued that summary judgment nevertheless should be granted in their favor because, under the Act, municipal defendants "are immune from liability for discretionary decisions regarding the maintenance and operation of the airport."
In their memorandum in support of their motion, municipal defendants pointed specifically to two provisions of the Act, sections 2-109 and 2-201. The first of these provisions, section 2-109, states: "A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 1998). The second provision, section 2-201, describes one circumstance where a public employee is not liable:
"Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS 10/2-201 (West 1998).
Municipal defendants argued that their decisions regarding the RSA (e.g., the decision not to improve the RSA after municipal defendants acquired the airport in 1986)*fn4 met the requirements of section 2-201. According to municipal defendants, the decisions regarding the RSA were made by employees holding positions involving the determination of policy or the exercise of discretion, and the decisions themselves constituted an exercise of discretion and a determination of policy. In municipal defendants' view, therefore, because the public employees who made the decisions regarding the RSA were shielded from liability by section 2-201, municipal defendants themselves were shielded from liability by section 2-109.
On May 24, 1999, the circuit court granted municipal defendants' motion for summary judgment, effectively removing municipal defendants from the litigation. In its order granting summary judgment, the court added, pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), that there was "no just reason to delay enforcement or appeal from this order." The plaintiffs (including the four decedents' estates) appealed, as did defendant Alberto-Culver. Anderson, 317 Ill. App. 3d at 1110. As previously indicated, this court reversed the circuit court's order granting summary judgment in favor of municipal defendants.
In reaching this decision, this court rejected municipal defendants' argument that they were shielded from liability by the Act. While acknowledging the rationale underlying the Act's granting of tort immunity to public officials, this court nevertheless noted the "traditional common law duty" of local governments "to maintain [public] property in a reasonably safe condition." Anderson, 317 Ill. App. 3d at 1111. This court added that this same duty was "restate[d] and codifie[d]" in section 3-102 of the Act. Anderson, 317 Ill. App. 3d at 1112. In this court's view, the ultimate issue in the case before it was "[t]he duty of the municipal defendants to maintain a public airport in a reasonably safe condition, or the absence of such duty, *** not whether to make improvements to the RSA." (Emphases added.) Anderson, 317 Ill. App. 3d at 1114. As this court noted elsewhere in its opinion, "[t]o maintain property is considered a ministerial act [i.e., non-discretionary]; to improve property falls under the discretionary decision of the government entity." Anderson, 317 Ill. App. 3d at 1112. In stating the issue as whether municipal defendants had a duty to maintain the airport in a reasonably safe condition, this court indicated that section 2-201, which provided immunity for discretionary acts, did not apply. Municipal defendants were not shielded from liability by the Act.
This court answered the duty question in the affirmative, concluding that municipal defendants had a duty to maintain the RSA in a reasonably safe condition. Looking to the remand, Anderson stated: "In the present case, plaintiffs may very well succeed in demonstrating that municipal defendants failed to use ordinary care in maintaining the RSA in a reasonably safe condition." Anderson, 317 Ill. App. 3d at 1117.
Anderson reversed the order of the circuit court, holding that: "summary judgment may not be entered where there is a material fact question of whether public property was maintained in conformity with applicable safety standards; the cause must be reversed and remanded for trial for this determination." Anderson, 317 Ill. App. 3d at 1117. Municipal defendants filed a petition for rehearing. In denying the petition, this court entered an order stating, in pertinent part:
"[I]n the instant case, municipal defendants' contention that they had discretionary immunity is misplaced because the 'discretion' they refer to involves the discretion to make improvements to Palwaukee. The ultimate issue in this case is whether municipal defendants breached their duty to maintain a public airport in a reasonably safe condition, not whether to make improvements to the RSA. Accordingly, municipal defendants' discretionary immunity should not shield them from liability for improper maintenance for the RSAs. A factfinder should decide whether municipal defendants breached their duty." Anderson v. Alberto-Culver USA, Inc., Nos. 1-99-2166, 1-99-2256, 1-99-2387 cons. (January 10, 2001).
Municipal defendants petitioned for leave to appeal to the Illinois Supreme Court. On April 4, 2001, the petition was denied. Anderson v. Alberto-Culver USA, Inc., 194 Ill. 2d 565 (2001). Following this denial, the appellate court issued its mandate, and municipal defendants were brought back into the litigation.
In the meantime, during the two-year period (May 1999 to April 2001) when municipal defendants were not in the litigation, the claims of the estates of Koppie (against Alberto-Culver) and Whitener (against Aon Aviation) were tried before a jury. As previously indicated, in January 2001, the circuit court entered judgment on a verdict in favor of the Whitener estate, but declared a mistrial in the Koppie case. Subsequently, after municipal defendants were brought back into the litigation, the Koppie estate's claims against municipal defendants and Alberto-Culver were tried before a jury.*fn5
This second trial of the Koppie estate's claims began in February 2003, and the verdict was entered in May 2003. A central issue in this trial was whether municipal defendants were negligent in maintaining the runway safety area along the west side of runway 16/34, and whether this negligence was a proximate cause of Martin Larry Koppie's death.
According to the testimony at trial, municipal defendants acquired Palwaukee from its previous, private owners in 1986. The majority of the purchase money came from federal funds, and the remainder was advanced by the State of Illinois. Municipal defendants agreed to own and operate the airport using funds generated from that ownership and operation (such as fees for rental of hangar space). As part of this purchase, the FAA required municipal defendants to agree to certain assurances. One of these assurances stated:
"[Municipal defendants] will suitably operate and maintain the airport and all facilities thereon or connected therewith with due regard to climatic, flood conditions. The airport and all facilities which are necessary to serve the aeronautical users of the airport other than facilities owned or controlled by [the] United States shall be operated at all times at a safe and serviceable condition and in accordance with the minimum standards as may be required or proscribed by the applicable federal, state and local agencies for the maintenance and operation. [Municipal defendants] will not cause or permit any activity or action thereon which would interfere with this use for airport purposes."
At the time of the purchase of Palwaukee, the RSA to the west of runway 16/34 contained a drainage ditch or depression that was about 2 feet deep and 20 feet wide. This ditch was situated about 20 feet from the western edge of the runway surface and ran the entire length of the runway. This drainage ditch was in essentially the same condition on October 30, 1996, the date of the accident in this case, as it was in 1986 when municipal defendants acquired Palwaukee.
The testimony at trial also referred to FAA airport design advisory circular No. 150/5300-13, which includes, among other things, a definition of an RSA and certain design standards for RSAs. These portions of the advisory circular were read aloud by witnesses for plaintiffs as part of their testimony. According to the advisory circular, an RSA is "[a] defined surface surrounding a runway prepared or suitable for reducing the risk of damage to airplanes in the event of an undershoot, overshoot or excursion from the runway." Under "Design Standards," the advisory circular states, in pertinent part, that an RSA shall be (1) "Cleared and graded to have no potentially hazardous ruts, humps, depressions or other surface variations," (2) "Drained by grading or storm sewers to prevent water accumulation," (3) "Capable under dry conditions of supporting snow removal equipment, aircraft rescue and firefighting equipment, and the occasional passage of aircraft without causing structural damage to the aircraft," and (4) "Free of objects, except for objects that need to be located in the runway safety area because of their function."
On cross-examination, municipal defendants elicited testimony indicating that, upon completion of the purchase of Palwaukee in 1986, the airport was not required to comply immediately with all of the advisory circular's requirements. According to this testimony, compliance with a particular requirement was triggered ...