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Evans v. Lima Lima Flight Team

April 24, 2007

WILLIAM C. EVANS, AS EXECUTOR OF THE ESTATE OF KEITH J. EVANS, DECEASED, PLAINTIFF-APPELLANT-CROSS-APPELLEE,
v.
LIMA LIMA FLIGHT TEAM, INC, INDIVIDUALLY; WILLIAM CHERWIN, LOU DRENDEL, JAMES J. MARTIN AND JAMES O. MARTIN, INDIVIDUALLY AND AS AGENTS OF LIMA LIMA FLIGHT TEAM, INC., DEFENDANTS-APPELLEES-CROSS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 01 L 011514. HONORABLE DONALD DEVLIN, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Hoffman

Published opinion

The plaintiff, William C. Evans, executor of the estate of Keith J. Evans, appeals from orders of the circuit court granting summary judgment in favor of the defendants, Lima Lima Flight Team, Inc. (Lima Lima) and its individual members, William Cherwin, Lou Drendel, James J. Martin (J.J. Martin), and James O. Martin (J.O. Martin), on the plaintiff's claims of negligence. The defendants cross-appeal from orders of the circuit court denying their motion for summary judgment based on the defense of assumption of the risk and denying J.O. Martin and Lima Lima's motion to transfer venue on the grounds of forum non conveniens. For the reasons which follow, we affirm the order of the circuit court granting summary judgment in favor of the individual defendants, reverse the summary judgment granted in favor of Lima Lima, dismiss the defendants' cross-appeal, and remand this cause for further proceedings.

The plaintiff commenced the instant action, seeking damages as a consequence of the death of Keith J. Evans which occurred on October 1, 1999. Evans died as the result of an airplane crash during a practice session with Lima Lima, a Chicago-based formation flight team. Lima Lima performed for air shows throughout the country in restored, World War II era aircraft. Evans, J.O. Martin, and the other pilots were flying in a six-aircraft delta formation, performing a maneuver known as a "pop-top break," when the aircraft piloted by J.O. Martin and the aircraft piloted by Evans came into contact with each other, damaging Evans' aircraft and causing it to crash. Evans was killed instantly.

The plaintiff initially brought suit in the Circuit Court of Cook County, against J.O. Martin and Lima Lima, asserting a claim pursuant to the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2000)), and a survival action under section 27-6 of the Probate Act of 1975 (755 ILCS 5/27-6 (West 2000)). The initial complaint also named "Gene D. Martin," Cherwin, Drendel, Hank Krakowski, Stan Robinson, "Jim Martin," Ray Morin and United Airlines as respondents in discovery pursuant to section 2-402 of the Code of Civil Procedure (735 ILCS 5/2-402 (West 2000)). J.O. Martin filed, and Lima Lima subsequently joined, a motion to transfer this case to the Circuit Court of DuPage County on the grounds of forum non conveniens, but the motion was denied. Thereafter, the plaintiff filed a motion to convert some of the respondents in discovery to defendants and for leave to file his first amended complaint, seeking recovery against the individual defendants and Lima Lima. The plaintiff's motion was granted in part, and Cherwin, Drendel and J.J. Martin were converted to defendants.*fn1

The defendants filed a motion for summary judgment premised upon the doctrine of assumption of the risk, which the circuit court denied. Thereafter, the defendants filed a motion for summary judgment on all survival claims, asserting that Evans died instantly. The circuit court granted the motion.

The individual defendants moved for summary judgment on the remaining Wrongful Death Act claims, relying upon an exculpatory agreement signed by Evans on July 3, 1999. The agreement stated, in relevant part:

"RELEASE/HOLD HARMLESS

The undersigned Holder/Applicant of/for the X Wingman, ___ Leader, ___ Check Pilot Formation Qualification Card hereby acknowledges, and attests to that he/she is an active member of at least one of the signatory organizations listed below. As an active member of one of the signatory organizations, I hereby agree to be familiar with, and abide by, the Guidelines, Rules and Regulations established by the Confederation of Signatory Organizations known as F.A.S.T. *** I further recognize that formation flight training and formation flying is inherently dangerous wherein there is a possibility of injury or death, and in consideration of my acceptance of this Formation Qualification Card/Evaluation, issued by participating Signatory Organizations I, for myself, my heirs, executor, administrators, and assigns do hereby release and forever discharge the Signatory Organizations listed below each and every one of them and F.A.S.T., its members, employees, suppliers, agents or representatives of and from any and all claims, demands, losses, or injuries incurred or sustained by me as a result of instruction, training, attending, participating in, practicing for, and traveling to and from activities involving formation flights.

***

F.A.S.T. (A Corporation to be Formed)

Signatory Organizations (Holder/Applicant must check all applicable organizations): (1) ___E.A.A. Warbirds of America, (2) ___Confederate Air Force, Inc., (3) ___North American Trainer Association, (4) T-34 Association, Inc.*fn2 , (5) ___Canadian Harvard Aircraft Association."

The circuit court considered the language of the exculpatory agreement as well as an affidavit by Cherwin, dated June 4, 2005, in which he averred that he, J.O. Martin, J.J. Martin, and Drendel were members of F.A.S.T. at the time of the accident. The circuit court granted the motion for summary judgment, finding that the exculpatory agreement was specific and definite enough to release the individual defendants from liability for Evans' death.

Lima Lima filed a subsequent motion for summary judgment, maintaining that its liability was solely predicated upon the acts of the individual defendants and that, because all claims against the individual defendants had been dismissed, it was entitled to summary judgment as a matter of law. See Towns v. Yellow Cab Co., 73 Ill. 2d 113, 382 N.E.2d 1217 (1978). The circuit court granted Lima Lima's motion for summary judgment, and the plaintiff filed the instant appeal.

Lima Lima and the individual defendants filed a cross-appeal in which they challenged the circuit court's denial of their motion for summary judgment based upon the defense of assumption of a known risk. The defendants also appealed the circuit court's denial of J.O. Martin and Lima Lima's motion to transfer venue pursuant to the doctrine of forum non conveniens.

We first address the issues raised by the plaintiff's appeal. In urging reversal of the summary judgment in favor of the individual defendants, the plaintiff argues that a genuine issue of material fact exists on the question of whether the exculpatory agreement signed by Evans effectively released the individual defendants from liability for negligent conduct. We disagree.

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000); Carruthers v. B.C. Christopher & Co., 57 Ill. 2d 376, 380, 313 N.E.2d 457 (1974). In determining whether there exists a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file, construing the evidentiary material strictly against the movant and liberally in favor of the opponent of the motion. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986). If a genuine issue of material fact exists, the motion for summary judgment must be denied. In re Estate of Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736 (1993). A triable issue of fact exists where there is a dispute as to material facts or where the material facts are undisputed but reasonable persons might draw different ...


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