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Lisa Waugh, As Surviving Spouse of v. Morgan Stanley and Company

March 1, 2012

LISA WAUGH, AS SURVIVING SPOUSE OF MICHAEL PATRICK WAUGH, DECEASED, AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF MICHAEL PATRICK WAUGH, AND AS MOTHER AND NATURAL GUARDIAN OF JOSEPH WAUGH, )
JORDAN WAUGH AND JAMESON WAUGH, MINOR CHILDREN,
PLAINTIFF,
v.
MORGAN STANLEY AND COMPANY,
INCORPORATED, AND DONNA TUREK,
INDEPENDENT ADMINISTRATOR OF THE , ESTATE OF MARK TUREK,
DECEASED,
DEFENDANTS (DONNA TUREK, INDEPENDENT ADMINISTRATOR ) OF THE ESTATE OF MARK TUREK, DECEASED; ) MORGAN STANLEY AND COMPANY, INC., ET AL., COUNTER/PLAINTIFF-APPELLANT AND ) CROSS-APPELLEE, RANDALL D. REPKE, INDEPENDENT EXECUTOR OF ) THE ESTATE OF KENNETH KNUDSON, ) DECEASED; H.K. GOLDEN EAGLE, INC.; ) SYBARIS CLUBS INTERNATIONAL, INC.; ) GALT AIRPORT, L.L.C.; AND RECURRENT ) TRAINING CENTER, INC.; ARR-OW 2, INC., ) D/B/A GLASS SIMULATOR CENTER; ) GENE LITTLEFIELD ADVANCED SIMULATOR ) SYSTEMS, D/B/A GLASS SIMULATOR CENTER;
HOWARD D. LEVINSON; AND HARK CORPORATION,
COUNTER/DEFENDANTS-APPELLEES AND ) CROSS-APPELLANTS). JENNIFER E. GARLAND, INDEPENDENT ) ADMINISTRATOR OF THE ESTATE OF SCOTT A. GARLAND, DECEASED, PLAINTIFF,
v.
T.W. SMITH ENGINE COMPANY, INC., ) A CORPORATION, ET AL., DEFENDANTS (HOWARD LEVINSON AND ) HARK CORPORATION, DEFENDANTS-APPELLEES; RANDALL REPKE, AS INDEPENDENT EXECUTOR ) OF THE ESTATE OF KENNETH KNUDSON, DECEASED, COUNTER/PLAINTIFF AND ) CROSS-APPELLANT; DONNA TUREK, INDEPENDENT ADMINISTRATOR ) OF THE ESTATE OF MARK TUREK; MORGAN ) STANLEY AND COMPANY, INCORPORATED; ) MORGAN STANLEY DW, INCORPORATED;
COUNTER/DEFENDANTS, RECURRENT TRAINING CENTER, INC.; ) ARR-OW 2, INC., D/B/A GLASS SIMULATOR CENTER; ) AND GENE LITTLEFIELD ADVANCED SIMULATOR ) SYSTEMS, D/B/A GLASS SIMULATOR CENTER,
COUNTER/DEFENDANTS AND ) CROSS-APPELLEES). LISA A. WAUGH, AS SURVIVING SPOUSE OF ) MICHAEL PATRICK WAUGH, DECEASED, AND ) AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ) MICHAEL PATRICK WAUGH, AND AS MOTHER AND ) NATURAL GUARDIAN OF JOSEPH WAUGH, JORDAN ) WAUGH, AND JAMESON WAUGH, ) MINOR CHILDREN, PLAINTIFF,
v.
MORGAN STANLEY AND COMPANY, ) INCORPORATED AND THE ESTATE OF ) MARK TUREK, DEFENDANTS (MORGAN STANLEY AND COMPANY, INCORPORATED, THIRD-PARTY PLAINTIFF-APPELLANT, HOWARD D. LEVINSON AND HARK CORPORATION, ET AL., THIRD-PARTY DEFENDANTS AND APPELLEES. LISA A. WAUGH, AS SURVIVING SPOUSE OF ) MICHAEL PATRICK WAUGH, DECEASED, AND ) AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ) MICHAEL PATRICK WAUGH, AND AS MOTHER AND ) NATURAL GUARDIAN OF JOSEPH WAUGH, JORDAN ) WAUGH, AND JAMESON WAUGH, ) MINOR CHILDREN,
PLAINTIFF,
v.
MORGAN STANLEY AND COMPANY, ) INCORPORATED AND THE ESTATE ) OF MARK TUREK, DEFENDANTS (MORGAN STANLEY AND COMPANY, INC.; THIRD-PARTY PLAINTIFF-APPELLANT, HOWARD D. LEVINSON AND HARK ) CORPORATION, ET AL., THIRD-PARTY DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County. Nos. 06L1410, 06L5121, 06L6532, 08L613, 10L4345 (cons.) The Honorable Irwin J. SolganickJudge Presiding.

The opinion of the court was delivered by: Justice Fitzgerald Smith

JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.

Justice Sterba concured in the judgment and opinion.

Justice Pucinski dissented, with opinion.

OPINION

¶ 1 The instant cause involves multiple actions stemming from claims brought following a fatal airplane crash. Appellants Morgan Stanley Company, the estate of Scott Garland, and the estate of Mark Turek appeal from orders of the trial court granting partial summary judgment to appellees Howard Levinson and Hark Corporation on all claims alleging educational malpractice. Appellants contend that the trial court erred by characterizing their claim as sounding in the tort of educational malpractice rather than ordinary negligence. Counterdefendant-appellee Recurrent Training Center, Inc., challenges this court's jurisdiction of this cause and asks that we dismiss the cross-appeal filed against it as untimely. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 These consolidated appeals stem from a fatal plane crash. On January 30, 2006, Mark Turek, the pilot in command of a Cessna 421B aircraft,*fn1 and three passengers, Kenneth Knudson, Scott Garland, and Michael Waugh, were en route from a Kansas airport to the Palwaukee Municipal Airport in Wheeling, Illinois, following a business trip. As Turek piloted the Cessna 421B for landing at the airport, the aircraft crashed, killing all four occupants on board.

¶ 4 Prior to the occurrence, Turek received flight simulator training from defendant Arr-ow II, In., flight instruction from defendant Recurrent Training Center (Recurrent), and a five-hour flight observation and instruction from defendant Levinson. Multiple wrongful death and contribution actions were commenced subsequent to the incident, and those actions were later consolidated for discovery at the circuit court. The Waugh, Knudson, and Garland plaintiffs all filed complaints against multiple defendants, including Morgan Stanley and Turek. Defendant/third-party plaintiff Morgan Stanley filed third-party complaints and counterclaims for contribution in the Waugh, Knudson, and Garland actions against defendants/third-party defendants Levinson and Hark. Defendants/counterplaintiffs Levinson and Hark filed a counterclaim for contribution against Arr-ow, alleging negligent instruction.

¶ 5 In their complaints, the plaintiffs alleged, in pertinent part, that their decedents' deaths were proximately caused by the negligence of Turek and Morgan Stanley, as well as other parties. Allegations included that Morgan Stanley's employee, Turek, piloted the aircraft in a negligent manner and that Morgan Stanley was vicariously liable for Turek's negligence. In its third-party complaint and counterclaims for contribution, Morgan Stanley, along with other parties, alleged that Arr-ow and Recurrent (flight schools) negligently provided flight training to Turek, which contributed to the crash.

¶ 6 Morgan Stanley and the other parties also alleged that Levinson, who provided Turek with in-flight instruction on the accident aircraft, negligently failed to adequately and properly train and instruct Turek as to how to operate the aircraft. They alleged that Hark was vicariously liable for Levinson's negligent training.*fn2 Defendant Turek also filed counterclaims for contribution against Levinson and Hark.

¶ 7 Prior to January 2006, Turek was fully licensed by the Federal Aviation Administration (FAA) to fly twin-engine aircraft, including the accident aircraft. From January 6 through January 9, 2006, Turek completed a flight training course with Recurrent to transition from his Baron B55 twin-engine plane to the Cessna 421B. Previous to taking this course, Turek had 1,284.05 hours of total flight experience, including over 1,050 hours in multi-engine aircraft. Turek had piloted a Cessna 421B aircraft for over 29 hours. At the time he completed the Recurrent course, Turek had been an FAA-licensed pilot for nine years. There is no argument made that Turek was not properly qualified to pilot the subject aircraft under FAA regulations.

¶ 8 The Recurrent program, course materials, and training that Turek completed complied with FAA regulations and was FAA certified. The twin Cessna flight training device used by Turek during his training session at Recurrent was FAA certified, qualified, calibrated, and routinely inspected by the FAA.

¶ 9 Recurrent students are experienced pilots who have obtained their FAA pilot's license and ratings. Recurrent flight instructor Kyle Lyons testified at deposition that Turek, when completing his training coursework at Recurrent, demonstrated through performance and testing that he was fully proficient, competent, and prepared to fly. He also demonstrated that he was aware of the specifics of a Cessna 421B aircraft. Specifically, Turek completed a Cessna 421B workbook which was reviewed by a Recurrent instructor to verify that Turek was familiar with all information specific to the Cessna 421B. Turek was provided with information on Cessna 421B power settings, speeds, and other procedures for operating in the landing phase of flight. Additionally, Turek's one-on-one training included operations and performance training specific to the Cessna 421B. There was no indication during the Recurrent coursework and evaluation that Turek had any difficulties with regard to descending, turning, speed, or otherwise controlling the aircraft in the airport environment. Turek was taught Cessna 421B stall speeds, proper engine operation, and fuel management.

¶ 10 In 2005, Turek successfully completed 33 hours of recurrent twin-engine instrument proficiency training with Eugene Littlefield, his instructor at Arr-ow. According to Littlefield's deposition testimony, Turek was already a qualified and proficient twin-engine pilot at that time. In Littlefield's opinion, Turek was always in control of the airplane, displayed good techniques, procedures, and cockpit management, and was a very proficient pilot. Littlefield opined that Turek was a fully trained, safe, competent, and qualified multi-engine pilot.

¶ 11 After completing training at both Arr-ow and Recurrent, Turek flew the subject aircraft for an additional five hours in January 2006 under the observation of Levinson, a partial owner of Hark, which had an ownership interest in HK Golden Eagle. Levinson testified at deposition that the purpose of the observation was for Levinson to observe Turek fly the subject aircraft and to provide the required hours to satisfy his insurance company requirements. At the time of the observation flight, Levinson was a certified flight instructor with an FAA rating as an airline transport pilot. Levinson was certified and rated for single-engine, multi-engine, and instrument flight, as well as an instructor for aircraft, instrument flight, and multi-engine aircraft. Levinson testified at deposition that Turek was a qualified pilot with many hours of flying experience in a Cessna 421B. The accident aircraft crashed at night while in a landing traffic pattern to land at Palwaukee airport. Much of Turek's in-flight training by Levinson in the accident aircraft was flying in the landing traffic pattern in the same location as the crash site.

¶ 12 Following the crash, Levinson, Recurrent, and Arr-ow all became defendants in consolidated actions based upon their education/training of Turek.

¶ 13 Recurrent filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2008)) regarding the preflight educational malpractice claims, arguing that, consistent with the majority of jurisdictions, Illinois has not and would not recognize the tort of educational malpractice.

¶ 14 Arr-ow also filed a motion for summary judgment pursuant to section 2-1005 of the Code, arguing that Turek's negligence claim sounds in the tort of educational malpractice, which is not a recognized cause of action in Illinois.

¶ 15 Levinson and Hark filed a separate motion for partial summary judgment pursuant to section 2-1005 of the Code, alleging that there was no genuine issue as to any material fact regarding Garland's claims of educational malpractice as asserted in Garland's sixth amended complaint. Specifically, Levinson and Hark adopted the arguments made by Recurrent and Arrow in their motions of summary judgment, and they also argued further that Illinois has not recognized and would not recognize a cause of action in tort for educational malpractice. The motion noted that the majority of jurisdictions have refused to recognize a cause of action for educational malpractice. Moreover, Levinson and Hark argued that Garland's educational malpractice claims are deficient as a matter of law because Garland cannot establish the requisite elements of duty or proximate cause under a negligence theory.

¶ 16 HK Golden Eagle, Sybaris, and Knudson each filed a motion to dismiss those portions of Turek's complaint that allege educational malpractice pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2008)), contending that those counts should be dismissed because the tort of educational malpractice is not recognized in Illinois.

¶ 17 Defendant Recurrent also filed a motion to dismiss, pursuant to section 2-619 of the Code, Levinson and Hark's amended counterclaims for contribution. In its motion, Recurrent contended that Levinson and Hark's counterclaims must be dismissed because they are based on the tort of educational malpractice, a tort that is not recognized in Illinois.

¶ 18 Arr-ow filed a motion for summary judgment pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005(c) (West 2008)), regarding Levinson and Hark's counterclaims for contribution against Turek, Recurrent, Arr-ow, and Morgan Stanley. In its motion, Arr-ow contended that the counterclaims for contribution must be dismissed because they are based upon the tort of educational malpractice, a tort that does not exist in Illinois.

¶ 19 After hearing oral arguments on the motions, the trial court entered summary judgment in favor of the flight schools on the basis that the claims sounded in educational malpractice. The court also granted partial summary judgment to Levinson and Hark on those portions of the contribution claims alleging negligent training and instruction, and granted the motions to dismiss based on section 2-619 of the Code as to all counts related to educational malpractice or educational negligence. Subsequently, the trial court entered a written order reflecting that judgment, finding that any allegations of negligent training and instruction constitute claims for "educational malpractice" and, thus, should not be recognized under Illinois law. It stated:

"IT IS HEREBY ORDERED:

The Court finds that educational malpractice or educational negligence based counts and allegations are improper and are not * * * recognized as a tort in the State of Illinois. The Court grants these motions as they relate to any instruction or training that is or has been alleged to have contributed to the cause of this occurrence."

¶ 20 The dismissed claims asserted by Morgan Stanley's third-party complaint for contribution against Levinson, Hark, Recurrent, and Arr-ow state, in relevant part:

"COUNT I

HOWARD D. LEVINSON

6. On and before January 30, 2006, Howard D. Levinson, acted to train, supervise and instruct MARK TUREK in the use and operation of the Cessna 421B aircraft, Registration No. N920MC.

7. Should liability be assessed against Morgan Stanley, which liability is expressly denied, Morgan Stanley hereby asserts that it has a right of contribution against HOWARD D. LEVINSON, pursuant to the Illinois Contribution Act, 740 ILCS 100/0.01, et seq., because he was negligent in one or more of the following respects:

c. Failed to adequately and properly train Mark Turek on how to operate the subject aircraft;

e. Failed to safely and properly train, supervise and instruct Mark Turek in the use of the Cessna, including landing maneuvers into Palwaukee[.]"

and:

"COUNT II HARK CORPORATION

7. Should liability be assessed against Morgan Stanley, which liability is expressly denied, Morgan Stanley hereby asserts that it has a right of contribution against HARK CORPORATION, pursuant to the Illinois Contribution Act, 740 ILCS 100/0.01, et seq., because HARK CORPORATION was negligent in one or more of the following respects:

d. HARK CORPORATION is vicariously liable for the actions of its President, Howard D. Levinson, who failed to adequately and properly train Mark Turek on how to operate the subject aircraft."

¶ 21 The dismissed claims asserted by Garland in her sixth amended complaint state, in relevant part:

"12. On and before January 30, 2006, and at all times mentioned herein, Defendant, LEVINSON, Individually, and/or as an authorized owner agent, apparent agent and/or employee of H.K. GOLDEN EAGLE, INC. and/or Defendant ...


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