Garland v. Sybaris Club Int'l, Inc.

• Decision Date: 16 October 2014
• Docket Number: Nos. 1–11–2615,1–11–2622.,1–11–2616,1–11–2617,s. 1–11–2615
• Citation: 21 N.E.3d 24
• Parties: Jennifer E. GARLAND, Independent Administrator of the Estate of Scott A. Garland, Deceased, Plaintiff–Appellant, v. SYBARIS CLUB INTERNATIONAL, INC., Sybaris Ventures One, LLC, Randell D. Repke, Independent Executor of the Estate of Kenneth C. Knudson, Deceased, HK Golden Eagle, Inc., Howard D. Levinson and Hark Corporation, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

21 N.E.3d 24

Jennifer E. GARLAND, Independent Administrator of the Estate of Scott A. Garland, Deceased, Plaintiff–Appellant

v.SYBARIS CLUB INTERNATIONAL, INC., Sybaris Ventures One, LLC, Randell D. Repke, Independent Executor of the Estate of Kenneth C. Knudson, Deceased, HK Golden Eagle, Inc., Howard D. Levinson and Hark Corporation, Defendants–Appellees.

Nos. 1–11–2615

1–11–2616

1–11–2617

1–11–2622.

Appellate Court of Illinois, First District, Fourth Division.

Oct. 16, 2014.

Clifford Law Offices, of Chicago (Richard F. Burke, Jr., and Robert P. Sheridan, of counsel), for appellant.

SmithAmundsen, of Chicago (Alan L. Farkas and Michael S. McGrory, of counsel), for appellee Randell D. Repke.

Larose & Bosco, Ltd., of Chicago (Joseph A. Bosco and Paris B. Glazer, of counsel), for appellee HK Golden Eagle, Inc.

Hoff Law Group, of Chicago (Timothy J. O'Connell, of counsel), for appellees Sybaris Club International, Inc., and Sybaris Ventures One, LLC.

Chuhak & Tecson, P.C., of Chicago (William F. DeYoung and Loretto M. Kennedy, of counsel), for appellees Howard D. Levinson and Hark Corporation.

OPINION

Presiding Justice FITZGERALD SMITH

delivered the judgment of the court, with opinion.

¶ 1 The instant cause involves multiple actions stemming from claims brought following a fatal airplane crash.¹ This is the third time this plane crash has come before this court on appeals arising from orders of dismissal entered by the trial court. In the first, Waugh v. Morgan Stanley & Co., 2012 IL App (1st) 102653, 359 Ill.Dec. 219, 966 N.E.2d 540

, plaintiff Lisa Waugh, surviving spouse of Michael Patrick Waugh, who died in the plane crash, brought a claim of educational malpractice against Howard Levinson and various flight training schools, for allegedly failing to properly instruct Mark Turek in the proper flying and landing procedures for the accident aircraft, a Cessna 421B. Waugh, 2012 IL App (1st) 102653, 359 Ill.Dec. 219, 966 N.E.2d 540. In the second appeal, Garland v. Morgan Stanley & Co., 2013 IL App (1st) 112121, 374 Ill.Dec. 741, 996 N.E.2d 188, plaintiff Jennifer Garland, surviving spouse of Scott A. Garland, who perished in the plane crash, brought a complaint under the dual capacity doctrine, alleging that defendant Morgan Stanley availed itself so extensively of the use of private pilots and airplanes in its business that it should itself be liable for injuries occurring during those flights. Garland, 2013 IL App (1st) 112121, 374 Ill.Dec. 741, 996 N.E.2d 188

. In both appeals, the orders of the trial court granting partial summary judgment as to particular claims and dismissing other claims were affirmed. Waugh, 2012 IL App (1st) 102653, 359 Ill.Dec. 219, 966 N.E.2d 540 ; Garland, 2013 IL App (1st) 112121, 374 Ill.Dec. 741, 996 N.E.2d 188.

¶ 2 The instant cause arises from the death of Scott Garland. Garland's surviving spouse, plaintiff Jennifer Garland, filed a complaint against numerous persons and entities following Garland's death. By her complaint, plaintiff sought recovery for Garland's death on a number of grounds. As to the Levinson defendants, plaintiff alleged that Levinson had been negligent in entrusting the aircraft to Turek, whom, she alleged, was not qualified to fly that particular kind of airplane. As to Knudson, plaintiff alleged negligent entrustment of the aircraft as well as negligent supervision, alleging that Knudson, who was onboard the doomed flight, failed to properly supervise Turek during the flight itself. As to HK, owner of the aircraft, plaintiff alleged it was vicariously liable for its agents, Levinson and Knudson. Plaintiff also sued Sybaris, a group of hotels whose president and founder was Knudson, who conducted the doomed flight in the course of Sybaris business and was, allegedly, a de facto owner of the aircraft. Plaintiff appeals the dismissal of her ninth amended complaint pursuant to section 2–619 of the Code of Civil Procedure

(the Code) (735 ILCS 5/2–619 (West 2010) ) against the named parties herein.

¶ 3 I. BACKGROUND

¶ 4 These consolidated appeals stem from a fatal plane crash. On January 30, 2006, Mark Turek, the pilot in command of a Cessna 421B aircraft, 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. Turek, Garland, and Waugh were onboard for a Morgan Stanley business trip and Knudson had a prospective business customer in Kansas with whom he wanted to meet. Additionally, Turek was interested in possibly becoming part owner of the subject aircraft. As Turek piloted the Cessna 421B aircraft for landing, the aircraft crashed, killing all four occupants on board.

¶ 5 As we noted in a previous decision regarding this same aircraft crash, Turek was an experienced, licensed private pilot and specifically qualified to fly multi-engine aircraft:

“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 in total fight 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.” Waugh, 2012 IL App (1st) 102653, ¶ 7, 359 Ill.Dec. 219, 966 N.E.2d 540

.

¶ 6 The accident aircraft was owned, operated, and maintained by HK Golden Eagle, Inc. Decedent Knudson and Howard Levinson co-owned HK Golden Eagle.

¶ 7 On January 30, 2006, Turek, Garland, Waugh, and Knudson departed Palwaukee airport in Wheeling, Illinois, in the accident aircraft for Kansas. HK Golden Eagle co-owner Levinson testified in deposition that Knudson would have been watching Turek pilot the aircraft to observe how he handled the controls in flight.

¶ 8 Levinson testified that he was not aware Turek and Knudson were going to have passengers onboard the aircraft on the night of the crash. Levinson also testified that he could not speculate as to whether Knudson would have said anything to Turek if he saw him do something he did not like while flying, or even whether Knudson would have intervened if he saw that Turek, while piloting the aircraft, was in a position of peril.

¶ 9 Following meetings in Kansas, the four men departed Kansas for Palwaukee airport. Turek was piloting the aircraft and Knudson was a pilot-rated passenger. On approach to Palwaukee that evening, the weather was overcast with a mixture of freezing precipitation that turned to light snow and mist. Fifteen minutes prior to the crash, an aircraft near Rockford reported moderate rime icing between 2,500 and 7,000 feet. Pilot Raymond Chou testified in deposition that icing conditions can result in the stalling of an aircraft at a higher speed. Radar at Palwaukee Airport showed that accident aircraft's airspeed had decreased to 82 knots immediately before the plane crash.

¶ 10 As the airplane approached the Palwaukee airport, it stalled due to low airspeed and crashed, nose-down, killing all aboard. The aircraft fragmented and burned during the impact, resulting in a postcrash explosion and fire. The crash occurred at 6:29 p.m.

¶ 11 The National Transportation Safety Board (NTSB) examined the aircraft following the crash and found that the engines and propellers revealed no anomalies that existed prior to impact.² The NTSB determined that the probable cause of the crash was “the pilot's failure to maintain airspeed during the landing approach which led to an inadvertent stall and subsequent uncontrolled descent and impact with the ground.”

¶ 12 The estates of each decedent filed wrongful death and survival actions, including two cases this court has already ruled upon, Waugh, 2012 IL App (1st) 102653, 359 Ill.Dec. 219, 966 N.E.2d 540

, and Garland, 2013 IL App (1st)112121, 374 Ill.Dec. 741, 996 N.E.2d 188. In the first case, appellants Morgan Stanley, the estate of Scott Garland, and the estate of Mark Turek appealed from orders of the trial court granting partial summary judgment to appellees Howard Levinson and Hark Corporation on all claims alleging educational malpractice.

Waugh, 2012 IL App (1st) 102653, ¶ 1, 359 Ill.Dec. 219, 966 N.E.2d 540

. On appeal, appellants contended that the trial court erred by characterizing their claim as sounding in the tort of educational malpractice rather than in ordinary negligence. Waugh, 2012 IL App (1st) 102653, ¶ 1, 359 Ill.Dec. 219, 966 N.E.2d 540. Counterdefendant-appellee Recurrent Training Center, Inc., challenged this court's jurisdiction of the cause and asked that that this court dismiss the cross-appeal filed against it as untimely. Waugh, 2012 IL App (1st) 102653, ¶ 1, 359 Ill.Dec. 219, 966 N.E.2d 540. We affirmed the decision of the trial court, finding that the claims at issue did, in fact, sound in educational malpractice, a noncognizable tort in the state of Illinois. Waugh, 2012 IL App (1st) 102653, ¶ 48, 359 Ill.Dec. 219, 966 N.E.2d 540. We also found that this court had proper jurisdiction over the cause. Waugh, 2012 IL App (1st) 102653, ¶ 54, 359 Ill.Dec. 219, 966 N.E.2d 540.

¶ 13 The other case, Garland, 2013 IL App (1st) 112121, 374 Ill.Dec. 741, 996 N.E.2d 188

, involved claims filed by decedent Scott Garland's wife, Jennifer Garland, seeking recovery from decedent Garland's employer, Morgan Stanley & Co., Inc., as well as Garland's co-employee and the estate of the deceased pilot of the aircraft at the time of the accident, Mark Turek. Garland, 2013 IL App (1st) 112121, ¶ 1, 374 Ill.Dec. 741, 996 N.E.2d 188. Morgan Stanley and Donna Turek, Mark Turek's widow and the administrator of the estate...