Garland v. Sybaris Clubs Int'l, Inc.

• Decision Date: 28 August 2019
• Docket Number: No. 1-18-0682,1-18-0682
• Citation: 141 N.E.3d 730,435 Ill.Dec. 921,2019 IL App (1st) 180682
• Parties: Jennifer E. GARLAND, Independent Administrator of the Estate of Scott A. Garland, Deceased, Plaintiff-Appellant, v. SYBARIS CLUBS INTERNATIONAL, INC.; Sybaris Ventures One, LLC; HK Golden Eagle, Inc.; Randell D. Repke, Independent Executor of the Estate of Kenneth C. Knudson, Deceased; Howard D. Levinson; and Hark Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 180682
141 N.E.3d 730
435 Ill.Dec. 921

Jennifer E. GARLAND, Independent Administrator of the Estate of Scott A. Garland, Deceased, Plaintiff-Appellant,
v.
SYBARIS CLUBS INTERNATIONAL, INC.; Sybaris Ventures One, LLC; HK Golden Eagle, Inc.; Randell D. Repke, Independent Executor of the Estate of Kenneth C. Knudson, Deceased; Howard D. Levinson; and Hark Corporation, Defendants-Appellees.

No. 1-18-0682

Appellate Court of Illinois, First District, THIRD DIVISION.

Opinion filed August 28, 2019

Richard F. Burke Jr., of Clifford Law Offices PC, of Chicago, for appellant.

John S. Hoff and Jared A. Schneider, of Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC, of Chicago, for appellees Sybaris Clubs International, Inc., and Sybaris Ventures One, LLC.

Joseph A. Bosco and David J. Aron, of LaRose & Bosco, Ltd., of Chicago, for appellee HK Golden Eagle, Inc.

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

William F. DeYoung and Loretto M. Kennedy, of Chuhak & Tecson, P.C., of Chicago, for other appellees.

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

435 Ill.Dec. 928

¶ 1 This is the fifth time that this case arising from a fatal airplane crash has come before this court. This appeal involves the trial court's granting of summary judgment in favor of the defendants on the claims that the plaintiff asserted against them under a theory of negligent entrustment.¹ It also involves the trial court's striking of certain opinions from the affidavits of two of the plaintiff's controlled expert witnesses, which the plaintiff submitted in opposition to the motions for summary judgment. For the following reasons, we affirm the judgment of the trial court.

¶ 2 I. BACKGROUND

¶ 3 On January 30, 2006, a Cessna 421B airplane crashed while in the process of landing at Palwaukee Municipal Airport (Palwaukee) in Wheeling, Illinois, killing the four occupants onboard. The pilot-in-command of that airplane for the flight at issue was Mark A. Turek,² and the three passengers onboard were Garland, Knudson, and Michael Waugh. Turek and Garland

141 N.E.3d 738

435 Ill.Dec. 929

were both employees of Morgan Stanley & Co., Inc. (Morgan Stanley). They were traveling with Waugh, a potential Morgan Stanley client, to Kansas for a business trip. Knudson was one of the owners of the airplane. He was also the owner and founder of the Sybaris defendants. Knudson had a business meeting of his own in Kansas on behalf of Sybaris, and thus he accompanied the other three men on the flight. Another reason that Turek and Knudson were on the subject flight together was that Turek was interested in purchasing a partial share of the ownership of the Cessna 421B airplane at issue. It had been initially purchased by Sybaris in August 2004. In May 2005, its registration was transferred to defendant HK Golden Eagle, a corporation that had been formed by Knudson and defendant Levinson for the purpose of owning the airplane. The shareholders of HK Golden Eagle were Knudson and defendant Hark Corporation, which itself was a corporation created by Levinson and his wife for purpose of owning their shares in the subject airplane. Knudson and Levinson were interested in making Turek a potential partner in the ownership of the airplane, and thus one reason why Turek piloted the Cessna 421B at issue on the trip to and from Kansas that day with Knudson onboard was to allow Knudson to evaluate Turek as a potential partner in the ownership of the airplane.

¶ 4 A. Procedural History

¶ 5 Many claims arose from this incident, and this case has had an extensive procedural history at the trial and appellate level. The first appeal that this court addressed involving this incident was Waugh v. Morgan Stanley & Co. , 2012 IL App (1st) 102653, 359 Ill.Dec. 219, 966 N.E.2d 540. In that case, this court affirmed the trial court's granting of partial summary judgment in favor of Levinson, Hark Corporation, and other parties not involved in this appeal who had provided flight training to Turek, on the basis that certain allegations against them amounted to claims of educational malpractice, a tort that is not recognized under Illinois law. Id. ¶¶ 42-44. The second appeal addressed by this court was Garland v. Morgan Stanley & Co. , 2013 IL App (1st) 112121, 374 Ill.Dec. 741, 996 N.E.2d 188. There, this court held that the exclusive remedy provision of the Workers' Compensation Act ( 820 ILCS 305/1 et seq. (West 2010)) barred the plaintiff's common-law tort claims against Morgan Stanley and Turek's estate, where Garland's death was accidental and Morgan Stanley and Turek were not acting in the "dual capacity" of providing air transport services unrelated to their status as Garland's employer and coemployee. Garland , 2013 IL App (1st) 112121, ¶¶ 31, 48-50, 374 Ill.Dec. 741, 996 N.E.2d 188.

¶ 6 The third appeal, Garland v. Sybaris Club International, Inc. , 2014 IL App (1st) 112615, 386 Ill.Dec. 538, 21 N.E.3d 24 ( Garland I ), involved the causes of action pled by the plaintiff in her ninth amended complaint. These causes of action included those at issue in this appeal, which are the plaintiff's allegations that defendants Levinson and Knudson were negligent in entrusting the Cessna 421B airplane to Turek to pilot, when they knew or should have known that Turek was not qualified to fly that particular type of airplane in the conditions present on the night of the incident. Id. ¶¶ 2, 51, 68. The complaint also alleged that Knudson was negligent in failing to supervise Turek during the flight itself. Id. ¶ 72. The plaintiff alleged theories of vicarious liability against Hark Corporation, HK Golden Eagle, and Sybaris. Id. ¶ 2. The trial court dismissed the causes of action in the ninth amended complaint under section 2-619 of the Code of Civil Procedure (

141 N.E.3d 739

435 Ill.Dec. 930

735 ILCS 5/2-619 (West 2010) ). Garland I , 2014 IL App (1st) 112615, ¶ 2, 386 Ill.Dec. 538, 21 N.E.3d 24. On appeal, this court affirmed in part and reversed in part. Id. ¶ 104. The court affirmed the dismissal of the allegations involving negligent supervision against the Estate of Knudson. Id. ¶ 82. However, this court reversed the circuit court's dismissal of the causes of action alleging negligent entrustment by Levinson, Hark Corporation, and the Estate of Knudson and the causes of action alleging vicarious liability for negligent entrustment against HK Golden Eagle and Sybaris. Id. ¶¶ 61, 70.

¶ 7 In the fourth appeal, Garland v. Sybaris Clubs International, Inc. , 2017 IL App (1st) 160745-U, 2017 WL 1838299 ( Garland II ), this court reversed the trial court's granting of summary judgment in favor of Sybaris on the claims alleging vicarious liability for negligent entrustment. The court held that genuine issues of material fact existed about whether Sybaris was liable under principles of respondeat superior for the acts of negligent entrustment by Knudson, which occurred while he was acting within the scope of his employment for Sybaris. Id. ¶¶ 39-42.

¶ 8 Following the remand of Garland II , all of the defendants moved for summary judgment in their favor on all claims in the plaintiff's ninth amended complaint alleging negligent entrustment. The defendants' general argument was that no genuine issue of material fact existed about whether Levinson or Knudson had acted negligently in entrusting the subject airplane to Turek for the flight at issue. They further argued that no genuine issue of material fact existed about whether their entrustment was a proximate cause of the crash. After striking certain portions of the affidavits of the plaintiff's controlled expert witnesses, the trial court granted summary judgment in favor of all the defendants.

¶ 9 B. Summary Judgment Record

¶ 10 According to evidence in the summary judgment record, the crash at issue occurred at 6:29 p.m. on January 30, 2006. The weather conditions at Palwaukee that day involved a mixture of freezing precipitation and snow that started at 6:49 a.m., turning to light snow and mist that continued intermittently through 4:48 p.m. No major accumulation of ice or snow was reported. The National Weather Service provided a "current icing potential" for 6 p.m. depicting "a probability of icing conditions over the Chicago area which ranged from about 10 percent at 3,000 feet, to about 70 percent at 5,000 feet." Several pilot reports of icing were recorded in the hours surrounding the accident time. As reported at 5:53 p.m. and 6:36 p.m., visibility was unrestricted at 10 statute miles.

¶ 11 Radar data showed the airplane as it approached Palwaukee and entered a left-hand traffic pattern to runway 34. The radar data showed that, as the airplane made a left turn, its calibrated airspeed decreased from 110 knots to 82 knots in the final 30 seconds of data available before the impact occurred. The owner's manual for the Cessna 421B at issue specifies a landing approach speed of 103 knots-indicated airspeed. It also lists stall speeds for the airplane ranging from 94 knots-calibrated airspeed to 83 knots-calibrated airspeed depending on the...