Evans v. Lima Lima Flight Team Inc.

SECOND DIVISION
FILED: April 24, 2007
No. 1-05-3423
)
WILLIAM C. EVANS, as Executor ) APPEAL FROM THE
of the Estate of KEITH J. EVANS, ) CIRCUIT COURT OF
Deceased, ) COOK COUNTY
Plaintiff-Appellant- )
Cross-Appellee, )
)
v. ) No. 01 L 011514
)
LIMA LIMA FLIGHT TEAM, INC, )
Individually; WILLIAM CHERWIN, )
LOU DRENDEL, JAMES J. MARTIN and ) HONORABLE
JAMES O. MARTIN, Individually and ) DONALD DEVLIN,
as Agents of LIMA LIMA FLIGHT ) JUDGE PRESIDING.
TEAM, INC., )
Defendants-Appellees- )
Cross-Appellants. )
JUSTICE HOFFMAN delivered the opinion of the court:
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
No. 1-05-3423
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,
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No. 1-05-3423
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.1
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
1
The plaintiff’s motion to convert also included respondents
in discovery Krakowski and United Airlines, but the motion was
denied as to those parties. The order denying the plaintiff’s
motion to convert Krakowski and United Airlines was affirmed by
this court in Evans v. Lima Lima Flight Team, Inc., No. 1-02-2495
(March 31, 2003) (unpublished order under Supreme Court Rule 23),
and they are not parties to this appeal.
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No. 1-05-3423
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 Qualificatio n
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
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No. 1-05-3423
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.2, (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,
2
The T-34 Association option is circled.
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No. 1-05-3423
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
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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 inferences from those facts. In re Estate of Hoover, 155
Ill. 2d at 411. As in all cases involving summary judgment, our
review is de novo. Outboard Marine Corp. v. Liberty Mutual
Insurance, 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992).
Although exculpatory agreements are not favored and are
strictly construed against the party they benefit, (Scott & Fetzer
Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 395, 493 N.E.2d 1022
(1986)), parties may allocate the risk of negligence as they see
fit, and exculpatory agreements do not violate public policy as a
matter of law. Platt v. Gateway International Motorsports Corp.,
351 Ill. App. 3d 326, 330, 813 N.E.2d 279 (2004). An exculpatory
agreement will be enforced if: "(1) it clearly spells out the
intention of the parties; (2) there is nothing in the social
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No. 1-05-3423
relationship between the parties militating against enforcement; and
(3) it is not against public policy." Chicago Steel Rule & Die
Fabricators Co. v. Travelers Indemnity Co. of Ill., 327 Ill. App.
3d 642, 645, 763 N.E.2d 839 (2002).
The plaintiff has made no argument that the social relationship
between Evans and the individual defendants militates against
enforcement of the exculpatory agreement. Rather, the plaintiff
argues both that the language of the agreement does not clearly
reflect the intention of the parties and that the agreement is
contrary to public policy.
The plaintiff contends that the exculpatory agreement did not
specifically name Lima Lima or its individual members, and, thus,
the document is too indefinite to extinguish the individual
defendants' liability. Contrary to the plaintiff's argument,
however, an exculpatory agreement need not specifically name the
individuals to which it applies. Poskozim v. Monnacep, 131 Ill.
App. 3d 446, 449, 475 N.E.2d 1042 (1985). Rather, the exculpatory
agreement may designate a class of beneficiaries covered under the
agreement. Poskozim, 131 Ill. App. 3d at 449; see also Polsky v.
BDO Seidman, 293 Ill. App. 3d 414, 422, 688 N.E.2d 364 (1997).
In the exculpatory agreement at issue in this case, Evans
agreed to "release and forever discharge the Signatory Organizations
listed below each and every one of them and F.A.S.T., its members,
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No. 1-05-3423
employees, suppliers, agents or representatives." The agreement
also states that F.A.S.T. is a confederation composed of five
signatory organizations. The plaintiff maintains that it is the
signatory organizations that are the "members" of F.A.S.T.
exonerated by the exculpatory agreement. This interpretation,
however, would render the phrase specifically releasing the
signatory organizations superfluous. Contractual terms should be
construed so as to avoid the conclusion that other terms are
redundant. Forty-Eight Insulations, Inc. v. Acevedo, 140 Ill. App.
3d 107, 115, 487 N.E.2d 1206 (1986). Accordingly, we read the
exculpatory agreement to include pilots who are "members" of
F.A.S.T.
In determining whether the exculpatory agreement applied to the
individual defendants, the circuit court relied upon an affidavit
from Cherwin in which he identified all of the individual defendants
as members of F.A.S.T. at the time of the accident. However, the
plaintiff maintains that this evidence was inadmissable pursuant to
the parol evidence rule, and, thus, the circuit court erred in
considering it. Again, we disagree.
Under the parol evidence rule, extrinsic evidence is
inadmissable to vary or modify the unambiguous provisions of a
written contract. Main Bank of Chicago v. Baker, 86 Ill. 2d 188,
199, 427 N.E.2d 94 (1981). The affidavit by Cherwin was not
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presented to vary or modify the terms of the exculpatory agreement,
but merely to identify Cherwin and the other individual defendants
as members of F.A.S.T. Consequently, consideration of Cherwin's
affidavit was not barred by the parol evidence rule.3 See In re
Petition to the Village of Round Lake Park, 29 Ill. App. 3d 651,
658, 331 N.E.2d 602 (1975) (holding that parol evidence may be
admitted for the purpose of identifying the parties to an
agreement).
The exculpatory agreement lists F.A.S.T. as "a corporation to
be formed." Therefore, when Evans signed the agreement, F.A.S.T.
could not have had any members, as there was no entity to join. It
follows that, if the class of beneficiaries covered under the
exculpatory agreement is determined at the time the contract was
signed, the members of F.A.S.T. cannot be identified. However, in
his affidavit, Cherwin averred that the individual defendants were
members of F.A.S.T. when the accident occurred. Accordingly, it
3
In a related argument, the plaintiff maintains that the
circuit court erred in considering evidence which was
inadmissable pursuant to the Dead-Man's Act (735 ILCS 5/8-201
(West 2002)). Under the Dead-Man's Act, an adverse party or
person directly interested in an action, where a deceased person
is represented, cannot testify on his own behalf regarding any
conversation with the deceased or an event which took place in
the presence of the deceased. 735 ILCS 5/8-201 (West 2002). The
plaintiff, however, has failed to specify any particular
testimony that was allegedly admitted in violation of this
statute, instead merely referencing arguments made by the
defendants before the circuit court. Consequently, we reject the
plaintiff's argument that the Dead-Man's Act applies.
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No. 1-05-3423
appears that F.A.S.T. was in existence on the date of the accident,
and, therefore, its members are identifiable.
A beneficiary to a contract need not be named, identifiable,
or yet in existence at the time the contract is executed. Bernstein
v. Lind-Waldeck & Co., 153 Ill. App. 3d 108, 111, 505 N.E.2d 1114
(1987); Board of Education of Community School District No. 220 v.
Village of Hoffman Estates, 126 Ill. App. 3d 625, 629, 467 N.E.2d
1064 (1984). It is sufficient that he or she be identified as a
member of the class intended to be benefitted when the contract
becomes operative. Altevogt v. Brinkoetter, 85 Ill. 2d 44, 55-56,
421 N.E.2d 182 (1981). The uncontradicted evidence establishes that
the individual defendants were members of F.A.S.T. when the
exculpatory agreement became operable, the date of the accident.
Consequently, the individual defendants are clearly included within
the class of beneficiaries covered by the agreement and are, thus,
entitled to its protection.
The plaintiff also argues that the exculpatory agreement did
not clearly and specifically exonerate the individual defendants
from injuries caused by their negligent conduct. The plaintiff
maintains that the language of the agreement, namely a release "from
any and all claims" incurred as a result of participating in
activities involving formation flying, was too broad and vague to
notify Evans of the types of conduct from which he was releasing the
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No. 1-05-3423
individual defendants.
The exculpatory agreement warned that formation flying is
"inherently dangerous" and exempted members of F.A.S.T. from "any
and all claims" sustained as a result of participating in activities
involving such flying. The plaintiff argues that referencing the
inherent dangers of formation flying demonstrates that the
exculpatory agreement does not apply to negligent conduct. Citing
to Bear v. Power Air, Inc., 230 Ill. App. 3d 403, 595 N.E.2d 77
(1992), the plaintiff contends that "inherently dangerous" only
refers to "that type of danger which inheres in the instrumentality
or the condition itself at all times thereby requiring special
precautions to be taken with regard to it to prevent injury and does
not mean danger which arises from mere casual negligence with regard
to it under the particular circumstances." (Emphasis added.) Bear,
230 Ill. App. 3d at 409. This definition of "inherently dangerous,"
however, is used to determine whether to impose strict liability for
ultrahazardous activities (Traudbe v. Freund, 333 Ill. App. 3d 198,
202, 775 N.E.2d 212 (2002)), or vicarious liability for the acts of
independent contractors (Bear, 230 Ill. App. 3d at 409)), and,
therefore, is inapplicable to this case.
An exculpatory agreement must contain clear, explicit, and
unequivocal language referencing the type of activity, circumstance,
or situation that it encompasses and for which the plaintiff agrees
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No. 1-05-3423
to relieve the defendant from a duty of care. Platt, 351 Ill. App.
3d at 330. However, the parties need not have contemplated the
precise occurrence which results in injury. Schlessman v. Henson,
83 Ill. 2d 82, 86, 413 N.E.2d 1252 (1980). The injury must only
fall within the scope of possible dangers ordinarily accompanying
the activity and, therefore, reasonably contemplated by the parties.
Garrison v. Combined Fitness Center, Ltd., 201 Ill. App. 3d 581,
585, 559 N.E.2d 187 (1990).
Whether an injury accompanies a certain activity is ordinarily
a question of fact, precluding summary judgment. Falkner v.
Hinckley Parachute Center, Inc., 178 Ill. App. 3d 597, 602, 533
N.E.2d 941 (1989). In this case, however, we conclude, as a matter
of law, that Evans' death fell within the scope of possible dangers
ordinarily accompanying formation flying, namely a collision with
another aircraft. See Goodlett v. Kalishek, 223 F.3d 32, 38 (2nd
Cir. 2000) (holding that the risk of a collision is plainly inherent
in airplane racing). The exculpatory agreement clearly exempted
members of F.A.S.T. from "any and all claims" sustained by Evans as
a result of participating in activities involving formation flying.
We find that the exculpatory agreement signed by Evans was not
rendered unenforceably vague, although the precise occurrence which
caused Evans' death might not have been foreseen. By adopting the
broad language in the exculpatory agreement, the parties
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No. 1-05-3423
contemplated the similarly broad range of accidents that might occur
in formation flying. See Schlessman, 83 Ill. 2d at 86.
Consequently, we reject the plaintiff's contention that the language
in the exculpatory agreement did not clearly and specifically
exonerate the individual defendants from liability for their alleged
negligent conduct.
The plaintiff next argues that the exculpatory agreement
violates public policy because it exonerates the individual
defendants for injuries caused by their "unlawful conduct."
Specifically, the plaintiff contends that, because J.O. Martin
violated Federal Aviation Regulation 91.113 (14 C.F.R. § 91.113
(2006)) which required him to "see and avoid" Evans' aircraft, the
exculpatory agreement should not be enforceable. The argument,
however, is not well taken.
An exculpatory agreement will not be enforced where it is found
to contravene or thwart public policy considerations. Foreman v.
Holsman, 10 Ill. 2d 551, 554, 141 N.E.2d 31 (1957); Zimmerman v.
Northfield Real Estate, Inc., 156 Ill. App. 3d 154, 165, 510 N.E.2d
409 (1989). The plaintiff argues that air safety is a matter of
public interest, and, therefore, individuals cannot exculpate
themselves from violating a federal aviation regulation.
The plaintiff contends that the collision resulting in Evans'
death occurred because J.O. Martin violated Federal Aviation
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Regulation 91.113. This regulation provides, in relevant part:
"Right-of way rules:
***
(b) General. When weather conditions permit,
regardless of whether an operation is conducted
under instrument flight rules or visual flight
rules, vigilance shall be maintained by each
person operating an aircraft so as to see and
avoid other aircraft." (Emphasis added.) 14
C.F.R. § 91.113 (2006).
Even assuming that J.O. Martin violated Federal Aviation
Regulation 91.113 and that the violation caused the collision,
enforcement of the exculpatory agreement at issue would not violate
public policy. Generally, a violation of Federal Aviation
Regulation 91.113 is treated as a breach of duty in a negligence
action. See e.g., Steering Committee v. United States, 6 F.3d 572,
576-77 (9th Cir. 1993). Exculpatory agreements barring negligence
claims are ordinarily enforceable and do not violate public policy
as a matter of law. Platt, 351 Ill. App. 3d at 330.
Furthermore, we do not believe that enforcing the exculpatory
agreement would endanger the public's safety. As the exculpatory
agreement only releases other formation pilots and certain
organizations from liability, the pilots would still be subject to
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liability for injuries suffered by members of the general public or
for property damage resulting from their negligent conduct.
Therefore, the incentive to maintain proper operating procedures
would remain. Consequently, we find that enforcement of the
exculpatory agreement at issue does not violate public policy.
Based upon the foregoing analysis, we affirm that part of the
circuit court's order granting summary judgment in favor of the
individual defendants.
Next, the plaintiff contends that the circuit court erred in
granting summary judgment in favor of Lima Lima because the amended
complaint alleged independent acts of negligence on its part. The
defendants maintain that the amended complaint merely sought to
impose liability on Lima Lima based upon the actions of the
individual defendants, and, because the individual defendants have
been dismissed, Lima Lima is entitled to be dismissed.
When a suit is brought against a principal based solely on the
negligent acts of its agents, and no independent wrong has been
charged against the principal, the dismissal of the agents entitles
the principal to be dismissed. Holcomb v. Flavin, 34 Ill. 2d 558,
565, 216 N.E.2d 871 (1966). However, where independent negligent
acts have been alleged directly against the principal, the principal
may still be liable although the agents have been dismissed. Marek
v. O.B. Gyne Specialists II, 319 Ill. App. 3d 690, 701, 746 N.E.2d
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1 (2001).
In his brief, the plaintiff contends that counts VII and IX of
the amended complaint contain allegations of independent negligent
conduct on the part of Lima Lima. However, the plaintiff has failed
to present any argument in support of his contention. A point
raised on appeal that is not argued or supported by citation to
relevant authority is deemed waived. 210 Ill. 2d R. 341(h)(7);
Brown v. Tenney, 125 Ill. 2d 348, 362, 532 N.E.2d 230 (1988).
The plaintiff also contends that counts I and V of the amended
complaint asserted claims directly against Lima Lima. In these
counts, the plaintiff alleged, in relevant part, that Lima Lima was
negligent as it:
"(h) Failed to have a prepared method of
operation for aborting the maneuver if visual
contact was lost; or
(i) Failed to properly instruct the pilots on
procedure upon loss of visual contact; or
(j) Failed to alert pilots, including James O.
Martin, regarding the proper procedures that
day."
Counts I and V did not allege that Lima Lima's liability was solely
vicarious. Rather, those counts alleged that the fatal accident
occurred, in part, because of Lima Lima's own negligence in failing
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to create and implement a proper procedure in the event that visual
contact was lost.
The plaintiff's expert, Paul Krause, opined that Lima Lima's
manual was inadequate in that it failed to provide specific guidance
to pilots in the event of emergency situations, including a
procedure during a loss of visual contact. Krause also opined that
Lima Lima's lack of emergency procedures was a contributing factor
in the accident which caused Evans' death.
Based upon the allegations of individual negligence on the part
of Lima Lima set forth in counts I and V and Krause's opinions, we
conclude that factual questions remain as to whether Lima Lima was
negligent in failing to develop and implement a procedure upon the
loss of visual contact and whether its alleged independent
negligence was a proximate cause of Evans' death. For these
reasons, the circuit court erred in granting summary judgment in
favor of Lima Lima based solely on the dismissal of the individual
defendants. See Marek, 319 Ill. App. 3d at 701.
In their cross-appeal, the defendants argue that the circuit
court improperly denied Lima Lima's motion for summary judgment
based upon the doctrine of assumption of the risk. The defendants
also seek review of the circuit court's denial of J.O. Martin and
Lima Lima's motion to transfer venue on the grounds of forum non
conveniens. Initially, we address whether we have jurisdiction to
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entertain the defendants' cross-appeal.
A party who has obtained all that has been asked for in the
circuit court has no standing to appeal. Geer v. Kodern, 173 Ill.
2d 398, 413-14, 671 N.E.2d 692 (1996). In granting summary judgment
in favor of the individual defendants and Lima Lima, the defendants
received all the relief that they sought. Because the defendants
obtained everything that they asked for in the circuit court, their
cross-appeal must be dismissed. Material Service Corp. v.
Department of Revenue, 98 Ill. 2d 382, 386, 457 N.E.2d 9 (1983);
Wolfe v. Menard, Inc., 364 Ill. App. 3d 338, 347, 846 N.E.2d 605
(2006). However, as we may affirm the circuit court on any basis
warranted by the record, the defendants need not file a cross-appeal
to urge alternative reasons for affirming. Material Service Corp.,
98 Ill. 2d at 386; Woodard v. Krans, 234 Ill. App. 3d 690, 699, 600
N.E.2d 477 (1992). Consequently, we will consider the issue of
whether summary judgment in favor of Lima Lima is appropriate based
upon the doctrine of assumption of the risk.
Traditionally, courts have classified the doctrine of
assumption of the risk into three categories: (1) express
assumption of the risk; (2) primary implied assumption of the risk;
and; (3) secondary implied assumption of the risk. Hanke v. Wacker,
217 Ill. App. 3d 151, 158, 576 N.E.2d 1113 (1991). An express
assumption of the risk is found where an individual has explicitly
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agreed, in advance, to relieve another of a legal duty owed to him
or her. Duffy v. Midlothian Country Club, 135 Ill. App. 3d 429,
433, 481 N.E.2d 1032 (1985). A primary implied assumption of the
risk exists where the conduct of the parties indicates that an
individual has implicitly consented to encounter an inherent and
known risk, thereby excusing another from a legal duty which would
otherwise exist. Russo v. Range, Inc., 76 Ill. App. 3d 236, 238,
395 N.E.2d 10 (1979). Finally, secondary implied assumption of the
risk occurs where the defendant's negligence created a danger that
was apparent to the injured party, who nevertheless voluntarily
chose to encounter it. Duffy, 135 Ill. App. 3d at 433-34. As
secondary implied assumption of the risk functions in a similar
manner as contributory negligence, the introduction of comparative
fault abolished this doctrine and it no longer operates as a
complete bar in negligence actions. Duffy, 135 Ill. App. 3d at 435.
In this case, there is no written contract signed by Evans
exculpating Lima Lima from liability; rather, the exculpatory
agreement signed by Evans only applied to the individual defendants.
Without such an exculpatory agreement, Lima Lima cannot rely on the
doctrine of express assumption of the risk to relieve it of any duty
owed to Evans.
We turn finally to the doctrine of primary implied assumption
of the risk. Primary implied assumption of the risk requires that
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the injured party knew of the specific risk which caused his or her
injury. Russo, 76 Ill. App. 3d at 239. Whether a particular risk
was appreciated is a question of fact. Falkner, 178 Ill. App. 3d
at 602.
In counts I and V of the amended complaint, the plaintiff
alleged that the collision was caused, in part, by Lima Lima's
failure to develop and implement a proper procedure in the event
that visual contact was lost. Based on the record before us, we
cannot say, as a matter of law, that, when Evans participated in
formation flying, he was aware of and accepted the risk that Lima
Lima's emergency procedures were possibly inadequate. We believe
that questions of fact still remain as to whether Lima Lima's
alleged failure to provide sufficient emergency procedures was a
risk that Evans assumed. Consequently, we decline to affirm summary
judgment in favor of Lima Lima based upon the doctrine of assumption
of the risk.
For the forgoing reasons, we conclude that the circuit court
erred in granting Lima Lima's motion for summary judgment.
In summary, we affirm the order of the circuit court granting
summary judgment in favor of the individual defendants, reverse the
order of the circuit court granting summary judgment in favor of
Lima Lima, dismiss the defendants' cross-appeal, and remand this
cause to the circuit court for further proceedings.
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Affirmed in part; reversed in part and remanded; cross-appeal
dismissed.
SOUTH and HALL, JJ., concur.
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