Garland v. Sybaris Club International, Inc.

2014 IL App (1st) 112615Nos. 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)
Opinion filed October 16, 2014
FOURTH Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
JENNIFER E. GARLAND, ) Appeal from the
Independent Administrator of the ) Circuit Court of
Estate of Scott A. Garland, ) Cook County.
Deceased, )
)
Plaintiff-Appellant, )
) No.06L6532, 06L3217, 06L5121,
v. ) 06L1410 (cons.)
)
SYBARIS CLUB INTERNATIONAL, INC., ) The Honorable
SYBARIS VENTURES ONE, LLC, ) Irwin J. Solganick,
RANDELL D. REPKE, Independent Executor ) Judge Presiding.
of the Estate of Kenneth C. Knudson, )
Deceased, HK GOLDEN EAGLE, INC., )
HOWARD D. LEVINSON and HARK )
CORPORATION, )
)
Defendants-Appellees. )
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the
court, with opinion.
Justices Howse and Taylor concurred in the judgment and opinion.
OPINION
1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)
¶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, 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. In the second appeal,
Garland v. Morgan Stanley & Co., 2013 IL App (1st) 112121, 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. In
1
The four related cases were consolidated on appeal to this court. Due to the nature of
the numerous parties, and for the benefit of the reader, this court will identify and refer to the
parties in the following manner:
This court will refer to Jennifer Garland, independent administrator of the estate of
Scott A. Garland, deceased, as "plaintiff." This court will refer to Scott Garland, the
deceased, as "Garland."
Howard Levinson and Hark Corporation are the parties to appeal No. 1-11-2615. This
court will refer to them jointly as the "Levinson Defendants." This court will refer to
Howard Levinson individually as "Levinson."
Randell Repke is the executor of the estate of Kenneth Knudson, and is the appellee in
case No. 1-11-2616. This court will refer to the party-defendant Knudson as "estate of
Knudson" and to Kenneth Knudson prior to death as "Knudson."
HK Golden Eagle, Inc., is the appellee in case No. 1-11-2617. This court will refer to
HK Golden Eagle, Inc., as "HK Golden Eagle."
Sybaris Clubs International, Inc., and Sybaris Ventures One, LLC., are the appellees in
case No. 1-11-2622. This court will refer to these entities, collectively, as "Sybaris."
This court will refer to all of the appellees jointly as "defendants."
2
1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)
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;
Garland, 2013 IL App (1st) 112121.
¶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
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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.
¶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
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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
2
The National Transportation Safety Board examination report summary states, in part:
"Radio communications confirmed that the airplane had been cleared for a left
hand traffic pattern to runway 34. The radar data showed the airplane as it made a
turn to the left while its speed decreased to about 82 knots calibrated airspeed as of
the last received radar return. This radar return was about 0.1 nautical miles from the
accident site and 0.8 nautical miles and 216 degrees from the approach end of runway
34. The airplane owner's manual listed stall speeds ranging from 81 to 94 knots
calibrated airspeed for airplane configurations including gear and flaps up to gear
down and flaps 15 degrees, and bank angles from 0 to 40 degrees. Flap position
could not be determined because the flap chain had separated from the flap drive
motor. The owners' manual also listed an approach speed of 103 knots."
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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, and Garland,
2013 IL App (1st)112121. 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. 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. 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. 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. We also
found that this court had proper jurisdiction over the cause. Waugh, 2012 IL App (1st)
102653, ¶ 54.
¶ 13 The other case, Garland, 2013 IL App (1st)112121, 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. Morgan Stanley and Donna Turek, Mark Turek's widow and the administrator
of the estate of Mark Turek, sought dismissal of Garland's common law tort claims based on
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the exclusive remedy provision of the Illinois Workers' Compensation Act (820 ILCS 305/1
et seq. (West 2010)). Garland, 2013 IL App (1st) 112121, ¶2. The circuit court granted
partial summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-1005 (West 2010)) as to her claims against the estate of Turek, as well as a
motion to dismiss pursuant to section 2-619 of the Code on claims seeking recovery from
decedent Garland's employer, Morgan Stanley & Co., Inc. Garland, 2013 IL App (1st)
112121, ¶ 2. On appeal, this court affirmed the trial court's ruling, holding that the
application of the exclusive remedy provision of the Workers' Compensation Act was
appropriate where the death was accidental and the employer, Morgan Stanley, was not
acting in a dual capacity at the time of the aircraft crash. Garland, 2013 IL App (1st)
112121, ¶¶ 31, 48, 50.
¶ 14 A. The History of the Accident Aircraft
¶ 15 Sybaris purchased the accident aircraft in August 2004. In May 2005, the airplane
registration was transferred to HK Golden Eagle, Inc., a corporation formed by Knudson and
Levinson to own the aircraft. Hark Corporation, an entity owned by Levinson and his wife
and created for the purpose of owning the aircraft, was a co-owner of the accident aircraft,
along with Knudson, as shareholders of HK Golden Eagle. On the day of the crash, Knudson
and Levinson were the owners of the accident aircraft through HK Golden Eagle. They were
considering new partners, and Turek was interested in purchasing a partial ownership in the
aircraft. Turek arranged with Knudson to fly Garland and Waugh to Kansas in the accident
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aircraft for the purpose of engaging in a test and demonstration flight that would allow
Knudson to evaluate whether he wanted to bring Turek in as a partner in the aircraft. 3
¶ 16 B. Turek's Competency
¶ 17 Prior to the accident in January 2006, Turek was fully licensed by the FAA to fly twin-
engine aircraft, including the accident aircraft. Waugh, 2012 IL App (1st) 102653, ¶ 7. In
early January of that year, Turek had completed a flight training course with Recurrent
Training Center, Inc. to transition from his Baron B55 twin-engine plane to the Cessna 421B.
Waugh, 2012 IL App (1st) 102653, ¶ 7. He had 1,285.05 hours of total flight experience,
including 1,052.65 hours in multi-engine aircraft, 161.2 hours in single-engine airplanes, and
70.2 hours in flight simulator devices. Specific to a Cessna 421, Turek had logged 32.75
hours in Cessna 421 aircraft. Of those 32.75 hours, 18.2 were obtained prior to Turek having
received the required instruction to act as a pilot-in-command of a pressurized airplane, and
27.5 of those hours were obtained prior to Turek having received dual instruction in a Cessna
421. Turek's flight logbooks showed a total of 5.25 hours of logged dual instruction in
Cessna 421 airplanes.
¶ 18 In a previous opinion, we noted:
"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
3
The parties agree that Knudson was evaluating Turek to determine whether he should
be brought in as a partner in the aircraft, but disagree as to whether that evaluation was
specific to Turek's flying capabilities in a Cessna 421B aircraft, or as to his personality and
whether he would be a good "fit" in the partnership.
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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.
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.
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
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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 pattern to land a Palwaukee airport. Much of Turek's in-
flight training by Levinson in the accident aircraft was flying the landing pattern in
the same location as the crash site." Waugh, 2012 IL App (1st) 102653, ¶¶ 9-11.
¶ 19 Levinson testified he had known Turek for five or six years prior to the plane crash and
had opportunity to observe Turek's piloting abilities in the context of being his instructor. He
instructed him three times in his own (Levinson's) aircraft. He also gave him instruction in
the accident aircraft, observing Turek fly to ensure he was familiar with the aircraft:
"A. [LEVINSON:] Well, actually the time that I spent with [Turek] in the
[accident aircraft] was a requirement of the insurance company. He had to fly 5 hours
with an instructor pilot and what I did at that time was I already knew his flying
experience, is, I just went over the procedures to maintain the engines properly, to use
the engines properly, shoot some landings with him.
I didn't go through all the machinations that I did in the prior years because I
didn't think it was necessary. He had just come out of Recurrent Training Center, he
was qualified as a pilot in the 421, he went and had numerous hours in Glass [Arr-
ow] which was instrument recurrency, and I felt that he was competent, there would
be no problem, and I called Gene Littlefield [the flight instructor] and I asked him
how he did, and he said he did fine. And so I really didn't have any concerns at the
time. I thought that he would be, you know, a fine pilot after all the training he went
through. He went through a great deal of training."
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¶ 20 Levinson testified that he never observed Turek violating any FAA rules or regulations in
regard to piloting or maintenance of the aircraft. Levinson testified that, on the evening of
the plane crash, he looked up at the sky and said, "I hope these guys know what they're
doing" because it was "kind of a rainy, drizzly night. It wasn't freezing rain at that point, but
it could have been at altitude, and I just felt that it was a little bit of a situation that it would
take experience to handle." He received a telephone call about 10 minutes later informing
him of the plane crash.
¶ 21 Levinson testified that, after his 5 hour observation/training flight with Turek, he did
not feel Turek was in need of any additional training on the accident aircraft:
"Q. Based on your observations of Mark Turek after the five hours of whether-
- I don't want to quibble about the words, whether it's instruction, observation,
whatever you want to call it, after your five hours of experience with him, did you
feel that he needed any additional training in 920 Mike Charlie?
A. [LEVINSON:] No.
Q. Was there anything that you saw that caused you concern about his flying
abilities when you were with him during those 5 hours?
A. No.
***
Q. Okay. But in terms of when you finished your 5 hours of observation of
Mr. Turek, did you place any restrictions on Mr. Turek in flying that airplane that you
were a half owner of?
A. No.
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Q. Did you place any restrictions on the types of weather that he could fly in?
A. No.
Q. Did you place any restrictions about whether he could fly with passengers
or not?
A. No."
¶ 22 Airplanes are rated to fly at various speeds, with each type of aircraft assigned a speed
at which it will stall, taking into consideration various factors such as whether the flaps are
down or up. The crash at issue apparently occurred due to aircraft stall. Instructor Littlefield
testified at deposition that, in his training with Turek, Turek did not show propensity toward
slow air speeds. He testified:
"A. [LITTLEFIELD:] Early on we talked about the multiple approaches that
we teach, and in that 20 or so hours or more I couldn't give you an estimate of the
number of approaches that are a part of this training. And it included all phases of the
approaches, even engine failures on the approaches, circle to land, problems in the
circle to land, losing visibility in those. Every conceivable concept is part of what we
teach. [Turek] didn't show any problems."
¶ 23 According to instructor Littlefield, Turek did not receive training on flying in icing
conditions at Arr-ow. Turek also did not view the training video regarding icing at
Recurrent.
¶ 24 Raymond Chou, a pilot friend of Turek and Levinson, testified at deposition that
Levinson had told him Turek liked to fly fast and preferred a smaller, faster aircraft such as a
Baron because it was like a sports car.
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¶ 25 The record on appeal includes an affidavit by plaintiff's expert, Marc Fruchter, in
which he opines that, based on an evaluation of Turek's flight logbooks, Turek failed to log
the three night landings in the previous days that were required under section 61.57(b) of the
Federal Aviation Regulations in order for him to properly function as the pilot-in-command
on the accident flight. 4 14 C.F.R. § 61.57(b) (1997). Specifically, according to Fruchter's
review of the logbooks, Turek logged only 1 night flight in the previous 90 days. Fruchter's
review of Turek's logbooks also revealed that the accident flight was the first time Turek had
ever flown a Cessna 421B aircraft at night. 5 Fruchter, of Aviation Consultants, Ltd., also
submitted an observations/conclusions/opinions report on behalf of plaintiff. The "Opinions"
section reads:
"1. The accident took place during the period identified in the FAR's as night
[citation] and Mr. Turek did not meet the requirement [Citation.] to serve as [pilot-in-
4
Section 61.57(b) of the Federal Aviation Regulations provides:
"(b) Night takeoff and landing experience.
(1) Except as provided in paragraph (e) of this section, no person may act as
pilot in command of an aircraft carrying passengers during the period beginning 1
hour after sunset and ending 1 hour before sunrise, unless within the preceding 90
days that person has made at least three takeoffs and three landings to a full stop
during the period beginning 1 hour after sunset and ending 1 hour before sunrise,
and—
(i) That person acted as sole manipulator of the flight controls; and
(ii) The takeoffs and landings were performed in an aircraft of the same
category, class, and type (if a type rating is required).
(2)The required takeoffs and landings required by paragraph (b)(1) of this
section may be accomplished in a flight simulator that is—
(i) Approved by the Administrator for takeoffs and landings, if the visual
system is adjusted to represent the period described in paragraph (b)(1) of this
section; and
(ii) Used in accordance with an approved course conducted by a training
center certificated under part 142 of this chapter." 14 C.F.R. § 61.57(b) (1997).
5
The crash at issue occurred on approach to land at 6:29 p.m. Sunset that night was at 5:04
p.m.
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command (PIC)] on the accident flight. Therefore Mr. Turek was negligent in
showing himself as PIC on the instrument flight plan for the accident flight.
2. There is no evidence that Mr. Turek had satisfied the requirement [citation]
for a biennial flight review and was, therefore, not qualified to serve as PIC on the
accident flight. Therefore it was negligent for Mr. Turek to file a flight plan showing
himself as PIC for the accident flight or to serve as PIC on that flight.
3. The vast majority of Mr. Turek's multi-engine flight experience was
obtained in the B-55 Baron aircraft that he owned. [Citation.] The Baron differs
significantly from the Cessna 421B in numerous ways including, but not limited to:
pressurization, geared engines, 44% more powerful engines, 49% greater maximum
gross takeoff weight, and higher stall speeds for the Cessna. Mr. Turek should have
recognized that to accept the left seat [ 6] for the accident flight without insuring that
the individual in the right seat was competent to oversee his flying and to takeover
control if necessary would create an unsafe condition.
4. Mr. Turek had logged no flight experience in a Cessna 421B that included
night and/or icing conditions—both of which were forecast and encountered on the
accident flight. For this reason alone Mr. Turek should have declined to serve as PIC
on the accident flight. [ 7] Failing to insure that a competent and experienced pilot
was controlling the aircraft created a very unsafe condition.
6
The left seat is considered the command seat.
7
We recognize that, while plaintiff argues repeatedly that Turek had never flown a
Cessna 421B aircraft at night, he did complete simulator training at Recurrent and was also
found competent in instrument flight by Arr-ow during his "instrument competency check."
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5. From the radar data noted above, witness statements, and video of the
accident it is apparent that Mr. Turek allowed the airspeed of N920MC [ 8] to decrease
until the aircraft stalled causing a loss of control and impact with the ground.
6. During his training at Recurrent Training Center (RTC) Mr. Turek
exhibited a tendency to enter turns too steeply [citation], which would lead to an
increased stall speed for the aircraft. This can cause a dangerous condition—
especially if the aircraft is flying below the recommended speed for a segment of
flight. This condition existed on the accident flight and most likely was the cause of
the accident.
7. Mr. Knudson, as an owner of the aircraft, had a duty to insure that Mr.
Turek was qualified, current, and proficient to perform the flight before allowing him
to fly N920MC on the accident flight. Since Mr. Knudson was aware, or should have
been aware, that the flight would operate during the hours of night he should not have
allowed a pilot who had no experience in a Cessna 421B at night and was not night
current to fly the accident flight. By allowing this, he was negligent and created a
very dangerous condition for the accident flight.
8. Mr. Knudson was not qualified as a Certified Flight Instructor (CFI).
[citation] and there was no indication in his logbooks that he had ever received
instruction in flying an aircraft from the right seat or supervising another pilot
[citation]. By placing himself in the right seat and allowing Mr. Turek to assume the
left seat, he created a dangerous condition on the accident flight.
8
The wing number of the accident aircraft was N920MC.
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9. Mr. Knudson failed to adequately supervise Mr. Turek or take over the
aircraft controls and allowed the airspeed to decay to the point where the aircraft
stalled causing the accident. As an owner of the aircraft and the more experienced
pilot, Mr. Knudson had ultimate control and responsibility for insuring the safety of
the accident flight. Mr. Knudson also lacked instrument and night currency on the
date of the accident flight. [Citation.]
10. From the above it is evident that neither Mr. Turek nor Mr. Knudson was
qualified to act as PIC on the accident flight.
11. Mr. Howard Levinson was aware that Mr. Turek was to pilot N920MC on
the accident flight. [Citation.] As both Mr. Turek's flight instructor and an owner of
N920MC, Mr. Levinson had a duty to insure that Mr. Turek was qualified, current,
and competent to fly the aircraft on the accident flight. If Mr. Levinson was aware
that Mr. Turek was not qualified to serve as PIC on the accident flight he had a duty
to insure that Mr. Knudson was qualified to serve as PIC. By failing to do so he
failed in his duty to insure a safe flight.
12. Mr. Howard Levinson had serious difficulty during a Cessna 421B
training session at RTC in September 2008. [Citation.] His inability to fly a standard
approach as part of this training brings into question the value of the five (5) hours he
served as Mr. Turek's flight instructor to allow Mr. Turek to qualify under the
insurance policy for N920MC.
13. H.K. Golden Eagle, as the registered owner of N920MC, through its
principals Mr. Howard Levinson and Mr. Kenneth Knudson, had a duty to insure that
a qualified, current, and competent pilot was flying N920MC on the accident flight.
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14. Morgan Stanley had no corporate policy either prohibiting or regulating
use of private aircraft for company travel. [Citation] It was known that other
employees beside Mr. Turek were flying private aircraft for business purposes.
[Citation.] This was negligent and placed the employees, customers, and other
passengers on private aircraft used for Morgan Stanley company travel in an unsafe
situation.
15. Morgan Stanley was aware of Mr. Turek's use of private aircraft for
company travel [citation] and reimbursed Mr. Turek for the expenses incurred for the
use of his private aircraft. [Citation.] Additionally, Morgan Stanley was aware of and
encouraged Mr. Turek to perform flights in his aircraft for Life Flight because it was
good for Morgan Stanley's corporate image. [Citation.]
16. I have flown as an employee for three (3) corporate flight departments,
interacted with a number of flight departments based at our Fixed Base Operation
(FBO), served as a consultant in the formation of two (2) flight departments, and
worked as a consultant in various capacities with several other corporate flight
operations. I also wrote two (2) corporate policies governing employee use of private
aircraft for company travel. It is the general custom and practice in corporate aviation
and every company that I am familiar with either prohibits the use of private aircraft
for company travel or has a specific policy regulating the practice. The policies
normally address: aircraft type, passenger limitation, pilot certification, pilot
experience, weather conditions, insurance requirements, compliance with FARs, etc.
Failure to address these areas creates and inherently unsafe condition.
17
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17. Morgan Stanley had a duty to their employees to promulgate and enforce a
comprehensive and effective policy regulating use of private aircraft for business
travel. Failure to have an appropriate policy permitted a hazardous and unsafe
practice under which Mr. Turek was allowed to transport Mr. Garland and a Morgan
Stanley client in an aircraft for which he had inadequate training and experience. Had
even a minimal policy been in place prior to this crash, Mr. Turek would not have
been permitted to transport an employee and a client in an aircraft for which he was
not qualified, current, and had very limited flight experience.
18. For all of the above reasons, Messrs. Turek, Knudson, and Levinson, and
Morgan Stanley were negligent by engaging in the above-noted conduct or failing to
engage in the above-noted conduct. The negligent acts and omissions by Mark
Turek, Kenneth Knudson, Howard Levinson, and Morgan Stanley were all
contributing causes to the accident involving N920MC and the death of the four
persons onboard, including Scott Garland."
¶ 26 Another of plaintiff's experts, William Lawrence, also noted that Turek's logbooks
reflect that Turek had never flown a Cessna 421 model airplane at night. Additionally,
Lawrence noted that Turek's last recorded biennial fight review (BFR) was on July 28, 2003,
and expired on July 30, 2005. 9 He also noted that Knudson's logbooks do not reflect that
Knudson had flown any night flights in the 90 days prior to the crash. Lawrence opined that
Turek was not qualified to function as the pilot in command because he lacked the requisite 3
night landings within the previous 90 days, as well as a current BFR. Lawrence also opined
9
Defendant-appellee HK Golden Eagle directs this court to a portion of Turek's Recurrent
training paperwork, contained in the record, in which Turek self-reports that the date of his
last biennial flight review was October 10, 2004, and a page in the FAA accident report
which reflects Turek's "current biennial flight review" as October 2004.
18
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that Knudson was also unqualified to function as the pilot in command because he, too,
lacked the requisite recent fight experience. Additionally, according to Lawrence, Knudson,
as the aircraft owner, "was responsible for ensuring the aircraft was properly manned by
qualified flight personnel and should never have allowed the flight to proceed with either Mr.
Turek or himself functioning as the pilot in command."
¶ 27 Lawrence averred that, if called at trial, he would express the following opinions:
"1. No material or information has been presented that the material or
mechanical condition of N920MC contributed to this crash. The NTSB docket
discusses the various mechanical inspections and observations made during the
investigation. The findings included engine and propeller examinations that found no
anomalies.
2. On January 30, 2006, Mr. Turek was not legally qualified to function as the
pilot in command of N920MC. To function as the pilot in command, Mr. Turek
would have to have logged 3 night landings in the previous 90 days. He logged one.
Further, his biennial flight review had expired some six months earlier.
3. On January 30, 2006, Mr. Knudson was not legally qualified to function as
the pilot in command of N920MC. To function as the pilot in command, Mr.
Knudson would have [had] to have flown 6 instrument approaches in the previous 6
months, flown 3 takeoffs and landings in the previous 90 days and logged 3 night
landings in the previous 90 days. None of these activities were accomplished.
4. Mr. Knudson was negligent in that he allowed Mr. Turek to occupy the left
seat of N920MC and to function as the pilot in command. As the owner of N920MC,
Mr. Knudson was responsible to ensure a qualified aircrew was flying the airplane.
19
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Either he knew Mr. Turek was not qualified, or he did not check Mr. Turek's
qualifications. Either way, he was negligent. Further, he should have known that Mr.
Turek was not aeronautically adapted to fly N920MC at night, having never flown a
Cessna 421 at night. Even further, he should have factored in the deteriorating
weather.
5. Mr. Turek was not aeronautically adapted to fly as the pilot in command of
N920MC. Mr. Turek was neither qualified to fly at night nor was he adapted to fly at
night in a Cessna 421. He had logged only one night landing in the previous 90 days
and had never flown a Cessna 421 at night.
6. Mr. Turek was negligent in that he agreed to fly N920MC as the pilot in
command in that he knew he did not have the necessary experience to ensure a safe
flight. Pilots are individually responsible for maintaining their currency and Mr.
Turek certainly knew his qualifications better than anyone else. By agreeing to
function as the pilot in command, he ignored both is inexperience in the Cessna 421
in general and his lack of recent night time as well. He also should have realized that
his BFR had expired.
7. During the approach to Palwaukee airport at about 1829 CST, Mr. Turek's
workload increased to the point that he reverted to the habit patterns formed in his
Beech B55 Baron, N281R. Even in familiar aircraft, the workload increases when
conditions such as nighttime and adverse weather conditions are present. Add
unfamiliarity with a relatively new aircraft type and the pilot becomes easily
overwhelmed. In such cases, the pilot will revert to old habit patterns.
20
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8. Mr. Turek flew a VFT downwind entry to runway 34 and arrived at an
abeam position too close to the runway and too slow. The wind was right-gear
quartering, blowing N920MC towards the runway and increasing the ground speed.
Even if Mr. Turek had panned an appropriate distance from the runway for his abeam
position, the wind would have served as a mechanism to place the airplane closer to
the runway than desired. Since night vision is limited, especially in poor weather
conditions, it would have been very difficult for Mr. Turek to perceive the improper
alignment.
9. Mr. Turek either tightened his turn to the point that he entered an approach
turn stall, or increased the angle of attack and bank angle to the point that he stalled
the aircraft. In either event, Mr. Turek stalled N920MC as he turned for final. More
likely than not, Mr. Turek did not recognize the imminent danger posed by his poor
approach to landing. Also, he did not want to ask for assistance from the man he was
seeking to impress, so he continued the approach, and whether he simply slowed
below stall speed, or pulled the airplane into an approach turn stall, the results were
the same.
10. Mr. Knudson was negligent in that he failed to take control of the N920MC
when he should have recognized the approach was not being flown as necessary for a
successful landing. The only pilot in N920MC with appropriate experience to
recognize the danger of the approach that was being flown was Mr. Knudson, the
owner of the airplane. Although conversation that occurred in the cockpit will never
be known, it is obvious that Mr. Knudson either never took control of the aircraft or
did not take control in time to prevent the stall and ensuing crash. Mr. Knudson's
21
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experience in the Cessna 421, and his ownership of N920MC, positioned him in a
place of responsibility that he did not assume.
11. At the altitude N920MC entered the stall, there was not sufficient time nor
altitude to recover from the stall. N920MC stalled well below 1,000 feet AGL, more
probably at about 650 feet AGL. (The NTSB docket radar information shows
N920MC at about 1200 feet MSL below 85 KIAS; runway 16/34 elevation is 643 feet
AGL.)
12. Mr. Levinson was likewise negligent in that he should have known that
neither Knudson nor Turek were qualified to function as pilot in command of
N920MC. Levinson, as co-owner of N920MC, had an equal responsibility to
Knudson to ensure the airplane was properly crewed. Levinson was a Certified Flight
Instructor, and as such, clearly understood currency requirements. Having flown with
Turek as a 421 checkpilot, he should have known that Turek was not current at night
and had never flown a Cessna 421 at night. He also should have checked Turek's
logbook for BFR currency. And, with regard to Knudson, he had flown with him
many times. He was very knowledgeable concerning the time N920MC had spent in
maintenance and should have been well aware that virtually all of Knudson's currency
requirements had expired.
13. N920MC crashed because of the combined negligence of Mssrs. Knudson,
Turek, and Levinson. The combination of the negligent acts of Knudson, Turek, and
Levinson, as discussed in the paragraphs above, was responsible for, and was the
cause of the crash of N920MC."
22
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¶ 28 Kyle Lyons, an instructor at Recurrent Training Center, testified at deposition that the
training Turek received with him was tailored specifically to a Cessna 421B aircraft.
Recurrent provided Turek with a certificate of completion for the flight training. He testified
that the pilot students who seek training at Recurrent are experienced pilots. He testified that
Turek was an attentive and serious student who showed aptitude and proficiency in the areas
covered by the course, including the critical power settings, speed settings and stall speeds
for an aircraft in approach and arrival in the landing environment, and instruction regarding
the electrical system, power plant, engines, emergency procedures, fuel system and
limitations of the Cessna 421B. Reviewing the notes he took during the training, Lyons
commented that Turek had needed more full procedure approaches. Lyons testified that
Turek demonstrated proficiency in slow flight and stalls. Lyons testified that Turek also
received instruction from other instructors at Recurrent, including instruction regarding
approaches, and Turek demonstrated diligence, competency, and proficiency in those
maneuvers, with nothing to indicate problems with regard to speed or power settings in an
airport environment, problems with speeds or power settings with the gear up or down, or in
turns with the gear up or down, and nothing to indicate he was unaware of stall speeds or
how to properly manage the engine and fuel. In reviewing notes taken by other flight
instructors at Recurrent, Lyons acknowledged that another instructor had noted that Turek
entered turns too steeply and that he needed more training on full procedure approaches.
¶ 29 Turek's and Levinson's pilot friend, Raymond Chou, testified that Turek had told him
he was interested in having an ownership partnership in the Cessna 421B. Chou testified that
he had flown with Turek on 15 to 20 occasions in other airplanes and felt confident in
Turek's piloting abilities. Chou explained that Turek normally flew a Baron aircraft, which
23
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was smaller, lighter, and more nimble than the Cessna 421B, which is larger and more
difficult to maneuver. Turek compared the two airplanes by saying the Cessna 421B was like
driving a sport utility vehicle, while the Baron was like driving a sports car. Chou testified
that Turek understood the maneuverability differences between the two aircraft. Chou
opined that the crash was "a classic case of base to final turn, too slow and the plane stalls."
Regarding the possible partnership in the Cessna 421B, Chou testified that Turek felt
Levinson might be a "difficult partner to have," and that Levinson had reservations about
Turek because he thought Turek liked to fly fast, "kind of like a sports car driver."
¶ 30 William McGuinn testified that he met with Knudson in Kansas after the Cessna 421B
landed. McGuinn, who was a real estate agent, drove Knudson to a property approximately
30 minutes away that he thought would make a good Sybaris property. They then went out
to lunch together. During that time, Knudson told McGuinn that he brought Turek on the
flight so that Knudson could evaluate Turek's flying and make sure he was competent to fly
the aircraft. Knudson described to McGuinn a disagreement Turek and Knudson had on
takeoff that day, when Knudson thought Turek was piloting the aircraft to climb too steeply
after takeoff, that Turek "rotated and climbed out steeply without accelerating to a speed that
would have allowed them to climb out safely." Additionally, Knudson told McGuinn that, en
route from Chicago to Kansas City, they discovered the landing gear had inadvertently been
left down. McGuinn testified that Knudson said he thought Turek's flying skills were not up
to par.
¶ 31 C. Knudson's Competencies
¶ 32 Knudson was an experienced pilot who had logged over 2,000 hours of flying time.
He started flying in 1966, received his first private pilot certificate in 1973, and was certified
24
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in multi-engine landing in 1974. Knudson had often flown Cessna 421B aircrafts. Starting
in 2004, Knudson flew the accident aircraft on a regular basis.
¶ 33 D. The Motions to Dismiss
¶ 34 Levinson and Hark Corporation filed a motion to dismiss certain claims pursuant to
section 2-619 of the Code. They argued, in pertinent part, that (1) the allegations of
negligent entrustment against Levinson and Hark Corporation are not supported by the
evidence, where there was no evidence that Levinson had any reason to believe that Turek
was not sufficiently licensed, trained, or qualified to fly a Cessna 421B aircraft; and (2) the
corporate veil should not be pierced and Levinson and HK Golden Eagle should not be
treated as one and the same.
¶ 35 HK Golden Eagle filed a motion to dismiss all claims against it pursuant to section 2-
619 of the Code 10 arguing, in pertinent part, that (1) HK Golden Eagle is not guilty of
negligent entrustment where Turek was well qualified to pilot the Cessna 421B and, even if
he were not well qualified, HK Golden Eagle did not know nor should it have known that
Turek was an incompetent or unfit pilot; and (2) the evidence does not support HK Golden
Eagle being guilty of the negligent supervision of its part-owner Knudson.
¶ 36 Sybaris also filed a motion to dismiss claims of negligent entrustment pursuant to
section 2-619 of the Code, arguing, in pertinent part: (1) there is no evidence that Sybaris is
vicariously liable for Knudson's actions; and (2) Sybaris is not liable because it did not own
the subject aircraft.
10
HK Golden Eagle filed its motion pursuant to section 2-619 of the Code on February 28,
2011, titling the motion "HK Golden Eagle Inc's Motion to Dismiss Under 735 ILCS 5/2-
619." The cover page to the exhibits to the motion, also filed February 28, 2011, however, is
titled, "Joint Exhibits for HK Golden Eagle Inc's Motion for Summary Judgment and Motion
to Dismiss Under 735 ILCS 5/2-619."
25
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¶ 37 Knudson also filed a motion to dismiss claims of negligent entrustment pursuant to
section 2-619 of the Code, arguing in pertinent part, that there was insufficient evidence to
establish that Knudson was negligent during the flight.
¶ 38 After hearing arguments from the parties, the trial court granted the motions to dismiss.
This appeal follows.
¶ 39 II. ANALYSIS
¶ 40 Due to the complex nature of this consolidated cause, we will consider herein each
claim as to each party individually. On appeal, the various parties have adopted portions of
other parties' briefs as such: the Levinson defendants incorporate HK Golden Eagle's
argument as to the negligent entrustment claims; HK Golden Eagle, in turn, adopts the
argument section of the Levinson defendants; the estate of Knudson adopts the arguments
submitted by the Levinson defendants and HK Golden Eagle regarding the negligent
entrustment claims; HK Golden Eagle adopts the estate of Knudson's argument as to the
negligent supervision claim; Sybaris adopts the arguments set forth by the Estate of Knudson,
HK Golden Eagle, and the Levinson defendants regarding the negligent supervision claims
against Knudson.
¶ 41 A. The Standard of Review
¶ 42 Initially, we note that, although the motions at issue are motions to dismiss pursuant to
section 2-619 of the Code, plaintiff urges us to consider them to be motions for summary
judgment. Summary judgment is proper when " 'the pleadings, depositions, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
26
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material fact and that the moving party is entitled to a judgment as a matter of law.' " Palm v.
2800 Lake Shore Drive Condominium Ass'n, 2013 IL 110505, ¶ 28 (quoting 735 ILCS 5/2-
1005(c) (West 2008)); see also Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391, 399
(2010). "Summary judgment is a drastic measure and should only be granted if the movant's
right to judgment is clear and free from doubt." Outboard Marine Corp. v. Liberty Mutual
Insurance Co., 154 Ill. 2d 90, 102 (1992). In determining whether the moving party is
entitled to summary judgment, the court must construe the pleadings and evidentiary material
in the record strictly against the moving party. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d
179, 186 (2002). "Although the burden is on the moving party to establish that summary
judgment is appropriate, the nonmoving party must present a bona fide factual issue and not
merely general conclusions of law." Morrissey v. Arlington Park Racecourse, LLC, 404 Ill.
App. 3d 711, 724 (2010) (citing Caponi v. Larry’s 66, 236 Ill. App. 3d 660, 670 (1992)). "A
genuine issue of material fact exists where the facts are in dispute or where reasonable minds
could draw different inferences from the undisputed facts." Morrissey, 404 Ill. App. 3d at
724 (citing In re Estate of Ciesiolkiewicz, 243 Ill. App. 3d 506, 510 (1993), and Espinoza v.
Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114 (1995)). We review the circuit court's
decision to grant or deny a motion for summary judgment de novo. Palm, 2013 IL 110505,
¶ 28; see also Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co.,
227 Ill. 2d 102, 106 (2007).
¶ 43 Plaintiff acknowledges that the defendants all sought relief under section 2-619 of the
Code rather than pursuant to a motion for summary judgment, but she argues that such an
election is a "distinction without a difference." However, defendants elected to seek relief
under section 2-619 of the Code, the trial court considered and ruled upon those motions
27
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under section 2-619 of the Code, and we, too, review this cause under section 2-619 of the
Code.
¶ 44 A section 2-619 motion to dismiss admits the sufficiency of the complaint, but asserts
an affirmative matter that acts to defeat the claim. Patrick Engineering, Inc. v. City of
Naperville, 2012 IL 113148, ¶ 31; King v. First Capital Financial Services Corp., 215 Ill. 2d
1, 11-12 (2005); Wallace v. Smyth, 203 Ill. 2d 441, 447 (2002); see 735 ILCS 5/2-619(a)(9)
(West 2010) (allowing dismissal when "the claim asserted against defendant is barred by
other affirmative matter avoiding the legal effect of or defeating the claim"). The question
on review is whether a genuine issue of material fact precludes dismissal or whether
dismissal is proper as a matter of law. Fuller Family Holdings, LLC. v. Northern Trust Co.,
371 Ill. App. 3d 605, 613 (2007). When ruling on a motion to dismiss, a reviewing court
must construe the pleadings and supporting documents in the light most favorable to the
nonmoving party and accept as true all well-pleaded facts in the complaint and all inferences
that may reasonably be drawn in the plaintiff's favor. Sandholm v. Kuecker, 2012 IL 111443,
¶ 55. Disputed issues of fact are reserved for trial proceedings. Advocate Health & Hospital,
Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759 (2004). "Under section 2-619, the
defendant admits to all well-pled facts in the complaint, as well as any reasonable inferences
which may be drawn from those facts [citation], but asks the court to conclude that there is
no set of facts which would entitle the plaintiff to recover. [Citation.] As long as there is no
genuine issue of material fact and the defendant is entitled to judgment as a matter of law, the
complaint may be properly dismissed." Advocate Health & Hospital, Corp., 348 Ill. App. 3d
at 759. The circuit court's decision to grant such a motion will be reviewed de novo.
Sandholm, 2012 IL 111443, ¶ 55.
28
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¶ 45 B. Common Argument Regarding the Previous Decisions
¶ 46 We first address an argument common to all defendants, that is, that this court
previously determined that Turek was an experienced pilot who was not at fault in the crash.
HK Golden Eagle argues that "this Court has twice addressed Turek's experience and
qualifications" and, thus, should not now consider whether plaintiff has sufficiently stated a
claim for negligent entrustment which assumes that Turek was incompetent or reckless with
the accident aircraft. The Levinson defendants, the estate of Knudson, and Sybaris join HK
Golden Eagle in this argument. Additionally, HK Golden Eagle cites to Radwill v. Manor
Care of Westmont, IL, LLC, 2013 IL App (2d) 120957, and argues that the standard of review
in this cause is governed by the law-of-the-case doctrine, which bars relitigation of an issue
previously decided in the same case. HK argues that plaintiff cannot now raise and rely upon
"factual characterizations that contradict this Court's prior findings" as to Turek's
qualifications as a pilot. The Levinson defendants, the estate of Knudson, and Sybaris join
HK Golden Eagle in this argument. The specific statement with which the parties are
concerned is:
"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
29
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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.' Waugh v. Morgan Stanley & Co., 2012 IL App (1st)
102653, ¶ 7." Garland, 2013 IL App (1st) 112121, ¶ 9.
¶ 47 We wish to be absolutely clear here: this quote the defendants have taken from the
prior two opinions issued by this court in this matter does not determine the issue now before
us. Neither previous case dealt with the same issues as are presented in the instant case.
Additionally, the statement in Garland was merely part of the background facts provided in
connection with our decision regarding the application of the dual capacity doctrine in the
context of the exclusive remedy provision of the Illinois Workers' Compensation Act (820
ILCS 305/1 et seq. (West 2010)). Garland, 2013 IL App (1st)112121, ¶ 9. In the other case,
Waugh, which language was quoted in Garland, this court dealt with the question of whether
the tort of educational malpractice was cognizable in Illinois and found it was not. Waugh,
2012 IL App (1st) 102653, ¶ 48. Again, the quoted language was merely a part of the
background facts in the opinion and not an issue resolved by this court. Moreover, even
taking this quoted text to its limit, it states that Turek was an FAA-licensed pilot and had
taken courses to transition from his Baron to the Cessna 421B. The parties in the instant case
do not dispute these particular facts, but plaintiff argues instead that it was not reasonable to
entrust the Cessna 421B to Turek in light of particular evidence now before the court. This
issue has not been previously decided.
30
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¶ 48 C. The Levinson Defendants and HK Golden Eagle
¶ 49 1. Negligent Entrustment
¶ 50 Plaintiff first contends that the trial court erred in dismissing her complaint against the
Levinson defendants where: (1) there was no evidence to support a case for negligent
entrustment of the Cessna 421 against Levinson; and (2) there was no basis to dismiss based
on the corporate veil doctrine. The Levinson defendants and HK Golden Eagle have adopted
one another's arguments as to the issue of negligent entrustment.
¶ 51 In her ninth amended complaint, plaintiff alleged, in pertinent part, that Levinson,
individually and as agent of Hark, was guilty of the following conduct:
"14. 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 HARK,
was negligent in one or more of the following respects:
a. failed to properly inspect, maintain, repair and overhaul the aircraft, engines
and component parts;
b. failed to properly teach, train and instruct MARK TUREK how to perform
proper and adequate pre-flight preparation and inspection so as to ensure a safe flight
and landing on the aircraft;
c. failed to properly teach, train and instruct MARK TUREK how to plan,
utilize and engage in proper communications and coordination of responsibilities
between co-pilots;
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d. failed to properly teach, train and instruct MARK TUREK how to
competently and safely operate the aircraft so as to ensure a safe landing;
e. failed to properly teach, train and instruct MARK TUREK how to engage in
and execute safe approach and landing maneuvers;
f. failed to properly teach, train and instruct MARK TUREK how to maintain
proper control over the aircraft so as to maintain its flight path'
g. failed to properly teach, train and instruct MARK TUREK how to properly
monitor engine and aircraft performance during flight so as to prevent a crash of the
aircraft;
h. failed to properly teach, train and instruct MARK TUREK how to provide
and utilize proper instructions and communications between co-pilots to ensure safe
flight;
i. failed to properly teach, train and instruct MARK TUREK how to properly
respond to and compensate for engine failure and malfunction of the aircraft so as to
avoid a crash;
j. failed to properly teach, train and instruct MARK TUREK how to engage in
and execute proper emergency maneuvers so as to prevent a crash of the aircraft;
k. allowed MARK TUREK to operate the aircraft when he knew or should have
known that he did not have sufficient training, experience, or competency to do so
safely;
l. failed to inform Mark Turek that he did not have adequate experience, skills
and competency to safely operate the Cessna 421B aircraft;
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m. failed to inform Kenneth Knudson that Mark Turek did not have adequate
experience, skills and competency to safely operate the Cessna 421B aircraft;
n. allowed mark Turek to operate the Cessna 421B aircraft with non-pilot
passengers on board when Levinson knew or should have known that Turek did not
have adequate training, experience or competency to do so safely; and
o. was otherwise negligent." 11
¶ 52 "To succeed in an action for negligence, a plaintiff must prove facts that establish the
existence of a duty, a breach of the duty, and an injury to the plaintiff which was proximately
caused by the breach." Hills v. Bridgeview Little League Ass'n, 195 Ill. 2d 210, 228 (2000)
(citing Cunis v. Brennan, 56 Ill. 2d 372, 374 (1974)). A duty analysis begins with the
"question of whether the defendant, by his act or omission, contributed to a risk of harm to
this particular plaintiff." Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 21. Then,
the touchstone of a duty analysis is to ask whether the plaintiff and the defendant stood in
such a relationship to one another that the law imposes on the defendant an obligation of
reasonable conduct for the benefit of the plaintiff. The inquiry involves four factors: (1) the
reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the magnitude of
the burden of guarding against the injury; and (4) the consequences of placing the burden on
the defendant. Simpkins, 2012 IL 110662, ¶ 18; Krywin v. Chicago Transit Agency, 238 Ill.
2d 215, 226 (2010); Marshall v. Burger King, Corp., 222 Ill. 2d 422, 436-37 (2006) (in
11
Plaintiff admits paragraphs 12(b), (c), (d), (e), (f), (g), (h), (i), and (j) were stricken pursuant to
court orders of July 19, 2010, and August 5, 2010, as these counts relate to the tort of educational
malpractice, a tort that, in Waugh v. Morgan Stanley & Co., 2012 IL App (1st) 102653, this court
determined is noncognizable in Illinois. Nonetheless, plaintiff posits, "[d]espite that fact, the
above-quoted training allegations are not irrelevant to the issues in the case at bar, because they
relate equally to Levinson's knowledge of Turek's deficiencies in flying this type of aircraft, and
therefore to his negligence in allowing him to do so."
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ordinary negligence action, court stated "[t]he touchstone of this court's duty analysis is to
ask whether a plaintiff and a defendant stood in such a relationship to one another that the
law imposed upon the defendant an obligation of reasonable conduct for the benefit of the
plaintiff").
¶ 53 To prove negligent entrustment, a party must show that "the defendant gave another
express or implied permission to use or possess a dangerous article or instrumentality that the
defendant knew, or should have known, would likely be used in a manner involving an
unreasonable risk of harm." Northcutt v. Chapman, 353 Ill. App. 3d 970, 974 (2004);
Zedella v. Gibson, 165 Ill. 2d 181, 186 (1995) (in Illinois, negligent entrustment is defined as
"entrusting a dangerous article to another whom the lender knows, or should know, is likely
to use it in a manner involving an unreasonable risk of harm to others"(internal quotation
marks omitted)).
¶ 54 In Evans v. Shannon, our supreme court considered a situation where the parents of a
driver killed in a collision with an intoxicated employee of a car detailer brought wrongful-
death and survivor actions against the detailer, its employee, and the car dealer who hired the
detailer to clean the car. Evans v. Shannon, 201 Ill. 2d 424, 427 (2002). The plaintiffs'
action against the defendant dealer, Vogler Motor Company, which had contracted with the
detailer whose employee removed the car without permission and caused the fatal crash, was
based, in pertinent part, on a theory of negligent entrustment. Evans, 201 Ill. 2d at 427. A
jury found all three defendants liable, and Vogler appealed his liability finding. Evans, 201
Ill. 2d at 427. Finding that Vogler's motions for directed verdict and judgment
notwithstanding the verdict were improperly denied, our supreme court reversed the
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judgment of the circuit court as it pertained to Vogler. Evans, 201 Ill. 2d at 427. In so doing,
the court explained:
"In order to prove negligent entrustment, plaintiffs must show that Vogler gave
another express or implied permission to use or possess a dangerous article or
instrumentality which Vogler knew, or should have known, would likely be used in a
manner involving an unreasonable risk of harm to others. See Norskog v. Pfiel, 197
Ill. 2d 60, 84-85 (2001); Zedella v. Gibson, 165 Ill. 2d 181, 186 (1995); see
Restatement (Second) of Torts § 308 (1965). Although an automobile is not a
dangerous instrumentality per se, it may become one if it is operated by someone who
is incompetent, inexperienced or reckless. Eyrich v. Estate of Waldemar, 327 Ill.
App. 3d 1095, 1098 (2002).
There are two primary considerations in negligent-entrustment analysis: (1)
whether the owner of the vehicle entrusted the car to an incompetent or unfit driver,
and (2) whether the incompetency was a proximate cause of a plaintiff's injury. Taitt
v. Robinson, 266 Ill. App. 3d 130, 132 (1994). In turn, proximate cause consists of
two distinct elements: cause in fact and legal cause. First Springfield Bank & Trust
v. Galman, 188 Ill. 2d 252, 257-58 (1999); see Watson v. Enterprise Leasing Co., 325
Ill. App. 3d 914, 922 (2001). As this court stated in First Springfield Bank & Trust:
'Cause in fact exists where there is a reasonable certainty that a
defendant's acts caused the injury or damage. [Citation.] A defendant's
conduct is a cause in fact of the plaintiff's injury only if that conduct is a
material element and a substantial factor in bringing about the injury.
[Citation.] A defendant's conduct is a material element and a substantial
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factor in bringing about an injury if, absent that conduct, the injury would
not have occurred. [Citation.] "Legal cause," by contrast, is essentially a
question of foreseeability. [Citation.] The relevant inquiry here is
whether the injury is of a type that a reasonable person would see as a
likely result of his or her conduct.' First Springfield Bank & Trust, 188 Ill.
2d at 258." Evans, 201 Ill. 2d at 434-35.
¶ 55 Our supreme court then went on to analyze whether the Vogler personnel knew, or
should have known, that the driver for the detailer was an unlicensed or incompetent driver,
and determined that Vogler neither knew nor had reason to know. Evans, 201 Ill. 2d at 435.
The court rejected plaintiffs' argument that Vogler had an additional duty to check on the
employee's driver's license status, stating: "We hold, unless a customer knows, or has reason
to know, that an employee of the contractor is unlicensed, incompetent or reckless, the
customer has no duty of further inquiry." Evans, 201 Ill. 2d at 437.
¶ 56 Like an automobile, an airplane is not inherently dangerous, but may become so if
operated by a pilot who is incompetent, inexperienced, or reckless. See Evans, 201 Ill. 2d at
434. Although the Evans case revolves around an automobile accident, there is a dearth of
negligent entrustment cases involving airplanes in Illinois, and we find the reasoning in
Evans persuasive here.
¶ 57 In the case at bar, construing all pleadings, supporting documents, and reasonable
inferences in plaintiff's favor, as we must on a motion to dismiss pursuant to section 2-619 of
the Code (Sandholm, 2012 IL 111443, ¶ 55), we find that genuine issues of material fact exist
in plaintiff's claim alleging negligent entrustment against defendant Levinson such that the
trial court erred in dismissing this claim. See Advocate Health & Hospital, Corp., 348 Ill.
361-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)
App. 3d at 759 ("As long as there is no genuine issue of material fact and the defendant is
entitled to judgment as a matter of law, the complaint may be properly dismissed.").
Specifically, plaintiff sufficiently pled that Levinson was negligent in entrusting his Cessna
421B to Turek to fly with other passengers on board when he was aware of Turek's
deficiencies with respect to the operation of this particular aircraft. Turek had never flown
the plane with non-pilot passengers, may have lacked his biennial certification, and lacked
the requisite 3 night landings in the prior 90 days in order to properly fly and land at night.
Testimony shows that Levinson had reservations about Turek because he thought Turek liked
to fly fast, "kind of like a sports car driver." Levinson knew that Turek was more
accustomed to flying his smaller, lighter, more maneuverable Baron aircraft, and he knew
that, for the first time, Turek would be flying a plane which he was learning to fly with non-
pilot passengers on a winter flight. Construing plaintiff's arguments in the light most
favorable to the plaintiff, we find there are genuine issues of material fact regarding Turek's
flying abilities and what Levinson knew about them, such that this cause should be presented
to a finder of fact. See Advocate Health & Hospital, Corp, 348 Ill. App. 3d at 759 (disputed
issues of fact are reserved for trial proceedings).
¶ 58 We note here that, under this analysis, Levinson was not required to investigate Turek's
qualifications and abilities just by virtue of the fact that Turek was going to fly the airplane.
Rather, his duty of further inquiry flowed from the fact that Levinson had reason to know
Turek may have been incompetent or reckless. See, e.g., Evans, 201 Ill. 2d at 437 ("We hold,
unless a customer knows, or has reason to know, that an employee of the contractor is
unlicensed, incompetent or reckless, the customer has no duty of further inquiry.").
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¶ 59 We next consider whether, taking the pleadings and reasonable inferences drawn
therefrom as true, there is a question of fact which would preclude dismissal as to whether
Turek's incompetency was a proximate cause of plaintiff's injury. See, e.g., Evans, 201 Ill.
2d at 434 ("There are two primary considerations in negligent-entrustment analysis: (1)
whether the owner of the vehicle entrusted the car to an incompetent or unfit driver, and (2)
whether the incompetency was a proximate cause of a plaintiff's injury.").
¶ 60 HK Golden Eagle admits, and the Levinson defendants join, "[t]o be clear, the Cessna
crashed while it was flying 'low and slow'; if this situation was brought about by Turek's
piloting then his landing approach was arguably negligent" but it argues, "[b]ut even
competent pilots commit negligent acts. Negligence is an act, whereas (in)competence is a
characteristic." In our estimation, in the context of a motion to dismiss pursuant to section 2-
619 of the Code, this difference does not make the case. Instead, again taking the pleadings
and reasonable inferences as true, we find that the reasonable foreseeability of the injury was
arguably high if Turek, as alleged, was a pilot inexperienced in a Cessna 421B aircraft, flying
for the first time with nonpilot passengers on a wintry night, who had a history of flying fast
like a sports car driver, and lacked the requisite previous night landings in order to properly
fly and land at night. Additionally, the likelihood of injury from a plane crash is certainly
high. Both the magnitude of the burden of guarding against the injury and the consequences
of placing the burden on defendant are low, as Levinson needed only to inquire further as to
Turek's abilities or not allow Turek to fly this particular flight.
¶ 61 Levinson and HK Golden Eagle argue that, because nobody knows for sure what
happened in the cockpit of the Cessna, it is impossible to prove that Turek's flying
deficiencies were the cause in fact of the injury. However, because we are here reviewing a
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motion to dismiss, we are required to draw inferences in favor of plaintiff. See Sandholm,
2012 IL 111443, ¶ 55 (when ruling on a motion to dismiss, a reviewing court must construe
the pleadings and supporting documents in the light most favorable to the nonmoving party
and accept as true all well-pleaded facts in the complaint and all inferences that may
reasonably be drawn in the plaintiff's favor). Here, plaintiff has pled, in part, that while
Turek may well have been an excellent pilot in his Baron aircraft, he was not sufficiently
skilled in flying a plane like the Cessna 421B to be safely or reasonably entrusted with it, and
it was negligent for Levinson to so entrust him. She has pled that Turek was known to fly
like a sports car driver; that he was accustomed to flying a much lighter, more maneuverable
aircraft; that, according to the NTSB, the crash was probably caused by "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"; and that the examination of
the Cessna performed by the NTSB found that the engines and propellers revealed no
anomalies that existed prior to impact. Taking these pleadings and the inferences reasonably
drawn therefrom as true, we are unable to conclude that there is no set of facts which would
entitle the plaintiff to recover. Accordingly, we find that the trial court erred in dismissing
this claim pursuant to section 2-619 of the Code.
¶ 62 2. Piercing the Corporate Veil
¶ 63 Plaintiff also contends that the corporate veil doctrine does not support dismissal of
this case. She argues that Levinson was personally negligent and "therefore can be held
accountable for his actions regardless of whether or not he also was acting on behalf of HK
Golden Eagle," and that "Levinson personally engaged in negligent conduct by entrusting the
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Cessna to Turek when, because of his own experience in flying with him, and his efforts to
instruct him, he had reason to doubt, and in fact did doubt, Turek's ability to safely make this
flight. Such negligent conduct constitutes direct negligence by Levinson individually (and as
an agent of Hark Corporation), regardless of whether or not he is an officer or shareholder of
HK Golden Eagle."
¶ 64 The Levinson defendants do not respond to this argument. A reviewing court is
entitled to have the issues on appeal clearly defined with pertinent authorities cited and a
cohesive legal argument presented. Thrall Car Manufacturing Co. v. Lindquist, 145 Ill. App.
3d 712, 719 (1986). Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013) provides:
"Points not argued are waived and shall not be raised in the reply brief, in oral argument, or
on petition for rehearing." This rule applies to appellees as well as appellants. Vancura v.
Katris, 238 Ill. 2d 352, 372 (2010). Accordingly, the Levinson defendants have waived this
issue and we will not address it here.
¶ 65 D. The Estate of Knudson
¶ 66 1. Negligent Entrustment
¶ 67 The estate of Knudson also joins with HK Golden Eagle and the Levinson defendants
regarding the negligent entrustment issue. Because Knudson's involvement was different
than that of Levinson, as Knudson actually perished in the plane crash, we address this
argument separately even though he does not. Sybaris adopts Knudson's arguments against
negligent entrustment, arguing, "Sybaris's agent, Knudson, is not liable as a matter of law for
*** negligent entrustment given the facts in the record and for the reasons set forth in the
defendants-appellees' briefs. There is ample speculation but insufficient facts showing any
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negligent acts or omissions by Knudson. It follows that no liability for negligent entrustment
*** can be imputed from Knudson to his alleged principal, Sybaris." 12
¶ 68 Plaintiff's ninth amended complaint alleged that Knudson failed to plan, utilize and
engage in proper communications and coordination of responsibilities between co-pilots;
failed to properly and safely operate the aircraft so as to ensure a safe landing; failed to
engage in and execute safe approach and landing maneuvers; failed to maintain proper
control over the aircraft so as to maintain its flight path; failed to properly monitor engine
and aircraft performance during the flight so as to prevent a crash of the aircraft; failed to
provide and utilize proper instructions and communications between co-pilots to ensure a
safe flight; failed to properly respond to and compensate for engine failure and malfunction
of the aircraft so as to avoid a crash; failed to engage in and execute proper emergency
maneuvers so as to prevent a crash of the aircraft; failed to engage in proper communications
with Mark Turek to ensure safe flight; failed to properly and timely assist Turek in the safe
operation of the aircraft; failed to properly and timely inform Turek of the icing conditions;
failed to take over control of the aircraft during emergency circumstances; failed to safely
land the aircraft; failed to properly execute the duties of pilot in command; failed to properly
evaluate adverse weather conditions; attempted to land the aircraft when weather and flight
conditions rendered it unsafe to do so; permitted Turek to attempt to land the aircraft when
weather and flight conditions rendered it unsafe to do so; and was otherwise negligent.
¶ 69 The record established that Knudson and Howard Levinson owned the Cessna 421B
aircraft via their interest in HK Golden Eagle. Sybaris had purchased the aircraft in August
2004, and in May 2005, the airplane registration was transferred to HK Golden Eagle. At the
12
Additionally, Sybaris urges independent reasons for which it should not be held liable. We
address those arguments in a separate section below.
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time of the fatal flight, Knudson and Levinson were considering bringing Turek in as a
partner in the aircraft.
¶ 70 In addition to all of the facts we discussed above regarding negligent entrustment,
Knudson was onboard the flight the night of the crash. Deposition testimony from William
McGuinn, with whom Knudson met when the plane landed in Kansas, shows that Knudson
was uncomfortable with Turek's flying. Specifically, McGuinn testified that Knudson told
him he brought Turek on the flight so that Knudson could evaluate Turek's flying and make
sure he was competent to fly the aircraft. Knudson did not like how Turek had flown the
aircraft on takeoff from Chicago that day. McGuinn testified that Knudson described to him
a disagreement Turek and Knudson had when Knudson thought Turek was piloting the
airplane to climb too steeply after takeoff, saying that Turek "rotated and climbed out steeply
without accelerating to a speed that would have allowed them to climb out safely." In
addition, Knudson told McGuinn that, partway between Chicago and Kansas, they had
discovered that Turek had inadvertently left the landing gear down. McGuinn testified that
Knudson said he thought Turek's flying skills were not up to par. Additionally, Knudson was
at the airport in Kansas and likely knew about the weather, and yet he allowed Turek, a pilot
whose flying skills he did not think were up to par, to fly passengers in his plane on a dark,
wintry night. Plaintiff alleged that Knudson should have known Turek was not competent to
fly this particular flight on this particular night, and should not have entrusted the plane to
him. All of this, in addition to the reasons outlined in our discussion of negligent entrustment
as to the other parties, is enough to withstand a motion to dismiss pursuant to section 2-619
of the Code.
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¶ 71 2. Negligent Supervision
¶ 72 Next, plaintiff contends that the trial court erred in dismissing her claim of negligent
supervision against the estate of Knudson. Specifically, she argues that she sufficiently pled
a viable negligent supervision theory that precluded dismissal of this case where a reasonable
jury could conclude that Knudson was negligent when he failed to adequately supervise
Turek or take over the controls of the aircraft during the fatal flight. The estate of Knudson
disagrees, arguing that he had no duty to supervise Turek. HK Golden Eagle adopts the
estate of Knudson's argument regarding this issue. Sybaris also adopts Knudson's arguments
against negligent supervision, arguing, "Sybaris's agent, Knudson, is not liable as a matter of
law for negligent supervision *** given the facts in the record and for the reasons set forth in
the defendants-appellees' briefs. There is ample speculation but insufficient facts showing
any negligent acts or omissions by Knudson. It follows that no liability for *** negligent
supervision *** can be imputed from Knudson to his alleged principal, Sybaris." 13
¶ 73 Initially, the estate of Knudson contends that plaintiff waived this issue, as she did not
specifically address in her opening brief the fact that the trial court, when dismissing the
claim, found that Knudson had no duty to supervise Turek. At the hearing on the motion to
dismiss, the trial court explained that nobody could know for sure what was happening in the
cockpit of the airplane at the time of the crash and, therefore, there was no evidence to
support a claim of negligent supervision. Additionally, even if there were evidence to
support such claim, the trial court said, Knudson had no duty to so supervise. Specifically,
the trial court stated:
13
Additionally, Sybaris urges independent reasons for which it should not be held liable. We
address those arguments in a separate section below.
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"THE COURT: There are no facts that would support the negligent supervision, and
if there were, there is no duty on behalf of Mr. Knudson at the time of that flight with
regard to supervision. There's no legal duty on his part. Had he voluntarily
undertaken a duty, he could have abandoned that duty at any time."
¶ 74 The trial court then entered an order granting the motion to dismiss. It did not include
its reasoning in the written order. Plaintiff appealed from that order. "It is the judgment that
is on appeal to a court of review and not what else may have been said by the lower court."
Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 192 (2007). The order being
appealed here is the granting of the motion to dismiss, not the trial court's underlying
reasoning. Plaintiff has not waived this issue.
¶ 75 In order to withstand this motion to dismiss, plaintiff, in her cause of action for
negligence, must allege sufficient facts to establish the existence of a duty of care owed by
the defendant to the plaintiff, a breach of the duty, and an injury proximately caused by the
breach. Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 421 (2004). Whether a
duty exists is a question of law for the court to decide. Bajwa, 208 Ill. 2d at 422. Whether
the duty was breached and whether the breach was a proximate cause of the plaintiff's
injuries are questions of fact for a jury to decide. Bajwa, 208 Ill. 2d at 422. Ordinarily, a
person has no affirmative duty to protect another from harmful or criminal acts by third
persons. Hills v. Bridgeview Little League Ass'n, 195 Ill. 2d 210, 228 (2000). Exceptions to
this general principal include: (1) when the parties are in a "special relationship," i.e.
common carrier-passenger, innkeeper-guest, business invitor-invitee, or voluntary custodian-
protectee, and the harmful or criminal acts were reasonably foreseeable; (2) when an
employee is in imminent danger and this is known to the employer; (3) when a principal fails
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to warn an agent of an unreasonable risk of harm involved in the agency; and (4) when there
is negligence in the performance of a voluntary undertaking. Petersen v. U.S. Reduction Co.,
267 Ill. App. 3d 775, 779 (1994). The voluntary-undertaking exception is at issue here, as
plaintiff contends the record, read in the light most favorable to the plaintiff, "is sufficient to
permit a jury to find that Knudson had voluntarily undertaken to supervise Turek's flying on
that day."
¶ 76 Section 324A of the Restatement (Second) of Torts provides for limited liability to
third persons based on the negligent performance of a service or undertaking where the
provision of services results in physical harm. Vancura, 238 Ill. 2d at 382 n.6. Section 324A
provides:
"One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third person or
his things, is subject to liability to the third person for physical harm resulting from
his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon
the undertaking." Restatement (Second) Torts § 324A (1965).
¶ 77 A duty analysis begins with the "question of whether the defendant, by his act or
omission, contributed to a risk of harm to this particular plaintiff." Simpkins, 2012 IL
110662, ¶ 21. Then, the touchstone of a duty analysis is to ask whether the plaintiff and the
defendant stood in such a relationship to one another that the law imposes on the defendant
an obligation of reasonable conduct for the benefit of the plaintiff. The inquiry involves four
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factors: (1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the
magnitude of the burden of guarding against the injury; and (4) the consequences of placing
the burden on the defendant. Simpkins, 2012 IL 110662, ¶ 18; Krywin, 238 Ill. 2d at 226;
Burger King, 222 Ill. 2d at 436-37 (in ordinary negligence action, court stated "[t]he
touchstone of this court's duty analysis is to ask whether a plaintiff and a defendant stood in
such a relationship to one another that the law imposed upon the defendant an obligation of
reasonable conduct for the benefit of the plaintiff").
¶ 78 Initially, plaintiff urges us to find that a particular statement allegedly made by
Levinson after the plane crash constitutes a judicial admission and creates the existence of a
special duty owed by Knudson to Turek. Specifically, Levinson apparently responded to a
reporting Illinois State Police officer at the scene of the crash that Turek was interested in
becoming a co-owner of the airplane and was piloting the aircraft under Knudson's
supervision. At his deposition, Levinson admitted to having had a "similar" conversation
with the police, but explained that he did not precisely mean Knudson was supervising
Turek:
"Q. When you say that [Knudson] was supervising [Turek], in that sense did you
mean supervising or owning to become a partner?
A. [LEVINSON:] My word supervising may not have been absolutely correct at the
time. The whole purpose was to [for] Ken to see how he handled the controls of the
airplane, whether he was rough. In other words, if you move the throttle like that as
opposed to slowly that's a no-no. So these are the things that Ken would be watching
because I had made that clear to Ken in our initial flights that you have to be very
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slow with your movement of the throttles. So observing would be better than
supervising.
Q. What you're describing that moving the throttle quickly, that's something that may
cause that damage to the engine over long term?
A. Yes, or taking - - or chopping the throttle quickly."
Plaintiff argues that Levinson's statement to the police was a judicial admission and, as
such, is a "binding admission that cannot be retreated from in these proceedings." "A judicial
admission is a (1) deliberate, (2) clear, (3) unequivocal, (4) statement of a party, (5) about a
concrete fact, (6) within that party's peculiar knowledge. Hansen v. Ruby Construction Co.,
155 Ill. App. 3d 475, 508, N.E. 2d 301 (1987). *** 'A judicial admission is conclusive upon
the party making it; it may not be controverted at trial or on appeal. Judicial admissions are
not evidence at all but rather have the effect of withdrawing a fact from contention.' (M.
Graham, Evidence Text, Rules, Illustrations and Problems at 146 (1983) (hereinafter cited as
Graham).)" Brummet v. Farel, 217 Ill. App. 3d 264, 266-67 (1991).
¶ 79 This "admission" by Levinson is not a judicial admission. It was not made under oath,
but was made at the scene of the crash to a State Police officer investigating the scene; it was
not deliberate, it was not clear, and it was certainly not unequivocal, as Levinson later
clarified himself, explaining that he meant observation rather than supervision.
¶ 80 Plaintiff urges us, then, to consider the statement an evidentiary admission. An
evidentiary admission "may be controverted or explained by the party. Evidentiary
admissions may be made in, among other things, pleadings in a case other than the one being
tried, pleadings that have been superseded or withdrawn, answers to interrogatories, and
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other statements made pursuant to Federal Rule of Evidence 801(d)(2) (Fed. R. Evid.
801(d)(2)). Graham at 146." Brummet, 217 Ill. App. 3d at 267.
¶ 81 Even assuming this statement could come in, however, plaintiff still fails to show that,
if this issue went to trial, she could possibly prevail in her claim for negligent supervision
where defendant owed no duty to plaintiff. There is nothing in the record that could be read
to show that Knudson and Garland were in a relationship such that Knudson would owe a
duty to Garland. First, even if Levinson's statement came in that Knudson was supervising
Garland, this statement was not under oath and would likely be considered a misstatement, as
Levinson's further explanations would come in, as well. Specifically, Levinson would
explain that, rather than "supervising," Knudson was actually watching and observing the
way Turek flew the Cessna 421B, all part of the process of considering Turek to become a
new partner in the airplane. Levinson would explain that his concern was the manner in
which Turek handled the controls such that he not handle the controls in a way that might
harm the engine. The FAA records would also show that Turek was the pilot in command.
Plaintiff is unable to present any information to show that Knudson was in fact supervising
Turek's actual flying of the airplane, nor that Knudson should have done so. 14 Because
Knudson had no duty to supervise Turek during the flight, Knudson cannot be held liable for
negligently supervising Turek.
¶ 82 Moreover, even if Knudson were voluntarily supervising Turek, nobody can know
what happened in the airplane that night. The airplane wreckage was such that it is unknown
where in the plane Knudson was sitting, let alone whether he was actively supervising Turek.
14
Although plaintiff urges this court to find that, "as the owner of the aircraft and the more
experienced pilot, Knudson had the ultimate control and responsibility for ensuring the safety of
the flight," plaintiff does not direct this court to any precedent to support this argument, but
merely cites to her own experts, who opined that this was Knudson's responsibility.
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The flight plan and all in-flight transmissions contained in the record fail to show whether
Knudson was supervising Turek. There is, simply, nothing to show (1) that Knudson
voluntarily undertook to supervise Turek on this flight; (2) that he had the duty to do so; or
(3) that he failed in his duty to do so. Accordingly, the trial court's granting of the motion to
dismiss as to the negligent supervision count is affirmed.
¶ 83 3. Piercing the Corporate Veil
¶ 84 Plaintiff also contends that the corporate veil doctrine does not support dismissal of
this case. Plaintiff argues that, "where Knudson actively participated in negligent conduct,
his status as a shareholder of HK Golden Eagle does not insulate him from liability." The
estate of Knudson did not respond to this argument. A reviewing court is entitled to have the
issues on appeal clearly defined with pertinent authorities cited and a cohesive legal
argument presented. Thrall Car Manufacturing Co., 145 Ill. App. 3d at 719. Illinois
Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013) provides: "Points not argued are waived
and shall not be raised in the reply brief, in oral argument, or on petition for rehearing." This
rule applies to appellees as well as appellants. Vancura, 238 Ill. 2d at 372. Accordingly, the
estate of Knudson has waived this issue and we will not address it here.
¶ 85 E. Sybaris
¶ 86 1. Vicarious Liability
¶ 87 Plaintiff contends the trial court erred in granting the motion to dismiss pursuant to
section 2-619 of the code where Knudson, who was Sybaris' employee and agent, was acting
in that capacity and in furtherance of the business of Sybaris during the fatal flight. While so
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acting, alleges plaintiff, Knudson was negligent in both his supervision of Turek and in his
entrustment of the airplane to Turek. Plaintiff maintains that, as a matter of law, Sybaris is
vicariously liable for the actions of Knudson. Sybaris, on the other hand, responds that it is
not, as a matter of law, vicariously liable for the actions of Knudson when the flight in
question was taken for a dual purpose rather than solely for a business purpose, and that his
activities in connection with this flight were too remotely related to Sybaris business to
impose liability upon it.
¶ 88 Under the theory of respondeat superior, "an employer can be liable for the torts of his
employee when those torts are committed within the scope of the employment." Adames v.
Sheahan, 233 Ill. 2d 276, 298 (2009). Moreover, an employer's vicarious liability extends to
the negligent, willful, malicious, or even criminal acts of its employees when those acts are
committed within the scope of employment. Adames, 233 Ill. 2d at 298. "In the context of
respondeat superior liability, the term 'scope of employment' excludes conduct by an
employee that is solely for the benefit of the employee." Deloney v. Board of Education, 281
Ill. App. 3d 775, 784 (1996).
"[U]nder the doctrine of respondeat superior, an employer can be held vicariously
liable for the tortious acts of its employees [citation], including negligent, wilful,
malicious, or even criminal acts of its employees when such acts are committed in the
course of employment and in furtherance of the business of the employer [citation].
'Whether or not the employee's act is intentional or merely negligent is not the
defining factor. Instead, the focus is on whether or not the act was performed within
the "scope of employment." ' [Citation.] ***
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The term 'scope of employment' had not been precisely defined, but Illinois
uses the following criteria in determining whether an act is within the scope of
employment:
' " (1) Conduct of a servant is within the scope of employment if, but only
if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space
limits;
(c) it is actuated, at least in part, by a purpose to serve the
master[.]
***
(2) Conduct of a servant is not within the scope of employment if it is
different in kind from that authorized, far beyond the authorized time or
space limits, or too little actuated by a purpose to serve the master." ' Pyne
[v. Witmer, 129 Ill. 2d 351, 359-60 (1989)], quoting Restatement (Second)
of Agency § 228 (1958)." Davila v. Yellow Cab Co., 333 Ill. App. 3d 592,
600 (2002).
¶ 89 To determine whether an employee is serving his employer's purpose, we use the
"frolic vs. detour" analysis. Rodman v. CSX Intermodal, Inc., 405 Ill. App. 3d 332, 338
(2010). " 'A detour occurs where the employee's deviation for personal reasons is seen as
sufficiently related to the employment. [Citation.] In contrast, '[a] frolic occurs where the
employee's personal business is seen as unrelated to employment. [Citation.]' " Rodman,
405 Ill. App. 3d at 338.
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¶ 90 Under the dual-purpose theory, which generally arises in the context of workers'
compensation and coverage, " 'when a trip serves both business and personal purposes, it is a
personal trip if the trip would have been made in spite of the failure or absence of the
business purpose and would have been dropped in the event of failure of the private purpose,
though the business errand remained undone; it is a business trip if a trip of this kind would
have been made in spite of the failure or absence of the private purpose, because the service
to be performed for the employer would have caused the journey to be made by someone
even if it had not coincided with the employee's personal journey.' (1 A. Larson, Workmen's
Compensation sec. 18.12, at 4-218 (1978), citing, at 4-221, Boyer Chemical Laboratory Co.
v. Industrial Com.(1937), 366 Ill. 635, 641, and Irwin-Neisler & Co. v. Industrial Com.
(1931), 346 Ill. 89, 94-95.)" Gmelich v. Industrial Comm., 81 Ill. 2d 44, 48 (1980).
¶ 91 Here, Sybaris urges us to find there was no error in this dismissal, as, according to
Sybaris, it is not liable under the dual purpose theory because Knudson would have gone to
Kansas with Turek whether he had Sybaris business to attend to or not. It also argues that
there is no liability under a respondeat superior theory because: (1) Knudson's alleged
tortious conduct was not actuated, even in part, by a purpose to serve Sybaris ("Sybaris is
solely in the business of hotel ownership and operation. Observing the in-flight skills of a
pilot is clearly outside the scope of hotel ownership and management."); and (2) even
assuming Knudson's conduct was actuated in part by a purpose to serve Sybaris, any such
conduct was too little actuated by such purpose. Plaintiff, on the other hand, argues that this
is a question of fact, precluding a motion to dismiss, which should be presented to the trier of
fact. We agree with plaintiff, and take note:
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"Whether the employee's conduct was so unreasonable as to make his act an
independent act of his own, rather than a mere detour or one incidental to
employment, is a question of degree which depends upon the facts of the case.
[Citation.] It is therefore axiomatic that this question should be decided by a jury ' "
unless the deviation is so great, or the conduct so extreme, as to take the servant
outside the scope of his employment and make his conduct a complete departure from
the business of the [Citation.] master." ' [Citation.]" Rodman, 405 Ill. App. 3d at 338.
¶ 92 Here, the record shows that Knudson was the founder and president of Sybaris.
Sybaris is in the hotel business and has a number of hotels in the Midwest. The accident
aircraft had recently been purchased from Sybaris. On the day of the accident, the four men
on the aircraft had overlapping reasons for going to Kansas together. Turek, Garland, and
Waugh met with a prospective Morgan Stanley client in Kansas; Knudson met with
McGuinn regarding a new hotel location; Turek was interested in becoming a partner in the
Cessna 421B, and Knudson was observing his flying of the aircraft. According to Randell
Repke, who at the time of the accident was the vice president of Sybaris, Knudson often flew
private aircraft on Sybaris business to visit hotel locations. He explained that, regarding the
time period when Sybaris owned the Cessna 421B, Sybaris had purchased the aircraft
because "[i]t was anticipated in our growth, and we were having, you know, and expansion
program in place that we had anticipated at the very minimum that [Knudson] could use to go
to some of the outer properties in Indiana and Wisconsin, and as we expanded, if there was
other cities and states that we needed to go to, he would have the ability to do that. Be much
more convenient to use your own aircraft than to try to make arrangements for commercial
flights."
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¶ 93 William McGuinn, Knudson's business associate, testified that Knudson met with him
in Kansas on the day of the airplane crash. They drove together to a property approximately
30 minutes away that McGuinn thought would make a good hotel property. McGuinn
testified that Knudson had been looking for a property near Kansas City to develop into a
hotel for some time. Knudson and McGuinn then went to lunch, where they continued to talk
about Sybaris business. McGuinn also testified, however, that the January visit was less
planned than usual. He testified that, generally, Knudson would come to town and McGuinn
would pick him up at the airport and drive around looking for properties with another agent.
This time, however, Knudson contacted him a few days before the visit, expressing that he
wanted to see the possible hotel site, but explaining he was not sure if he would have time to
do so. He told him he had some business to do in Kansas City and, if time permitted, he
would like to see the potential property. Time did permit, and they did see the property
together.
¶ 94 We think this factual scenario is not appropriate for a motion to dismiss. Construing
all evidence and reasonable inferences in plaintiff's favor, as we must on a motion to dismiss,
whether and to what extent Knudson was traveling on Sybaris business remains a question of
fact, which should be presented to the trier of fact. Vicarious liability against Sybaris for
Knudson's negligence is sufficiently alleged to defeat a motion to dismiss.
¶ 95 2. De Facto Ownership
¶ 96 Plaintiff next contends the trial court erred in granting the motion to dismiss pursuant
to section 2-619 of the Code where, although it no longer held title to the accident aircraft, it
remained a de facto owner of the plane through Knudson's control. Plaintiff argues, "[g]iven
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this 'de facto' ownership of the plane, Sybaris had a duty to insure a safe, operable flight to
and from Kansas City on the day of the occurrence." We disagree.
¶ 97 Plaintiff cites to four cases to support her position that, although Sybaris no longer held
title to the accident aircraft, it was a de facto owner and somehow responsible for the way in
which the aircraft was flown. First, she cites to Steel Co. v. Morgan Marshall Industries,
Inc., 278 Ill. App. 3d 241 (1996), and Green v. Firestone Tire & Rubber Co., 122 Ill. App. 3d
204 (1984). Both of these cases are inapposite, as they deal with de facto mergers involving
continuity of management, personnel, physical location, assets, and general business
operations or continuity of shareholders or an exchange of stock. Plaintiff's two personal
property cases are also unhelpful to her cause. First, she cites to Caldbeck v. Chicago Park
District, 97 Ill. App. 3d 452 (1981). In that case, this court held that a boat owner had made
a de facto assignment of his harbor mooring permit in violation of the Chicago park district
rules governing assignment of such permits. Caldbeck, 97 Ill. App. 3d at 459. The other
case, People v. Dugan, 109 Ill. 2d 9 (1985), deals with our supreme court's holding
construing the statute governing an owner's right to contest the forfeiture of a vessel, vehicle,
or aircraft used in the commission of a criminal offense. Dugan, 109 Ill. 2d at 18. These
cases, too, are inapposite to the case at bar.
¶ 98 Plaintiff attempts to stretch the theories espoused in these cases to encompass airplanes
that have legally changed owners and to, inexplicably and without further citation to
authority, require these previous and now de facto owners to be responsible for aircraft that is
no longer theirs. Where there is no support for this in the case law, plaintiff is unable to
withstand a motion to dismiss pursuant to section 2-619 of the Code, and we find no error in
the trial court's dismissal of this issue.
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¶ 99 F. HK Golden Eagle
¶ 100 Plaintiff also contends the trial court erred in granting HK Golden Eagle's motion to
dismiss pursuant to section 2-619 of the Code, where HK Golden Eagle was vicariously
liable for the actions of Levinson and Knudson. The trial court, granting the motion to
dismiss as to Levinson and Knudson after finding no evidence to support a claim for
negligent entrustment against either Levinson or Knudson, nor support for a claim of
negligent supervision against Knudson, also granted the motion to dismiss in favor of HK
Golden Eagle to which, it was alleged, liability for the actions of Levinson and Knudson
would flow vicariously. On appeal, plaintiff argues, again, that "HK, through its officers and
agents, Levinson and Knudson, breached its duty to ensure that Turek was a qualified,
current and proficient pilot before allowing him to fly the Cessna 421B. The facts of this
case show that HK knew or could have known by the exercise of due diligence, that Turek
was not legally qualified to function as the Pilot in Command. More than sufficient facts
show that not only was Turek inexperienced flying a Cessna 421B in these conditions, but
Turek's piloting capabilities were critiqued in various ways by Knudson and Levinson prior
to the subject flight. Therefore, it is apparent that HK, through Knudson and Levinson, was
negligent when it allowed Turek to pilot this flight, and such negligence resulted in the
deaths of all its passengers, Garland included. HK's right to judgment as a matter of law,
after drawing all inferences in favor of the Plaintiff, is not clear and free from doubt, and
should now be reversed."
¶ 101 HK Golden Eagle fails to respond to plaintiff's contention that it should be held
vicariously liable for its officers' and agents' negligence, but instead spends the entirety of its
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brief arguing that the trial court did not err in dismissing the claim because Levinson and
Knudson are not liable in this crash. At the time the trial court dismissed this claim regarding
vicarious liability, it had dismissed the claims as to Levinson and Knudson. Now, however,
we have found that the question of negligent entrustment by both Levinson and Knudson
withstands the motions to dismiss. A reviewing court is entitled to have the issues on appeal
clearly defined with pertinent authorities cited and a cohesive legal argument presented.
Thrall Car Manufacturing Co., 145 Ill. App. 3d at 719. Illinois Supreme Court Rule
341(h)(7) (eff. Feb. 6, 2013) provides: "Points not argued are waived and shall not be raised
in the reply brief, in oral argument, or on petition for rehearing." This rule applies to
appellees as well as appellants. Vancura, 238 Ill. 2d at 372. Accordingly, HK Golden Eagle
has waived this issue. Plaintiff's contentions, without benefit of counterargument from HK
Golden Eagle, that HK Golden Eagle is vicariously liable for the actions of Levinson and
Knudson, are sufficient to withstand a motion to dismiss.
¶ 102 III. CONCLUSION
¶ 103 For all of the foregoing reasons, we reverse the decision of the circuit court as to
negligent entrustment by the Levinson defendants, negligent entrustment by Knudson,
vicarious liability as to Sybaris regarding the issue of negligent entrustment, and vicarious
liability as to HK Golden Eagle regarding the issue of negligent entrustment. We affirm the
decision of the circuit court in all other respects.
¶ 104 Affirmed in part and reversed in part.
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