Nos. 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,

, 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,

. In the second appeal,

Garland v. Morgan Stanley & Co.,

, 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,

. 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,

;

Garland,

.

¶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

3 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

.

¶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

4 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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."

5 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

, 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,

. 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,

. 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,

. 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,

. We also

found that this court had proper jurisdiction over the cause. Waugh,

.

¶ 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,

. 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

6 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

the exclusive remedy provision of the Illinois Workers' Compensation Act (820 ILCS 305/1

et seq. (West 2010)). Garland,

. 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,

. 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,

.

¶ 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

7 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

. 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,

. 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.

8 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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

9 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

.

¶ 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."

10 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

¶ 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.

11 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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.

12 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

¶ 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

(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."

(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.

13 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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."

14 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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.

15 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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.

16 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

¶ 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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

¶ 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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

(quoting 735 ILCS 5/2-

1005(c) (West 2008)); see also Schultz v. Illinois Farmers Insurance Co.,

(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.,

(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.,

(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,

(2010) (citing Caponi v. Larry’s 66,

(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,

(citing In re Estate of Ciesiolkiewicz,

(1993), and Espinoza v.

Elgin, Joliet & Eastern Ry. Co.,

(1995)). We review the circuit court's

decision to grant or deny a motion for summary judgment de novo. Palm,

; see also Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co.,

(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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

; King v. First Capital Financial Services Corp.,

(2005); Wallace v. Smyth,

, 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.,

(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,

. Disputed issues of fact are reserved for trial proceedings. Advocate Health & Hospital,

Corp. v. Bank One, N.A.,

(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.,

. The circuit court's decision to grant such a motion will be reviewed de novo.

Sandholm,

.

28 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

¶ 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,

, 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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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.,

." Garland,

.

¶ 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,

. 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 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

¶ 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;

31 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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;

32 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

(2000)

(citing Cunis v. Brennan,

(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.,

. 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,

; Krywin v. Chicago Transit Agency,

(2010); Marshall v. Burger King, Corp.,

(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.,

, 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." 33 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

(2004);

Zedella v. Gibson,

(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,

(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,

. A

jury found all three defendants liable, and Vogler appealed his liability finding. Evans,

. Finding that Vogler's motions for directed verdict and judgment

notwithstanding the verdict were improperly denied, our supreme court reversed the

34 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

judgment of the circuit court as it pertained to Vogler. Evans,

. 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,

(2001); Zedella v. Gibson,

(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,

(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,

(1994). In turn, proximate cause consists of

two distinct elements: cause in fact and legal cause. First Springfield Bank & Trust

v. Galman,

(1999); see Watson v. Enterprise Leasing Co.,

(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

35 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

." Evans,

.

¶ 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,

.

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,

.

¶ 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,

. 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,

), 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.,

1-11-2615, 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,

(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,

("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.").

37 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

¶ 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,

("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

38 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

motion to dismiss, we are required to draw inferences in favor of plaintiff. See Sandholm,

(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

39 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

(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,

(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

40 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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. 41 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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.

42 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

¶ 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. 43 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

"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,

(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.,

(2004). Whether a

duty exists is a question of law for the court to decide. Bajwa,

. 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,

. 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,

(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

44 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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.,

(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,

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,

. 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

45 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

; Krywin,

;

Burger King,

(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

46 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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.,

, 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,

(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

47 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

other statements made pursuant to Federal Rule of Evidence 801(d)(2) (Fed. R. Evid.

801(d)(2)). Graham at 146." Brummet,

.

¶ 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. 48 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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.,

. 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,

. 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

49 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

(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,

. "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,

(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.] ***

50 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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,

(1989)], quoting Restatement (Second)

of Agency § 228 (1958)." Davila v. Yellow Cab Co.,

(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.,

(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,

.

51 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

¶ 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),

, and Irwin-Neisler & Co. v. Industrial Com.

(1931),

.)" Gmelich v. Industrial Comm.,

(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:

52 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

"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,

.

¶ 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."

53 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

¶ 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

54 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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.,

(1996), and Green v. Firestone Tire & Rubber Co.,

(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,

(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,

. The other

case, People v. Dugan,

(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.

55 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

¶ 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

56 1-11-2615, 1-11-2616, 1-11-2617 & 1-11-2622 (cons.)

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.,

. 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,

. 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.

57