Alwin v. The Village of Wheeling

No. 1-04-0154 FIRST DIV. Filed: 3/12/07

KALYN ALWIN and DEVIN KOPPIE, ) Appeal from the
Co-Administrators of the Estate of Martin ) Circuit Court of
Larry Koppie, Deceased, ) Cook County.
)
Plaintiffs-Appellees, )
)
v. )
)
THE VILLAGE OF WHEELING, THE CITY OF ) Nos. 97 L 13527, 97 L 13636,
PROSPECT HEIGHTS, and PALWAUKEE ) 97 L 13715 & 97 L 13716
MUNICIPAL AIRPORT COMMISSION, )
)
Defendants-Appellants )
)
(Albert-Culver USA, Inc., Alberto-Culver International, ) Honorable
Inc., and Alberto-Culver Company, Defendants and ) Thomas E. Flanagan,
Third-Party Plaintiffs-Appellees; Aon Aviation, Inc., ) Judge Presiding.
Third-Party Defendant-Appellee). )

JUSTICE ROBERT E. GORDON delivered the opinion of the court:

In October 1996 a private jet aircraft crashed while attempting a takeoff from Palwaukee

Municipal Airport (Palwaukee). The plane was consumed by flames. All four persons on board

(two pilots, a flight attendant and one passenger) were killed.

Palwaukee is owned by defendants Village of Wheeling and City of Prospect Heights and

is managed through defendant Palwaukee Municipal Airport Commission (collectively,

municipal defendants). The plane was owned by defendant Alberto-Culver USA, Inc., and/or

defendant Alberto-Culver International, Inc., and/or defendant Alberto-Culver Company

(Alberto-Culver). One of the pilots, Robert Whitener, was employed by Alberto-Culver, and the
No. 1-04-0154

other, Martin Larry Koppie, was employed by Aon Aviation, Inc. The passenger, Arthur Quern,

was an employee of Aon Risk Services, Inc., and an executive of Aon Corporation. (The flight

was intended to transport Quern to Burbank, California.) Aon Aviation had secured the services

of the flight attendant, Catherine Anderson.

The estates of the four decedents (Koppie, Whitener, Quern and Anderson) brought

wrongful death and survival actions in the circuit court of Cook County against, inter alia,

municipal defendants and Alberto-Culver. These actions were consolidated for trial. Prior to

trial, Alberto-Culver settled with two of the four decedents’ estates (Anderson and Quern) on

behalf of Alberto-Culver and Aon Aviation, but not municipal defendants. Alberto-Culver

subsequently filed contribution claims against Aon Aviation in the Anderson and Quern cases.1

Also prior to trial, the circuit court granted summary judgment in favor of municipal defendants

on their claim of immunity under the Local Governmental and Governmental Employees Tort

Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 2002)). This decision effectively removed

municipal defendants from the litigation. The plaintiffs and Alberto-Culver appealed under

Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). While this appeal was pending, trial began

on the claims of the remaining two decedents’ estates (Whitener against Aon Aviation, and

Koppie against Alberto-Culver). In January 2001, the circuit court entered judgment on a jury

1
The circuit court subsequently ruled in favor of Alberto-Culver on its contribution

claims. This ruling was not appealed, and the contribution claims are not before this court for

review.

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verdict in favor of the Whitener estate in the amount of $18.9 million. However, the jury was

"hopelessly deadlocked" on the Koppie case, and the circuit court declared a mistrial.

Meanwhile, in December 2000 this court reversed the circuit court’s previous granting of

summary judgment in favor of municipal defendants. Anderson v. Alberto-Culver USA, Inc., 317

Ill. App. 3d 1104 (2000). Municipal defendants filed a petition for leave to appeal to the Illinois

Supreme Court. On April 4, 2001, the petition was denied. Anderson v. Alberto-Culver USA,

Inc., 194 Ill. 2d 565 (2001). Following this denial, the appellate court issued its mandate, and

municipal defendants were brought back into the litigation.

The Koppie estate’s claims against municipal defendants and Alberto-Culver were tried

before a jury beginning in February 2003. On May 5, 2003, the jury found in favor of the Koppie

estate and against municipal defendants and Alberto-Culver in the amount of $11 million. In

allocating the relative fault of the parties, the jury found that municipal defendants were 90% at

fault, and Alberto-Culver and "Martin Larry Koppie/Aon Aviation, Inc." were each 5% at fault.

On May 6, 2003, the circuit court entered judgment on this verdict. The circuit court denied

municipal defendants’ posttrial motions. Municipal defendants appeal. We affirm the judgment

of the circuit court.

BACKGROUND

In its opinion in Anderson, this court stated the factual background regarding the crash:

"On October 30, 1996, a Gulfstream G-IV aircraft, registered to Alberto-Culver

and piloted by Martin Larry Koppie and Robert Hampton Whitener, crashed while

attempting its takeoff from Runway 16/34 at Palwaukee. Two other people, Arthur F.

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Quern, a passenger, and Catherine Anderson, the flight attendant, were aboard the

airplane at the time of the fatal accident. After the pilots had received clearance for

takeoff, the airplane began to roll down the runway, but started to veer to the left side of

the runway in the middle of its takeoff roll. According to the National Transportation

Safety Board (NTSB), the aircraft rolled onto the grass off to the left side of the runway,

traversing a shallow ditch that paralleled the runway, which resulted in the separation

from the aircraft of landing gear, flight control surfaces and other airplane components.

The ditch was about 2½ feet deep at its deepest point and 20 feet wide. A 90-foot-wide

spray of mud fanned out onto the runway parallel to where the airplane entered the ditch.

The airplane then slid on its belly and became airborne after it encountered a small berm

at the departure end of the runway. Once airborne, the airplane flew over Hintz Road,

contacted the embankment along Wolf Road and skipped over Wolf Road. The aircraft

then slid across a field and stream gully and came to rest on the edge of an apartment

complex parking lot where it was consumed by flames.

Examination of the aircraft by NTSB indicated no preexisting anomalies of the

engines, flight controls or aircraft systems. The NTSB concluded that the drainage ditch

paralleling Runway 16/34 was a factor relating to the accident." Anderson, 317 Ill. App.

3d at 1106-07.

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In their third amended complaint, plaintiffs Kalyn Alwin and Devin Koppie,2 co-

administrators of the estate of Martin Larry Koppie, alleged negligence on the part of municipal

defendants3 in that they: (1) "[m]aintained their airport property and runways in such a condition

as to pose a danger to aircraft taking off on said runways," (2) "[m]aintained ditches, hills,

embankments and other uneven surfaces immediately alongside and adjacent to runway 34 so as

to pose a hazard and danger to the landing gear and other component parts of aircraft departing

on said runway," and/or (3) "[m]aintained ditches, hills, embankments and other uneven surfaces

immediately alongside and adjacent to runway 34 so as to prevent aircraft from safely returning

to the runway surface after straying from the center line during take-off."

In April 1998, prior to the first trial on the wrongful death claims of the decedents’

estates, municipal defendants moved for summary judgment. In their motion, municipal

defendants noted that the estates claimed, among other things, that the crash was caused by

"certain facilities *** provided at the airport, such as *** uneven ground surfaces adjacent to the

runway." According to municipal defendants, this claim referred to the runway safety area

2
Kalyn Alwin and Devin Koppie are two of the three children of plaintiffs’ decedent

Martin Larry Koppie.
3
Plaintiffs’ complaint included allegations of negligence against Alberto-Culver as well.

However, neither those claims nor the circuit court’s (May 6, 2003) judgment against Alberto-

Culver are before us in this appeal, which was taken by municipal defendants from the May 6,

2003, judgment against them.

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(RSA) surrounding Palwaukee’s runway 16/34, the runway from which the plane at issue

attempted to take off. (It is undisputed that the 20-foot-wide drainage ditch that the aircraft

traversed after it veered off runway 16/34 was within the RSA). Municipal defendants explained

that, pursuant to the Federal Aviation Administration’s (FAA) airport design advisory circular

(Advisory Circular No. 150/5300-13, Change 2), an RSA is "an area surrounding a runway that

has been prepared to reduce the risk of damage to airplanes in the event of an undershoot,

overshoot, or excursion from the runway." While municipal defendants acknowledged that the

RSA surrounding runway 16/34 did not comply with the FAA’s airport design circular, they

argued that summary judgment nevertheless should be granted in their favor because, under the

Act, municipal defendants "are immune from liability for discretionary decisions regarding the

maintenance and operation of the airport."

In their memorandum in support of their motion, municipal defendants pointed

specifically to two provisions of the Act, sections 2-109 and 2-201. The first of these provisions,

section 2-109, states: "A local public entity is not liable for an injury resulting from an act or

omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 1998).

The second provision, section 2-201, describes one circumstance where a public employee is not

liable:

"Except as otherwise provided by Statute, a public employee serving in a position

involving the determination of policy or the exercise of discretion is not liable for an

injury resulting from his act or omission in determining policy when acting in the exercise

of such discretion even though abused." 745 ILCS 10/2-201 (West 1998).

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Municipal defendants argued that their decisions regarding the RSA (e.g., the decision not to

improve the RSA after municipal defendants acquired the airport in 1986)4 met the requirements

of section 2-201. According to municipal defendants, the decisions regarding the RSA were

made by employees holding positions involving the determination of policy or the exercise of

discretion, and the decisions themselves constituted an exercise of discretion and a determination

of policy. In municipal defendants’ view, therefore, because the public employees who made the

decisions regarding the RSA were shielded from liability by section 2-201, municipal defendants

themselves were shielded from liability by section 2-109.

On May 24, 1999, the circuit court granted municipal defendants’ motion for summary

judgment, effectively removing municipal defendants from the litigation. In its order granting

summary judgment, the court added, pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R.

304(a)), that there was "no just reason to delay enforcement or appeal from this order." The

plaintiffs (including the four decedents’ estates) appealed, as did defendant Alberto-Culver.

Anderson, 317 Ill. App. 3d at 1110. As previously indicated, this court reversed the circuit

court’s order granting summary judgment in favor of municipal defendants.

In reaching this decision, this court rejected municipal defendants’ argument that they

were shielded from liability by the Act. While acknowledging the rationale underlying the Act’s

4
In their brief to this court in the case at bar, municipal defendants acknowledge that "the

RSA was in the same condition on the date of this crash as it was in when [municipal defendants]

acquired the property."

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granting of tort immunity to public officials, this court nevertheless noted the "traditional

common law duty" of local governments "to maintain [public] property in a reasonably safe

condition." Anderson, 317 Ill. App. 3d at 1111. This court added that this same duty was

"restate[d] and codifie[d]" in section 3-102 of the Act. Anderson, 317 Ill. App. 3d at 1112. In

this court’s view, the ultimate issue in the case before it was "[t]he duty of the municipal

defendants to maintain a public airport in a reasonably safe condition, or the absence of such

duty, *** not whether to make improvements to the RSA." (Emphases added.) Anderson, 317

Ill. App. 3d at 1114. As this court noted elsewhere in its opinion, "[t]o maintain property is

considered a ministerial act [i.e., nondiscretionary]; to improve property falls under the

discretionary decision of the government entity." Anderson, 317 Ill. App. 3d at 1112. In stating

the issue as whether municipal defendants had a duty to maintain the airport in a reasonably safe

condition, this court indicated that section 2-201, which provided immunity for discretionary

acts, did not apply. Municipal defendants were not shielded from liability by the Act.

This court answered the duty question in the affirmative, concluding that municipal

defendants had a duty to maintain the RSA in a reasonably safe condition. Looking to the

remand, Anderson stated: "In the present case, plaintiffs may very well succeed in demonstrating

that municipal defendants failed to use ordinary care in maintaining the RSA in a reasonably safe

condition." Anderson, 317 Ill. App. 3d at 1117.

Anderson reversed the order of the circuit court, holding that: "summary judgment may

not be entered where there is a material fact question of whether public property was maintained

in conformity with applicable safety standards; the cause must be reversed and remanded for trial

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for this determination." Anderson, 317 Ill. App. 3d at 1117. Municipal defendants filed a

petition for rehearing. In denying the petition, this court entered an order stating, in pertinent

part:

"[I]n the instant case, municipal defendants’ contention that they had discretionary

immunity is misplaced because the 'discretion’ they refer to involves the discretion to

make improvements to Palwaukee. The ultimate issue in this case is whether municipal

defendants breached their duty to maintain a public airport in a reasonably safe condition,

not whether to make improvements to the RSA. Accordingly, municipal defendants’

discretionary immunity should not shield them from liability for improper maintenance

for the RSAs. A factfinder should decide whether municipal defendants breached their

duty." Anderson v. Alberto-Culver USA, Inc., Nos. 1-99-2166, 1-99-2256, 1-99-2387

cons. (January 10, 2001).

Municipal defendants petitioned for leave to appeal to the Illinois Supreme Court. On

April 4, 2001, the petition was denied. Anderson v. Alberto-Culver USA, Inc., 194 Ill. 2d 565

(2001). Following this denial, the appellate court issued its mandate, and municipal defendants

were brought back into the litigation.

In the meantime, during the two-year period (May 1999 to April 2001) when municipal

defendants were not in the litigation, the claims of the estates of Koppie (against Alberto-Culver)

and Whitener (against Aon Aviation) were tried before a jury. As previously indicated, in

January 2001, the circuit court entered judgment on a verdict in favor of the Whitener estate, but

declared a mistrial in the Koppie case. Subsequently, after municipal defendants were brought

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back into the litigation, the Koppie estate’s claims against municipal defendants and Alberto-

Culver were tried before a jury.5

This second trial of the Koppie estate’s claims began in February 2003, and the verdict

was entered in May 2003. A central issue in this trial was whether municipal defendants were

negligent in maintaining the runway safety area along the west side of runway 16/34, and

whether this negligence was a proximate cause of Martin Larry Koppie’s death.

According to the testimony at trial, municipal defendants acquired Palwaukee from its

previous, private owners in 1986. The majority of the purchase money came from federal funds,

and the remainder was advanced by the State of Illinois. Municipal defendants agreed to own

and operate the airport using funds generated from that ownership and operation (such as fees for

rental of hangar space). As part of this purchase, the FAA required municipal defendants to

agree to certain assurances. One of these assurances stated:

"[Municipal defendants] will suitably operate and maintain the airport and all

facilities thereon or connected therewith with due regard to climatic, flood conditions.

The airport and all facilities which are necessary to serve the aeronautical users of the

airport other than facilities owned or controlled by [the] United States shall be operated at

all times at a safe and serviceable condition and in accordance with the minimum

5
Alberto-Culver’s contribution claims against Aon Aviation in the Anderson and Quern

cases also were tried before this same jury.

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standards as may be required or proscribed by the applicable federal, state and local

agencies for the maintenance and operation. [Municipal defendants] will not cause or

permit any activity or action thereon which would interfere with this use for airport

purposes."

At the time of the purchase of Palwaukee, the RSA to the west of runway 16/34 contained

a drainage ditch or depression that was about 2 feet deep and 20 feet wide. This ditch was

situated about 20 feet from the western edge of the runway surface and ran the entire length of

the runway. This drainage ditch was in essentially the same condition on October 30, 1996, the

date of the accident in this case, as it was in 1986 when municipal defendants acquired

Palwaukee.

The testimony at trial also referred to FAA airport design advisory circular No. 150/5300-

13, which includes, among other things, a definition of an RSA and certain design standards for

RSAs. These portions of the advisory circular were read aloud by witnesses for plaintiffs as part

of their testimony. According to the advisory circular, an RSA is "[a] defined surface

surrounding a runway prepared or suitable for reducing the risk of damage to airplanes in the

event of an undershoot, overshoot or excursion from the runway." Under "Design Standards,"

the advisory circular states, in pertinent part, that an RSA shall be (1) "Cleared and graded to

have no potentially hazardous ruts, humps, depressions or other surface variations," (2) "Drained

by grading or storm sewers to prevent water accumulation," (3) "Capable under dry conditions of

supporting snow removal equipment, aircraft rescue and firefighting equipment, and the

occasional passage of aircraft without causing structural damage to the aircraft," and (4) "Free of

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objects, except for objects that need to be located in the runway safety area because of their

function."

On cross-examination, municipal defendants elicited testimony indicating that, upon

completion of the purchase of Palwaukee in 1986, the airport was not required to comply

immediately with all of the advisory circular’s requirements. According to this testimony,

compliance with a particular requirement was triggered when municipal defendants received

federal funds to address the area in question.

Other testimony at trial indicated that it was very windy on the day of the accident and

that high winds were a factor in the plane’s veering from the runway centerline. It also was

established at trial that less than three seconds elapsed from the time the plane veered from the

centerline until the time it left the runway and went into the RSA. Once the plane left the runway

surface, and during its "excursion" on the RSA, the plane lost several parts, including both

landing gear and certain control parts of the aircraft.

Municipal defendants took the position at trial that the accident was caused by pilot error.

According to testimony presented by municipal defendants in support of this position, there were

a number of actions the pilots could have taken to prevent the plane from entering the RSA,

including applying the plane’s brakes and rudder. This testimony also indicated that, if the pilots

were still unable to prevent the plane from veering off the runway, they should have aborted the

flight.

At the close of plaintiffs’ case, municipal defendants moved for a directed verdict. In this

motion, municipal defendants argued, among other things, that removal of the drainage ditch

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from the RSA would have been an improvement, rather than maintenance. Municipal defendants

asserted that they had made no attempt to remove the drainage ditch, and they argued that, under

the Act, they were shielded from liability for failure to make improvements. Municipal

defendants argued, in addition, that plaintiffs had failed to establish that any breach of duty by

municipal defendants proximately caused the crash. According to municipal defendants, it was

pilot error that proximately caused the death of Martin Larry Koppie. The circuit court denied

the motion for directed verdict.

After all the evidence had been presented, the trial judge instructed the jury. These

instructions noted, among other things, "a certain statute [section 3-102 of the Act] which

provided that: A local public entity has the duty to exercise ordinary care to maintain its property

in a reasonably safe condition." The instructions also noted "a certain regulation" which

provided that "[d]rainage ditches may not be located within a Runway Safety Area."

On May 5, 2003, the jury found in favor of plaintiffs (the Koppie estate) and against

municipal defendants and Alberto-Culver in the amount of $11 million. In allocating the relative

fault of the parties, the jury found that municipal defendants were 90% at fault, and Alberto-

Culver and "Martin Larry Koppie/Aon Aviation, Inc." were each 5% at fault. The jury also

addressed this special interrogatory: "Was something or the negligent conduct of someone else,

other than [municipal defendants], the sole proximate cause of this aircraft accident?" The jury

answered this interrogatory in the negative. On May 6, 2003, the circuit court entered judgment

on the jury’s verdict.

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Municipal defendants filed posttrial motions for judgment notwithstanding the verdict

(judgment n.o.v.) and for a new trial. Municipal defendants also renewed their motion for a

directed verdict. In their motion for judgment n.o.v., municipal defendants contended, as they did

in their motion for directed verdict, that they were entitled to tort immunity under the Act, and

that it was pilot error, rather than municipal defendants’ actions or omissions, which proximately

caused the crash. In their argument before the circuit court regarding the motion for judgment

n.o.v., municipal defendants addressed the contention that this court’s rejection of municipal

defendants’ tort immunity defense in Anderson constituted the law of the case, and that

municipal defendants therefore were barred from raising this same defense in the case at bar.

Municipal defendants disagreed with this contention, arguing that Anderson was a summary

judgment case and that, in the period since the decision in Anderson, a more detailed factual

record had been developed.

In their posttrial motion for a new trial, municipal defendants pointed to a number of

alleged errors relating to the submission of evidence, argument of counsel, and jury instructions.

According to municipal defendants, these alleged errors warranted a new trial.

The circuit court denied municipal defendants’ posttrial motions. Municipal defendants

timely filed a notice of appeal.

Also on May 6, 2003, the day that judgment was entered on the Koppie estate’s claims,

the same jury that rendered the verdict in the Koppie case considered Alberto-Culver’s

contribution claims against Aon Aviation in the Anderson and Quern cases. Neither Alberto-

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Culver nor Aon Aviation presented any new evidence in addition to what had been presented in

the trial on the Koppie estate’s claims. For purposes of Alberto-Culver’s contribution claims, the

jury found that Alberto-Culver was 6% at fault, Aon Aviation was 4% at fault, and municipal

defendants, again, were 90% at fault. The circuit court entered judgment on this verdict. In its

order, the circuit court noted that "[n]o judgment has been entered against the [municipal

defendants] in the contribution cases because no claim for contribution was brought against the

[municipal defendants] in the contribution cases." As previously indicated, the contribution

cases are not before this court in the instant appeal.

ANALYSIS

Municipal defendants argue on appeal that the circuit court erred in denying their motions

for directed verdict and for judgment n.o.v. In support of this position, municipal defendants

contend, as they did below, that the removal of the drainage ditch from the RSA would have

constituted an improvement rather than maintenance, and therefore any failure on their part to

remove the ditch would fall within the scope and protection of the Act. Municipal defendants

argue that (1) they had no duty "cognizable in tort to the plaintiff to change and improve the area

in question," and (2) "if any duty is found to exist, [municipal defendants] possess immunity

[under the Act] with respect to any tort claim for breach of that duty."

Municipal defendants offer an additional argument in support of their view that it was

error to deny their motions for directed verdict and for judgment n.o.v. According to municipal

defendants, plaintiffs failed to establish that the uneven surface of the RSA adjoining runway

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16/34 was a proximate cause of Martin Larry Koppie’s death. Municipal defendants contend, as

they did below, that it was pilot error, and not the condition of the RSA’s terrain, that caused the

death of plaintiffs’ decedent.

Plaintiffs argue, on the contrary, that the issues of tort immunity and duty are foreclosed

by the doctrine of "law of the case." Under this doctrine, "where an issue has been litigated and

decided, a court’s unreversed decision on that question of law or fact settles that question 'for all

subsequent stages of the suit.’" Pekin Insurance Co. v. Pulte Home Corp., 344 Ill. App. 3d 64, 69

(2003), quoting Norton v. City of Chicago, 293 Ill. App. 3d 620, 624 (1997). Plaintiffs note that

in Anderson, this court’s first opinion in this case, "this Court found that municipal defendants

did owe plaintiffs a duty and that they were not immune from liability." (Emphasis in original.)

In plaintiffs’ view, these two issues have already been decided and may not be relitigated in the

instant appeal.

Plaintiffs also disagree with municipal defendants regarding the issue of proximate cause.

According to plaintiffs, the evidence presented at trial was sufficient to establish that the terrain

of the RSA was a proximate cause of the crash. Plaintiffs add that municipal defendants have

failed to meet the "very difficult standard" for obtaining a judgment notwithstanding the verdict.

Motions for Directed Verdict and Judgment n.o.v.

Plaintiffs correctly note that the standard for obtaining a judgment notwithstanding the

verdict is very difficult to meet. In Knauerhaze v. Nelson, 361 Ill. App. 3d 538 (2005), this court

restated that standard:

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"A judgment notwithstanding the verdict presents a question of law that appellate courts

review de novo. [Citation.] A trial court should enter judgment notwithstanding the

verdict only when all the evidence, viewed in a light most favorable to the nonmovant, so

overwhelmingly favors the movant that no contrary verdict could stand based on the

evidence. [Citations.] Our supreme court further described the standard in Maple v.

Gustafson, 151 Ill. 2d 445, 452-53, 603 N.E.2d 508, 512 (1992):

'A trial court cannot reweigh the evidence and set aside a verdict merely because

the jury could have drawn different inferences or conclusions, or because the court

feels that other results are more reasonable. [Citations.] Likewise, the appellate

court should not usurp the function of the jury and substitute its judgment on

questions of fact fairly submitted, tried, and determined from the evidence which

did not greatly preponderate either way.’ Maple, 151 Ill. 2d at 452-53, 603

N.E.2d at 512.

Thus, the standard for obtaining a judgment notwithstanding the verdict is a ' "very

difficult standard to meet," ’ and [is] limited to ' "extreme situations only." ’ [Citations.]"

Knauerhaze, 361 Ill. App. 3d at 547-48.

A trial court’s denial of a motion for directed verdict also is reviewed de novo. Moss v. Amira,

356 Ill. App. 3d 701, 705 (2005).

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1. Law of the Case

As noted, the law of the case doctrine provides that "where an issue has been litigated and

decided, a court’s unreversed decision on that question of law or fact settles that question 'for all

subsequent stages of the suit.’" Pekin Insurance Co., 344 Ill. App. 3d at 69, quoting Norton, 293

Ill. App. 3d at 624.

"The purpose of the doctrine is to protect settled expectations of the parties, ensure

uniformity of decisions, maintain consistency during the course of a single case,

effectuate proper administration of justice, and bring litigation to an end. [Citation.] An

additional concern addressed by the law of the case doctrine is the maintenance of the

prestige of the courts, for the reason that if an appellate court issues contrary opinions on

the same issue in the same case, its prestige is undercut." Emerson Electric Co. v. Aetna

Casualty & Surety Co., 352 Ill. App. 3d 399, 417 (2004).

There are two exceptions to this doctrine. The first applies when a higher reviewing court,

subsequent to the lower reviewing court’s decision, issues a contrary ruling on the same issue.

"The second exception allows the reviewing court to depart from the doctrine of law of the case

if the court finds that its prior decision was palpably erroneous, but only when the court

remanded the case for a new trial on all issues." Martin v. Federal Life Insurance Co. (Mutual),

268 Ill. App. 3d 698, 701 (1994).

In Anderson, as previously indicated, this court found that municipal defendants did owe

plaintiffs a duty of care and that municipal defendants were not immune from liability. In

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addressing the immunity question, this court rejected municipal defendants’ claim that they had

discretionary immunity under the Act. In its order denying municipal defendants’ petition for

rehearing, this court stated:

"The ultimate issue in this case is whether municipal defendants breached their duty to

maintain a public airport in a reasonably safe condition, not whether to make

improvements to the RSA. Accordingly, municipal defendants’ discretionary immunity

should not shield them from liability for improper maintenance for [sic] the RSAs. A

factfinder should decide whether municipal defendants’ breached their duty." Anderson

v. Alberto-Culver USA, Inc., Nos. 1-99-2166, 1-99-2256, 1-99-2387 cons. (January 10,

2001).

In this passage from the order denying the petition for rehearing, this court also states that

municipal defendants owed a duty of care to plaintiffs. According to this court, municipal

defendants had a duty to maintain their public airport in a reasonably safe condition. This

statement of duty tracks the language of section 3-102 of the Act, which provides, in pertinent

part: "Except as otherwise provided in this Article, a local public entity has the duty to exercise

ordinary care to maintain its property in a reasonably safe condition." 745 ILCS 10/3-102(a)

(West 1998).

Having concluded that municipal defendants owed a duty to plaintiffs, and that municipal

defendants were not immune from liability, this court reversed the circuit court’s previous order

of summary judgment in favor of municipal defendants and remanded the cause for trial on the

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question of whether plaintiffs could demonstrate "that municipal defendants failed to use

ordinary care in maintaining the RSA in a reasonably safe condition." Anderson, 317 Ill. App. 3d

at 1117.

Notwithstanding the foregoing, municipal defendants argue that the doctrine of law of the

case does not apply here. They note that Anderson was a summary judgment case and that, since

the decision in Anderson was issued, the Koppie estate’s case has gone to trial, resulting in the

development of a more detailed factual record than was available to this court in Anderson.

Municipal defendants appear to argue that because Anderson was a summary judgment case and

because there is now a more detailed factual record available, the Anderson court’s previous

decisions regarding duty and immunity should be relitigated. Municipal defendants point to a

passage from Anderson which, in municipal defendants’ view, supports this argument. In this

passage, which municipal defendants quote in part but which we set forth more fully, this court

stated:

"Municipal defendants argue that to maintain the RSA safely would require an

improvement and cost an inordinate amount of money, which they lacked, and that the

decision not to take measures to eliminate the hazards of the RSA involved numerous

complex factors. The record contains no estimate of the cost to ameliorate hazardous

conditions, such as the drainage ditches located to the west of the runway in which

evidence supports the thesis that the plane lost its landing gear as a result of traversing the

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ditch. Nor are complex factors identified in the record." Anderson, 317 Ill. App. 3d at

1116.

We find municipal defendants’ argument unpersuasive. This court did note, in this

passage, that the record before it contained no estimate of the costs to ameliorate hazardous

conditions such as the drainage ditch in the RSA. Moreover, the record before us in the case at

bar does include municipal defendants’ estimates of such costs, which, according to these

estimates, run into the millions of dollars. However, this same record includes

testimony (which the jury was free to credit) suggesting that the costs, at least with regard to the

drainage ditch, might be much lower. We note, in addition, that municipal defendants cite to no

authority for the proposition that the law of the case doctrine does not apply where the previous

decision dealt with summary judgment. There are only two exceptions to the law of the case

doctrine. The first, as noted, applies "when a higher reviewing court, subsequent to the lower

reviewing court’s decision, [renders] a contrary ruling on the same issue." Martin, 268 Ill. App.

3d at 701. This exception does not apply in the case at bar. Municipal defendants’ petition for

leave to appeal the Anderson decision to our supreme court was denied.

The second exception, which applies where the earlier decision is found to be "palpably

erroneous" (Martin, 268 Ill. App. 3d at 701), forms the basis of municipal defendants’ alternative

argument on the law of the case issue. Municipal defendants urge us to apply this second

exception by finding that the Anderson decision was "palpably erroneous." We decline to apply

this exception, for two reasons. First, we do not believe that the decision in Anderson was

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"palpably erroneous." Second, even if we did, this exception to the law of the case doctrine

would not apply. The reason is that the "palpably erroneous" exception is applicable only when

the previous decision "remanded the case for a new trial on all issues." Martin, 268 Ill. App. 3d

at 701. Here, Anderson did not remand the case for a trial on all of the issues. Instead, the case

was remanded to determine whether municipal defendants breached their duty to maintain the

RSA in a reasonably safe condition. Anderson did not remand for a determination as to whether

municipal defendants owed a duty or whether they were immune from liability. These issues had

already been decided.

In sum, we conclude that the decisions in Anderson finding that municipal defendants

owed a duty of care to plaintiffs and that municipal defendants were not immune from liability

constitute the law of this case regarding these issues. As such, these decisions are binding on this

court. Emerson Electric Co., 352 Ill. App. 3d at 417. With regard to these two issues, immunity

and duty, the circuit court did not err in denying municipal defendants’ motions for directed

verdict and judgment n.o.v.

2. Proximate Cause

Municipal defendants next argue that plaintiffs failed to establish a proximate causal

connection between the condition of the RSA west of runway 16/34 and the crash resulting in the

death of plaintiffs’ decedent. According to municipal defendants, it was not the condition of the

RSA terrain that proximately caused this accident. Rather, in municipal defendants’ view, it was

the "active negligence" of the pilots that was the proximate cause of the crash. Municipal

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defendants contend that, for this reason, the trial court erred in denying their motions for directed

verdict and judgment n.o.v.

"A trial court should enter judgment notwithstanding the verdict only when all the

evidence, viewed in a light most favorable to the nonmovant, so overwhelmingly favors the

movant that no contrary verdict could stand based on the evidence." Knauerhaze, 361 Ill. App.

3d at 547. The same principle applies to directed verdicts. Pedrick v. Peoria & Eastern R.R.

Co., 37 Ill. 2d 494, 510 (1967).

In the case at bar, there was evidence to support municipal defendants’ contention that

pilot error might have led to the crash. Municipal defendants presented testimony indicating that

the pilots might have been able to prevent the aircraft from veering into the RSA by applying the

rudder or the brakes, among other things. Municipal defendants also presented testimony

indicating that the pilots might have been able to prevent the accident if they had aborted the

flight. However, there was also evidence that high winds were a factor in causing the aircraft to

veer from the runway centerline, that less than three seconds elapsed from the time the plane

veered from the centerline until it went off the runway surface into the RSA, and that the plane

struck the drainage ditch within one second after leaving the paved runway. In addition, there

was evidence that the plane suffered considerable damage as it traversed the RSA, and that it

probably was unflyable by the time it launched into the air after striking the berm.

Viewing this evidence in a light most favorable to plaintiffs, we cannot conclude that the

evidence so overwhelmingly favored municipal defendants that no verdict against municipal

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defendants could ever stand. Our conclusion in this regard is bolstered by the jury’s answer to

the special interrogatory. The jury was asked this question: "Was something or the negligent

conduct of someone else, other than [municipal defendants], the sole proximate cause of this

aircraft accident?" The jury answered this question in the negative.

With regard to the issue of proximate cause, the circuit court did not err in denying

municipal defendants’ motions for directed verdict and judgment n.o.v.

Request for a New Trial

Municipal defendants next argue that, for a variety of reasons, the circuit court erred in

refusing to grant municipal defendants a new trial. When presented with a motion for a new trial,

a circuit court will weigh the evidence and set aside the verdict and order a new trial if the verdict

is contrary to the manifest weight of the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454

(1992); McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132 (1999). A verdict is

against the manifest weight of the evidence where the opposite conclusion is clearly evident or

where the findings of the jury are unreasonable, arbitrary and not based upon any of the evidence.

McClure, 188 Ill. 2d at 132. "A reviewing court will not reverse a circuit court’s decision with

respect to a motion for a new trial unless it finds that the circuit court abused its discretion."

McClure, 188 Ill. 2d at 132-33. "An abuse of discretion occurs when the judge’s ruling is

arbitrary, fanciful, or unreasonable, or when no reasonable person would take the same view."

Barton v. Chicago & North Western Transportation Co., 325 Ill. App. 3d 1005, 1026 (2001).

1. Allocation of Fault

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Municipal defendants argue that the jury’s allocation of fault in this case is against the

manifest weight of the evidence, and for this reason the circuit court should have granted the

motion for a new trial. In its verdict on the Koppie estate’s claims against municipal defendants

and Alberto-Culver, the jury found that municipal defendants were 90% at fault, Alberto-Culver

was 5% at fault, and "Martin Larry Koppie/Aon Aviation, Inc." was 5% at fault. Municipal

defendants contend that it was against the manifest weight of the evidence for the jury to find

them 90% at fault, compared with only 5% for each of the pilots.

In support of this view, municipal defendants point to the jury’s verdict in the

contribution cases. In those cases, the jury found in favor of Alberto-Culver on its contribution

claims against Aon Aviation. In its verdict, the jury allocated 90% of the fault to municipal

defendants, 6% to Alberto-Culver and 4% to Aon Aviation. Municipal defendants note the

difference in the allocation of fault regarding Alberto-Culver and Aon Aviation. In the verdict in

the Koppie estate’s claims, the fault was allocated equally between Aon Aviation and Alberto-

Culver (5% each), while in the verdict on the contribution claims, the relative fault was altered

(6% for Alberto-Culver versus 4% for Aon Aviation). Municipal defendants appear to argue that

this difference in allocation from one verdict to the next undermines the credibility of all of the

allocations in both verdicts. We reject this contention. First, municipal defendants were not a

party to the contribution cases, which were between Alberto-Culver and Aon Aviation. The

circuit court’s judgment in the contribution cases was not appealed, and the jury’s allocations in

these cases have no bearing on the instant appeal. Second, regardless of any variations in the

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allocation between the two pilots from one verdict to the next, each verdict allocated the same

fault, 90%, to municipal defendants. With regard to municipal defendants, there was no

inconsistency from one verdict’s allocation to the next.

We find unpersuasive municipal defendants’ argument that the jury’s allocation of 90%

fault to them was against the manifest weight of the evidence. "A verdict may not be set aside

[by a reviewing court] merely because the jury could have determined the credibility of the

witnesses differently or drawn different inferences of fact, and where credible evidence supports

the verdict, the court may not say that the conclusions other than the ones drawn by the jury are

more reasonable." Didier v. Jones, 61 Ill. App. 3d 22, 27 (1978). In our view, the jury’s

allocation of fault in the case at bar was supported by credible evidence. This allocation was not

against the manifest weight of the evidence. The trial court did not abuse its discretion in

rejecting municipal defendants’ claim that they were entitled to a new trial on this ground.

2. Carl Lee Remmel

Municipal defendants contend that the trial court erred in granting plaintiffs’ motion in

limine barring the questioning of Carl Lee Remmel, one of plaintiffs’ experts, about conditions at

any other airport managed by Remmel. Municipal defendants note that Remmel was the director

of DeKalb Peachtree Airport in Atlanta. According to municipal defendants, there was a

detention pond in the RSA at DeKalb Peachtree Airport, and DeKalb Peachtree therefore was not

in compliance with the same federal rules that Remmel testified were violated by Palwaukee.

Municipal defendants argue that they were prejudiced by their inability to cross-examine

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Remmel about his conduct at his airport. Municipal defendants contend that the trial court erred

in refusing to grant them a new trial on this ground.

"Admission of evidence is a matter within the discretion of the trial court and evidentiary

rulings will not be reversed absent an abuse of discretion." Israel v. National Canada Corp., 276

Ill. App. 3d 454, 463 (1995). "An abuse of discretion occurs when the judge’s ruling is arbitrary,

fanciful, or unreasonable, or when no reasonable person would take the same view." Barton, 325

Ill. App. 3d at 1026.

In the case at bar, the issue was whether municipal defendants failed to exercise ordinary

care in maintaining the RSA at Palwaukee in a reasonably safe condition. Testimony about

conditions at DeKalb Peachtree Airport were irrelevant to whether Palwaukee was maintained in

a reasonably safe condition. See Swaw v. Klompien, 168 Ill. App. 3d 705, 718 (1988) ("An

expert’s statement as to what he would have done in the situation encountered by the defendant

doctors is irrelevant since the issue at trial is whether the defendant acted contrary to the standard

of care"). The circuit court did not abuse its discretion in granting the motion in limine barring

the questioning of Remmel about conditions at other airports he managed. The trial court

correctly rejected municipal defendants’ contention that they should be granted a new trial on this

ground.

3. Evidence of Prior Accidents

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Municipal defendants argue that the trial court erred in allowing evidence of prior

dissimilar accidents in the area west of runway 16/34. According to municipal defendants, they

were prejudiced by the admission of this evidence, and a new trial therefore is warranted.

At trial, the court allowed counsel for Alberto-Culver to introduce evidence about a 1987

incident at Palwaukee in which a plane, while landing on runway 16/34, departed from the hard

surface of the runway and went into the drainage ditch area alongside the runway. The plane

flipped over on its back. Municipal defendants argue that this incident and another accident in

1990 (also introduced by counsel for Alberto-Culver) were not similar to the accident in the case

at bar, and these two incidents (1987 and 1990) should not have been introduced.

Where evidence of prior accidents is offered to show the existence of a particular danger

or hazard, a foundation must be laid establishing the similarity between the prior accidents and

the present accident. Henderson v. Illinois Central Gulf R.R. Co., 114 Ill. App. 3d 754, 758

(1983). However, if the evidence of prior accidents is being offered only to show that the

defendant had notice of the generally hazardous nature of the accident site, then the proponent is

not required to establish a foundation showing the similarity between the prior accidents and the

present occurrence. Henderson, 114 Ill. App. 3d at 758. "Evidence of dissimilar prior accidents

is relevant to the issue of whether the defendant knew the accident site was generally hazardous."

Henderson, 114 Ill. App. 3d at 758.

In the case at bar, it was this latter purpose that was the reason for the introduction of the

prior accident evidence, which came in during Alberto-Culver’s questioning of Fred Stewart, the

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director of Palwaukee at the time of the 1996 crash. Shortly before introducing evidence of the

1987 incident, counsel for Alberto-Culver asked Stewart this question: "Now, you did have other

airplanes go off the runway into that same ditch that our plane went into, didn’t you, over the

years?" Because the evidence of the 1987 incident, as well as the 1990 accident, was introduced

to show municipal defendants’ prior notice of the generally dangerous condition of the RSA, it

was unnecessary to establish a foundation showing the similarity between these prior incidents

and the 1996 crash. It was within the discretion of the trial court whether to admit this evidence.

In our view, it was not an abuse of discretion to allow it here. Municipal defendants’ argument

that a new trial was warranted on this ground is not persuasive.

4. William Perry

Municipal defendants next argue that the trial court erred in allowing testimony by

William Perry, one of plaintiffs’ experts, about the potential explosion of the aircraft after it left

the runway. Perry, an experienced pilot with nearly 15,000 hours flying jet aircraft, testified on

behalf of plaintiffs by evidence deposition. On direct examination, Perry opined that the pilots in

the case at bar made the correct choice in deciding not to attempt to abort the flight once the

plane had left the surface of runway 16/34. Perry noted the presence of the drainage ditch off the

west edge of runway 16/34, and asserted: "[A]borting an airplane off the hard surface into a ditch

is a 100 percent fatality." Perry explained the basis for his view:

"Because when the airplane would have departed the surface, it would have

proceeded headlong, nose first into the ditch because of the forward pressure I’m

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speaking of here. The rest of the plane would have followed right behind it. And the best

term I could come up with is the accordion effect. The airplane would certainly have

exploded."

Municipal defendants argue that Perry lacked sufficient qualifications to render this opinion.

Municipal defendants contend that they were prejudiced as a result, and a new trial therefore is

warranted.

The admission of testimony, including expert testimony, is within the sound discretion of

the trial court. In the case at bar, Perry was an experienced pilot with more than 3,000 hours of

flight time in the Gulfstream IV, the type of plane at issue here. In our view, it was not an abuse

of discretion for the trial court to allow Perry to render the opinion testimony in question. We

note, in addition, that municipal defendants conducted extensive cross-examination of Perry.

During this cross-examination, Perry acknowledged, among other things, that: (1) he did not have

an engineering degree, (2) he did not perform any accident reconstruction in this case, and (3) he

did not conduct a separate analysis with regard to the passage of the aircraft through the RSA.

Given the extent and thoroughness of municipal defendants’ cross-examination, we find

municipal defendants’ contention that they were prejudiced by Perry’s testimony unpersuasive.

The circuit court correctly rejected municipal defendants’ claim that they were entitled to

a new trial on this ground.

5. Willful and Wanton Charges

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Municipal defendants contend that the trial court erred in denying their motion for a

directed verdict regarding plaintiffs’ willful and wanton counts against them. Counts III and IV

of plaintiffs’ third amended complaint alleged causes of action for willful and wanton

misconduct against municipal defendants (in addition to the ordinary negligence claims included

in counts I and II). The trial court denied municipal defendants’ motion for directed verdict on

this issue and instructed the jury on the willful and wanton counts. However, the jury did not

return a verdict against municipal defendants on these claims. Municipal defendants argue,

nevertheless, that they were prejudiced by the trial court’s permitting these issues to be submitted

to the jury.

Municipal defendants themselves acknowledge that "normally a reviewing court will not

find prejudice where an error relate[s] to a count on which the jury did not return a verdict." We

agree and find that municipal defendants’ argument that they were prejudiced in this instance is

not persuasive.

6. Cumulative Error

Municipal defendants argue that the alleged trial errors set forth above, taken together,

have the cumulative effect of having deprived municipal defendants of a fair trial. We have

already concluded that there was no error in these instances. Accordingly, we need not address

this argument further.

In sum, we conclude that municipal defendants were barred by the law of the case

doctrine from raising the immunity and duty issues that were previously decided in this court’s

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opinion in Anderson. We hold, in addition, that the circuit court did not err in denying municipal

defendants’ motions for directed verdict and judgment n.o.v. with regard to the issue of

proximate cause. Moreover, we reject municipal defendants’ claims that they are entitled to a

new trial.

CONCLUSION

For the reasons set forth above, we affirm the judgment of the circuit court in favor of the

Koppie estate and against municipal defendants (and Alberto-Culver) in the amount of $11

million (prior to reduction to reflect Koppie’s 5% relative degree of fault).

Affirmed.

CAHILL and GARCIA, JJ., concur.

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