Evans v. Lima Lima Flight Team Inc.

Opinion

SECOND DIVISION FILED: April 24, 2007

No. 1-05-3423

) WILLIAM C. EVANS, as Executor ) APPEAL FROM THE of the Estate of KEITH J. EVANS, ) CIRCUIT COURT OF Deceased, ) COOK COUNTY Plaintiff-Appellant- ) Cross-Appellee, ) ) v. ) No. 01 L 011514 ) LIMA LIMA FLIGHT TEAM, INC, ) Individually; WILLIAM CHERWIN, ) LOU DRENDEL, JAMES J. MARTIN and ) HONORABLE JAMES O. MARTIN, Individually and ) DONALD DEVLIN, as Agents of LIMA LIMA FLIGHT ) JUDGE PRESIDING. TEAM, INC., ) Defendants-Appellees- ) Cross-Appellants. )

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, William C. Evans, executor of the estate of

Keith J. Evans, appeals from orders of the circuit court granting

summary judgment in favor of the defendants, Lima Lima Flight Team,

Inc. (Lima Lima) and its individual members, William Cherwin, Lou

Drendel, James J. Martin (J.J. Martin), and James O. Martin (J.O.

Martin), on the plaintiff’s claims of negligence. The defendants

cross-appeal from orders of the circuit court denying their motion

for summary judgment based on the defense of assumption of the risk

and denying J.O. Martin and Lima Lima's motion to transfer venue on

the grounds of forum non conveniens. For the reasons which follow,

we affirm the order of the circuit court granting summary judgment No. 1-05-3423 in favor of the individual defendants, reverse the summary judgment

granted in favor of Lima Lima, dismiss the defendants' cross-

appeal, and remand this cause for further proceedings.

The plaintiff commenced the instant action, seeking damages as

a consequence of the death of Keith J. Evans which occurred on

October 1, 1999. Evans died as the result of an airplane crash

during a practice session with Lima Lima, a Chicago-based formation

flight team. Lima Lima performed for air shows throughout the

country in restored, World War II era aircraft. Evans, J.O.

Martin, and the other pilots were flying in a six-aircraft delta

formation, performing a maneuver known as a "pop-top break," when

the aircraft piloted by J.O. Martin and the aircraft piloted by

Evans came into contact with each other, damaging Evans’ aircraft

and causing it to crash. Evans was killed instantly.

The plaintiff initially brought suit in the Circuit Court of

Cook County, against J.O. Martin and Lima Lima, asserting a claim

pursuant to the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West

2000)), and a survival action under section 27-6 of the Probate Act

of 1975 (755 ILCS 5/27-6 (West 2000)). The initial complaint also

named "Gene D. Martin," Cherwin, Drendel, Hank Krakowski, Stan

Robinson, "Jim Martin," Ray Morin and United Airlines as

respondents in discovery pursuant to section 2-402 of the Code of

Civil Procedure (735 ILCS 5/2-402 (West 2000)). J.O. Martin filed,

-2- No. 1-05-3423 and Lima Lima subsequently joined, a motion to transfer this case

to the Circuit Court of DuPage County on the grounds of forum non

conveniens, but the motion was denied. Thereafter, the plaintiff

filed a motion to convert some of the respondents in discovery to

defendants and for leave to file his first amended complaint,

seeking recovery against the individual defendants and Lima Lima.

The plaintiff’s motion was granted in part, and Cherwin, Drendel

and J.J. Martin were converted to defendants.1

The defendants filed a motion for summary judgment premised

upon the doctrine of assumption of the risk, which the circuit

court denied. Thereafter, the defendants filed a motion for

summary judgment on all survival claims, asserting that Evans died

instantly. The circuit court granted the motion.

The individual defendants moved for summary judgment on the

remaining Wrongful Death Act claims, relying upon an exculpatory

agreement signed by Evans on July 3, 1999. The agreement stated,

in relevant part:

"RELEASE/HOLD HARMLESS

The undersigned Holder/Applicant of/for

1 The plaintiff’s motion to convert also included respondents in discovery Krakowski and United Airlines, but the motion was denied as to those parties. The order denying the plaintiff’s motion to convert Krakowski and United Airlines was affirmed by this court in Evans v. Lima Lima Flight Team, Inc., No. 1-02-2495 (March 31, 2003) (unpublished order under Supreme Court Rule 23), and they are not parties to this appeal.

-3- No. 1-05-3423 the X Wingman, ___ Leader, ___ Check Pilot

Formation Qualification Card hereby

acknowledges, and attests to that he/she is an

active member of at least one of the signatory

organizations listed below. As an active

member of one of the signatory organizations,

I hereby agree to be familiar with, and abide

by, the Guidelines, Rules and Regulations

established by the Confederation of Signatory

Organizations known as F.A.S.T. *** I further

recognize that formation flight training and

formation flying is inherently dangerous

wherein there is a possibility of injury or

death, and in consideration of my acceptance

of this Formation Qualificatio n

Card/Evaluation, issued by participating

Signatory Organizations I, for myself, my

heirs, executor, administrators, and assigns

do hereby release and forever discharge the

Signatory Organizations listed below each and

every one of them and F.A.S.T., its members,

employees, suppliers, agents or

representatives of and from any and all

-4- No. 1-05-3423 claims, demands, losses, or injuries incurred

or sustained by me as a result of instruction,

training, attending, participating in,

practicing for, and traveling to and from

activities involving formation flights.

***

F.A.S.T. (A Corporation to be Formed)

Signatory Organizations (Holder/Applicant

must check all applicable organizations): (1)

___E.A.A. Warbirds of America, (2)

___Confederate Air Force, Inc., (3) ___North

American Trainer Association, (4) T-34

Association, Inc.2, (5) ___Canadian Harvard

Aircraft Association."

The circuit court considered the language of the exculpatory

agreement as well as an affidavit by Cherwin, dated June 4, 2005,

in which he averred that he, J.O. Martin, J.J. Martin, and Drendel

were members of F.A.S.T. at the time of the accident. The circuit

court granted the motion for summary judgment, finding that the

exculpatory agreement was specific and definite enough to release

the individual defendants from liability for Evans’ death.

Lima Lima filed a subsequent motion for summary judgment,

2 The T-34 Association option is circled.

-5- No. 1-05-3423 maintaining that its liability was solely predicated upon the acts

of the individual defendants and that, because all claims against

the individual defendants had been dismissed, it was entitled to

summary judgment as a matter of law. See Towns v. Yellow Cab Co.,

73 Ill. 2d 113, 382 N.E.2d 1217 (1978). The circuit court granted

Lima Lima's motion for summary judgment, and the plaintiff filed

the instant appeal.

Lima Lima and the individual defendants filed a cross-appeal

in which they challenged the circuit court’s denial of their motion

for summary judgment based upon the defense of assumption of a

known risk. The defendants also appealed the circuit court’s

denial of J.O. Martin and Lima Lima’s motion to transfer venue

pursuant to the doctrine of forum non conveniens.

We first address the issues raised by the plaintiff's appeal.

In urging reversal of the summary judgment in favor of the

individual defendants, the plaintiff argues that a genuine issue of

material fact exists on the question of whether the exculpatory

agreement signed by Evans effectively released the individual

defendants from liability for negligent conduct. We disagree.

Summary judgment is appropriate if there is no genuine issue

of material fact and the moving party is entitled to judgment as a

matter of law. 735 ILCS 5/2-1005(c) (West 2000); Carruthers v. B.C.

Christopher & Co., 57 Ill. 2d 376, 380, 313 N.E.2d 457 (1974). In

-6- No. 1-05-3423 determining whether there exists a genuine issue of material fact,

courts must consider the pleadings, depositions, admissions,

exhibits, and affidavits on file, construing the evidentiary

material strictly against the movant and liberally in favor of the

opponent of the motion. Purtill v. Hess, 111 Ill. 2d 229, 240, 489

N.E.2d 867 (1986). If a genuine issue of material fact exists, the

motion for summary judgment must be denied. In re Estate of Hoover,

155 Ill. 2d 402, 411, 615 N.E.2d 736 (1993). A triable issue of

fact exists where there is a dispute as to material facts or where

the material facts are undisputed but reasonable persons might draw

different inferences from those facts. In re Estate of Hoover, 155

Ill. 2d at 411. As in all cases involving summary judgment, our

review is de novo. Outboard Marine Corp. v. Liberty Mutual

Insurance, 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992).

Although exculpatory agreements are not favored and are

strictly construed against the party they benefit, (Scott & Fetzer

Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 395, 493 N.E.2d 1022

(1986)), parties may allocate the risk of negligence as they see

fit, and exculpatory agreements do not violate public policy as a

matter of law. Platt v. Gateway International Motorsports Corp.,

351 Ill. App. 3d 326, 330, 813 N.E.2d 279 (2004). An exculpatory

agreement will be enforced if: "(1) it clearly spells out the

intention of the parties; (2) there is nothing in the social

-7- No. 1-05-3423 relationship between the parties militating against enforcement; and

(3) it is not against public policy." Chicago Steel Rule & Die

Fabricators Co. v. Travelers Indemnity Co. of Ill., 327 Ill. App.

3d 642, 645, 763 N.E.2d 839 (2002).

The plaintiff has made no argument that the social relationship

between Evans and the individual defendants militates against

enforcement of the exculpatory agreement. Rather, the plaintiff

argues both that the language of the agreement does not clearly

reflect the intention of the parties and that the agreement is

contrary to public policy.

The plaintiff contends that the exculpatory agreement did not

specifically name Lima Lima or its individual members, and, thus,

the document is too indefinite to extinguish the individual

defendants' liability. Contrary to the plaintiff's argument,

however, an exculpatory agreement need not specifically name the

individuals to which it applies. Poskozim v. Monnacep, 131 Ill.

App. 3d 446, 449, 475 N.E.2d 1042 (1985). Rather, the exculpatory

agreement may designate a class of beneficiaries covered under the

agreement. Poskozim, 131 Ill. App. 3d at 449; see also Polsky v.

BDO Seidman, 293 Ill. App. 3d 414, 422, 688 N.E.2d 364 (1997).

In the exculpatory agreement at issue in this case, Evans

agreed to "release and forever discharge the Signatory Organizations

listed below each and every one of them and F.A.S.T., its members,

-8- No. 1-05-3423 employees, suppliers, agents or representatives." The agreement

also states that F.A.S.T. is a confederation composed of five

signatory organizations. The plaintiff maintains that it is the

signatory organizations that are the "members" of F.A.S.T.

exonerated by the exculpatory agreement. This interpretation,

however, would render the phrase specifically releasing the

signatory organizations superfluous. Contractual terms should be

construed so as to avoid the conclusion that other terms are

redundant. Forty-Eight Insulations, Inc. v. Acevedo, 140 Ill. App.

3d 107, 115, 487 N.E.2d 1206 (1986). Accordingly, we read the

exculpatory agreement to include pilots who are "members" of

F.A.S.T.

In determining whether the exculpatory agreement applied to the

individual defendants, the circuit court relied upon an affidavit

from Cherwin in which he identified all of the individual defendants

as members of F.A.S.T. at the time of the accident. However, the

plaintiff maintains that this evidence was inadmissable pursuant to

the parol evidence rule, and, thus, the circuit court erred in

considering it. Again, we disagree.

Under the parol evidence rule, extrinsic evidence is

inadmissable to vary or modify the unambiguous provisions of a

written contract. Main Bank of Chicago v. Baker, 86 Ill. 2d 188,

199, 427 N.E.2d 94 (1981). The affidavit by Cherwin was not

-9- No. 1-05-3423 presented to vary or modify the terms of the exculpatory agreement,

but merely to identify Cherwin and the other individual defendants

as members of F.A.S.T. Consequently, consideration of Cherwin's

affidavit was not barred by the parol evidence rule.3 See In re

Petition to the Village of Round Lake Park, 29 Ill. App. 3d 651,

658, 331 N.E.2d 602 (1975) (holding that parol evidence may be

admitted for the purpose of identifying the parties to an

agreement).

The exculpatory agreement lists F.A.S.T. as "a corporation to

be formed." Therefore, when Evans signed the agreement, F.A.S.T.

could not have had any members, as there was no entity to join. It

follows that, if the class of beneficiaries covered under the

exculpatory agreement is determined at the time the contract was

signed, the members of F.A.S.T. cannot be identified. However, in

his affidavit, Cherwin averred that the individual defendants were

members of F.A.S.T. when the accident occurred. Accordingly, it

3 In a related argument, the plaintiff maintains that the circuit court erred in considering evidence which was inadmissable pursuant to the Dead-Man's Act (735 ILCS 5/8-201 (West 2002)). Under the Dead-Man's Act, an adverse party or person directly interested in an action, where a deceased person is represented, cannot testify on his own behalf regarding any conversation with the deceased or an event which took place in the presence of the deceased. 735 ILCS 5/8-201 (West 2002). The plaintiff, however, has failed to specify any particular testimony that was allegedly admitted in violation of this statute, instead merely referencing arguments made by the defendants before the circuit court. Consequently, we reject the plaintiff's argument that the Dead-Man's Act applies.

-10- No. 1-05-3423 appears that F.A.S.T. was in existence on the date of the accident,

and, therefore, its members are identifiable.

A beneficiary to a contract need not be named, identifiable,

or yet in existence at the time the contract is executed. Bernstein

v. Lind-Waldeck & Co., 153 Ill. App. 3d 108, 111, 505 N.E.2d 1114

(1987); Board of Education of Community School District No. 220 v.

Village of Hoffman Estates, 126 Ill. App. 3d 625, 629, 467 N.E.2d

1064 (1984). It is sufficient that he or she be identified as a

member of the class intended to be benefitted when the contract

becomes operative. Altevogt v. Brinkoetter, 85 Ill. 2d 44, 55-56,

421 N.E.2d 182 (1981). The uncontradicted evidence establishes that

the individual defendants were members of F.A.S.T. when the

exculpatory agreement became operable, the date of the accident.

Consequently, the individual defendants are clearly included within

the class of beneficiaries covered by the agreement and are, thus,

entitled to its protection.

The plaintiff also argues that the exculpatory agreement did

not clearly and specifically exonerate the individual defendants

from injuries caused by their negligent conduct. The plaintiff

maintains that the language of the agreement, namely a release "from

any and all claims" incurred as a result of participating in

activities involving formation flying, was too broad and vague to

notify Evans of the types of conduct from which he was releasing the

-11- No. 1-05-3423 individual defendants.

The exculpatory agreement warned that formation flying is

"inherently dangerous" and exempted members of F.A.S.T. from "any

and all claims" sustained as a result of participating in activities

involving such flying. The plaintiff argues that referencing the

inherent dangers of formation flying demonstrates that the

exculpatory agreement does not apply to negligent conduct. Citing

to Bear v. Power Air, Inc., 230 Ill. App. 3d 403, 595 N.E.2d 77

(1992), the plaintiff contends that "inherently dangerous" only

refers to "that type of danger which inheres in the instrumentality

or the condition itself at all times thereby requiring special

precautions to be taken with regard to it to prevent injury and does

not mean danger which arises from mere casual negligence with regard

to it under the particular circumstances." (Emphasis added.) Bear,

230 Ill. App. 3d at 409. This definition of "inherently dangerous,"

however, is used to determine whether to impose strict liability for

ultrahazardous activities (Traudbe v. Freund, 333 Ill. App. 3d 198,

202, 775 N.E.2d 212 (2002)), or vicarious liability for the acts of

independent contractors (Bear, 230 Ill. App. 3d at 409)), and,

therefore, is inapplicable to this case.

An exculpatory agreement must contain clear, explicit, and

unequivocal language referencing the type of activity, circumstance,

or situation that it encompasses and for which the plaintiff agrees

-12- No. 1-05-3423 to relieve the defendant from a duty of care. Platt, 351 Ill. App.

3d at 330. However, the parties need not have contemplated the

precise occurrence which results in injury. Schlessman v. Henson,

83 Ill. 2d 82, 86, 413 N.E.2d 1252 (1980). The injury must only

fall within the scope of possible dangers ordinarily accompanying

the activity and, therefore, reasonably contemplated by the parties.

Garrison v. Combined Fitness Center, Ltd., 201 Ill. App. 3d 581,

585, 559 N.E.2d 187 (1990).

Whether an injury accompanies a certain activity is ordinarily

a question of fact, precluding summary judgment. Falkner v.

Hinckley Parachute Center, Inc., 178 Ill. App. 3d 597, 602, 533

N.E.2d 941 (1989). In this case, however, we conclude, as a matter

of law, that Evans' death fell within the scope of possible dangers

ordinarily accompanying formation flying, namely a collision with

another aircraft. See Goodlett v. Kalishek, 223 F. 3d 32, 38 (2nd

Cir. 2000) (holding that the risk of a collision is plainly inherent

in airplane racing). The exculpatory agreement clearly exempted

members of F.A.S.T. from "any and all claims" sustained by Evans as

a result of participating in activities involving formation flying.

We find that the exculpatory agreement signed by Evans was not

rendered unenforceably vague, although the precise occurrence which

caused Evans' death might not have been foreseen. By adopting the

broad language in the exculpatory agreement, the parties

-13- No. 1-05-3423 contemplated the similarly broad range of accidents that might occur

in formation flying. See Schlessman, 83 Ill. 2d at 86.

Consequently, we reject the plaintiff's contention that the language

in the exculpatory agreement did not clearly and specifically

exonerate the individual defendants from liability for their alleged

negligent conduct.

The plaintiff next argues that the exculpatory agreement

violates public policy because it exonerates the individual

defendants for injuries caused by their "unlawful conduct."

Specifically, the plaintiff contends that, because J.O. Martin

violated Federal Aviation Regulation 91.113 (14 C.F.R. § 91.113

(2006)) which required him to "see and avoid" Evans' aircraft, the

exculpatory agreement should not be enforceable. The argument,

however, is not well taken.

An exculpatory agreement will not be enforced where it is found

to contravene or thwart public policy considerations. Foreman v.

Holsman, 10 Ill. 2d 551, 554, 141 N.E.2d 31 (1957); Zimmerman v.

Northfield Real Estate, Inc., 156 Ill. App. 3d 154, 165, 510 N.E.2d

409 (1989). The plaintiff argues that air safety is a matter of

public interest, and, therefore, individuals cannot exculpate

themselves from violating a federal aviation regulation.

The plaintiff contends that the collision resulting in Evans'

death occurred because J.O. Martin violated Federal Aviation

-14- No. 1-05-3423 Regulation 91.113. This regulation provides, in relevant part:

"Right-of way rules:

(b) General. When weather conditions permit,

regardless of whether an operation is conducted

under instrument flight rules or visual flight

rules, vigilance shall be maintained by each

person operating an aircraft so as to see and

avoid other aircraft." (Emphasis added.) 14

C.F.R. § 91.113 (2006).

Even assuming that J.O. Martin violated Federal Aviation

Regulation 91.113 and that the violation caused the collision,

enforcement of the exculpatory agreement at issue would not violate

public policy. Generally, a violation of Federal Aviation

Regulation 91.113 is treated as a breach of duty in a negligence

action. See e.g., Steering Committee v. United States, 6 F.3d 572,

576-77 (9th Cir. 1993). Exculpatory agreements barring negligence

claims are ordinarily enforceable and do not violate public policy

as a matter of law. Platt, 351 Ill. App. 3d at 330.

Furthermore, we do not believe that enforcing the exculpatory

agreement would endanger the public's safety. As the exculpatory

agreement only releases other formation pilots and certain

organizations from liability, the pilots would still be subject to

-15- No. 1-05-3423 liability for injuries suffered by members of the general public or

for property damage resulting from their negligent conduct.

Therefore, the incentive to maintain proper operating procedures

would remain. Consequently, we find that enforcement of the

exculpatory agreement at issue does not violate public policy.

Based upon the foregoing analysis, we affirm that part of the

circuit court's order granting summary judgment in favor of the

individual defendants.

Next, the plaintiff contends that the circuit court erred in

granting summary judgment in favor of Lima Lima because the amended

complaint alleged independent acts of negligence on its part. The

defendants maintain that the amended complaint merely sought to

impose liability on Lima Lima based upon the actions of the

individual defendants, and, because the individual defendants have

been dismissed, Lima Lima is entitled to be dismissed.

When a suit is brought against a principal based solely on the

negligent acts of its agents, and no independent wrong has been

charged against the principal, the dismissal of the agents entitles

the principal to be dismissed. Holcomb v. Flavin, 34 Ill. 2d 558,

565, 216 N.E.2d 871 (1966). However, where independent negligent

acts have been alleged directly against the principal, the principal

may still be liable although the agents have been dismissed. Marek

v. O.B. Gyne Specialists II, 319 Ill. App. 3d 690, 701, 746 N.E.2d

-16- No. 1-05-3423 1 (2001).

In his brief, the plaintiff contends that counts VII and IX of

the amended complaint contain allegations of independent negligent

conduct on the part of Lima Lima. However, the plaintiff has failed

to present any argument in support of his contention. A point

raised on appeal that is not argued or supported by citation to

relevant authority is deemed waived. 210 Ill. 2d R. 341(h)(7);

Brown v. Tenney, 125 Ill. 2d 348, 362, 532 N.E.2d 230 (1988).

The plaintiff also contends that counts I and V of the amended

complaint asserted claims directly against Lima Lima. In these

counts, the plaintiff alleged, in relevant part, that Lima Lima was

negligent as it:

"(h) Failed to have a prepared method of

operation for aborting the maneuver if visual

contact was lost; or

(i) Failed to properly instruct the pilots on

procedure upon loss of visual contact; or

(j) Failed to alert pilots, including James O.

Martin, regarding the proper procedures that

day."

Counts I and V did not allege that Lima Lima's liability was solely

vicarious. Rather, those counts alleged that the fatal accident

occurred, in part, because of Lima Lima's own negligence in failing

-17- No. 1-05-3423 to create and implement a proper procedure in the event that visual

contact was lost.

The plaintiff's expert, Paul Krause, opined that Lima Lima's

manual was inadequate in that it failed to provide specific guidance

to pilots in the event of emergency situations, including a

procedure during a loss of visual contact. Krause also opined that

Lima Lima's lack of emergency procedures was a contributing factor

in the accident which caused Evans' death.

Based upon the allegations of individual negligence on the part

of Lima Lima set forth in counts I and V and Krause's opinions, we

conclude that factual questions remain as to whether Lima Lima was

negligent in failing to develop and implement a procedure upon the

loss of visual contact and whether its alleged independent

negligence was a proximate cause of Evans' death. For these

reasons, the circuit court erred in granting summary judgment in

favor of Lima Lima based solely on the dismissal of the individual

defendants. See Marek, 319 Ill. App. 3d at 701.

In their cross-appeal, the defendants argue that the circuit

court improperly denied Lima Lima's motion for summary judgment

based upon the doctrine of assumption of the risk. The defendants

also seek review of the circuit court's denial of J.O. Martin and

Lima Lima's motion to transfer venue on the grounds of forum non

conveniens. Initially, we address whether we have jurisdiction to

-18- No. 1-05-3423 entertain the defendants' cross-appeal.

A party who has obtained all that has been asked for in the

circuit court has no standing to appeal. Geer v. Kodern, 173 Ill.

2d 398, 413-14, 671 N.E.2d 692 (1996). In granting summary judgment

in favor of the individual defendants and Lima Lima, the defendants

received all the relief that they sought. Because the defendants

obtained everything that they asked for in the circuit court, their

cross-appeal must be dismissed. Material Service Corp. v.

Department of Revenue, 98 Ill. 2d 382, 386, 457 N.E.2d 9 (1983);

Wolfe v. Menard, Inc., 364 Ill. App. 3d 338, 347, 846 N.E.2d 605

(2006). However, as we may affirm the circuit court on any basis

warranted by the record, the defendants need not file a cross-appeal

to urge alternative reasons for affirming. Material Service Corp.,

98 Ill. 2d at 386; Woodard v. Krans, 234 Ill. App. 3d 690, 699, 600

N.E.2d 477 (1992). Consequently, we will consider the issue of

whether summary judgment in favor of Lima Lima is appropriate based

upon the doctrine of assumption of the risk.

Traditionally, courts have classified the doctrine of

assumption of the risk into three categories: (1) express

assumption of the risk; (2) primary implied assumption of the risk;

and; (3) secondary implied assumption of the risk. Hanke v. Wacker,

217 Ill. App. 3d 151, 158, 576 N.E.2d 1113 (1991). An express

assumption of the risk is found where an individual has explicitly

-19- No. 1-05-3423 agreed, in advance, to relieve another of a legal duty owed to him

or her. Duffy v. Midlothian Country Club, 135 Ill. App. 3d 429,

433, 481 N.E.2d 1032 (1985). A primary implied assumption of the

risk exists where the conduct of the parties indicates that an

individual has implicitly consented to encounter an inherent and

known risk, thereby excusing another from a legal duty which would

otherwise exist. Russo v. Range, Inc., 76 Ill. App. 3d 236, 238,

395 N.E.2d 10 (1979). Finally, secondary implied assumption of the

risk occurs where the defendant's negligence created a danger that

was apparent to the injured party, who nevertheless voluntarily

chose to encounter it. Duffy, 135 Ill. App. 3d at 433-34. As

secondary implied assumption of the risk functions in a similar

manner as contributory negligence, the introduction of comparative

fault abolished this doctrine and it no longer operates as a

complete bar in negligence actions. Duffy, 135 Ill. App. 3d at 435.

In this case, there is no written contract signed by Evans

exculpating Lima Lima from liability; rather, the exculpatory

agreement signed by Evans only applied to the individual defendants.

Without such an exculpatory agreement, Lima Lima cannot rely on the

doctrine of express assumption of the risk to relieve it of any duty

owed to Evans.

We turn finally to the doctrine of primary implied assumption

of the risk. Primary implied assumption of the risk requires that

-20- No. 1-05-3423 the injured party knew of the specific risk which caused his or her

injury. Russo, 76 Ill. App. 3d at 239. Whether a particular risk

was appreciated is a question of fact. Falkner, 178 Ill. App. 3d

at 602.

In counts I and V of the amended complaint, the plaintiff

alleged that the collision was caused, in part, by Lima Lima's

failure to develop and implement a proper procedure in the event

that visual contact was lost. Based on the record before us, we

cannot say, as a matter of law, that, when Evans participated in

formation flying, he was aware of and accepted the risk that Lima

Lima's emergency procedures were possibly inadequate. We believe

that questions of fact still remain as to whether Lima Lima's

alleged failure to provide sufficient emergency procedures was a

risk that Evans assumed. Consequently, we decline to affirm summary

judgment in favor of Lima Lima based upon the doctrine of assumption

of the risk.

For the forgoing reasons, we conclude that the circuit court

erred in granting Lima Lima's motion for summary judgment.

In summary, we affirm the order of the circuit court granting

summary judgment in favor of the individual defendants, reverse the

order of the circuit court granting summary judgment in favor of

Lima Lima, dismiss the defendants' cross-appeal, and remand this

cause to the circuit court for further proceedings.

-21- No. 1-05-3423 Affirmed in part; reversed in part and remanded; cross-appeal

dismissed.

SOUTH and HALL, JJ., concur.

-22-