The Illinois Appellate Court affirmed a trial court’s dismissal of negligence claims based upon an exculpatory agreement in William C. Evans v. Lima Lima Flight Team et. al.. The underlying lawsuit was initiated following the death of Keith J. Evans which occurred as the result of an October 1, 1999 airplane crash during a practice session with Lima Lima, a Chicago-based formation flight team. Evans and the other Lima Lima pilots were performing a maneuver when Evans’ aircraft came into contact with another team member’s aircraft, damaging Evans’ aircraft and causing it to crash. Evans was killed instantly.
The executor of Evans’ estate sued the individual team members alleging that the team members were negligent in the operation of their aircraft. It also sued Lima Lima, alleging that it was liable for the actions of its team members and that it was negligent for: (1) failing to have a prepared method of operation for aborting the maneuver if visual contact was lost; or (2) failing to properly instruct the pilots on procedure upon loss of visual contact; or (3) failing to alert pilots regarding the proper procedures that day.
The team members and Lima Lima moved for summary judgment arguing that Evans’ claims were barred by an exculpatory agreement he had signed and by his voluntary assumption of the risk. The trial court denied the motion based upon the theory of assumption of the risk, but granted the motion based upon the exculpatory agreement and dismissed the action as to the individual team members and Lima Lima. The estate then appealed the dismissal.
On appeal, the Court rejected the estate’s arguments that the exculpatory agreement did not clearly reflect the intention of the parties and that the agreement violated public policy. But, the Court only affirmed the dismissal as to the individual team members, who were members of the organizations who signed the exculpatory agreement along with Evans. This affirmed the trial court’s dismissal of the claims against the individual team members and the agency liability claims against Lima Lima based upon the conduct of its team members.
However, with respect to the separate claims alleged directly against Lima Lima, the Court found that the exculpatory agreement did not release Lima Lima from liability because Lima Lima was neither a signatory or a member of one of the signatory organizations nor was it an implied beneficiary of the agreement. As a result, the Court reversed the dismissal of Lima Lima based upon the direct claims and remanded the case back to the trial court to resolve the issues of fact relating to the direct claims and Lima Lima’s assumption of the risk defense.
Although exculpatory agreements are not always enforced, being able to argue that you are released by such an agreement is better than nothing. However, at a minimum, you need to be a party to the agreement or an implied beneficiary of the agreement. Unfortunately in this case, Lima Lima was neither. Perhaps after this case that will change.