## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Waugh v. Morgan Stan ley & Co. , 2012 IL App (1st) 102653

Appellate Court Caption L I S A W AUGH, as Surviving Spouse of Michae l Patrick Waugh, Dec ease d, and as Special Administrator of the Estate of Michae l Patrick Waugh, and as Mother and Natura l Guar dian of J o s eph Waugh, J ordan Waugh and J ameson Waugh, Minor Child re n , P laintiff, v. MORGAN S TANL EY AND COMPANY, I NCORPORATED, and DONNA TUREK, I ndepende nt Administr at o r of the Estate of Mark Turek, Dec ease d, Def

endants (DON

NA TUREK, Independe nt Administrator of the Estate of Mark Turek, Dec ease d; Morg an Stanley and Company
, I nc., et al.
, Counterplaintiff-A

ppellant and Cross- A

p p e lle e; Randall D. Repke, I ndepende nt Ex ecutor of the Estate of Kenne th Knudson, Dec ease d; H.K. Golden Eag le, Inc.; Sy

baris Clubs I nterna

tional, I nc.; Galt Ai rport, L .L .C.; and Recurr ent Tra ining Cente r, Inc.; Arr- ow 2, I nc., d/b/a Glass Simul ator Center; Gene L i ttlefield Advanc ed Simul ator Sy stems, d/b/a Glass Simul ator Center; Howar d D. L evinson; and Har k Corporation, Counterdef

endants-A

ppellees and Cross-Appellants).–JENNI FER E. GARL AND, I ndependent Administrator of the Estate of Scott A. Gar land, Dec ease d, Plaintiff, v. T.W. SMI TH ENGI NE COMPANY, I NC., a Corporation, et al.
, Def endants (Howa

rd L evinson and Ha rk Corporati o n, Def

endants-A

ppellees; Randall Repke, as I ndepende nt Ex ecutor of the Estate of Kenne th Knudson, Dec ease d, Counterplaintiff

an d Cross-Appellant; Donna Turek, I ndepende nt Administrator of t h e Estate of Mar k Turek; Morg an Stanley and Company
, I ncorpor ated; Morg an Stanley DW, In co rporated; Counterdef endants, Recurr ent Training Center, I nc.; Arr- ow 2, I nc., d/b/a Glass Simul ator Center; and Gene L i t t lefield Advanc ed Simul ator Sy stems, d/b/a Glass Simul ator Center, Counterdef

endants an d Cr oss-Appellee s).–L I SA A. WAUGH, as Surviving S pouse of Michae l Patrick W aug h, Dec ease d, and as Special Administrator of the Estate of Michae l Patrick Waugh, and as Mother and Natura l Guar d ia

n o f J oseph Waugh, J ordan Waugh, and J ameson Waugh,Minor Children, Plaintiff, v. MORGAN STANL EY AND COMPANY, I

NCORPORATED, and THE ESTATE OF MA RK TUREK, De fenda

nts (Morg an Stanley

and Company , I ncorpor ated, Third-Party

Plaintiff-Appellant; Howa rd D. L evinson and Ha

rk Corporation, et al. , Third-Party Def endants a nd Appellee s).–L I SA A. WAUGH, as Surviving Spouse of Michae l Patrick Waug h, Dec ease d, and as Spec ial Administrator of the Estate of Michae l Patrick Waug h, and as Mother

and Natural Gua

rdian of Joseph Waugh, Jordan Waug h, and Jameson Waugh, Minor Children, Plaintiff, v. MORGAN STANL EY AND COMPANY, I NCORPORATED, and THE ESTATE OF MA RK TUREK, Def endants (Mor g an Stanley

and Company , I nc.; Third-Party

Plaintiff-Appellant; Howa rd D. L evinson and Ha

rk Corporation, et al. , Third-Party Def endants-A

ppellees)

.

District & N o. First District, F ourth Division Docke t Nos. 1-10-2653, 1-10- 2662, 1-10-2885, 1- 10-3410 cons.

Filed Marc h 1, 2012

Held (Note : Thi s syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by t he Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n multipl e actions arising from the fata l cra sh of a sma l l ai rplane
, the appellate court aff

irmed the t ri al court’s finding that all of the claims perta ining to the teac hing, training and instruction of the pilot of the plane prior to the accident related to the qualit y of h i s instruction provided to the pilot and constituted claims of educa tional malprac tice that wer e not

rec og nized in I llinois and we re ba rre d as a matter of law

.

Dec ision Under Review Appea l from the Circuit Court of C ook County
, Nos. 06-L -1410, 06-L

5121, 06-L -6532, 08-L -613, 1 0 -L -4345 cons.; the Hon. I rwin J

. Solganic k, J udg e, pre siding.

J udg ment Affir med.

-2-Counsel on

Appea l Michae l G. McQuillen, Paula L

. Wegma n, Austin W. Ba

rtlett, and Steven L

. Boldt, all of Adler Murphy & McQuillen L L P, and Ed war d J

. Matusheck I I I and Br idge t G. L ong oria, both of Matushek, Nilles & Sinars, L L C, both of Chicag o, for appellants Morg an Stanley & Co. and Estate of Ma

rk Ture k.

C l i ff ord L aw Offic es, of Chicag o (Richar d F. Bur ke, J r., and Robert P. Sheridan, of c ounsel), for appellant Jennifer G arla

nd.

Wil liam F. DeYoung
, L oretto M. Kenne dy
, and S ean M. Conag han, all of Chuhak & Tec son, P C
, and Norman J

. L erum, of Norman J

. L erum, PC, b o t h o f Chicag o, for appellee s Howar d D. L evinson and Har k Corporation.

Charles R. B arne tt I I I , of B arne tt L aw Of fice s, PC, of L ake in the H ills, for a ppellee Re curr ent Tra ining Cente r, Inc.

Panel J USTI CE FI TZ GERAL D SMI TH del i v er ed the judgme nt of the court, with opinion.
J ustice Sterba c oncurr ed in the judg ment and opinion.
J ustice Pucinski dissented, with opinion.

OP INION

¶ 1 The instant c ause involves multipl e actions stemming from claims broug ht f ollowing a fata l a irplane cra sh. Appellants Morg an Stanley and Company
, the estate of Scott Ga rland, and the estate of Mark Turek appea l from order s of the trial court g ranting partial summary judgme nt to appellee s Howar d L ev inson and Har k Corporation on all claims alleg ing educational malprac tice. Appellants contend that the trial court err ed by char acte rizing their claim as sounding in the tort of educational malprac tice rathe r than ordinary neg lige nce. Counterdef

endant- appellee Recurr ent Training Center, I nc., challeng es this court’s jurisdiction of this cause and asks that we dismiss the cross-a ppeal filed ag ainst it as untimely . For

the following rea sons, we af firm.

¶ 2 BA CKGROUND ¶ 3 These consolidated appea ls stem from a fat al p l ane cra sh. On J anuar y 30, 2006, Mark

-3-Turek, the pilot in command of a Cessna 421B airc raf t, and three p as s en ger s , Kenne th 1 Knudson, Scot t Gar land, and Michae l Waugh, wer e en route from a Kansa s airport to the Palwaukee Municipal Airpor t i n Wheeling, I llinois
, following a business trip. As Turek piloted the Cessna 421B for landing at the airport, the airc ra ft cra shed, killing all four
occupa nts on board. ¶ 4 Prior to the occur renc e, Turek rec eived flig ht simulator training from defe ndant Arr -ow I I
, Inc., flig ht instruction from defe ndant Recurr ent Training Center (Recur rent), and a fivehour flig ht observation and instruction from defenda nt L evinson. Multipl e wr ong ful death and contribution actions wer e commence d subsequent to the incident, and those actions wer e later consolid at ed fo r d iscovery at the circ uit court. The Waugh, Knudson, and Gar land plaintiffs all filed complaints ag ainst multipl e defe ndants, including Morg an Stanley and Turek. Def

endant/third-pa

rty plaintiff Morg an Stanley filed third-par ty complai nts and
counter claims for contribution in the W au gh, Knudson, and Gar land actions ag ainst de f e n d a nts /t h ird

- p a r ty d e f e n d a nts L e v in s o n a

n d H a r k

. D e f e n d a nts/c ounterplaintiffs L evinson and Har k filed a counter claim for contribution ag ainst Arr- ow, alleg ing ne g li g ent instruction. ¶ 5 I n their complaints, the plaintiffs a lleg ed, in per tinent part, that their de cede nts’ deaths

wer e proximately cause d by the neglig ence of Turek and Morga n Stanley
, as well as other parties. Alleg ations included that Morg an Stanley ’s employ ee, Turek, piloted the airc raf t in

a neg lige nt manner and that Morg an Stanley was vicar iously liable for Turek’ s neg lige nce. I n its third-par

ty complaint and counter claims for contribution, Morg an Stanley
, along with other parties, alleg ed that Arr- ow and Recurr ent (flig ht schools) neg lige ntly provided flig ht training to Turek, whic h contributed to the c rash. ¶ 6 Morg an Stanl ey an d t h e other parties also alleg ed that L evinson, who provided Tur ek with in-flig ht ins t ru cti on on the acc ident airc raf t, neg lige ntly failed to adequately and
proper ly train and instruct Turek as to how to operate the airc raf t. They alleg ed that Har

k was

v i ca ri ously liable for L evinson’s neg lige nt training

. Def endant Turek also fil ed 2
counter claims for c ontribution ag ainst L evinson and Ha rk.

T he par ti es re fe r to T ure k as the pil ot in comm and of the ai rc ra ft

. However, app el la nts 1 acknowl edge in a foo tno te : “ T he unde rl ying wron gful dea th li ti gatio n ar is ing out of thi s acc ide nt

re m ai ns pen din g. T he is sue re gardi ng whic h of the two fr ont sea t pil ots was fl ying pri or to or at the ti m e of the acc ide nt re m ai ns hot ly con te st ed. T he NT S B ’ s f a c t u a l inves ti gatio n fou nd tha t no det er m ina ti on has bee n m ade as to whic h fr ont sea t occ upa nt was m ani pul at ing th e c o n t rol s pri or to or at the ti m e of the acc ide nt and Mo rgan Sta nle y doe s not wai ve it s ri ght to ass er t tha t T ure k was not m ani pul at ing the con tr ols

. I n the event, however , th at th e j ury ul ti m at el y find s t hat T ure k was

m ani pul at ing the con tr ols pri or to or at the ti m e of the acc ide nt, the n Levins on’ s negli gent tr ai nin g is a cr it ic al li abi li ty is sue for the j ury’s det er m ina ti on.” For purpos es of cl ar it y, we, li ke the par ti es

on a ppe al , re fe r t o T ure k as t he p il ot in comm and

.

T he acc ide nt ai rc ra ft was owne d b y H K Gold en Eagle, I nc. HK Gold en Eagle was 2 compris ed o f 5 0% Har k Corpor at ion and 50% dec ede nt K nuds on. Levinso n an d hi s wi fe wer e t he sol e shar eho lde rs of Hark Corp ora ti on. Acco rdi ngly, Knuds on and Levins on esse nti al ly co- owned the ac ci den t a ir cr af

t.

-4-¶ 7 Prior to J anuar y 2006, Turek was fully licensed by the Fe dera l Aviation Administration (F AA ) t o fl y twin-eng ine airc raf t, including the acc ident airc raf t. Fr om J anuar

y 6 throug h J anuar y 9, 2006, Turek completed a flig ht training course with Recurr ent to transition from his Ba ron B55 twin-eng ine plane to the Cessna 421B. Previous to taking this course , Turek had 1,284.05 hours o f total flig ht experience
, including over 1,050 hours in multi-eng ine ai rc raf t. Turek had piloted a Cessna 421B airc raf t for over 29 hours. At the time he completed the Recurr ent course , Turek had been an FAA -license d pilot for nine y ear s. There is no argument made that Turek was not proper ly qualified to pilot the subject airc raf t under FAAregulations. ¶ 8 The Recurre nt prog ram, course materials, and training that Turek c ompleted compli ed with FAA regul ati ons and was FAA cer tified. The twin Cessna flight training device used by Turek du ring his training session at Recurr ent was FAA cer tified, qualified, and calibrated, and r outinely

inspected by

the FA A. ¶ 9 Recurr ent s tudents are experience d pilots who have obtained their FAA pilot’s license and rating s. Recurr ent flig ht instructor Kyle L yons testified at deposition that T urek, when completing h i s training course work at Recurr ent, demonstrated throug h perf ormanc e and testing that he was fully proficie nt, competent, and prepa red to fly

. He also demonstrated that he was awa

re of the specific s of a Cessn a 4 2 1B airc raf t. Specifica lly
, Turek completed a Cessna 421B workbook which was revie wed by a Rec urre nt instruc tor to ve rify that Turek

was familiar wi t h all information specific to the Cessna 421B. Turek was provided with information on Cessna 421B power settings, speeds, and other proc edure s for ope ratingin the l anding phase of flig ht. Additionally
, Turek’ s one-on- one training i n cl uded operations and performa

nce training specific to the C essna 421B. There was no indication during the Recurr ent co u rs ewor

k and evaluation that Turek had any difficulties with reg ard to desce nding, turning
, speed, or otherwise controlling the airc raf t in the airport environment. Turek was taug ht Cessna 421B stall speeds, proper eng ine operation, and fuel manag ement. ¶ 10 I n 2005, Turek succe ssfully compl et ed 3 3 h o u rs of rec urre nt twin-eng ine instrument proficie ncy training with Eug ene L ittlefield, his instructor at Arr- ow. Acc ording to L ittlefield’s deposition testimony
, Turek was alre ady a qualified and proficie nt twin-eng ine pilot at that time. I n L ittlefield’s opinion, T u re k wa s al way s in control of the airplane
, display ed g ood techniques, proce dures, and cockpit manag ement, and was a very proficie nt pilot. L ittlefield opined that Turek was a fully trained, safe
, competent, and qualified multieng ine pilot. ¶ 11 After completing training at both Arr- ow and Recurr ent, Turek flew the subject airc raf t for an additional five hours in J anuar y 2006 under the observation of L evinson, a partial

owner of Har

k, which had an owner ship interest in HK Golden Eag le. L evinson testified at deposition that the purpose of the observa t i o n was for L evinson to observe Turek fly the

s ubject airc raf

t and to provide the require d hours to satisfy his insurance comp an y require ments. At the time of the observation flig ht, L evinson was a cer tified flig ht instructor with an FAA rating as an airline transport pilot. L evinson was cer tified and rate d for single

eng ine, multi-eng ine, and instrument f light, as well as an instructor for airc raf t, instrument flig ht, and multi-eng ine airc raf t. L evinson testified at deposition that Turek was a qualified pilot with many hours of flying experience in a Cessna 421B. The acc ident airc raf t cra shed

-5-at night while in a landing traff ic pattern to la

nd at Palwaukee airport. Much of Turek’ s inflig ht training by L evinson in the acc ident airc raf t was flying in the landing traff ic pattern in the same loc ation as the c rash site. ¶ 12 Following the cra sh, L evinson, Re cu rr en t , an d Ar r- o w al l b ec am e d ef endants in consolidated a ctions based upon their education/training of T urek. ¶ 13 Recurr ent filed a motion for summary judgme nt pursuant to section 2-1005 of the Code of Civil Procedur e (735 I L CS 5 / 2-1005 (West 2008)) reg arding the pref light educational malprac tice claims, arguing that, consistent with the majority of jurisdictions, I llinois has not and would not re cog nize the tort of educational malprac tice. ¶ 14 Arr- ow also filed a motion for summary judgme nt p u rs u an t to section 2-1005 of the Code, arguing that Turek’ s neg lige nce c laim sounds in the tort of educational malprac tice, which is not a re cog nized cause of action in I llinois

. ¶ 15 L evinson and Har k filed a separ ate motion for partial summary jud gm en t pursuant to section 2-1005 of the Code, alleg ing that there was no g enuine issue as to any materia l f act reg arding Gar land’s claims of educational malprac tice as asser ted i n Ga rland’s six th amende d complaint. S p ec i fi cally
, L evinson and Har k adopted the arguments made by Recurr ent and Arr- ow in the ir motions of summary judgme nt, a nd they also argued fur

ther
t h at I llinois has not rec og nized and would not rec og nize a cause of action in tort fo r educational malprac tice. The motion noted that the majority of jurisdictions have ref used to

rec og nize a cause of action for educational malprac tice. Moreove r, L ev i n son and Har k
argued that Gar land’s educational malprac tice claims are defic ient as a matter of law beca use Gar land cannot establish the requisite elements of duty or proxi mat e cause under a neg lige nce the ory

. ¶ 16 HK Golden E ag le, Sy baris, and Knudson eac h filed a motion to dismis s those portions of Tu re k ’s complaint that alleg e educational malprac tice pursuant to section 2-619 of the Code (735 I L CS 5/2-619 (West 2008)), contending that those counts should b e d i smissed beca use the tort of e ducational malpr actice is not recog nized in I llinois

. ¶ 17 Def

endant Recurr ent also filed a m o t i o n t o d ismiss
, pursuant to section 2-619 of the Co d e , L e v in s o n and Har

k’s amende d counter claims for contribution. In its motion, Recurr ent contende d that L evinson and Har k’s counter claims must be dismiss ed beca use they are b ased on the tort of educ ational malpra ctice, a tort that is not recog nized in I llinois

. ¶ 18 Arr- ow filed a motion for summary j u d gment pursuant to section 2-1005 of the Code (735 I L CS 5/2-1005(c) (West 2008)), reg arding L evinson and Har k’s counter claims for contribution ag ainst Turek, Re curr ent, Arr -ow, a nd Morg an Stanley . I n its motion, Arr- ow contende d that the counter claims for contribution must be dismiss ed beca use they are based upon the tort of educ ational malpra ctice, a tort that does not exis t in I llinois

. ¶ 19 After hear ing oral arg uments on the motions, the trial court enter ed summary judgme nt in favor of the flig ht schools on the basis that the claims sounded in educational malprac tice. The court also g rante d partial summary judgme nt to L evinson and Har k on those portions of the contribution claims alleg ing neg lige nt training and instruction, and g rante d the motions
to dismiss based on section 2-619 of the Co de as to all counts related to educational malprac tice or educa

tional neg lige nce. Subsequently
, the trial court enter ed a written order

-6-ref lecting that judgme nt, findi n g that any alleg ations of neg lige nt training and instruction constitute claims for “e d u ca t i o nal malprac tice” and, thus, should not be rec og nized under I llinois law. I t stated:
“I T I S HEREBY ORDERED: The Court finds that educational malprac tice or educational neg lige nce based counts and alleg ations are improper and are not *** rec og nized as a tort in the State of I llinois

. The Court g rants these motions as they relate to any instruction or training that is or has been alleg ed to have contributed to the c ause of this occurr ence .” ¶ 20 The dismiss ed claims asser ted b y M o rga n S t an l ey ’s t h i rd -p ar t y co m p l ai n t for contribution ag ainst L evinson, Har k, Recurr ent, and Ar

r-ow state, in rele vant par t: “COUNT I
HOWARD D. L EVI

NSON
* * *
6. On and befor e J anuar

y 30, 2006, Howar d D. L evinson, acte d to train, supervise and instruct MARK TUREK in the use and operation of the Cessn a 4 2 1 B ai rcraft, Reg istration No. N920MC.
7. Should liability be assessed aga inst Morg an S tanley
, which li ability is expressly denied, Morg an Stanley here by asser ts that it has a rig ht of contribution ag ainst HOWARD D. L E VI

NSON, pursuant to the I llinois Contribution Act, 740 I L CS 100/0.01, et seq ., beca

use he w as neg lige nt in one or more of the following respe cts: * * *

c. Fa iled to adequately and proper ly train Mark Turek on how to operate the subject airc raf

t; * * *

e. Fa iled to safe ly and proper ly train, supervise and instruct Mark Turek in the use of the Cessna, inc luding landingmaneuve rs into Palwaukee [.] ” and:
“COUNT I I
HARK CORPORATI ON
* * *
7. Should liability be assessed aga inst Morg an S tanley
, which li ability is expressly denied, Morg an Stanley here by asser ts that it has a rig ht of contribution ag ainst HARK CORPOR ATI ON, pursuant to the I llinois Contribution Act, 740 I L CS 100/0.01, et seq. , beca use HARK CORPOR ATI ON was neg lige nt in o n e o r mo r e o f the following respe cts: * * * d. HARK CORPOR ATI ON is vic ariously liable for the actions of its President, Howar d D. L evinson, who failed to adequately an d proper ly train Mark Turek on how to operate the subjec t aircr aft.” ¶ 21 The dismiss ed cla i m s as s er t ed b y Ga rl and in her six th amende d complaint state, in

-7-rele vant par t: “12. On and befor e J anuar y 30, 2006, and at all times mentioned here in, Def endant, L EVI NSON, I ndividually
, and/or as an au t horized owner ag ent, apparent ag ent and/or employ ee of H.K. GOL DEN EAGL E, I NC. and/or Def

endant HARK, was neg lige nt in

one or more of the followingrespe cts: * * * b. failed to proper ly teac h, t ra i n an d instruct MARK TUREK how to perf orm proper and adequa

te pre- flig ht prepa

ration and inspection so as to ensure a safe flig ht and landingof the a ircra ft;

c. failed to proper ly teac h, train and instruct MARK TUREK how to plan, utiliz e and eng ag e in proper communications and coordination of responsibilities betwee n co-pilots; d. failed to proper ly teac h, train and instruct MARK TUREK how to competently and saf ely operate the air cra ft so as to ensure a saf e landing ; e. failed to proper ly teac h, train and instruct MARK TUREK how to eng ag e in and execute sa fe a

pproac h and landingmaneuve rs; f. failed to prope rl y t ea ch, train and instruct MARK TUREK how to maintain
proper control over

the airc raf

t so as to maintain its flight path;

g

. failed to proper ly teac h, train and instruct MARK TUR E K h o w to proper ly monitor eng ine and airc raf t perf ormanc e during flig ht so as to preve nt a cra sh of the airc raf t; h. failed to proper ly teac h, train and instruct MARK TUREK how to provide and util i z e proper instructions and communications betwee n co-pilots to ensure a safe flig ht;
i

. failed to proper ly teac h, train and instruct MARK TUREK how to prope rl y respond to and compensate for eng ine failure and malfunction of the airc raf t so as to avoid a c rash; j. failed to p ro perly teac h, train and instruct MARK TUREK how to eng ag e in and execute proper emer g ency maneuve rs so as to preve nt a cra sh of the airc raf t[ .]” ¶ 22 The dismis s ed cl ai m s asser ted by Turek in its counter claim for contribution state, in rele vant par

t: “HOWARD D. L EVI

NSON
34. Should liability be assessed ag ainst Def endant Turek, which liability is expressly denied, then Def

end an t Turek, asser

ts it has a rig ht of contribution ag ainst counter

defe ndant Howar d D. L evinson, pursuant to the I llinois Contribution Act, 740 I L CS 100/0.01 et seq ., beca

use L evinson was a joint tortfea sor due to his following neg lige nt acts or omissions:

a. L evinson failed to proper ly and adequately train Mark Turek and/or Ken Knudson in the opera

tion of the Subject Aircr aft[.] ” and:

-8-“HARK CORPORATI ON
38. Should liability be assessed ag ainst Def endant Turek, which liability is expressly denied, then Def

endant Turek, asser

ts it has a ri gh t of contribution ag ainst counter

defe ndant Har

k Corporation, pursuant to the I llinois Contribution Act, 740 I L CS 100/ 0

. 0 1 et s eq ., beca

use Har k Corporation was a joint tortfea sor due to its following
neg lige nt acts or omissions:

a. Har k Corporation is vi car iously liable for the acts and omissions of its President, L evinson, who failed to proper ly and adequately train Mark Turek and/or Ken Knudson in the ope ration of the Subjec t Aircra ft.” ¶ 23 The pa

rties appe aled, a

nd this court consolidated the a ppeals.

¶ 24 ANALYSI S ¶ 25 I . Educational Malprac tice ¶ 26 Ap p el l an t s contend that the trial court err ed in dismiss ing their claims of educ ational malprac tice. Specif

i ca l l y , appellants contend that the trial court was incorre ct in its deter mination that the neglig ence claims at i ssue ar e noncognizable beca use they sound in educational malprac tice. We first consi d er whether the appellants’ claims wer e, in fac t, claims of neg lige nt inst ruction, that is, educational malprac tice, rathe r than ordinary
neg lige nce c laims. ¶ 27 Summary judgme nt is proper when the pleading s, aff idavits, depositions and admissions of re cord, c onstrued st rictly ag ainst the m oving party
, show there is no g enuine issue as to
any materia l fac t and that the m oving party is entitled to judgme nt as a mat t er o f l aw

. 735 I L CS 5/2-1005(c) (West 2010). I n ruling on a m o t ion for summary judgme nt, the circ uit
court is to deter

mine whether a g enuine issue of materia l fac t exis ts, not try a q u es t i o n of fac t. W illiams v. Manche

ster , 228 I ll. 2 d 4 0 4
, 4 17 (2008). A party opposing a motion for

su m m ary judgme nt “must prese nt a fac tual bias which would arg uably entitle him to a judgme nt.” Allegro Servic es, L td. v. Me tropolit an Pier &Exposition Authority , 172 I ll. 2d 243, 256 (1996). W hen dete rmining whether a g enuine issue of

materia l fac t exi sts, courts construe the pleading s liberally in favor of the nonmoving party

. W illiams
, 228 I ll. 2d at 417. “Summary judgme nt is to be encour ag ed in the interest of prompt dispositi on of lawsuits, but

as a drastic measure it should be allowed only when a moving party ’s rig ht to it is clea r and fre e from do ub t

. ” P

yn e v. W itmer
, 129 I ll. 2d 351, 358 (1989). “I f the plaintiff fails to establish any element of

the ca use of a ction asser

ted, summary judgme nt f

or the defe ndant is proper .” Gove rnmental Interinsurance Exc hange v. Judge
, 221 I ll. 2d 195, 215 (2006). We revie w summary judgme nt ruling s de novo ( Espinoza v. Elgin, Joliet & Eastern Ry. Co.
, 165 I ll. 2d 107, 113 (1995)) and we will only disturb the decision of the trial court wher e we find
t h at a gen u i ne issue of materia l fac t exis ts. Addison v. W hittenberg
, 124 I ll. 2d 287, 294 (1988). ¶ 28 I f a claim raises questions about the rea sonablene ss of an educator’s conduct in pr oviding educational service s, or if a claim require s an analy sis of the quality of education, it is a claim for educational malpractice

. See Dallas Airmotive, Inc. v. Fli ghtSafety International

, In c. , 277 S.W .3d 696, 700 (Mo. Ct. App. 2008); Glorvigen v. Cirrus Design Corp.
, 796 N.W.2d

-9-541, 552 (Minn. Ct. App. 2011) (“We define d educational-malprac tice claims as those that

‘would require the court to eng ag e in a compre hensive revie w of a my riad of educa

tional and pedag og ical fac tors, as well as administrative policies.’ ” (quoting Alsides v. Brown Institute, Ltd.
, 592 N.W

. 2 d 468 (Minn. Ct. App. 1999)). “ ‘W here the court is asked to evaluate t he

course of instruction or the soundness of the method of teac hing that has been adopted by an educationa l instit ution, the claim is one of educational malprac tice.’ ” Glorvigen
, 796 N.W.2d at 553 (quoting Dallas Airmotive , 277 S.W .3d at 700). ¶ 29 There are g ener ally three broad cate g ories of education al m al prac tice claims: “(1) the student alleg es that the school neg lige ntly failed to provide him with adequate skills; (2) the student alleg es that the school neg lige nt l y d i agnosed or failed to diag nose his lear ning or mental d i sabilities; or (3) the student alleg es that the school neg lige ntly supervised his training .” Dallas Airmotive
, 277 S.W .3d at 699. The court in Dallas Airmotive provided the following examples:
“I f a neg lige nce claim raises questions conce rning the rea sonablene ss of the educator’s conduct in providing educational service s, then t h e cl aim is one of educational malprac tice. Christ ensen v. S. Normal Sch.
, 790 So. 2d 252, 255 (Ala. 2001). Simi larly
, if the claim require s an ‘ana ly sis of the quality of education rec eived and in making that analy sis the fac t-finder must consider principles of duty
, s t an d ards of car e, and the

re as o n ablene ss of the defe ndant’s conduct,’ then the claim is one of educati o n al malprac tice. Id. I f the duty alleg ed to have been brea ched is the duty to educate eff ectively
, the claim is one of educa tional malprac tice. Vogel [ v. Maimonides Acade my of W estern Connecticut, Inc. ], 754 A.2d [824,] 828 [(Conn. App. Ct. 2000)]. A claim that educational service s provided wer e inadequate, substandard, or ineffe ctive constitutes a claim of educa

tional malprac tice. Lawrence v. Lorai n Co u n t y Cmty. Coll.
, 127 Ohio App. 3d 546, 713 N.E.2d 478, 480 ([Ohio Ct. App.] 1998); Alsides
, 592 N.W.2d at 473. Where the cou rt is asked to evaluate the course of instruction or the soundness of the method of teac hing that has been adopted by an educational instit ution, the claim is one of educational ma lprac tice. Andre v. Pace Univ.
, 170 Misc. 2d 893, 655 N.Y.S.2d 777, 779 (N.Y. A

pp. Div. 1996).” Dallas Airmotive , 277 S.W .3d at 700. ¶ 30 Her e, there wer e multipl e alleg ations of ineffe ctive training by multipl e parties, eac h of which clea

rly sounded in educational malprac tice. Eac h of the claims dismiss ed by the trial
court asser

ted that defe ndants failed to pro perly train Turek in how to fly and land the airc raf t. In the portion of Ga

rland’s sixth amended complaint at law that was dismissed by the trial court as an asser tion of educational malprac tice, quoted in fu ll, supra , Gar land

asser ted, inter alia
, that L evinson failed to proper ly teac h, train, and instruct Turek how to: perf orm proper and adequa

te pre flig ht prepa

ration and inspec tion; plan, utilize a nd eng ag e in p r o p e r c o mm

u n ic a ti o n s a n d c o o r d in a

ti o n o f responsibilities betwee n copilots; competent ly

an d s af el y o p er ate the airc raf

t so as to ensure a safe landing ; eng ag e in and execute safe
approa ch and landing maneuve rs; maintain proper control over the airc raf t so as to maintain its flig ht path; proper ly monitor eng ine and airc raf t pe rfor mance during flig ht; pr ovide and

uti li ze p r o p e r instruc tions and communications betwee n copilots; respond to and compe n s a te for eng ine failure and malfunction o f the airc raf t; and eng ag e in and execute proper

emer g ency

maneuve rs.

-10-¶ 31 I n Morg an Stanley ’s th ird-par ty complaint for contribution that was dismiss ed by the trial
court as educa

tional malprac tice, Morg an S t an l ey asser ted that L evinson “ac ted to train, supervise and instruct” Turek in the use and opera tion of the subject airc raf

t; that L evinson “fa iled to adequately and proper ly train” Turek on how to operate the airc raf t; and “fa iled to safe ly and proper ly train, supervise and instruct” Turek in the u s e of the airc raf t. Morg an Stanley also alleg ed that Har k should be vicar iously liable for the alleg ed neg lige nt training of Ture k. ¶ 32 The claims by the estate of Mark Turek in its counter claim for contribution, which we re dismiss ed by the trial court as educational malprac tice, include alleg ations that L evinson “fa iled to proper ly and adequately train Mark Turek and/or Ken Knudson i n t h e operation of the S ubject Aircr aft” and that “Ha rk Corporation is vicar iously liable for the acts and omissions of its President, L evinson, who failed to proper ly and adequately train Mark Turek and/or Ke n Knudson in the operation of the Subject Aircr aft.” ¶ 33 The nature of the appellants’ claims that wer e dismiss ed by the trial court focuse s on the

rea sonablene ss of defe ndants’ conduct in providing training
, that is, educa tion, to Turek, and would require a jury at trial to analy ze the quality and methods of the education provided to Turek, as well as an evaluation of the course of instruction and the soundness of the teac hing

m et h o d s

. See Glorvigen
, 796 N.W.2d at 555 (whe re “the essenc e of the claims ag ai n s t appellants is that they faile d to provide *** eff ective training ” and beca use such claims “cha lleng e the eff

ectivene ss of the training
, they sound in educational malprac tice”)

. Whil e the dissent would have us consider these claims as claims for ordinary neg lige nce, we decline
to do so. Be cause these claims clea rly fit within the m at ri x for claims sounding in educational malprac tice, we find no err or in the trial court’s deter mination that these claims sound in educational malprac tice rather than or dinary neg lige nce. ¶ 34 Appellant Gar land’s relianc e on Vancura v. Katris
, 391 I ll. App. 3d 350 (2008), aff’d in part & rev’d in part , 238 I ll. 2d 352 (2010), does not persua de us differ ently

. Gar land argues that, pursuant to Vancura
, the trial court should have underta ken a duty analy sis when fac ed with this issue and, in so doing, would have conclude d that L evinson and Har k did, in fac t, have a duty to adequately train Turek. R el i ance on Vancura
, howeve r, is misplaced, as Vancura is limit ed to neg lige nce within an employ ee/e mploy er context. I n V a n cura , our supreme court consid er ed an employ er’ s liability for the alleg ed neg lige nt acts of an employ ee notary public; it did not discuss the tort of educa tional malprac tice. Vancura
, 238 I ll. 2d 352. ¶ 35 Hav i n g d et er m i n ed t h at t h e cl ai ms in question do asser t the tort of educ ational malprac tice, we now turn to whet h er s u ch tort is cog nizable in the State of I llinois

. This question is one of first impression in I llinois

. ¶ 36 Whil e I llinois has not addre ssed whether educational malprac tice claims are cog nizable,
most jurisdictions that hav e considere d the issue have found that educational malprac tice claims are not cog nizable. See, e.g. , Gl o r vigen
, 796 N.W.2d 541, 553 (“The bar on educational-malprac tice claims rec og nizes that ‘[a]l lowing individuals . . . to assert claims of neg lige nt instruction would avoid the prac tical rea lity that, in the end, it is the student who is responsible for his knowledg e, including t he li mits of t hat knowled ge.’ ” (quoting Page

-11-v. Klein Tools, Inc. , 610 N.W. 2d 900, 906 (Mich. 2000)) ); Johnson v. Clark, 418 N.W.2d

466 (Mich. Ct. App. 1987); Dallas A i r mo t ive
, 277 S.W .3d 696; Christ ensen v. Southern Normal School
, 790 So. 2d 252, 255 (Ala. 2001) (cla im is barr ed by educational malprac tice doctrine if the claims “re quire an analy sis of the quality of education rec eived” ); Gupta v. New Britain Gene ral Hospita l
, 687 A.2d 111 (Conn. 1996) (cla im based on instit ution’s failure to provide “ade quate training ” was not cog nizable); L a w r en ce v. Lorain County Community College
, 713 N.E.2d 478 (Ohio Ct. App. 1998) (cour t would not rec og nize any claim that educa

tional servic e s w e r e “ s ubstandard” or “inade quate” ); Bittle v. Oklahoma City University
, 2 0 0 0 OK CI V APP 66, 6 P.3d 509 (Okla. Civ. App. 2000) (dec lining to

rec og nize claim based on “inade quate or improper inst ruction: ); Houston v. Mile High Adve ntist Acade my , 846 F. Supp. 1449, 1455-56 (D. Colo. 1994) (cla ims that teac hers wer e “not proper ly trained” and that “schoo l failed to provide adequate instruction” wer e construed as ed u ca t i o nal malprac tice and proper ly dismiss ed); Finstad v. W ashburn University of Topeka
, 8 4 5 P.2d 685 (Ka n. 1993); Blane v. Alabama Commercial College, Inc.
, 585 So. 2d 866 (Ala. 1991); D.S.W

. v. Fairbanks North Star Borough School District
, 628 P.2d 554 (Alaska 1981); Peter W

. v. San Francisco Unifi ed S ch ool District
, 131 Cal. Rptr. 854 (Cal. Ct. App. 1976); Smith v. Alameda County Social Servic es Agenc y , 153 Cal. Rptr. 712 (Cal. Ct. App. 1979); Tubell v. Dade County Public Schools
, 419 So. 2d 388 (F la. Dist. Ct. App. 1982); W

ickstrom v. North Idaho College
, 725 P.2d 155 (I daho 1986); Moore

v. Vanderloo
, 386 N.W.2d 108 (I owa 1986); Rich v. Kentucky Country Day, Inc.
, 793 S.W .2d 832 (Ky

. Ct. App. 1990); Hunter v. Board of Education
, 439 A.2d 582 (Md. 1982); Donohue v. Copiague Union Free School District
, 391 N.E.2d 1352 (N.Y. 1979); W ilson v. Continental Insurance Cos. , 274 N.W.2d 679 (Wi s. 1979); but see B.M. v. State , 649 P.2d 425 (Mont. 1982). ¶ 37 Those courts that have ref used to rec og nize claims of educational malprac tice have done

so based on various public policy g rounds, including: (1) the lack of a satisfac tory standard of car e by which to evaluate an educator; (2) the inhere nt uncer tainties about causation and the nature of damag es in light of such intervening fac tors as a student’s attitude, motivation, tempera ment, past experience
, and home environment; (3) the potential for a flood of litigation ag ainst s ch o o l s ; and (4) the possibili ty that such claims will “embr oil the courts into overse eing the day -to-day opera tions of schools.” (Interna l quotation marks omitted.) Alsides , 592 N.W.2d at 472. ¶ 38 These same public policy conce rns have persua ded courts t o d i s miss claims based on educational malprac tice ag ainst flig ht trainin g s ch o o l s and flig ht instructors. See Dallas Airmotive
, 277 S.W .3d 696. The Dallas Airmotive court addre ssed the distinction betwee n 3

T hes e and othe r rel at ed publ ic pol ic y grounds have a ls o be en c it ed b y v ar iou s c our ts th at 3 have dec li ned to impose li abi li ty on pro pri et ar y and tr ade sch ool s for edu cat ion al m al pra ct ic e. For

exa m ple
, in Cava li ere v. Duff ’s Busi nes s Ins ti tut e , 60 5 A.2d 397 (19 92)
, the Penn sylvania cou rt uphe ld the dis m is sal of the pla i nti ff s’ cl ai m for edu cat ion al m al pra ct ic e bro ught agains t a cou rt

re por ti ng scho ol. T he c our t e xpl ai ned :

“T he con cer ns tha t ar e cl ear ly app rop ri at e in the cas e of an aca demic ins ti tut ion ar e equ al ly ra is ed by a n at te m pt to inq uir e int o the suf

fi ci enc y of te ach ing m et hods at a tr ade

-12-a noncog nizable educa tional malprac tice claim and an ordinary negli gen ce claim in the educational c ontext

. I t be g an by noting that, even in the educational c ontext , there rema ins a duty not to cause phy sical i njury by neg lige nt con d u ct

. Dallas Airmotive
, 277 S.W .3d at 700 (citing Vogel
, 754 A.2d at 827 n.7). Howeve r, the “dut y p er t ai ns to an educator or supervisor using rea sonable car e so as not to cause phy sical inju ry to a trainee during the

course of instruction or supervision.” Dallas A ir m o tiv e , 277 S.W .3d at 700 (citing Vogel
, 754 A.2d at 828). I t then g ave examples such as: “a woodworking shop instructor has a duty ‘to exercise rea s o n ab l e car e not only to instruct and war n students in the safe and proper operation of the machines provided for their use but also to furnish and have available such appliance s, if any , as would be rea sonably neces s ar y for the safe and proper use of the machines.’ ” Dallas Airmotive
, 277 S.W .3d at 700-01 (quoting Kirchner v. Y ale University
, 192 A.2d 641, 643 (Conn. 1963)). “The duty rec og nized wa s the duty owed by an educator not to cause phy sical injury by neg lige nt conduct in the course of instruction.” (Emphasis in orig inal.) Dallas Airmotive , 277 S.W .3d at 701. ¶ 39 Wit h this b ac kg round, t he Dallas Airmotive court found that the claim at i ssue ag ainst

a company offe ring flig ht instruc tion sounde d in e ducational malprac tice, as it was a claim perta ining to the quality of instruction reg arding a flig ht simulator and it attacke d the quality of instruction. Da llas Airmotive
, 277 S.W .3d at 701. Finally
, the Dallas Airmotive court noted that the g ener ally rec og nized public policy g rounds for r efusingto r ecognize the tort of educ ational malpra ctice pe rtain in the ar ena of claims reg ardingflig ht instruction: “many fac tors contribute to the quality of a student’s education and the quality of his later perf ormanc e. The rec og nition of liability
, or course , would be a g reat invitation to speculation as to causa

tion. See Sellers v. Sch. Bd. of the City of Manassas
, 960 F. Supp. 1006, 1014 & n.36 ( E.D. Va . 1997). Public policy also sug g ests that schools, and their
regulating, acc rediting
, and cer ti fy ing ag encie s, not courts, need to make curr iculum decisions. See M

oore , 386 N.W.2d at 115.” Dallas Airmotive , 277 S.W . 3d at 701. ¶ 40 The United States Court of Appeal s fo r t h e S ev en t h C i rc u i t h as ap p lied I llinois substantive law to find that, if prese nted with the question, the I llinois Supreme Court would ref use to rec og nize t h e t ort of educational malprac tice. Ross v. Creighton University
, 957 F.2d 410, 415 (7th Cir. 1992) (“ We believe that the I llinois Supreme Court would find the experience of other j u ri s dictions persua sive and, conseque ntly
, that these policy considerations ar e co m p elling. Consequently
, the I llinois Supreme Court would ref use to

rec og nize the tort of educa tional malprac tice.”)

. I n its opinion, the court outlined the various public policy

conce rns that “c ounsel ag ainst allowing claims for educational ma lprac tice,” including that: (1) “it may be a ‘pra ctical impossibi lity [t o] prov[e] that the alleg ed malprac tice of the teac her proxi m at el y ca used the lear ning defic iency of the plaintiff student’ ” (

Ross
, 957 F.2d at 414 (quoting Donohue v. Copiague Union Free School District
,

or bus ine ss sch ool li ke the I nst it ute . Thi s cour t would be har d pres sedto det er m ine whi ch of sever al al te rna ti ve m et hods of te a c h i n g cou rt re por ti ng, or aut o re pai r, or any oth er spe ci al ized bus ine ss or tr ade skill was the app rop ri at e one. Nor woul d it be an eas y ta sk to det er m ine why a par ti cul ar st ude nt fa il ed to acq uir e cer ta in skill s af te r pur sui ng a cou rs e of ins tr uct ion ai m ed a t t eac hin g thos e s kill s.” Cava li ere , 605 A.2d a t 4 03- 04.

-13-391 N.E.2d 1352, 1355 (N.Y. 1979) (Wachtler, J
., concur ring ))) ; (2) “[t] heorie s of education

are not uniform, and ‘diffe rent but acc e ptable scientific methods of aca demic training [m ake] it unfea sible to formulate a s tandar d by which to judge the conduct of t hose deliver ing the service s’ ” (

Ross
, 957 F.2d at 414 (quoting Swidryk v. Saint Michae l’s Medic al Center
, 493 A.2d 641, 643 (N.J. Super. Ct. L aw. Div. 1985), citing Peter W

. , 131 Cal. Rptr. 854)); and (3) the c ourts fea

r the incr ease d potential for a flood of litigation, as well as the possibility that it “thre atens to embroil the courts into overse eing the day -to-day operations of schools” ( Ross
, 957 F.2d at 414 (citing Donohue
, 391 N.E.2d at 1354)); Hoffman v. Board of Education
, 400 N.E.2d 317 (N.Y. 1979); Hunter v. Board of Education
, 439 A.2d 582 (Md. 1982)). ¶ 41 Our supreme court has reje cted constitutional claims by students ag ainst a public school district and the State B oard of Education for a failure to provide an a dequate education, as well. Lewis E. v. Spagnolo
, 186 I ll. 2d 198 (1999). The Lewis court held that issues relating to the quality of education should not be measure d or deter mined by the courts. Lewis
, 186 I ll. 2d at 208. The Lewis court rea ffirme d its previous decision in Committee for Educational Rights v. Edgar
, 174 I ll. 2d 1 (1996), that “ ‘questions relating to the quality of education are solely for the leg islative branc h to answe r.’ ” (Emphasis in orig inal.) Lewis
, 186 I ll. 2d at 208 (quoting Committee for Educational Rights , 174 I ll. 2d at 24). ¶ 42 We ag ree with the rea soning e mploy ed by those courts that have declined to r ecog nize

a cause of ac tion for educational malprac tice and there fore hold that claims sounding in educational malprac tice, that is, claims alleg ing neg lige nt instruction, are not cog nizable in I llinois

. ¶ 43 I n the case at bar, the claims at issue all perta in to the teac hing, training
, and instructing of Turek prior to the date of the acc ident, and, acc ording ly
, relate to the quality of instruction. I n essenc e, plaintiffs argue that the neg lige nt perf ormanc e of a former student (Ture k) cause d

an acc ident involving third parties and that the former student’s neg lige nce was itself cause d by the poor quality of the education or training that the instructor or instructional institution (Recur rent, Arr- ow, L evinson and Har k ) p ro v i d ed to the student. These are claims of educational malprac tice and a re ba rre d, there fore , as a matter of law

. ¶ 44 Acc ording ly
, the trial court did not err in g ranting partial summary judgme nt as to the se claims wher e, beca

use the tort of educational malprac tice is not rec og nized in I llinois
, there
was no g enuine issue of

materia l fac t. See 735 I L CS 5/ 2-1005(c ) (West 2008). ¶ 45 Appellants’ relianc e on In re Air Crash Near Clarence Center, New Y ork, on February 12, 2009
, No. 09-md-2085, 2010 WL 5185106 (W.D.N.Y Dec

. 12, 2010), and Doe v. Y ale University
, 748 A.2d 834 (Conn. 2000), to argue that we should car ve out an exclusion from
t h e educational malprac tice bar for those case s which alleg e actua l phy sical inj u ry i s unpersua sive. In re Air Crash Near Clarence C enter is unpersua sive beca use the district
court g rante d a motion to rema nd a matter to state court, not bec ause it found an exception
to the educational malprac tice bar, but beca use, in part, i t fo und that the state court could possibly determ i ne that the educational malprac tice bar would not apply in that particula r situation unde r New York law. In re Air Crash Near Clarence Center
, 2010 WL 5185106. Doe is distinguishable wher e the case at bar does not involve an injury sustained by a student

-14-during the course of instruct i o n fr om a dang er cre ated by the instructor, but an injury

alleg edly cause d by prior neg lige nt instr u ct i o n

. See Doe
, 748 A.2d 834 (medica l resident injured in trainingon use of ne edle)

. ¶ 46 Appellant estate of Gar land also conte n d s t h at , i f t h i s court upholds the bar a g ainst educational malprac tice claims, it should do so only ag ainst Recurr ent and Arr- ow. I t argues t h at L evinson and Har

k should be treated differ ently beca use they are “nontra dition al educational instit utions.” Citi ng Marshall v. Burge r K i n g Corp.
, 222 I ll. 2d 422 (2006), it contends that the relation s h i p b et wee n L evinson and Turek was “much closer and immediate” than that of an ordinary school and student. Ba sed on this relationship, it argues, they should be excepted from the bar ag ainst educational malprac tice cl ai ms. See Burger King
, 222 I ll. 2d at 436-37 (in ordinary neg lige nce action, court stated “[t] he touchstone of this court’s d u t y analy sis is to ask whether a plaintiff and a defe ndant stood in such a relationsh i p t o o n e another that the law imposed upon the defe ndant an obligation of

rea sonable conduct for the benef it of t he plainti ff” ). Mor gan Stanley
, Estate of Turek, and Estate of Gar land also argue that the trial court err ed by employi n g an “o v er ly expansive interpre tation” of the educa tional malprac tice doctrine and should have found that L evinson and Har k wer e distinct from educational instit utions. These arguments are unpersua sive, as the relationship betwe en instructor L evinson and student Turek is irr eleva nt where there is

no leg al basis to trea

t educators differ ently under the educational malprac tice bar. See, e.g. , Glorvigen
, 796 N.W.2d at 554-55 (althoug h the def endant a irplane ma

nufac turer was “not primarily in the business of education, it assumed educa tional responsibilities related to, but di s t i n ct fr o m, its function as a manufa cture r by offe ring transition training and there by
enter ed into an educa

tional rela tionship with [t he injured plaintiff], to which the educationalmalprac tice bar applies”)

. Use of the educational ma lprac tice defe nse doctrine turns on the ty pe of claim raised, not the ty pe of defe ndant fac ing the claim. Allowing otherwise would

cre ate a n unworka

ble, fa ct-intensive e x ception to the rule

. ¶ 47 As we have previously stated, if a claim raises questions about the rea sonablene ss of an educator’s conduct in providing educa tional service s, or if a claim require s an analy sis of the quality of educa

tion, then it is a noncog nizable claim for educa tional malprac tice. See Dallas Airmotive
, 277 S.W .3d at 7 0 0 ; Glorvigen
, 796 N.W.2d at 552 (“e ducational- malprac tice claims [are] those t h at ‘w o u l d require the court to eng ag e in a compre hensive revie w of a my riad of educa

tional and pedag og ical fac tors, as well as administrative polices’ ” (quoting Alsides
, 592 N.W.2d at 473)). The corr ect inquiry
, t h ere fore
, is based on the nature of the claim rather than on the nature of the de fenda nt. ¶ 48 I n this reg ard, we find littl e if any distinction betwee n a school and a qualified individual instructing a student pilot. We consider the ty pe of claim raised–he re, whether L evinson was neg lige nt in training Turek to fly the airc raf t–rather than whether the instructor was a school

o r a qualified individual. The answe r to this question clea rly require s an analy sis of the educator’s conduct in providing educational service s. Be cause the claim challeng es the eff ectivene ss of the training provided to Ture k, it sounds in educational malpra ctice a nd is barr ed as a

matter of la

w. See Glorvigen , 796 N.W.2d at 552.

-15-¶ 49 I I . J urisdiction

¶ 50 Fi n al l y , R ec u rr en t challeng es this court’s jurisdiction in this cause . Speci fi ca l l y , Recurr ent argues t hat t he trial cou rt er re d in modifying its dismiss al order which included Rule 304(a) lang uag e, extending the time for appellants to file their notices of appea l. I ll. S. Ct. R. 304(a) (ef

f. Fe b. 26, 2010). Acc ording to Recurr ent, appellants’ notices of appea l wer e untimely beca

use they wer e not filed within 30 day s of the orig inal dismiss al order
, and the

cross-a ppeals whic h followed we re the ref ore a lso untim ely . We disag ree

. ¶ 51 Rule 304(a) pertai n s t o ap p ea l s fr om final judgme nts that do not dispose of an entire
proce eding

. When a trial court makes a finding pursuant to Rule 304(a) that there is no just

rea son for delay

ing enfor ceme nt or appea l of a final judgme nt, any notice of appea l from that final judgme nt must be filed within 30 day s. I ll. S. Ct. R. 304(a) (ef f. Fe b. 26, 2010); I ll. S. Ct. R. 303(a) (ef

f. May 30, 2008). The Rule 304(a) finding
, howeve r, does not divest the trial
court of its jurisdiction in the cause

. Gree r v. Y ellow Cab Co.
, 221 I ll. App. 3d 908, 913-14 (1991). A trial court may vaca te or modify its Rule 304(a) finding within 30 day s. Dowling

v. Otis Elevator Co.
, 192 I ll. App. 3d 1064, 1069 (1989); Battisfor e v. Moraites
, 186 I ll. App. 3d 180, 185 (1989). ¶ 52 Her e, the trial court g rante d Recurr ent’s motion for summary judgme nt on J uly 19, 2010, and made an express finding that its order was final and appea l able pursuant to I llinois Supreme Court Rule 304(a ). The c ourt specif ied: “(1) This motion coming to be hear d upon the parties motions re: educatio n al malprac tice,
I T I S HEREBY ORDERED: That [wit h] respe ct to [defendants] Arrow I I and [R ecur rent] on l y , al l m o tions to dismiss /motions for summary judgme n t ar e g rante d on the merits and with prejudice
., and this is a final and a

ppeala ble orde r per

I ll. Sup. C t. Rule 304(a).” Then, withi n 30 day s, on Aug ust 5, 2010, the court modified its J uly 19, 2010, order to an order re garding all of the educa tional malprac tice claims in all of the consolidated case s, stating: “This matter coming to be hear d upon all motions related to educational malprac tice, in all consolidated actions, with due notice to all parties, and having previously ruled that all ARR-OW and R ecur

rent Tr aining Center’ s motions to for [ sic ] summary judgme nt and to dismiss are g rante d, this Court now enters the followingorder : I T I S HEREBY ORDERED: The Court finds that educational malprac tice or educational neg lige nce based counts and alleg ations are improper and are not a re co gn i zed [ sic ] as a tort in the State of I llinois

. The Court grants these motions as they relate to any instruction or training that is or has bee n alleg ed to have contributed to the c ause of this occurr ence .” The c ourt included Rule 304(a) lang uag e, includingcommentar y perta ining to the July

19, 2010, order : “The I llinois Supreme Court Rule 304(a) lang uag e is enter ed on this issue as to all parties and claims involved, th e court finding there is no just rea son for delay ing either

-16-enfor ceme nt appea l or both. Fur ther, the order of J uly 19, 2010 i s h ere by amende d to ref lect that I llinois Supreme Court Rule 304(a) lang uag e is here by g rante d as of the date of this orde r as to a ll e ducational malprac tice ruling s and the time f or any appea l under 304(a) runs from the date of this order .” ¶ 53 We find that the trial court’s Aug ust 5, 2010, mo d i fi ca t i o n o f its J uly 19, 2010, Rule 304(a) lang uag e was not err or, as it reta ined j urisdiction to modify its final j udg ments and order s within 30 day s of their entry

. Dowling
, 192 I ll. App. 3d at 1069; Battisfor e , 186 I ll. App. 3d at 185. There afte r, Morg an S t an l ey , Gar land, and Turek filed timely notices of
appea l reg arding the educational malprac tice ruling as it perta ined to L evinson and Har k. Morg an Stanley

and Ga rland filed on September 3, 2010, and Ture k filed on September 7, 2010. 4 ¶ 54 T here afte r, t he other parties to the appeal fil ed their timely notices of appea l. Pursuant
to Supreme Court Rule 303(a) (3), when a party files a timely notice of appea l, other parties have 10 day s within which to join the appeal, a ppeal se parately
, or cross-a ppeal by filing a notice of appea l. I ll. S. Ct. R. 303(a) (3). L evinson and Har k filed their notice of cross-a ppeal relative to the educational malprac tice ruling on September 1 4
, 2010, which appea l was joined by Knudson, Sy

baris, and HK Golden Eag le on September 16, 2010. Acc ording ly
, the

cross-a ppellants’ notices of appea l wer e filed within 10 day s of a timely notice of appea l and

wer e, there fore
, timely under Rule 303(a) (3). The parties timely filed their notices of appea l and the c onsolidated ca

use is proper ly

befor e this court.

¶ 55 CONCL USI ON ¶ 56 For

the fore g oing r easons, we aff irm the dec ision of the circ uit court of Cook County

.

¶ 57 Affir

med.

¶ 58 J USTI CE PUCI NSKI , dissenting: ¶ 59 Respectf

ully
, I dissent. Appellee s L evins o n an d Ha rk Corporation have prese nted a
strawman argument that the alleg ed counter claims co n s t itute claims for educational malprac tice when in fac t neg lige nce is alleg ed. There are g enuine issues of materia l fac t that th e al l ega t ions state a direc t cause of action under ordinary neg lige nce principles. “To

succe ed in an action for neg lige nce, a plaintiff must prove fac ts that e stablish the exis tence of a duty
, a brea ch of the duty
, and an injury to the plaintiff which was proxi mately cause d by the brea ch.” Hills v

. Bridgeview Litt le League Ass’n
, 195 I ll. 2d 210, 228 (2000) (citing Cunis v. Brennan
, 56 I ll. 2d 372, 374 (1974))

. The “touchstone” of a duty inquiry “involves four f actor s: (1) the re asonable fore seea bility of the injury ; (2) the likelihood of the injury ; (3) the mag nitude of the burden of g uarding ag ainst the injury ; and (4) the conseque nces of placing the burden on the defe ndant.” Vancura
, 238 I ll. 2d at 383 (citing Marshall v. Burger

T he thi rt ie th day af

te r August 5, 2010
, fe ll on Sat urd ay, Sept ember 4, 2010

. T he nex t cou rt 4 day was not unt il Sep te m ber 7, 2 010, due to a c our t h oli day. T hus , T ure k’s not ic e was ti m el y.

-17-King Cor p. , 222 I ll. 2d 422, 436-37 (2006)). ¶ 60 There are sever al theories of tort liability which are prese nted by the fac ts alleg ed in this

ca s e. Section 323 of t he R estateme nt (Second) of Torts sets forth a basis for liabili ty fo r a voluntary undertaking that is performe d neg lige ntly : “§ 323. Ne g lige nt Performa nce of Under taking to Render Ser

vices
One who undertakes, g ratuitously or for consideration, to rende r service s to another which he should rec og nize as nece ssary for the protec tion of the other’s person or things, is subject to liability to the other for phy sical harm resulting from his failure to exercise

rea sonable c are to perfor

m his undertaking , if (a) his failure to e x erc ise such ca re inc rea ses the risk of suc h harm, or (b) the harm is suffe red beca use of the other’s relianc e upon th e u n derta king.” Restatement (Sec ond) of Tor ts § 323 (1965). Section 323 app l i es wher e there has been phy sical or bodily harm, as in this case

. See Vancura
, 238 I ll. 2d at 382. Section 323 applies to the duty that was owed direc tly to Turek by L evinson. ¶ 61 Section 324A of the Restatement provides for limit ed liability to third persons based on the neg lige nt perf

ormanc e of a service or undertaking wher e the provision of service s results in phy sical har

m. Vancura , 238 I ll. 2d at 383 n.6. Section 324A provides:
“One who undertakes, g ratuitously or for consideration, to rende r service s to another which he should rec og nize as nece ssary for the protec tion of a third person or his things, is subject to li ab i lity to the third person for phy sical harm resulting from his failure to exercise r easona

ble ca re to prote ct his undertaking , if (a) his failure to e x erc ise rea sonable c are incre ases the r isk of such har m, or (b) he has under

taken to per form a duty

owed by the other to the third pe rson, or (c) the harm is suffe red beca use of relianc e of the other or the third person upon the undertaking.” Restatement (Sec ond) Torts § 324A ( 1965).
“ ‘ “B y undertaking to act” ’ a defe ndant become s ‘ “sub j ec t t o a duty with respe ct to the

manner of perf

ormanc e.” ’ ” Bell v. Hutsell
, 2011 I L 110724, ¶ 23 (quoting W a kulich v. Mraz
, 203 I ll. 2d 223, 242 (2003), quoting Nelson v. Union W ire Rope Corp.
, 31 I ll. 2d 69, 85 (1964))

. ¶ 62 I find that appellant Gar land’s reliance o n V a n cu ra is misplaced not only beca use it addre ssed neg lige nce w ithin an employ er/e mploy ee context, which is not pre sent here , but also beca use t here was only

economic harm and no phy sical harm ( Vancura
, 238 I ll. 2d at 382), as there was in this case. Thus, our supr eme c ourt in Vancura found that sec tion 323 of the Restatement (Second) of Torts conce rning liability for a voluntary undertaking did not apply

. Vancura
, 238 I ll. 2d at 382. Howeve r, here we are prese nted prec isely with circ umstances to which section 323 applies–a neg lige nt voluntary undertaking that resulted in bodily harm. ¶ 63 Neg lige nce is sufficie ntly pled in this case in that L evinson undertook to train Turek how
to fly his specific plane, the Cessna 421B, but neg lige ntly failed to adequately and proper ly train and instruct Turek on how to operate th a t airc raf t, there by proxi mately causing Waugh’ s

-18-death. There was evidenc e that L evinson failed to tell Turek not to push the throttle, did not

adequately instruct Turek how to perf orm a landing at night, and did not instruct Turek
reg arding icing

. Her e, the alleg ations sufficie ntly set forth that a duty to exercise rea sonable

car e was cre ated by L evinson’s voluntary undertaking to train Turek and that L evinson failed to exercise re asonable car e. ¶ 64 Fur

ther, sec tion 302A of the Restateme nt provides: “§ 302A. Risk of Ne g lige nce or Recklessne ss of Others
An act or an omission may be neg lige nt if the actor rea liz es or should r ealize that it involves an unrea sonable risk of harm to another thro u g h the neg lige nt or rec kless conduct of

the other or

a third per son.” Restateme nt (Second) T orts § 302A (1965). ¶ 65 Additionally
, section 390, reg arding the liability of persons who supply their chattel f or use by others, provide s: “§ 390. Chattel for

Use by Person Known to be I

ncompetent One who supplies directly or throug h a third per son a chattel for the use of another whom the supplier k nows or has rea son to know to be likely beca use of his y outh, inexperience
, or otherwise, to use it in a manner involving unrea sonable risk of phy sical harm to himself and others whom the supplier should expect to share in or be endang ere d by its use, is subject to liability for phy sical harm resulting to t hem.” Restatement (Second) Torts § 390 (1965). ¶ 66 Her e, there is evidenc e that prior to the acc ident L evinson was awa re that Turek liked to fly fast, fle w “kind of like” a sports ca r driver , and would ride the brakes too much. ¶ 67 I n addition, vicar ious liability ag ainst Har k C o rp o ra tion for L evinson’s neg lige nce is sufficie ntly alleg ed. See Zahl v. Krupa
, 399 I ll. App. 3d 993, 1020 (2010) (“ ‘in the absenc e of specia l circ umstances it is the corpor ation *** who is the principal or employ er, and thus subject to vicar ious liability for torts committed by its employ ees or ag ents ’ ” (quoting Mey ers v. Holley , 537 U.S. 280, 286 (2003)))

. ¶ 68 There is a dear th of I llinois preced ent addre ssing simil ar fac tual circ umstances, as the parties implicitl y rec og nize in citing to authorities in other jurisdictions. The decision by the
appea ls court of Missouri in Dallas Airmotive notwithstanding, the maj o ri t y o f other jurisdictions support the view that this action sounds in ordinary neg lige nce. See In re Cessna 208 Series Aircraft Products Lia b i l i t y Liti gation
, 546 F. Supp. 2d 1153 (D. Kan. 2008) (holding in a suit arising from fata l plane cra sh that the pilot’s family ’s claims that the flig ht training cente r neg lige ntly failed to proper ly instruct pilots of particula r airc raf t on how
to avoid ice acc umulation and that the cente r failed to exercise rea sonable car e in perf orming flig ht training service s wer e cog nizable neg lige nce claims under Texas law an d wer e not prohibited educationa l ma lp rac tice claims). See also De Rienzo v. Morristown Airport Corp.
, 146 A.2d 127 (N.J. 1958) (holding that the evidenc e prese nted a question of fac t for jury as t o whether defe ndant was neg lige nt in an action by a flig ht student with limit ed fl y i n g experience for injuries sustained when he cra shed while taking off on a solo pr actice flig ht with locked controls in a dual trainer airplane owned by the defe ndant, which had undertaken
t o t ea ch student to fly but had failed to instruct student about locked controls); Far i s h v. Canton Flying Servic es, Inc.
, 58 So. 2d 915 (Miss. 1952) (holding in a wrong ful death action

-19-ag ainst an airplane company that the evidenc e prese nted a question for jury as to whether the

airplane company

had fa iled to train and instruct the pilot sufficie ntly). ¶ 69 The Kansa s court in In re Cessna cited to P a ge v. Klein Tools, Inc.
, 610 N.W.2d 900 (2000), wher e the court held that a claim should be char act er i z ed as o ne of educational malprac tice, which is not cog nizable under Michig an law. The In re Cessna court, howeve r, relied on the dissent in Page
, which noted that the plaintiff asser ted a claim for neg lige nce, in that the defe ndant taug ht im p ro p er t echnique s for how to use a particula r piece of equipment fo r cl i m bing utilit y poles, which did not fall within the disfavore d rea lm of educational malprac tice. In re Cessna 208 Series Aircraft Products
, 546 F. Supp. 2d at 1158- 59 (citing Page
, 610 N.W.2d at 909 (Ke lly
, J
., dissenting, joined by Cavana g h, J .)). The In

re Cessna court thus aff

irmed the lower court’s denial of the defe ndant flig ht school’s motion for summary judgme nt, finding that the lower court’s ruling was a rea sonable application of Texas law and was supported by the rea soning of the dissent in Page
, as well as Doe v. Y ale University
, 748 A.2d 834 (2000), which held that the plaintiff’s claim was a viable claim for negl i gen ce , not a nonviable claim for educational malprac tice. In re Cessna 208 Series Aircraft Products , 546 F. Supp. 2d at 1159. ¶ 70 The court in Doe rec og nized that, “at first blush, the distinction betwee n an educ ational malprac tice claim *** and a cog nizable neg lige nce claim arising in the educational context *** may not alway s be cle ar.” Doe , 748 A.2d at 847. Howeve r, as the cour t aptly stated in Doe : “[T] he distinction lies in the duty that is alleg ed to have been brea ched. I f the duty alleg ed to have been brea ched is the duty to educate eff ectively
, the claim is not cog nizable. [C itation.] I f the duty alleg ed to have been brea ched is the common-law duty
not to cause phy sical injury by neg lige nt conduct, such a claim is, of course , cog nizable. That common-law duty does not disappea r when the neg lige nt conduct o cc u rs in an educational setting.” Doe , 748 A.2d at 847. ¶ 71 I do not find Doe distinguishable beca use the injuries did not occur during the course of instruction from a dang er cre ated by the instructor. Such a result im p ro p erly remove s the well-e stablished tort principles of fore seea b i l i t y and proxi mate cause from the neg lige nce analy sis and would allow parties to esca pe the fore seea

ble conseque nces of their neg lige nce. The illust rations to Restatement section 324A make clea r that liability may attach when an undertaking is neg lige ntly perf ormed and injures a third party later, afte r the neg lige nt actor is no longe r prese nt. See Restatement (Second) Torts § 324A illus. (196 5 ). L ev i nson undertook to tr ain Turek how to operate his airplane and the fac t that L evinson was not actua lly in the act of instructing him at the time of the cra sh does not ipso facto mean h i s prior neg lige nt instruction was not a proxi mate cause of the acc ident. Her e, it was rea sonably fore seea ble that neg lige ntly g iving inadequa te instructions incre ased the risk of harm and could lead to a

n acc ident. ¶ 72 De fe n d ants have constructe d a strawman argu m en t i n t h e fo rm o f “e d u ca t i o n al malprac tice” to obviate what is clea rl y a ca se of neg lige nce. Her e, the alleg ations are not simply that L evinson and Har k Corporation failed to educa te eff ectively and committed socalled “educ ational malprac tice.” All fac tual settings involving instruction d o not

-20-automatically fall under the “educ ational malprac tice” rubric. Her e there was no educational

school setting w ith a curr iculum. L evinson and Ha rk Corpora

tion were not a flig ht school. L evinson did not char g e T u re k fo r any flig ht lessons but rathe r undertook to train him
g ratuitously

. The harm alleg ed is not mere failure to provide better education. Rather, the alleg ations are that L evinson’s failure to proper ly train instruct Turek constituted neg lige nce resulting in the death of Michae l Patrick Waugh. Calling it educational does not make it so. What oc curr ed in this case is that L evinson undertook to instruc t T urek and allowed Turek
to fly L evinson’s airplane
, b u t neg lige ntly failed to train him how to proper ly operate that specific airplane
, the Cessna 421B, resulting in the dece dent’s death. I do not bel i ev e the parties here should be able to avoid l iability for their neg lige nce by cre ative a rgument and

rec asting the complaint as stating a claim that was not even pled. The resul t in this case ignor es ordinary neg lige nce principles and sets bad prec edent in allowing owner s and
operators of airc raf

ts to avoid liability for their failure to exercise rea sonable car e in training and/or allowing others to fly their airplane s. The fac t that the neg lige nce in this case occur red

u n d er the g uise of providing instructions or training does not vitiate liability for o rd i n ar y neg lige nce. I

find g enuine issues of materia l fac t exis t and I would reve rse a

nd rema nd for further proce eding s.

-21-