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

KALYN AL

WIN and DEVI

N KOPPIE, ) Appeal from the Co-Administrators o f the Esta te of Mar tin ) Circuit Court of Larry Koppie, Deceased, ) Co ok Co un ty. ) Plaintiffs-Appellees, ) ) v. ) ) THE VILLAGE OF WHEELING, THE CITY OF ) Nos. 97 L 13527, 97 L 13636, PROSPECT HEIGHTS, and PALWAUKEE ) 97 L 13715 & 97 L 13716 MUNICI PAL AI RPORT COMMISSION, ) ) Defend ants-App ellants ) ) (Albert-Culver USA, Inc., A lberto-Culver International, ) Honorable Inc., and Alberto-Culver Company , Defendants and ) Thomas E. Flanagan, Third-Party Plaintiffs-Appe llees; Aon Aviation, Inc., ) Judge Presiding. Third-Party De fendant-Appellee). )

JUSTICE ROBERT E. GORDON d elivere d the opini on of the c ourt: In October 1996 a priva

te jet aircraft crashed while attempting a takeoff from Palwaukee Municipal Airport (Palwaukee). The plane was c onsumed by flames. All four pe rsons on board (two pilots, a flight attendant and one passenger ) were killed. Palwaukee is owned by

defendants Village of Wheeling and City of Prospect Heights and is ma na ge d t hr ou gh de fe nd an t P al wa uk ee Mu ni ci pa l A ir po rt Co mm is si on (c ol le ct iv el y, municipal defendants). The plane was owned by defendant Alberto-Culver USA, I nc., and/or defendant Alberto-Culver I nternational, Inc., and/or de fendant Alberto-Culver Company (Alberto-Culver). One of the pilots, Robert Whitener, was employ ed by Alberto- Culver, and theNo. 1-04-0154

1 The circuit court subsequently ruled in favor of Alberto-Culver on its contribution claims. This ruling was not appealed, and the contribution claims are not before this court for review. 2 other, Martin Larry

Koppie, was employe d by Aon Aviation, I nc. The passenger, Arthur Que rn, was an employe e of Aon Risk Services, Inc., a nd an executive of Aon Corporation. (The flight was intended to transport Quern to Burbank, California.) Aon Aviation had secured the services of the flight attendant, Catherine Anderson. The estates of the four decedents (Koppie , Whitener, Quern and Anderson) brought wrongful death and survival actions in the circuit cour t of Cook County against, inter alia , municipa l defend ants and A

lberto-C ulver. These act

ions were consolida

ted for tr ial. Prior to trial, Alberto-Culver settled with two of the four decedents’ esta tes (Anderson and Quern) on behalf of Alberto-Culver and Aon Aviation, but not municipal defendants. Alber to-Culver subseque ntly filed contribution

claims against Aon A

viation in t

he Anderson and Qu

ern cas es. 1 Also prior

to trial, t he circ uit court g

ranted s ummary judgmen t in favor of municip al defe

ndants on their claim of immunity under the L ocal Governmental and Governmental Employ ees Tort Immunity Act (Act) (745 IL

CS 10/1-101 et seq . (West 2002)). This decision effectively removed municipal defendants from the litigation. The plaintiffs and Alberto-Culver a ppealed under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) . While this appeal was pending, trial began on the claims of the remaining two decedents’ e states (Whitener against Aon Aviation, and Koppie against Alberto-Culver). I n January 2001, the circuit cour t entered judgment on a juryNo. 1-04-0154

3

verdict in favor of the Whitener estate in the amount of $18.9 million. However, the jury was "hopelessly de adlocked" on the Koppie case, and the c ircuit court declared a mistrial. Meanwhile, in December 2000 this court reverse d the circuit court’s previous granting of summary judgme

nt in favor of municipal defendants. Anderson v. Alberto-Culver USA, Inc. , 317 Ill. A pp. 3d 1104

(2000). M

unicipal defenda nts filed a petition f or leave to appea l to the Illinois Supreme Court. On April 4, 2001, the petition was denied. Anderson v. Alberto-Culver USA, Inc. , 194 Ill. 2d 565 (2001). Following this denial, the a ppellate court issued its mandate, and municipal defendants were brought bac k into the litigation. The Koppie estate’s claims against municipal defe ndants and Alberto-Culver were tried before a jury beginn ing in F ebruar

y 20 03. On May

5, 2003, the jury

found in f

avor of t he Koppie

est ate and aga in st mu ni cip al d efe nda nt s an d Al ber to -Cu lv er i n t he a mo unt of $ 11 m il li on. In allocating the relative fault of the parties, the jur y found that municipal defe ndants were 90% at fault, and Alberto-Culver and "Martin L arry K oppie/Aon Aviation, Inc." we re each 5% at fault. On May 6, 2003, the cir

cuit court entered judgment on this verdict. The circ uit court denied municipal defendants’ posttrial motions. Municipal defendants appeal. We affirm the judg ment of the circuit court. BACKGROUND In its opinion in Anderson , this cour t stated the factu

al backg round re gardin

g the cr ash: "On October 30, 1996, a Gulfstream G-I V aircraft, registere d to Alberto-Culver and pilote d by

Martin L arry

Koppie a nd Robert Hampton Whi

tener, c rashed w hile attempti ng its takeoff

from Runway 16/34 at Palwaukee. T wo other peop le, Arthur F.No. 1-04-0154

4

Quern, a passenger, and Cathe rine Anderson, the flight attendant, were a board the airplane at the time of the fatal accident. Af ter the pilots had received clearanc e for takeoff, the airplane bega n to roll down the runway, but star ted to veer to the left side of the runway in the middle of its takeoff roll. According to the National Transporta tion Sa fe ty B oa rd (N TS B) , t he ai rc ra ft ro ll ed on to th e g ra ss of f t o t he le ft si de of

th e r un wa y, traversing a shallow ditch that paralleled the r unway, which r

esulted in the separation from the aircraft of landing g ear, flight control surfaces and othe r airplane components. The ditch was about 21⁄2 feet deep at its deepest point and 20 fe et wide. A 90-foot-wide spray of mud fa

nned out onto the runway pa rallel to where the airplane entere d the ditch. The airplane then slid on its belly a nd became airborne after it enc ountered a small berm at the departure end of the runway . Once airborne, the airplane flew over Hintz Road, contacted the embankment along Wolf Road and skipped over Wolf Road. The a ircraft then slid across a field and stream gully and came to rest on the edge of a n apartment complex parking lot where it was consumed by flames. Examination of the aircraft by NTSB indicated no preexisting anomalies of the engines, flight controls or aircra ft systems. The NTSB c oncluded that the drainage ditch parallelin g Runway 16/34 was a facto r relating to t he accident." Anderson , 317 Ill. App. 3d at 1106-07.No. 1-04-0154

2 Kalyn Alwin and De

vin Koppie are two of the three children of plaintiffs’ de cedent Martin Larry

Koppie.

3 Plaintiffs’ complaint included allegations of neglige nce against Alberto-Culver as well. However, neither those claims nor the circuit court’ s (May 6, 2003) judgment against AlbertoCu lv er ar e b ef

or e u s i n t hi s a pp ea l, wh ic h w as ta ke n b y municipa l defenda nts from the May 6, 2003, judgment against them. 5 In their third amended complaint, plaintiffs Ka lyn Alwin and Devin Koppie, 2 coadministrators of the estate of Martin La rry Koppie, a

lleged negligenc e on the part of municipal defenda nts 3 in that they: (1) " [m]aintained their airport property and r unways in such a c ondition as to pose a dang er to air

craft ta king off on said ru

nways," (2)"[m]aintai

ned ditches, hills, embankments and other uneven surfaces immediately alongside and adjacent to runway 34 so as to pose a hazard and danger to the landing gear and other component parts of a ircraft departing on said runway," and/or (3) "[m]aintained ditches, hills, embankments and other uneven surface s immediately along side and adjacent to runway 34 so as to prevent aircraft from safely returning to the runway surface aft er straying from the cent er line duri ng take-off." In April 1998, prior to the first tria l on the wr

ongful d eath cla ims of the d

eceden ts’ estates, municipal defendants moved for summary judgment. In their motion, municipal defendants noted that the estates claimed, among othe r things, that the crash was caused by "certain facilities *** provided at the airport, such a s *** uneven ground surfaces adja cent to the runway." According to municipal defendants, this claim refe rred to the runway

safety a reaNo. 1-04-0154

6

(RSA) surrounding Palwaukee’s runway 16/34, the runway f

rom which the plane at issue attempted to take off. (It is undisputed that the 20-f oot-wide drainage ditch that the aircr aft traversed after it veered off runway 16/34 wa s within the RSA). Municipal defendants explained that, pursuant to the Federal Aviation Administration’s (FAA) air port design advisory

circular (Advisory Circular

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

that has been prepar ed to red uce the r isk of damage to a

irplane s in the ev ent of an undersho ot, overshoot, or excursion from the runway ." While municipal defendants acknowledged tha t the RSA surrounding runway 16/34 did not comply with the FAA’s airpor t design circular, they argued that summary

judgment nevertheless should be granted in their favor because, under the Act, municipal defendants "are immune from liability for discretionary

decisions regarding the maintenance a nd operatio n of the airpo rt." In their memorandum in support of their motion, municipal defenda nts pointed specific ally

to two prov

isions of the Act, se ctions 2- 109 and 2- 201. The f irst of the se provis ions, section 2-109, states: "A local public entity is not liable for an injury re sulting from an act or omission of its employee where the employee is not liable." 745 IL CS 10/2-109 (West 1998). The second provision, section 2-201, describes one circumstanc e where a public employ ee is not liable: "Except as otherwise provided by Statute, a public employee se rving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his a

ct or omiss ion in dete

rmining policy when acting in th e exerci se of such discretion even though abused." 745 I LCS 10/2-201 (West 1998).No. 1-04-0154

4 In their brief to this court in the case at bar, municipal defendants acknowledg e that "the RSA wa s in th e sam e con ditio n on the date of t

his cr ash a s it wa s in when [mu nicip al de fend

ants] acquired the p roperty." 7 Municipal defendants argued that their dec isions regarding the RSA ( e.g. , the dec ision not to improve the RSA after municipal defendants acquired the a irport in 1986) 4 met the re quireme nts of section 2-201. According to municipal defenda nts, the decisions regarding the RSA were made by employ

ees holding positions involving the determination of policy or the exercise of discretion, and the decisions themselves constituted an exercise of discretion and a de termination of policy. I

n municipal defendants’ view, therefore, be cause the public employees who made the decision s rega

rding the RSA wer

e shielde d from lia

bility by s ection 2- 201, munic ipal def endants themselves were shielded from liability by section 2-109. On May 24, 1999, the cir cuit court granted municipal defendants’ motion for summary judgment, effectively

removing municipal defendants from the litigation. I n its order granting summary judgmen t, the cou rt added , pursuan

t to Supreme Court Rul e 304(a) (155 I ll. 2d R. 304(a)), that there was "no just reason to de lay enfor cement or appeal from this order." The plaintiffs (including the four decedents’ estate s) appealed, as did defendant Alberto-Culver. Anderson , 317 I ll. App. 3d at 1110. A s previou sly

indicate d, this cou

rt reve rsed the circuit court’s order granting summar y judgment in fa

vor of municipal defendants. In reaching

this decision, this court rejected municipal defendants’ arg ument that they were shielded from liability by the Act. While acknowle dging the rationale underly ing the Act’sNo. 1-04-0154

8

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

local governments "to maintain [public] property in a reasonably

safe conditio n." Anderson , 317 Ill. App. 3d at 1111. This court added that this same duty was "restate[d] and codifie[d]" in section 3-102 of the Act. Anderson , 31 7 Ill . Ap p. 3 d at 111 2. In this court’s view, the ultimate issue in the case before it was "[t]he duty of the municipal defendants to maintain a public airport in a reasonably safe condition, or the absence of such duty, *** not whether to make improve mentsto the RSA." (Emphases added.) Anderson , 317 Ill. A pp. 3d at 1 114. As thi s court no ted else where in its opinion, "[t]o mainta

in proper ty is consider ed a minist

erial ac t [ i.e. , nondiscretionary]; to improve proper ty falls under the discretion ary decision of the gover nment enti ty." Anderson , 317 Ill. App. 3d at 1112. I n stating the issue as whether municipal defendants had a duty to maintain the airport in a reasonably safe condition, this court indicated that section 2-201, which provided immunity f or discretio nary acts, did not apply. Municipal defe ndants were not shielded from liability by the Act. This court answered the duty question in the affirmative, concluding that municipal defendants had a duty

to maintain the RSA in a reasonably sa fe condition. Looking to the remand, Anderson stated: "In the prese nt case, plaintiffs may

very we ll succeed in demonstrating that municipal defendants failed to use ordinary care in maintaining the RSA in a reasonably safe conditio n." Anderson , 317 Ill. App. 3d at 1117. Anderson reversed the order of the circ uit court, holding that: "summary judgment may not be entered where there is a mate rial fact question of whether public property was maintained in conformity with applicable sa fety standar

ds; the cause must be reversed and remande d for trialNo. 1-04-0154

9

for this det erminatio n." Anderson , 317 Ill. App. 3d at 1117. Municipal defendants filed a petition for rehearing. I

n denying the petition, this court entered an order stating, in pertinent part: "[I]n the instant case, municipal defenda nts’ contention that they had discr etionary immunity is misplac ed beca

use the ' discreti on’ they

refer to involve s the discretion to make improvements to Palwaukee. The ultimate issue in this case is whether municipal defendants breached their duty to maintain a public airport in a reasonably safe condition, not wheth er to mak

e improve ments to the

RSA. Accordingly

, municipa

l defend ants’ discretionary immunity

should not shield them from liability for improper maintenanc e for the RSA s. A fac tfinder should dec ide whether munic ipal def endants breache d their duty." Anderson v. Alberto-Culver USA, Inc. , Nos. 1-99-2166, 1-99-2256, 1-99-2387 cons. (January 10, 2001). Municipal defendants petitioned for leave to appeal to the I llinois Supreme Court. On April 4, 2001, the petition was denied. Anderson v. Alberto-Culver USA, Inc. , 194 Ill. 2d 565 (2001). F ollowing

this denia

l, the app ellate c ourt issue d its manda te, and mu

nicipal d efenda nts were brought back into the litigation. In the meantime, during the two-year period (May 1999 to Apr il 2001) when municipal defendants were not in the litigation, the claims of the estates of Koppie (against Alberto-Culver) and Whitener (ag ainst Aon A viation) were trie d before a jury . As previously

indicate d, in January 2001, the circuit cour t entered judgment on a verdict in favor of the Whitener estate, but declared a mistrial in the Koppie case. Subsequently , after municipal defendants were broug htNo. 1-04-0154

5 Alberto-Culver’s contribution claims against Aon Aviation in the Anderson and Que rn cases also were tried before this same jur y.

10 back into the litigation, the Koppie estate’s claims against municipal defendants and AlbertoCu lv er we re tr ie d b ef

or e a ju ry. 5 This second trial of the Koppie estate’s claims bega n in February

2003, and the verdict was entered in May

2003. A central issue in this trial was whether municipal defendants wer e negligent in maintaining the runway safety a rea along the west side of runway 16/34, and whether this negligence wa s a proximate cause of Martin Lar ry Koppie’s de ath. Accord ing to the testimony

at trial, municipa

l defend ants acq uired Pal waukee from its previous , private

owners in

1986. The

majority of the pur

chase money

came fr om feder al funds, and the remainder was advanced by the State of Illinois. Municipal defendants ag reed to own and operate the airport using funds g enerated from that ownership and opera tion (such as fees for rental o f hang ar spac e). As pa rt of this p

urchase , the FAA

require d municipa

l defend ants to agree to certain assura

nces. One of these assurances stated: "[Municip al defe

ndants] wil l suitably

operate and maint

ain the a irport an d all facilities thereon or connected therewith with due r egard to climatic, flood conditions. The airport and all facilities which are nec essary to ser ve the aeronautical users of the airport other than facilities owned or controlled by [the] United States shall be operated at all times at a safe and serviceable condition and in ac cordance with the minimumNo. 1-04-0154

11

standards as may

be required or proscribed by the applicable federal, state and local agencies for the maintenance and operation. [Municipal defendants] will not cause or permit any activity or action thereon whic h would interfere with this use for airport purposes." At the time of the purchase of Palwaukee, the RSA to the west of runway 16/34 contained a drainage ditch or depression that wa s about 2 feet deep and 20 feet wide. This ditch was situated about 20 feet from the western edg e of the runway surface and ran the entire leng th of the runway. T

his drainage ditch was in essentially the same condition on October 30, 1996, the date of the accident in this case, as it was in 1986 when municipal def endants acquired Palwaukee. The testimony at trial also ref erred to FAA airport design a dvisory circular

No. 150/5300- 13, which includes, among other things, a definition of an RSA and c ertain design standards for RSAs. These portions of the advisory c ircular were read aloud by witnesses for plaintiffs as part of their testimony. Accor ding to the advisory

circular, an RSA is "[a] defined surface surrounding a runway

prepared or suitable for reducing the risk of damage to airplanes in the event of an undershoot, overshoot or excursion from the runway ." Under "Design Standar ds," the advis ory

circula r states, in pertine

nt part, that an RSA sh

all be (1 ) "Clea

red and g raded to have no potentially hazardous r uts, humps, depressions or other surface variations," (2) "Drained by gr ading or storm sewers to prevent water accumulation," (3) "Capable under dry conditions of supporting snow removal equipment, aircraft re scue and firefighting equipment, a nd the occasional passage of airc raft without causing structural damag e to the aircraft," and (4) " Free ofNo. 1-04-0154

12

objects, except for object s that nee d to be loc ated in th e runwa y sa fety area be cause of

their function. " On cross-examination, municipal defendants elicited testimony indicating that, upon completion of the pu

rchase of Palwa ukee in 19 86, the ai

rport wa s not requ

ired to c omply im me di at el y wi th al l o f t he ad vi so ry c ir cu la r’ s r eq ui re me nt s. Ac co rd in g t o t hi s t es ti mo ny, compliance with a particular requirement wa s triggered when municipal def endants received federal funds to address the area in question. Other testimony at trial indicated tha t it was very windy

on the day of the a

ccident and that high winds were a factor in the plane ’s veering from the runway centerline. It also was established at trial that less than three seconds elapsed from the time the plane veered from the centerline until the time it left the runway and went into the RSA. Once the plane left the runway surfac e, and du

ring its " excursion " on the R SA, the pla ne lost se veral pa rts, inclu ding both landing gear and ce

rtain control parts of the aircraft. Municipal defendants took the position at trial that the accident was caused by pilot error. According to testimony

presented by

municipal defendants in support of this position, there were a number of actions the pilots could have taken to prevent the plane f rom entering the RSA, including apply ing the p lane’s brakes a

nd rudde r. This te stimony

also indic ated tha

t, if the pi lots were still unable to prevent the plane from veering off the runway , they should have abor ted the flight. At the clo se of pla intiffs’ case, mu

nicipal d efenda nts moved f

or a dire cted ver

dict. I n this motion, municipal defendants argued, among other things, that removal of the drainage ditchNo. 1-04-0154

13

from the R SA would ha

ve been an improv ement, r

ather than mainte

nance. Municipa

l defend ants asserted that they

had made no attempt to remove the drainage ditch, and they ar

gued that, under the Act, they we

re shielded from liability for failure to make improvements. Municipal defendants argued, in addition, that plaintiffs had failed to e stablish that any breac h of duty by municipal defendants proximately ca used the crash. According to municipal defe ndants, it was pilot error that proximately caused the death of Martin Larr

y Koppie. The c ircuit court denied the motion for directed verdict. After a ll the evid

ence ha d been pr esented , the tria

l judge i nstructe d the jury . These instructions noted, among other things, "a cer tain statute [section 3-102 of the Act] which provided that: A loc al public

entity has the du

ty to exercise ordinar y c are to ma

intain its property in a reasonably

safe condition." The instructions also noted "a cer tain regulation" which provided t hat "[d]ra inage ditches m ay not be located wit hin a Runway Safety Area." On May 5, 2003, the jury

found in f

avor of p laintiff

s (the Kop

pie esta te) and a gainst municipal defendants and Alberto-Culver in the amount of $11 million. I n allocating the relative fault of the parties, the jury found that municipal defendants were 90% at fault, and AlbertoCulver an d "Mart in La rry Koppie/A on Aviation, Inc." we re eac h 5% at fa

ult. The ju

ry also addressed this special interrogatory : "Was something or the negligent conduc t of someone else, other than [municipal defendants], the sole proximate cause of this aircraft accide nt?" The jury answered this interrogatory in the negative. On May 6, 2003, the circuit court entered judgment on the jury’s ver

dict.No. 1-04-0154

14

Municipal defendants filed posttrial motions for judgment notwithstanding the verdict (judgme nt n.o.v. ) and for a new trial. Municipal defendants also re newed their motion for a directe d verdict. In t

heir motion for judg

ment n.o.v. , municipa

l defend ants cont ended, a s they

did in their motion for directed verdict, that they were entitled to tort immunity under the Ac t, and that it wa s pilot err

or, rather than m

unicipal defenda nts’ acti ons or omis sions, whic h proximate ly caused the crash. I

n their argument before the circ uit court regarding the motion for judg ment

n.o.v. , municipal defendants addressed the contention that this court’s rejec tion of municipal defendants’ tort immunity defe nse in Anderson constituted the law of the case, and that municipal defendants therefore were barred from raising this same defense in the case at bar. Municipa l defend ants disa greed with this c ontention , argu ing that Anderson was a summary judgment case and that, in the period since the dec ision in Anderson , a more detailed factual record had been developed. In their posttrial motion for a new trial, municipal def endants pointed to a number of alleged errors relating

to the submission of evidence, argument of counsel, and jury instructions. According to municipal defendants, these alleged errors warranted a ne w trial. The circ uit court d

enied mun

icipal de fendant s’ posttri al motions. Municipa l defend ants timely filed a notice of a

ppeal. Also on Ma

y 6, 2003, the

day that judg ment was e

ntered on the Kopp ie estate ’s claims , the same jury that re

ndered the verdict in the Koppie case consider ed Alberto-Culver’s contribution claims against Aon Aviation in the Anderson and Quern ca ses. Neither Alberto-No. 1-04-0154

15

Culver nor Aon Avia

tion pres ented an

y ne w evidence in add

ition to wha

t had bee n presen ted in the trial on the Koppie estate’s claims. For purposes of Alber to-Culver’s contribution claims, the jury found that Alberto- Culver was 6% at fault, Aon Aviation was 4% at fault, and municipal defenda nts, aga in, were 90% at fa

ult. The c ircuit co

urt ente red judg ment on this

verdict . In it s order, the circuit court noted that "[n]o judgment has been ente red against the [municipal defendants] in the contribution cases because no claim for contr ibution was brought against the [municipal defendants] in the contribution cases." As previously indicated, the contribution cases are not before this court in the instant appea l. ANA LYSIS Municipal defendants argue on appe al that the circuit court erred in deny ing their motions for dire cted ver

dict and f or judgment n.o.v . In s

upport of this position, municip al defe ndants contend, as they did be low, that the removal of the drainage ditch fr om the RSA would have constitute d an improvement r ather th an mainte

nance, and ther

efore a ny f ailure on their pa

rt to remove t he ditch would fall w

ithin the sc ope and protection of the A ct. Munic ipal def endants argue that (1) they

had no duty "c ognizable in tort to the plaintiff to change and improve the ar ea in question," and

(2) "if any duty is found to

exist, [munic ipal def

endants] p ossess immu

nity [under th e Act] with respect to any tort cl aim for breach o f that duty." Municipal defendants offer an additional arg ument in support of their view that it was

error to deny their moti ons for di

rected verdict and for j udgmen

t n.o.v . According to municipal defendants, plaintiffs failed to establish that the uneven surface of the RSA adjoining runwayNo. 1-04-0154

16

16/34 was a proximate cause of Martin La rry Koppie’ s death. Municipal defendants contend, as they did below, that it was pilot error , and not the condition of the RSA’s terrain, that caused the death of plaintiffs’ decedent. Plaintiffs argue, on the contrary , that the issues of tort immunity and duty are foreclosed by the doctrine of

"law of the case." Unde

r this doctrine, "where an issue has been litig ated and decided , a court ’s unrev ersed de cision on t hat quest ion of law

or fact settles that question 'for a ll subsequent stages of the s uit.’" Pekin Insurance Co. v. Pulte Home Corp. , 344 Ill. App. 3d 64, 69 (2003 ), quo ting Norton v. City of Chicago , 293 Ill. App. 3d 620, 624 (1997). Plaintiffs note that in Anderson , this cour

t’s first o pinion in th

is case, "this Cour

t found tha

t municipa

l defend ants did owe plaintiffs a duty a nd that they were

not immune from liability." (Emphasis in origina l.) In plaintiffs’ view, these two issues have already been decided and may

not be relitigated in the instant appeal. Plaintiffs also disagree with municipal defendants reg arding the issue of proximate cause. Accord ing to pla intiffs, t he evide nce pre sented a

t trial wa s suffici ent to esta blish that t

he terr ain of the RSA was a proximate cause of the crash. Plaintiffs add that municipal defe ndants have failed to meet the "very

difficult standard" for obtaining a judg ment notwithstanding the verdict. Motions for Directed Verd ict and Judg

ment n.o.v. Plaintiffs correctly note

that the standard for obtaining a judgment notwithstanding the verdict is very dif

ficult to meet. In Knauerhaze v. Nelson , 361 Ill. App. 3d 538 (2005), this court

restate d that stan

dard:No. 1-04-0154

17

"A judg ment notwi

thstandin g the ve rdict pre sents a qu

estion of law that a

ppellate courts review de novo . [Citation.] A trial court should enter judgment notwithstanding the verdict only when all t

he evide nce, vie wed in a li ght most f

avorabl e to the nonmovant, s o overwhelmingly

favors the movant that no contrary verdict could stand based on the evidence. [Citations.] Our supreme court further described the standar d in Maple v. Gustafson , 151 Ill. 2d 445, 452-53, 603 N.E.2d 508, 512 (1992): 'A tria l court c annot re

weigh t he evide nce and set aside a verdict merely

because the jury could have

drawn different inference s or conclusions, or because the court feels tha t other re sults are

more re asonable . [Citations. ] Likew ise, the a ppellate court should not usurp the function of the jury and substitute its judgment on questions of fact fairly

submitted, tried, and determined from the evidence which did not greatly

preponderate either way .’ Maple , 151 Ill. 2d at 452-53, 603 N.E.2d at 512. Thus, the standard for obtaining a judgment notwithstanding the verdict is a ' "very diff icult stand ard t o meet," ’ and [i s] limited to ' "e xtrem e situ

ation s only ." ’ [ Citat

ions. ]" Knauerhaz

e , 361 Ill. App. 3d at 547-48. A trial court’s denial of a motion for directed verdict a lso is reviewed de novo

. Moss v. Am ira , 356 Ill. App. 3d 701, 705 (2005).No. 1-04-0154

18 1. La w of the Ca se As noted, the law of the case doctrine provides that " where an issue has been litigated and decided , a court ’s unrev ersed de cision on t hat quest ion of law

or fact settles that question 'for a ll subsequent stages of the s uit.’" Pekin Insurance Co. , 344 Ill . App. 3d at 6 9, quo ting Norton , 293 Ill. App. 3d at 624. "The purpose of the doctrine is to protect settled expectations of the pa rties, ensure uniformity of decisions, maintain consistency during the course of a single c ase, effectuate proper administration of justice, and bring litigation to an end. [Citation.] An additional concern addressed by the law of the case doctrine is the maintenance of the prestige of the courts, for the rea son that if an appellate court issues contrary opinions on the same iss ue in the sam e case, its pr estige is und ercut." Emerson Electric Co. v. Aetna Casualty & Surety Co. , 352 Ill. App. 3d 399, 417 (2004). There a re two exc eptions to

this doctr

ine. The first app lies when

a highe r revie wing co urt, subsequent to the lower reviewing court’s dec ision, issues a contrary r uling on the same issue. "The se cond exce

ption allow s the reviewing court to d

epart f rom the do ctrine o f law of t he case if the court finds that its prior decision was palpably erroneous, but only whe

n the court remanded the ca se for a new tri al on all is sues." Martin v. Federal L ife Insura nce Co. ( Mutual) , 268 Ill. App. 3d 698, 701 (1994). In Anderson , as prev

iously indicate d, this cou

rt found t hat munic ipal def

endants did

owe pl ain ti ffs a du ty of

car e an d t hat mu ni cip al d efe nda nt s we re n ot im mu ne f rom li abi li ty. InNo. 1-04-0154

19

addressing the immunity que stion, this court rejected municipal defendants’ claim that they had discretionary immunity

under the Act. In its order de nying municipal de fendants’ petition for rehear ing, this court sta ted: "The ult imate issue in this ca se is whet her munic ipal def

endants breache d their du ty to maintain a public airport in a reasonably safe condition, not whether to make improveme

nts to the RSA . Accor

dingly , municipa

l defend ants’ disc retiona ry immunity should not shield them from liability for improper maintenanc e for [ sic ] the RSAs. A factfinder sh ould decide whether muni cipal defendan ts’ breached t heir duty." Anderson v. Alberto-Culver USA, Inc. , Nos. 1-99-2166, 1-99-2256, 1-99-2387 cons. (January 10, 2001). In this passage fr

om the order deny

ing the petition for rehearing, this court a lso states that municipal defendants owed a duty of care to plaintiffs. According to this court, municipal defenda nts had a d

uty to maintai

n their pu blic airp ort in a re asonably safe condition. Th

is statement of duty trac

ks the language of section 3-102 of the Act, which provides, in pertinent part: "E xcept as ot

herwise provided in this Arti cle, a lo cal publi c entity has the du

ty to exercise ordinary c are to maintain its property in a reasonably

safe condition." 745 IL

CS 10/3-102(a) (West 1998). Having concluded that municipal defendants owe d a duty to plaintiffs, and that municipal defendants were not immune from liability , this court reversed the circuit court’s previous orde r of summary judg

ment in favor of municipal defendants and remanded the cause for trial on theNo. 1-04-0154

20

question o f whethe

r plaintif fs could d emonstra te "tha t municipa

l defend ants fail ed to use ordinary care in maint aining the RS A in a reasonab ly safe condition. " Anderson , 317 Ill. App. 3d at 1117. Notwithstanding the foregoing, municipal def endants argue that the doctrine of law of the case doe s not apply

here. T hey note that Anderson was a summary judg ment case and that, since the decision in Anderson was issued, the Koppie estate’s case has g one to trial, resulting in the development of a more detailed factual re cord than was available to this court in Anderson

. Municipal defendants appear to arg ue that because Anderson was a summary judg ment case and because there is now a more detailed fa ctual record available, the Anderson court’s previous decisions regarding duty

and immunity should be relitigated. Municipa l defendants point to a passag e from Anderson which, in municipa l defend ants’ vie w, suppor ts this arg ument. I n this passage, which municipal defendants quote in par t but which we set forth more fully , this court stated: "Municipal defendants argue that to maintain the RSA safely would require an improvement and cost an inordinate amount of money , which they lac ked, and that the decision not to take measures to eliminate the hazards of the RSA involved numerous complex factors. The record contains no estimate of the cost to ameliora te hazardous conditions, such as the drainage ditches located to the we st of the runway in whic h evidence supports the thesis that the plane lost its landing gear as a result of traversing theNo. 1-04-0154

21

ditch. Nor ar e complex factors iden tified in t he record." Anderson , 317 Ill. App. 3d at 1116. We find mun

icipal de fendant s’ arg

ument unpe

rsuasive . This cou

rt did note , in this passage, that the record bef ore it contained no estimate of the costs to ameliorate hazardous conditions such as the drainage ditch in the RSA. Moreover, the re cord before us in the case at bar does include m

unicipal defenda nts’ estimates of s

uch costs , which, a

ccordin g to thes e estimate s, run into

the million s of dolla

rs. Howe ver, this same re cord inc ludes testimony (which the jury was free to credit) sugg esting that the costs, at least with regard to the drainage ditch, might be much lower. We note, in a ddition, that municipal defendants cite to no authority for the pr

oposition that the law of the case doctrine does not apply where the previous decision dealt wit h summary

judgmen t. There are only two excep tions to the

law of the

case doctrine. The first, as noted, applies "when a hig her reviewing court, subsequent to the lower reviewing court ’s decision , [renders] a contrary ruling on th e same issue. " Martin , 268 Ill. App. 3d at 701. This exception does not apply in the case at bar. Municipal defendants’ petition for leave to appeal the Anderson decision to our supreme court was denied. The sec ond excep tion, whic h applies where the earlie

r decisio n is found t

o be "pa lpably erroneous" ( Martin , 268 Ill. App. 3d at 701), forms the basis of municipal defe ndants’ alternative argument on the law of the case issue. Municipa l defendants urge us to apply this second exception by finding that the Anderson decision was "pa lpably errone ous." We d

ecline to apply this exception, for two reasons. First, we do not believe that the decision in Anderson wasNo. 1-04-0154

22

"palpably erroneous." Second, even if we did, this exception to the law of the c ase doctrine would not apply. The re ason is that the "palpably erroneous" exception is applicable only when the previou s decision "remanded the cas e for a new trial on all iss ues." Martin , 268 Ill. App. 3d at 701. Here, Anderson did not remand the case for a trial on all of the issu es. I nstead, t he case was remanded to determine whether municipal def endants breached their duty to maintain the RSA in a reasonably sa

fe condition. Anderson did not remand for a determination as to whether municipal defendants owed a duty or whether they

were immune from liability. The se issues had already been decided. In sum, we conclude that the de cisions in Anderson finding that munic ipal def

endants owed a du

ty o f care to plaintif

fs and tha t municipa

l defend ants wer e not immune

from liab ility constitute the law of

this case regar ding the se issues . As such, these de cisions a re bindin g on this

court. Emerson Electric Co. , 352 I ll. App. 3d at 417. With

regar d to these two issues , immunity and duty, the circ

uit court did not err in denying municipal defendants’ motions for directed verdict and judg ment n.o.v. 2. Proximate Cause Municipal defendants next argue that plaintiffs failed to establish a proximate causa l connection between the condition of the RSA west of runway 16/34 and the crash resulting in the death of plaintiffs’ decedent. According to municipal defendants, it was not the condition of the RSA terrain that proximately caused this ac cident. Rather, in municipal defendants’ view, it was the "active neglige

nce" of the pilots that was the proximate cause of the cra sh. MunicipalNo. 1-04-0154

23

defendants contend that, for this reason, the trial court er red in denying

their motions for directed verdict and judg ment n.o.v. "A trial court should enter judgment notwithstanding the ver dict only when all the evidence, viewed in a light most favorable to the nonmovant, so ove rwhelmingly f

avors the movant th at no contrary verdict could stan d based on th e evidence." Knauerhaz e , 361 Ill. App. 3d at 547. The same principle applies to directed verdicts. Pedrick v. Peoria & Eastern R.R. Co. , 37 Ill. 2d 494, 510 (1967). In the case at ba

r, there was evidence to support municipal defenda nts’ contention that pilot error might have led to the crash. Municipal defe ndants presented testimony indica ting that the pilots might have been able to prevent the aircr aft from veering into the RSA by applying the rudder or the brakes, among other things. Municipal defendants also presented testimony indicating that the pilots might have been able to prevent the a ccident if they ha

d aborted the flight. Howeve

r, there was also e

vidence that hig h winds we

re a fa ctor in c ausing t

he aircraft to veer from the runway

centerline, that less than three seconds elapsed f rom the time the plane veered from the centerline until it went off the runwa y surfac e into the RSA, and that the plane struck the drainage ditch within one second af ter leaving the paved runway . In addition, there was evid ence tha t the plane suffe

red cons iderabl e damag e as it tra versed t he RSA, an

d that it probably was unf

lyable by the time it launched into the air after striking the berm. Viewing this evidence in a light most favorable to plaintiffs, we cannot conclude that the evidence so overwhelmingly favored municipal defendants that no verdict ag ainst municipalNo. 1-04-0154

24

defenda nts could e

ver stan d. Our conclusion i

n this reg ard is bol stered by the jury ’s answe r to the special interrogatory . The jury wa s asked this question: "Was something or the negligent conduct o f someone

else, other than [mu

nicipal d efenda nts], the sol e proximate

cause of this aircraft accident?" The jury answered this question in the negative. With regard to the issue of proximate cause, the circuit court did not err in de nying municipa l defend ants’ moti ons for di

rected verdict and judg ment n.o.v. Request for a New Trial Municipa l defend ants next a

rgue that, for a

variety of reas ons, the c ircuit co urt erre d in refusin g to gr ant munic ipal def

endants a new tria l. When pre sented with a motion for a ne w trial, a circuit court will weigh the evidence a nd set aside the verdict and order a new tria l if the verdict is contrary to the manif

est weight of the evidence. Maple v. Gustafson , 151 Ill. 2d 445, 454 (1992); McClure v. Owens Corning Fiberglas Corp. , 188 I ll. 2d 102, 1 32 (1999) . A verdi ct is against the manifest weight of the evide nce where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based upon any

of the evidence. McClure , 188 I ll. 2d at 13 2. "A re viewing court wil l not reve

rse a ci rcuit co urt’s de cision wit

h respect to a m otion for a n ew trial unl ess it find s that the ci rcuit court abused its discretion ." McClure , 188 I ll. 2d at 13 2-33. "A n abuse o f discre

tion occu rs when the judge ’s ruling is arbitrary, fanciful, or unreasonab le, or when no reasonable per son would t ake the same vi ew." Barton v. Chicago & North W estern Transportation Co. , 325 Ill. App. 3d 1005, 1026 (2001). 1. Alloca tion of Fa ultNo. 1-04-0154

25

Municipal defendants argue that the jury ’s allocation of fault in this case is against the manifest weight of the evidence, and f or this reason the circuit court should have gra nted the motion for

a new tri al. I

n its verd ict on the Koppie e state’s c laims ag ainst munic ipal def endants and Alberto-Culver, the jury found that municipal defendants were 90% at fault, Alber to-Culver was 5% at fault, and "Martin L arry K oppie/Aon Aviation, Inc." wa s 5% at fault. Municipal defendants contend that it was against the manifest we ight of the evidence for the jury to find them 90% at fault, compared with only 5% for each of the pilots. In support of this view, municipal defendants point to the jury ’s verdict in the contribution cases. In those case s, the jury found in favor of Alberto-Culver on its contribution claims against Aon Aviation. In its verdic t, the jury allocated 90%

of the fault to municipal defendants, 6% to Alberto-Culver and 4% to Aon Aviation. Municipal defe ndants note the differe nce in the allocati on of fau

lt rega rding Alberto-C

ulver an d Aon Avia

tion. I n the ver dict in the Koppie estate’s claims, the fault was allocated equa lly between Aon A

viation and AlbertoCulver (5% each), while in the verdict on the contribution claims, the re lative fault was altered (6% for Alberto-Culver versus 4% for Aon Avia tion). Municipal defendants appear to arg ue that this difference in allocation from one verdict to the next undermines the cr edibility of all of the allocati ons in both v erdicts. We reject this conte ntion. First, municip al defe ndants we

re not a party to the contribution ca ses, which were between Alberto-Culver a nd Aon Aviation. The circuit c ourt’s jud

gment in the contr ibution ca ses was not appea led, and t he jury ’s alloca

tions in these cases have no bearing on the instant appeal. Second, regardless of a ny variations in theNo. 1-04-0154

26

allocati on betwe en the two pilots from one ver

dict to the next, each verdict allocat ed the sa me fault, 90%, to municipal defendants. With regard to municipal defenda nts, there was no inconsistency from one

verdict’s allocation to the next. We find unpersuasive municipal defendants’ arg ument that the jury’s alloca tion of 90% fault to them was against the manifest weight of the evidence. "A verdict may not be set aside [by a reviewing

court] merely bec ause the jury c ould have determined the credibility of the witnesse s differ

ently or draw n differ ent infe rences of fact , and whe

re cre dible evi dence su

pports the verdict, the court may not say that the conclusions other tha n the ones drawn by

the jury are more reasonabl e." Didier v. Jones , 61 Ill. App. 3d 22, 27 (1978). I n our view, the jury’ s allocation of fault in the case at bar was supported by credible evidence. This allocation was not against the manif

est weig ht of the e

vidence . The tria

l court did

not abuse

its discre tion in rejecting municipal defendants’ claim that they were entitled to a new trial on this ground. 2. Carl Lee Remmel Municipa l defend ants cont end that t he trial c ourt err

ed in gr anting p laintiff

s’ motion in limine barring the questioning of Carl L ee Remmel, one of plaintiffs’ experts, about conditions at any other a

irport managed by

Remmel. Municipal defendants note that Remmel was the director of DeKa lb Peacht ree Air port in Atl anta. Ac cording to municipa

l defend ants, the re was a detention pond in the RSA at DeKalb Peachtree Airport, and DeK alb Peachtree therefore wa s not in compliance with the same federal rules that Remmel testified wer e violated by Palwauke e. Municipal defendants argue that they were prejudiced by

their inability to cross-examineNo. 1-04-0154

27

Remmel about his conduct at his airport. Municipal defendants contend that the trial court er red in refusing to grant them a new trial on this g round. "Admission of evidence is a matter within the discretion of the trial court a nd evidentiary rulings wil l not be revers ed absent an ab use of discret ion." Israel v. National Canada Corp. , 276 Ill . A pp . 3 d 4 54 , 4 63 (1 99 5) . " An ab us e o f d is cr et io n o cc ur s w he n t he ju dg e’ s r ul in g i s a rb it ra ry, fanciful, or unreasonabl e, or when no reas onable perso n would tak e the same vie w." Barton , 325 Ill. App. 3d at 1026. In the case at ba

r, the issue was whether municipal defendants failed to e xercise ordinary care in maintaining the RSA at Palwaukee in a rea sonably safe c ondition. Testimony about condition s at DeKa

lb Peacht ree Air port wer e irrele vant to wh ether Pa

lwaukee was maint

ained in a reasonably

safe condition. See Swaw v. Klompien , 168 Ill. App. 3d 705, 718 (1988) ("An expert’s statement as to what he would have done in the situation encountered by the defendant doctors is irrelevant since the issue at trial is whether the defe ndant acted contrary

to the standard of care"). The circ

uit court did not abuse its discretion in granting the motion in limine barring the questioning of Remmel about conditions at other airports he manag ed. The trial court

correctly r

ejecte d municipa

l defend ants’ contention that they should be g

ranted a new tria l on this ground. 3. Eviden ce of Pri or Accid

entsNo. 1-04-0154

28

Municipal defendants argue that the trial cour t erred in allowing evidence of prior dissimilar accidents in the area west of runway 16/34. According to municipal defendants, they were prejudiced by

the admission of this evidence, and a new trial therefore is warranted. At trial, the court allowed counsel for Alberto-Culver to introduce e vidence about a 1987 incident at Palwaukee in which a plane, while landing on r unway 16/34, depa

rted from the hard surface of the runway

and went into the drainage ditch area alongside the runway . The plane flipped o ver on its

back. Mu

nicipal d efenda nts arg ue that th is inciden t and anot her acc ident in 1990 (als o introduc ed by

counsel f or Alber to-Culver ) were n ot similar t

o the acc ident in the

case at bar, and these two incidents (1987 and 1990) should not have been introduc ed. Where evidence of prior accidents is offe red to show the existence of a particular dang er or hazard, a foundation must be laid establishing the similarity between the prior accidents and the present accident. Henderson v. Illinois Central Gulf R.R. Co. , 114 Ill. App. 3d 754, 758 (1983). However, if the evidence of pr ior accidents is being offered only to show that the defenda nt had noti ce of the

gener ally hazardou s nature

of the ac cident sit

e, then the proponent is not required to establish a foundation showing the similarity between the prior accidents and the present occurrence. Henderson , 114 I ll. App. 3d at 758. " Evidenc e of dissim ilar prior accid

ents is relevant to the iss ue of whether t he defendant k new the acciden t site was gener ally hazardous." Henderson , 114 Ill. App. 3d at 758. In the case at ba

r, it was this latter purpose that was the reason for the introduction of the prior accident evidence, which ca me in during Alberto-Culver’s questioning of Fr ed Stewart, theNo. 1-04-0154

29

director of Palwaukee at the time of the 1996 cra sh. Shortly before introducing evidence of the 1987 incident, counsel for Alberto-Culver asked Stewart this question: "Now, y ou did have other airplanes go off the runway into that same ditch that our plane went into, didn’t you, ove r the years?" Be cause the evidence of the 1987 incident, as we ll as the 1990 accident, was introduced to show mun

icipal de fendant s’ prior n otice of the generally

dange rous cond ition of the

RSA, it

was unne cessar

y to establish a founda tion showin

g the sim ilarity betwee n these pr ior incide nts and the 1996 crash. It wa s within the discretion of the trial court whether to admit this evidence. In our view, it was not an abuse of discretion to allow it here. Municipal defendants’ arg ument that a new trial was warranted on this gr ound is not persuasive. 4. William Perry Municipal defendants next argue that the trial court err ed in allowing testimony by William Perry, one of plaintiffs’ experts, about the potential explosion of the aircr aft after it left the runway. Per

ry, an experienc ed pilot with nearly 15,000 hours fly ing jet aircraft, testified on behalf o f plaintif

fs by evidenc e deposit

ion. On dir

ect examination, Per

ry opined tha

t the pilots

in the case at bar made the corre ct choice in deciding not to attempt to abort the flight once the plane had left the surface of runwa y 16/34. Perry

noted the presence of the drainag e ditch off the west edge of runway

16/34, and asserted: "[A]borting an airplane off the ha rd surface into a ditch is a 100 pe

rcent f atality ." Perr

y explained th e basis f

or his vie w: "Because when the a

irplane would have departed the surfac e, it would have proceeded headlong, nose first into the ditch because of the forward pressure I’mNo. 1-04-0154

30

speaking of here . The re st of the p lane wou ld have f ollowed r ight beh ind it. And t

he best term I could come up with is the acc ordion effect. The airplane would cer tainly have exploded ." Municipal defendants argue that Perry lacked sufficient qualifications to render this opinion. Municipa l defend ants cont end that t hey were pr ejudice d as a re sult, and a new tria l theref ore is warranted. The admission of testimony, including expert testimony , is within the sound discretion of the trial court. In the case at bar, Perry

was an experienced pilot with more than 3,000 hours of flight ti me in the G

ulfstrea m IV, the ty

pe of pla ne at issue here. In ou

r view, it was not a

n abuse of dis cret ion for the

tria l cou rt to a llow P erry

to re nder the o pinion test

imony in que stion . We note, in addition, that municipal defendants conducted extensive cross-examination of Perry

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

ree, (2) he did not perform any accident reconstruction in this case, and (3) he did not conduct a separate analy sis with regard to the passage of the aircraft through the RSA. Given the extent and thoroughness of municipal defendants’ cr oss-examination, we find municipal defendants’ contention that they were prejudiced by

Perry’s testimony

unpersuasive. The circ uit court c orrect

ly r ejecte d municipa

l defend ants’ cla im that the

y w ere ent

itled to a new trial on this ground. 5. Willful and Wanton ChargesNo. 1-04-0154

31

Municipal defendants contend that the trial court erred in de nying their motion for a di rec ted ver di ct r ega rdi ng p lai nt iff s’ w il lfu l an d wa nt on c oun ts aga in st th em. Co unt s III an d IV of plaintiffs’ third amended complaint alleged ca uses of action for willful and wanton misconduct against municipal defendants (in addition to the ordinary negligence claims included in counts I and II). The trial court denie d municipal defendants’ motion for directed verdict on this issue and instructed the jury on the willful and wa nton counts. However, the jury did not return a verdict against municipal defe ndants on these claims. Municipal defendants argue, nevertheless, that they

were prejudiced by

the trial court’s permitting these issues to be submitted to the jury. Municipal defendants themselves acknowledge that "normally a

reviewing court will not find p reju dice wher e an e rror rela te[s] t o a co unt on which the

jury did no t ret

urn a verd ict." We agree and find t

hat munic ipal def

endants’ argume

nt that the y w ere pre

judiced i n this insta

nce is not persuasive. 6. Cumulative Error Municipal defendants argue that the alleged trial errors set forth above, taken tog ether, have the cumulative effect of having deprived municipal defendants of a fair trial. We have alread y c oncluded

that ther e was no e

rror in these insta

nces. Ac cordingly, we need not addre ss this argument further. In su m, we conclude tha

t municipa

l defend ants wer e barre d by

the law of

the case doctrine from raising the immunity and duty issues that were previously decide d in this court’sNo. 1-04-0154

32

opinion in Anderson . We hold, in addition, that the circuit court did not err in deny ing municipal defendants’ motions for directed verdict and judgment n.o.v. with regard to the issue of proximate cause. Moreover, we reject municipal def endants’ claims that they a re entitled to a new trial. CONCLUSIO N For the reasons set forth above, we a ffirm the judgment of the circuit court in favor of the Koppie estate and against municipal defenda nts (and Alberto-Culver) in the amount of $11 million (prior to reduction to reflect Koppie’s 5% relative deg ree of fault). Affirmed. CAHIL L and GARCI

A, JJ., concur.