                                                                             FOURTH DIVISION
                                                                              Filed: May 4, 2006
No. 1-04-0895 & 1-04-2678 Consolidated


BARRY L. WILLETT, Individually, and as               )       Appeal from the
Personal Representative of the Estate of             )       Circuit Court of
Debra L. Zukof, Deceased,                            )       Cook County.
                                                     )
Plaintiff-Appellant and Respondent-Appellee,         )
                                                     )
               v.                                    )
                                                     )
CESSNA AIRCRAFT COMPANY,                             )       No. 00 L 87802
                                                     )
        Defendant-Appellee                           )
                                                     )
                                                     )
(Teledyne Continental Motors, Inc.,                  )
a Corporation; Joliet Avionics, Inc., a Corporation; )
James P. Dirker; Michael E. Bross; and Lionel        )
Fritz,                                               )       Honorable
                                                     )       Randye A. Kogan
        Defendants and Petitioners-Appellants).      )       Judge Presiding.


                               MODIFIED UPON REHEARING

       JUSTICE MURPHY delivered the opinion of the court:

       Plaintiff Barry Willett, individually and as representative of the estate of Dr. Debra

Zukof, appeals from an order of the circuit court granting summary judgment in favor of Cessna

Aircraft Company in plaintiff=s personal injury action against Cessna, Teledyne Continental

Motors, Inc., Joliet Avionics Inc., James Dirker, Michael Bross, and Lionel Fritz (collectively,

Joliet Avionics). Teledyne and Joliet Avionics appeal from an order of the circuit court denying

summary judgment in their favor on plaintiff=s negligent spoliation of evidence claims in the
No. 1-04-0895 & 1-04-2678 Consol.


same civil action. This court has consolidated these two appeals. Plaintiff contends on appeal

that the trial court erred in granting summary judgment for Cessna when (1) Cessna did not meet

its burden of proof on a motion for summary judgment, (2) an existing question of fact precludes

summary dismissal, and (3) the trial court based its grant of summary judgment upon an

erroneous interpretation of the governing General Aviation Revitalization Act (Act) (49 U.S.C.

'40101, Note (2000)). Teledyne and Joliet Avionics contend on appeal that the trial court erred

in denying them summary judgment because plaintiff=s negligent spoilation claim, the only claim

against either Teledyne or Joliet Avionics, was duly barred by the Act.

                                                FACTS

       Briefly stated, plaintiff=s claims arose from the crash of a Cessna Model 340A aircraft

into Lake Michigan on August 1, 1998, which killed Zukof and injured plaintiff. Plaintiff

alleged that the aircraft experienced a Asudden and unexpected loss of left engine power@ during

takeoff from Meigs Field, causing it to crash into the lake beyond the runway. During the

investigation by the National Transportation Safety Board (NTSB), the aircraft was recovered

from the lake bottom and its two engines were sent to Teledyne for testing under NTSB

supervision.

        In his fifth amended complaint, 1 plaintiff brought both strict product liability and

negligence claims against Cessna, alleging that the left-engine power failure resulted from a


       1
           Plaintiff=s original complaint was filed in August 2000, with the instant (fifth) amended

complaint filed in December 2003. Earlier versions of the complaint named additional


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No. 1-04-0895 & 1-04-2678 Consol.


design defect in a portion of the exhaust system for the left engine called an exhaust turbo wye

(wye). Plaintiff alleged that both of the aircraft=s engines were replaced in May 1987 and that

the left engine=s wye had been replaced in September 1995. Plaintiff also brought a claim of

negligent spoilation of evidence against Teledyne and Joliet Avionics, alleging that the wye was

present when the aircraft was recovered from the lake on August 2, 1998, but missing when

plaintiff=s experts examined the aircraft wreckage in December 1998. Joliet Avionics had crated

the wreckage in early August 1998 for shipment to Teledyne. Teledyne tested the wreckage in

August and September 1998 and then shipped the wreckage to the pilot=s insurer in late

September 1998.

       Attached to the fifth amended complaint were copies of the maintenance log of the

aircraft in question for a May 1987 engine replacement, with a remanufactured engine, and a

September 1995 overhaul of the left engine. Also attached was the expert witness affidavit of

mechanical engineer and pilot Donald Sommer, averring that the wye would have been built to


defendants, including the pilot, but these parties reached a settlement with defendant and were

voluntarily dismissed from the case.




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No. 1-04-0895 & 1-04-2678 Consol.


defendant Cessna=s specifications regardless of its actual manufacturer. Sommer also averred

that the aircraft in question had logged 3,036 hours at the time of the crash, which Awould have

exceed the *** normal useful life@ of the wye. Lastly, it was Sommer=s opinion that, in an

overhaul such as the 1995 overhaul of the left engine, Athe turbo wyes would have been removed

and most likely been replaced or overhauled.@

       Cessna filed a motion for summary judgment, arguing that plaintiff=s claims were barred

by two statutes of repose, the Act and section 13-213 of the Illinois Code of Civil Procedure

(Code), 735 ILCS 5/13-213 (West 2002)). The Act applies to the manufacturer of a general

aircraft or the manufacturer of any system or part of such an aircraft, barring any civil action

arising from an accident more than 18 years after the initial sale of the aircraft or the installation

of the replacement system or part. Similarly, section 13-213 bars strict liability product claims

brought more than 12 years after the product=s first sale, with the exception that the installation

of a new part, which caused the injury, within 12 years of the lawsuit would not be barred. It

was undisputed that the aircraft in question was more than 18 years old -- it was sold initially in

March 1979 -- so plaintiff=s suit would comply with the Act only if the wye had been replaced

with a new wye within 18 years of the crash. The only evidence introduced by plaintiff to that

effect was Sommer=s affidavit, which Cessna argued did not show that the wye had been

replaced. Sommer had at best opined that the wye would have been either replaced or

overhauled during the 1995 overhaul of the left engine, Cessna argued, and at worst his opinion

had no factual basis. Sommer=s affidavit had not acknowledged that aircraft mechanics are




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No. 1-04-0895 & 1-04-2678 Consol.


required by law to record all aircraft parts replaced, so that a mechanic who failed to record the

replacement of a part such as the wye would risk losing his or her mechanic=s license.

       Plaintiff responded to Cessna=s motion, arguing that Cessna, as the party invoking the

statutes of repose as an affirmative defense, bore the burden of showing that the wye was more

than 18 years old at the time of the crash. While a defendant may seek summary judgment on

the basis that no evidence supports plaintiff=s claims, Illinois law requires more than merely

pointing out the absence of evidence, without a supporting affidavit or other evidence. Plaintiff

also argued that Sommer=s affidavit, to the effect that the wye would have been replaced on an

aircraft the age of the one in question, established an issue of fact regarding the age of the wye.

       Cessna replied in support of its summary judgment motion. Cessna argued that it had

shown that the statutes of repose applied to it as the aircraft=s manufacturer. Cessna also argued

that the Act imposed the burden upon plaintiff to show that the wye had been replaced within 18

years of the crash. Similarly, under section 13-213, it is not defendant=s burden to negate the

possibility that the part in question was installed within the statutory period, but instead

plaintiff=s burden to show that the part was installed within the statutory period. Cessna argued

that this interpretation is fair because it places the burden on the party that owned or operated the

aircraft, or that at least knew who did, rather than the manufacturer, which ordinarily has no

access to the aircraft maintenance records.

       Cessna lastly argued that it had satisfied the burden, assuming arguendo that it bore it in

the first place: maintenance records showed no replacement of the wye, and Sommer=s opinion

was Anothing more than an unsupported ipse dixit.@ While the aircraft=s engines had been

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No. 1-04-0895 & 1-04-2678 Consol.


replaced in 1987, Cessna argued that the wye is not part of the engine and thus the left wye was

not necessarily replaced along with the left engine. In support of its contention that the wye is

not part of the engine, Cessna attached to its reply brief relevant portions of the parts catalog for

the model of aircraft in question. Also, as noted earlier, Sommer had opined that the 1995

overhaul of the left engine would have entailed either replacement or overhaul of the left wye.

Cessna acknowledged that the court had denied its motion to strike the Sommer affidavit but

argued that nothing in the court=s order Aindicat[ed] the existence of a fact question.@

       The court held a hearing on Cessna=s summary judgment motion on February 24, 2004.

Cessna argued that, once it was established that the aircraft in question was more than 18 years

old and subject to the Act, the burden fell upon plaintiff to prove that the wye had been replaced

with a new wye within 18 years of the crash. Cessna argued that the maintenance logs for the

aircraft in question were complete and did not indicate that the wye had been replaced. Cessna

also argued that Sommer=s affidavit was unsupported by evidence that the left-engine

replacement or overhaul included replacement of the wye with a new wye. Indeed, Cessna

argued, Sommer had stated that remanufactured and overhauled parts, as well as new parts, are

installed on aircraft. Plaintiff told the court that he needed no more discovery or evidence to

respond to Cessna=s motion, arguing that Sommer=s affidavit created an issue of fact that

defeated the summary judgment motion. The court told plaintiff that the Aissue here is [whether]

you meet an exception to the 18-year rule [under the Act], and if you do, you have to be able to

support it with proof.@ The court also noted that Athe burden shifts to you to show that, not by a

maybe but with proof, that you fit outside the 18-year requirement.@ When the parties rested on

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No. 1-04-0895 & 1-04-2678 Consol.


their briefs, the court ruled that Sommer=s affidavit was speculative. As to the new engine in

1987, Athere is nothing that has been produced that says that an entirely new engine was

produced,@ including a new wye. The log stated that some parts of the engine were overhauled

and some were replaced with new parts. Similarly, Sommer averred that the wye would likely

have been replaced or overhauled in 1995 during the engine overhaul. This evidence does not

establish that the wye had been replaced with a new wye. The court specifically found Athat all

of this could have been resolved if you had the wye.@ Without the wye itself, or a record that the

wye had been replaced with a new wye, the Act barred plaintiff=s claims against Cessna. The

court therefore granted Cessna=s motion for summary judgment.

       Teledyne and Joliet Avionics then reminded the court that only the spoliation claim

against them remained. The court replied that AI just ruled that if [plaintiff] had had the wye, he

would be able to prove the case. So how do you plan on bringing in a motion to dismiss?@ The

parties and the court agreed to set a status hearing on the remaining claim. Plaintiff timely filed

his appeal from the order granting summary judgment to Cessna.

       In May 2004, Teledyne and Joliet Avionics filed a joint motion for summary judgment,

arguing that, in light of the summary judgment in favor of Cessna, plaintiff could no longer

satisfy the elements of his spoliation claim. Specifically, they argued that plaintiff=s claim

against Cessna did not fail due to the loss of the wye but because it was barred under the Act.

Therefore, even if plaintiff could show that Teledyne and Joliet Avionics had a duty to preserve

the wye, and then breached that duty, plaintiff could not establish causation or damages.




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No. 1-04-0895 & 1-04-2678 Consol.


       In June 2004, plaintiff responded to the joint summary judgment motion. He argued that

he could establish causation in his spoliation claim, because Ahad the defendants not lost these

specific exhaust systems, one could tell for certain@ whether or not the wye was less than 18

years old. More specifically, he asserted that Ahad the turbo wyes been found, their age could

have been determined.@ Teledyne and Joliet Avionics duly replied in support of their joint

motion, reiterating their earlier argument that plaintiff=s claim failed due to the Act and not their

actions, and further arguing that plaintiff had not factually supported his allegation that the wye

could have been dated had it not been lost. They also argued that a trial court cannot merely

presume for purposes of a spoliation claim that a lost part would have been found defective.

       On August 26, 2004, the circuit court issued an order denying the joint motion for

summary judgment by Teledyne and Joliet Avionics. The court noted that the only claim against

these defendants was negligent spoliation of evidence, namely, the loss of the wye. The court

also recited that it had granted summary judgment in favor of Cessna pursuant to the Act on the

basis that plaintiff had not introduced evidence supporting that the wye had been replaced with a

new wye within the 18 years preceding the crash. Teledyne and Joliet Avionics argued that

plaintiff=s claims against Cessna failed due to the repose period of the Act, not their loss of the

wye, while plaintiff argued that the age of the wye could have been determined from the wye

itself had it not been lost. The court agreed with plaintiff that if the wye=s age could have been

determined from the wye itself, the negligence of Teledyne and/or Joliet Avionics may have

caused plaintiff=s claims against Cessna to fail under the Act.




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No. 1-04-0895 & 1-04-2678 Consol.


               AIt is unclear whether the Plaintiff will be able to win at trial with

               such a tenuous causation element, seeing as the evidence as to the

               age of the exhaust wye components appears to point to its not

               being replaced, but, viewing the evidence in the light most

               favorably to the Plaintiff, the Plaintiff has met his causation burden

               with a sufficient question of fact for the purposes of this summary

               judgment motion.@

The court denied that it was making an adverse presumption regarding the missing wye, as

alleged by Teledyne and Joliet Avionics, but instead that it had found Athat the destruction of

evidence caused the plaintiff to be unable to prove an underlying lawsuit.@ The court also

concluded that it was Amak[ing] no findings of fact@ but strictly a decision of law. Because of

Athe need to consider both summary judgment orders together,@ the court certified the order for

immediate appeal under Supreme Court Rule 308. 155 Ill. 2d R. 308. This appeal duly

followed.

                                LAW B SUMMARY JUDGMENT

       Both appeals disposed of herein concern the trial court=s decision upon a motion for

summary judgment. A review of the law governing summary judgments is therefore appropriate.

       Summary judgment should be granted if Athe pleadings, depositions, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.@ 735 ILCS

5/2-1005(c) (West 2002). AIn determining whether a genuine issue as to any material fact exists,

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No. 1-04-0895 & 1-04-2678 Consol.


a court must construe the pleadings, depositions, admissions, and affidavits strictly against the

movant and liberally in favor of the opponent.@ Adams v. Northern Illinois Gas Co., 211 Ill. 2d

32, 43 (2004).

Although summary judgment is appropriate if a plaintiff cannot establish an element of his

claim, it should only be granted when the right of the moving party is clear and free from doubt.

Dardeen v. Kuehling, 213 Ill. 2d 329, 335 (2004); Adams, 211 Ill. 2d at 43. The decision to

grant or deny summary judgment is reviewed de novo. Adams, 211 Ill. 2d at 43.

       There are two types of summary judgment motions: (1) a motion affirmatively showing

that some element of the case must be resolved in the defendant's favor, requiring the defendant

to prove something that it would not be required to prove at a trial, and (2) a motion of the kind

recognized by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 322,

91 L. Ed. 2d 265, 273, 106 S. Ct. 2548, 2552 (1986), in which a defendant points out the absence

of evidence supporting plaintiff's position. Crichton v. Golden Rule Insurance Co., 358 Ill. App.

3d 1137, 1152 (2005). AA defendant does not meet its burden of production [under a Celotex-

type motion] by merely asserting that the plaintiff lacks evidence. Rather, the defendant must

show that the plaintiff cannot acquire sufficient evidence to make its case.@ Kleiss v. Bozdech,

349 Ill. App. 3d 336, 350 (2004). Because the movant in a Celotex-type motion is relying on

alleged flaws or shortcomings in the affidavits and evidence introduced by the nonmovant, such

a motion may be filed without supporting affidavits or similar evidence. Crichton, 358 Ill. App.

3d at 1152. A Celotex-type motion is appropriate only when the nonmovant has had an adequate

opportunity to conduct discovery. Crichton, 358 Ill. App. 3d at 1152.

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No. 1-04-0895 & 1-04-2678 Consol.


       A defendant who moves for summary judgment bears the initial burden of introducing

competent evidence that, if uncontradicted, entitles him or her to judgment as a matter of law.

Only if the defendant satisfies this initial burden of production does the burden shift to the

plaintiff to present some factual basis that would arguably entitle plaintiff to judgment. Where

the defendant-movant fails to support the motion with evidentiary facts, the plaintiff may rely on

his complaint to establish a genuine issue of fact. Paul H. Schwendener, Inc. v. Jupiter Electric

Co., 358 Ill. App. 3d 65, 78 (2005). However, if a defendant-movant has raised an affirmative

defense, his pleadings and supporting documentation:

               A >need only establish the defendant=s factual position on the

               affirmative defense raised. [Citation.] Once the movant has

               carried this burden, the respondent may not rely on the factual

               issues raised by the pleadings, but must submit affidavits or refer

               to depositions or admissions on file which present a contrary

               version of the facts. [Citation.] While parties opposing a summary

               judgment motion are not required to prove their case, they are

               under a duty to present a factual basis which would arguably

               entitle them to judgment in their favor, based on the applicable

               law.= @ Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill. App. 3d

               606, 615 (1995), quoting Winnetka Bank v. Mandas 202 Ill. App.

               3d 373, 387-88 (1990).




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No. 1-04-0895 & 1-04-2678 Consol.


       Supreme Court Rule 191 governs affidavits in support of, and opposition to, motions for

summary judgment and requires that such affidavits:

               Ashall be made on the personal knowledge of the affiants; shall set

               forth with particularity the facts upon which the claim,

               counterclaim, or defense is based; shall have attached thereto

               sworn or certified copies of all papers upon which the affiant

               relies; shall not consist of conclusions but of facts admissible in

               evidence; and shall affirmatively show that the affiant, if sworn as

               a witness, can testify competently thereto.@ Official Advance Sheet

               Reports No. 8 (April 17, 2002), Rule 191(a), eff. July 1, 2002.

             ANALYSIS B CESSNA=S MOTION FOR SUMMARY JUDGMENT

       Plaintiff contends that the trial court erred in granting summary judgment in favor of

Cessna. He argues that Cessna did not meet its burden of proof on a motion for summary

judgment, that an existing question of fact precludes summary dismissal, and that the trial court

based the summary judgment upon an erroneous interpretation of the Act.

       Since plaintiff=s complaint as amended includes negligence claims, the Illinois statute of

repose for strict product liability (735 ILCS 5/13-213 (West 2002)), cannot by itself support the

general summary judgment in favor of Cessna. Instead, we must focus upon the federal General

Aviation Revitalization Act, which makes no such distinction. The Act provides in relevant part:

                      AExcept as provided in subsection (b), no civil action for

               damages for death or injury to persons or damage to property

                                               -12-
No. 1-04-0895 & 1-04-2678 Consol.


             arising out of an accident involving a general aviation aircraft may

             be brought against the manufacturer of the aircraft or the

             manufacturer of any new component, system, subassembly, or

             other part of the aircraft, in its capacity as a manufacturer if the

             accident occurred--

                             (1) after the applicable limitation period

                     beginning onB

                                     (A) the date of delivery of the

                             aircraft to its first purchaser or

                             lessee, if delivered directly from the

                             manufacturer; or

                                     (B) the date of first delivery

                             of the aircraft to a person engaged in

                             the business of selling or leasing

                             such aircraft; or

                             (2) with respect to any new component,

                     system, subassembly, or other part which replaced

                     another component, system, subassembly, or other

                     part originally in, or which was added to, the

                     aircraft, and which is alleged to have caused such

                     death, injury, or damage, after the applicable

                                                 -13-
No. 1-04-0895 & 1-04-2678 Consol.


                       limitation period beginning on the date of

                       completion of the replacement or addition.@ 49

                       U.S.C. '40101, Note ' 2(a).

For purposes of the Act, the applicable limitation period is A18 years with respect to general

aviation aircraft and the components, systems, subassemblies, and other parts of such aircraft.@

49 U.S.C. '40101, Note ' 3. An overhauled part is not a new part, so that the overhaul of an

allegedly defective propeller did not reset the Act=s 18-year Aclock.@ Robinson v. Hartzell

Propeller Inc., 326 F. Supp. 2d 631, 663-64 (E.D. Pa. 2004).

       We note initially that plaintiff contends in part that the trial court determined at an earlier

stage in the proceedings -- in late 2001, while the second amended complaint was pending -- that

there was a material issue of fact herein and thus Cessna should not have been allowed to

relitigate the issue later regarding the fifth amended complaint. Specifically, plaintiff points to

an order of December 12, 2001, granting partial summary judgment in favor of Cessna, on

counts not included in the fifth amended complaint and not at issue here. It is true that the trial

court stated that Athere remain questions of fact as to whether Cessna is the manufacturer of

replacement parts of the engine turbo wyes of the Cessna 340A.@ However, the court also

expressly stated:

               AAt this point, however, summary judgment for Cessna as to

               [plaintiff=s] claims of Cessna as the manufacturer of engine turbo

               wyes is inappropriate given that the plaintiff=s current complaint

               pleads against Cessna regarding replacement parts. The summary

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No. 1-04-0895 & 1-04-2678 Consol.


               judgment motion only addresses the manufactured product before

               the first sale.@ (Emphasis added.)

The trial court=s language does not support plaintiff=s argument that the court was making a final

ruling with prejudice on the portion of Cessna=s summary judgment motion that it denied.

Especially in light of the fact that discovery continued apace after the December 2001 order, we

find that the trial court did not err when it considered Cessna=s summary judgment motion

against the fifth amended complaint.

       The central contention herein is that the trial court erred in granting summary judgment

to Cessna because it improperly placed the burden of proof upon plaintiff to show that the wye

was replaced with a new wye within the 18 years preceding the crash, rather than upon Cessna to

show that the wye had not been replaced. In Illinois, defendants have the burden of proof for a

statute of repose, because it is an affirmative defense, while plaintiffs have the burden of proving

the existence of facts that would toll the repose period or constitute an exception to the general

repose rule. Masters v. Hesston Corp., 291 F.3d 985, 989 (7th Cir. 2002); Jones v. Dettro, 308

Ill. App. 3d 494, 498 (1999). There was no dispute in the instant case that the aircraft in

question was delivered to its first user more than 18 years before the crash in question. Thus, the

Act would bar plaintiff's claim unless the second portion of the Act applied: that is, if the

allegedly defective part or system of the aircraft (here, the wye) was replaced with a new part or

system within the 18 years preceding the crash. We find it to be a reasonable interpretation of

the Act that plaintiff herein had the burden of showing that the general repose period for the




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No. 1-04-0895 & 1-04-2678 Consol.


aircraft as a whole was tolled or reset by the installation of a new replacement wye, triggering

the part-specific repose period.

       Cessna asserted an affirmative defense -- the Act=s repose period -- and duly established

its position that (1) the aircraft itself was more than 18 years old and (2) the wye had not been

replaced with a new wye within the Act=s 18-year period. Under both Soderlund Brothers, 278

Ill. App. 3d at 615, and the aforementioned cases of Masters and Jones, plaintiff thereby bore the

burden of showing that the wye had been replaced. Plaintiff duly responded that the wye had

been so replaced, supporting this allegation with the affidavit of expert Sommer. However, we

agree with the trial court that Sommer=s affidavit does not bear the weight plaintiff places upon

it. Sommer neither stated that the wye was, nor opined that it would have been, replaced with a

new wye. Instead, it was Sommer=s opinion that the wye would have been either replaced or

overhauled during the 1995 overhaul of the left engine. As stated above, mere overhaul would

not suffice to reset the Act=s 18-year Aclock.@

       Moreover, an expert opinion is only as valid as the facts underlying and supporting it,

and a court may therefore look Abehind@ an expert opinion to examine the underlying facts. In re

Joseph S., 339 Ill. App. 3d 599, 607 (2003). Here, the maintenance records for the aircraft in

question -- which are required by law to reflect all repairs to the aircraft and, as such, were

exceedingly detailed 2 B do not reflect that the wye was replaced at any time with a new wye.


       2
           Federal Aviation Regulations require Aeach person who maintains, performs preventive

maintenance, rebuilds, or alters an aircraft, airframe, aircraft engine, propeller, appliance, or


                                                  -16-
No. 1-04-0895 & 1-04-2678 Consol.


The maintenance log entry for the 1987 replacement of the left engine described in detail which

parts were new and which were overhauled; the wye was not mentioned. Similarly, the

maintenance log entry for the 1995 overhaul, detailed to the point of mentioning small parts like

pins, bearings, and gaskets, did not mention the wye. The trial court properly concluded from

the prominent absence of a reference to the wye, in the only two instances where plaintiff alleged

the wye could have been replaced, that Cessna had shown that, in the absence of the wye itself,

plaintiff could not Aacquire sufficient evidence to make its case.@ Kleiss, 349 Ill. App. 3d at 350.

       In sum, Cessna duly proved, and plaintiff failed to disprove, that there was no material

issue of fact concerning the installation of a new wye within the Act=s repose period. Since the

parties do not dispute that the aircraft as a whole was initially delivered more than 18 years

before the crash in question, the crash fell outside the Act=s repose period and plaintiff=s claim




component part@ to describe the work performed in the aircraft=s maintenance records. 14 C.F.R.

'43.9(a) (2005). The same regulations provide that false entries in the maintenance records are

punishable by suspension or revocation of the perpetrator=s airman, mechanic, or repairman

certificate. 14 C.F.R. '43.12 (2005).




                                                -17-
No. 1-04-0895 & 1-04-2678 Consol.


against Cessna was barred thereunder. We therefore conclude that the trial court did not err in

granting summary judgment in favor of Cessna.

       Lastly, we note Cessna=s contention that this appeal should be dismissed because

plaintiff, an attorney by profession, averred in a judicial proceeding that there was insufficient

evidence to proceed in the instant case. Specifically, plaintiff stated on the record in a Kentucky

criminal proceeding against the pilot that he had instructed counsel in the instant civil case to

settle or dismiss the case because there was Ainsufficient evidence,@ and that Anone of the

evidence *** revealed any ability to prevail in a case *** other than a case against@ the pilot.

Cessna raised this issue in a motion before this court to dismiss the instant appeal, arguing as it

does now that plaintiff should be bound herein by his statements in the Kentucky proceeding.

However, this court duly considered Cessna=s motion to dismiss and denied it. More

importantly, whether a case is frivolous or without merit is an objective standard. Sterdjevich v.

RMK Management Corp., 343 Ill. App. 3d 1, 19 (2003). Just as a litigant is not shielded by

honestly believing that his arguments are supported by fact and law (Sterdjevich, 343 Ill. App.

3d at 19), we must conclude that the converse is also true: that plaintiff=s subjective belief about

his case does not by itself render the case frivolous or without merit if the case is not actually so.

Especially in light of our affirmance of Cessna=s summary judgment, we see no reason to

reconsider our earlier decision.



                       ANALYSIS B SUMMARY JUDGMENT MOTION
                         BY TELEDYNE AND JOLIET AVIONICS



                                                -18-
No. 1-04-0895 & 1-04-2678 Consol.


       Teledyne and Joliet Avionics contend that the trial court erred in denying their motion for

summary judgment. Noting that causation is a necessary element of the cause of action of

negligent spoliation of evidence, they argue that the summary judgment in favor of Cessna did

not result because the turbo wye was unavailable but because plaintiff=s claims against Cessna

were barred by the Act. Since their acts or omissions did not cause plaintiff=s claims against

Cessna to fail, they argue, plaintiff could not state a claim for negligent spoliation of evidence

against them.

       Spoliation of evidence falls under the general principles of negligence law, whereby

plaintiff must show that defendant owed plaintiff a duty, defendant breached that duty, and

defendant's breach proximately caused plaintiff to incur damages. Dardeen, 213 Ill. 2d at 335-

36, citing Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 192-95 (1995). Specifically, a duty

to take reasonable care to preserve evidence exists when (1) an agreement, statute, or other

special circumstance created a duty to preserve evidence, or defendant voluntarily assumed such

a duty by affirmative conduct; and (2) a reasonable person in defendant's position should have

foreseen that the evidence was material to a potential civil action. Dardeen, 213 Ill. 2d at 336,

citing Boyd, 166 Ill. 2d at 195. As to the element of causation, Aplaintiff is required to allege that

a defendant's loss or destruction of the evidence caused the plaintiff to be unable to prove an

otherwise valid, underlying cause of action.@ Boyd, 166 Ill. 2d at 197.

       Here, Teledyne and Joliet Avionics argue that the trial court improperly engaged in a

negative presumption regarding the age of the wye -- that is, the court simply presumed in the

wye=s absence that it had been replaced. However, the court expressly denied that it was making

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No. 1-04-0895 & 1-04-2678 Consol.


such a presumption, basing its decision instead on plaintiff=s allegation that he could have proven

the wye=s age if he had it. We see no reason on this record to doubt the trial court=s sincerity.

       Plaintiff alleged that he could have ascertained the wye=s age from the wye itself, if he

had it, and thus that the loss of the wye by Teledyne and/or Joliet Avionics caused his claim

against Cessna to fail. Unlike Cessna=s summary judgment motion, which concerned an

affirmative defense, Teledyne and Joliet Avionics alleged that plaintiff could not prove a

necessary element of his cause of action in this case, causation. As stated above, the law is clear

that Teledyne and Joliet Avionics bore the burden of producing evidence that plaintiff could not

state all elements of his claim. Paul H. Schwendener, Inc., 358 Ill. App. 3d at 78. However,

there is no indication on this record that Teledyne and Joliet Avionics introduced an affidavit or

other evidence that the wye=s age could not be ascertained from the wye itself. Where neither

side supports its allegations with evidence, and the issue does not concern an affirmative defense

but negation of an element of the cause of action, this court must accept plaintiff=s complaint as

raising a material issue of fact. Paul H. Schwendener, Inc., 358 Ill. App. 3d at 78; Soderlund

Brothers, 278 Ill. App. 3d at 615. Thus, the absence of an affidavit or other evidence from

plaintiff showing that he could have ascertained the wye=s age does not avail Teledyne and Joliet

Avionics.

       The trial court reluctantly concluded that plaintiff=s fifth amended complaint survived

summary judgment as to the negligent spoliation of evidence claim against Teledyne and Joliet

Avionics. AIt is unclear whether the Plaintiff will be able to win at trial with such a tenuous

causation element, seeing as the evidence as to the age of the exhaust wye components appears

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No. 1-04-0895 & 1-04-2678 Consol.


to point to its not being replaced, but, viewing the evidence in the light most favorably to the

Plaintiff, the Plaintiff has met his causation burden with a sufficient question of fact for the

purposes of this summary judgment motion.@ The trial court neither assumed nor concluded that

plaintiff could have proven the wye=s age, as Teledyne and Joliet Avionics argue, but instead was

duly preserving the issue for a trial. For these reasons, we conclude that the trial court did not

err in denying summary judgment to Teledyne and Joliet Avionics.

                                          CONCLUSION

       For the aforementioned reasons, the judgment of the circuit court is affirmed as to both

plaintiff=s appeal, No. 1--04--0895, and the appeal by Teledyne and Joliet Avionics, No. 1--04--

2678. This cause is remanded for further proceedings consistent with this order.

       No. 1--04--0895, Affirmed.

       No. 1--04--2678, Affirmed and remanded.

       Quinn, P.J. and Campbell, J., concur.




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