First District Illinois Appellate Prevents Second Bite At The Apple. “Law Of The Case” Prevails.

This wrongful death action grew out of a private airplane crash. The estates of the four people who died in the crash, sued the municipal owners and operators of the airport, Alberto-Culver, the owner of the plane, and Aon Aviation (a service provider). The municipal defendants moved for, and were granted, summary judgment on the basis of sovereign immunity. But the appellate court reversed, and the Illinois Supreme Court denied leave to appeal.

While the municipal defendants’ appealed, the case went to trial against Alberto-Culver and Aon. One of the estates was awarded a judgment, but there was a mistrial in the pilot’s case. The municipal defendants were brought back into the case, and the pilot’s estate retried the case against the private and municipal defendants. The retrial resulted in a judgment for the estate.

The municipal defendants appealed again, and again argued a sovereign immunity defense. The appellate court did not consider the argument because it was rejected in the first appeal and thus became law of the case. The court defined “law of the case” and its exceptions.

. . . [T]he law of the case doctrine provides that “where an issue has been litigated and decided, a court’s unreversed decision on that question of law or fact settles that question ‘for all subsequent stages of the suit” . . . There are two exceptions to this doctrine. The first applies when a higher reviewing court, subsequent to the lower reviewing court’s decision, issues a contrary ruling on the same issue. “The second exception allows the reviewing court to depart from the doctrine of law of the case if the court finds that its prior decision was palpably erroneous, but only when the court remanded the case for a new trial on all issues.”

Actually, there is another exception, although the courts do not view it as a “law of the case” issue. It arises when an appellee moves to dismiss an appeal for lack of jurisdiction. Even when the motion is unsuccessful, appellees may raise the motion again in their response brief. And appellate courts have revisited the entire motion and granted it. In that case, there has been an unreversed decision that does not fall within either of the two exceptions to the law of the case doctrine. Yet the courts are more than happy to reassess the motion. So the law of the case doctrine in reality has another exception.

In any event, you can see the whole airplane crash case, Alwin v. Village of Wheeling, No. 1-04-0154 (3/12/07), by clicking here.