April 2005
US Government Motion in Aviation Matter Defeated
On April 19, 2005, Leib & Katt received a decision from the US District Court- Northern District Illinois in favor of their client, the Estate of Robert Collins. The case arises out of a tragic, mid-air collision in Waukegan, Illinois, in February 2000. One of the contentions is that the collision was caused by the negligence of the air traffic controller at the Waukegan airport. The controller was not an FAA employee but was employed by a government contractor. The government was sued on two theories. The first was the failure to supply radar to the tower and the second was that the government exercised such control over the controller that they should be liable under a respondent superior theory.
The US Attorney, on behalf of the government, brought a motion to dismiss the claims and cross claims on subject matter jurisdiction grounds. The government contended that they were immune from liability for these alleged omissions. After extensive discovery on this issue the court denied the motion to dismiss. It found that “where jurisdictional issues are inextricably intertwined with the merits of the case it is proper for the court to deny the motion to dismiss…on the basis that there are genuine issues of fact, the resolution of which will not only affect jurisdiction but also the merits of the case.” William Katt, Mark Malloy and Jason Richard took the lead on one basis for the court’s decision, i.e., the control the government exercised over the controller so as to expose the government to respondent superior liability.
Attorneys Katt and Malloy Participate in Successful Appeal of Shell Lake Case
On April 28, 2005, the Wisconsin Court of Appeals affirmed the trial court’s granting of summary judgment and dismissal in Butler v. Advanced Drainage System, Inc. Attorneys Bill Katt and Mark Malloy participated in the successful appeal of the case for the defense. The case, which was brought by thirty-two plaintiffs, arose out of a project undertaken in the City of Shell Lake to divert water from Shell Lake in order to lower the lake’s water level. The Plaintiffs originally sought to certify the action as a class action. Attorneys Katt and Malloy took the defense lead in responding to class certification allegations, and class certification was denied. Months later, after discovery was undertaken, the trial court granted the defendants’ motion for summary judgment, dismissing the plaintiffs’ claims in their entirety, finding that the evidence presented showed no basis for liability from the defendant contractors to the plaintiff landowners. The court of appeals, in a decision recommended for publication, affirmed the trial court’s decision, finding that the defendant contractors owed no duty to the plaintiffs because (1) no action undertaken by the defendants increased the risk of harm to the plaintiffs, (2) the defendants owed no duty to the plaintiffs to lower the lake level, and (3) the plaintiffs suffered no harm because of reliance on any action undertaken by the defendants. The court of appeals holding represents another significant defense victory in a case that once had the potential to have over four hundred plaintiffs.
