Farner v. Brunswick Corp.

• Decision Date: 17 December 1992
• Docket Number: No. 2-91-1432,2-91-1432
• Citation: 607 N.E.2d 562,180 Ill.Dec. 493,239 Ill.App.3d 885
• Parties: , 180 Ill.Dec. 493, 61 USLW 2564, Prod.Liab.Rep. (CCH) P 13,523 Brenda A. FARNER, Plaintiff-Appellant and Cross-Appellee, v. BRUNSWICK CORPORATION, Defendant-Appellee and Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 562

607 N.E.2d 562

239 Ill.App.3d 885, 180 Ill.Dec. 493,

61 USLW 2564,

Prod.Liab.Rep. (CCH) P 13,523

Brenda A. FARNER, Plaintiff-Appellant and Cross-Appellee, v. BRUNSWICK CORPORATION, Defendant-Appellee and Cross-Appellant.

No. 2-91-1432.

Appellate Court of Illinois Second District.

Dec. 17, 1992.

Rehearing Denied Feb. 24, 1993.

Patrick M. Flaherty (argued), Thompson, Lamont & Flaherty, P.C., Aurora, for Brenda Farner.

Lynn D. Dowd, D. Patterson Gloor (argued), Elizabeth Sitterly, Timothy J. Ashe, Cassiday, Schade & Gloor, P.C., Chicago, for Brunswick Corp. Kathlein K. Krider, Cassidy, Schade & Gloor, Chicago.

Justice DOYLE delivered the opinion of the court:

Plaintiff, Brenda A. Farner, filed a three-count complaint in the circuit court of Cook County against defendant, Brunswick Corporation, seeking compensatory and punitive damages for injuries she suffered when she was struck by a propeller on a boat motor designed and manufactured by defendant. Pursuant to agreement of the parties, the circuit court transferred the cause to Kane County, and defendant filed a motion for summary judgment. Following the trial court's granting of summary judgment in favor of defendant, plaintiff filed this timely appeal pursuant to Supreme Court Rule 301 (134 Ill.2d R. 301), and defendant cross-appealed.

The sole issue raised on appeal by plaintiff is whether the trial court erred in ruling that her products liability claim was preempted by the Federal Boat Safety Act of 1971 (Act) (46 U.S.C. § 4301 et seq.) (1988). In its cross-appeal, defendant raises the issue of whether its product was not unreasonably dangerous as a matter of law, thereby entitling it to summary judgment on that separate basis.

Plaintiff's complaint alleged that on July 14, 1983, she was injured when she was struck by a boat powered with a Mercruiser 260 horsepower motor designed and manufactured by defendant. Count I of the complaint alleged that defendant's product was unreasonably dangerous and defective because it did not have a propeller blade guard and bladeless propulsion system. Count II alleged that defendant negligently designed, manufactured and marketed the product by failing to "develop and employ available propeller guarding and bladeless propulsion systems." Count III sought punitive damages based on defendant's wilful and wanton conduct in failing to equip the product with a propeller guard and a bladeless propulsion system. Defendants answered and raised several affirmative defenses, one of which was that a claim for punitive damages was preempted by the Act.

Defendant subsequently filed its motion for summary judgment arguing two bases for judgment in its favor. First, it maintained that the Act preempted any State regulation that would require a propeller guard and that a jury verdict finding liability would effectively create a regulation requiring propeller guards. Alternatively, defendant contended that it was entitled to summary judgment because the product was not unreasonably dangerous as a matter of law.

Plaintiff filed a response to defendant's motion for summary judgment wherein she initially argued that her claim was not preempted by the Act. Secondly, plaintiff asserted that the product was unreasonably dangerous as a matter of law. Finally, plaintiff posited that there was a question of material fact as to the availability of alternative designs and as such the motion should be denied.

In this latter regard, plaintiff submitted the affidavits of Laurence E. Thibault, who holds a doctorate in mechanical engineering, and Arthur M. Reed, a Ph.D. in naval architecture and marine engineering. Dr. Thibault stated in his affidavit that a propeller guard could have been installed without any substantial effect on the performance of the boat and that such guard would have prevented plaintiff's injury. Dr. Reed, in his affidavit, stated that it was technologically feasible to incorporate a propeller guard into the design of the product without substantially impairing the use of the product.

The trial court granted defendant's motion for summary judgment, finding that the Act preempted "plaintiff's claims insofar as they [were] based on a failure to provide a propeller guard." The court further ruled that defendant was not entitled to summary judgment on the issue of whether the product was unreasonably dangerous. Plaintiff filed this timely appeal, and defendant cross-appealed from that part of the order denying its motion for summary judgment based on the unreasonable dangerousness of the product.

On appeal, plaintiff contends that the Act does not expressly preempt a State tort claim because: (1) the language "law" or "regulation" contained in section 4306 is not sufficiently specific to include liability damage claims; (2) section 4306 preempts only a State law or regulation that is not identical to regulations prescribed under the Act; (3) the savings clause provided in section 4311(g) of the Act reinforces the interpretation that Congress did not expressly preempt common-law damage claims; and (4) similar preemption and savings clauses in other Federal statutes have been construed as not preempting common-law damage claims.

Plaintiff further contends that the Act does not impliedly preempt a State tort claim premised on a manufacturer's failure to provide a propeller guard. In that regard, plaintiff maintains first that it is improper to consider the implied intent to preempt State tort claims in the face of an express statement of preemption that does not mention such claims. Second, plaintiff asserts the Act does not evidence an intent to occupy the entire field of boat safety to the exclusion of State participation. Third, plaintiff contends that uniformity of regulation is a goal of the Act only to the extent such uniformity promotes safety and is not an objective in and of itself. Fourth, plaintiff posits that a jury damage award in a common-law claim is not the equivalent of a law or regulation within the meaning of the Act.

Finally, plaintiff contends that there is no actual conflict between the Act and a common-law tort action based on the failure to provide a propeller guard.

Summary judgment is appropriate where the pleadings, depositions and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Ill.Rev.Stat.1991, ch. 110, par. 2-1005(c); American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill.2d 14, 22, 171 Ill.Dec. 461, 594 N.E.2d 313.) Thus, where a suit may be determined according to a question of law, a trial court may properly dispose of the case on a summary judgment motion. (Wojdyla v. City of Park Ridge (1992), 148 Ill.2d 417, 421, 170 Ill.Dec. 418, 592 N.E.2d 1098.) Although summary judgment is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt, it is to be encouraged as an aid in the expeditious disposition of a lawsuit. Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill.2d 263, 271, 166 Ill.Dec. 882, 586 N.E.2d 1211.

While we have found no Illinois case directly addressing the preemption issue presented in this case, we are initially persuaded by the United States Supreme Court's recent discussion of the doctrine of Federal preemption in the context of a common-law claim against certain cigarette manufacturers. (See Cipollone v. Liggett Group, Inc. (1992), 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407.) As emphasized in Cipollone, pursuant to the supremacy clause of the Constitution, any State law that conflicts with Federal law is without effect. (Cipollone, 505 U.S. at ----, 112 S.Ct. at 2617, 120 L.Ed.2d at 422.) Consideration of any issue arising under the supremacy clause begins with the assumption that the historic police powers of the State are not to be superseded by Federal law unless that is the clear and manifest purpose of Congress. (Cipollone, 505 U.S. at ----, 112 S.Ct. at 2617, 120 L.Ed.2d at 422.) Thus, the ultimate question in any preemption analysis is to determine the intent of Congress. Cipollone, 505 U.S. at ----, 112 S.Ct. at 2617, 120 L.Ed.2d at 422.

The intent of Congress may be expressly stated in a statute's language or implicitly contained in its structure and purpose. (Cipollone, 505 U.S. at ----, 112 S.Ct. at 2617, 120 L.Ed.2d at 422-23.) In the absence of an express congressional command, State law is only preempted if that law actually conflicts with Federal law or if Federal law so thoroughly occupies a legislative field as to create a reasonable inference that Congress left no reason for the State to supplement it. (Cipollone, 505 U.S. at ----, 112 S.Ct. at 2617, 120 L.Ed.2d at 423.) Furthermore, when Congress has included in legislation a provision explicitly addressing preemption, and that provision provides a reliable indication of congressional intent with respect to State authority, there is no need to infer congressional intent to preempt State law from the substantive provisions of the legislation. (Cipollone, 505 U.S. at ----, 112 S.Ct. at 2617, 120 L.Ed.2d at 423.) Congress' enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not preempted. Cipollone, 505 U.S. at ----, 112 S.Ct. at 2618, 120 L.Ed.2d at 423.

The Act contains two provisions relevant to this appeal. The first addresses Federal preemption and provides:

"Unless permitted by the Secretary under section 4305 of this title [46 U.S.C. § 4305], a State or political subdivision of a State may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment (except insofar as the State or political subdivision may, in the absence of the Secretary's disapproval, regulate the...