Lady v. Outboard Marine Corp.

• Decision Date: 07 May 1999
• Docket Number: No. 1:98CV168RG.,1:98CV168RG.
• Citation: 66 F.Supp.2d 818
• Parties: Steven G. LADY, Plaintiff, v. OUTBOARD MARINE CORPORATION, d/b/a OMC, Inc., d/b/a OMCC, d/b/a Chris Craft and Does I-X, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

66 F.Supp.2d 818

Steven G. LADY, Plaintiff, v. OUTBOARD MARINE CORPORATION, d/b/a OMC, Inc., d/b/a OMCC, d/b/a Chris Craft and Does I-X, Defendants.

No. 1:98CV168RG.

United States District Court, S.D. Mississippi, Southern Division.

May 7, 1999.

Carter O. Bise, Floyd J. Logan, Logan and Bise, Gulfport, for Steven G. Lady, plaintiffs.

James H. Heidelberg, Colingo, Williams, Heidelberg, Steinberger & Mcelhaney, Pascagoula, for Outboard Marine Corp., d/b/a OMC, Inc., d/b/a OMCCC, d/b/a Chris Craft, Does I-X, defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

GUIROLA, United States Magistrate Judge.

BEFORE THIS COURT is the Motion of the Defendants, Outboard Marine Corporation and Recreational Boat Group Limited Partnership (hereinafter referred to as either "Defendants" or "OMC"), for Summary Judgment [13-1]. In their Motion, Defendants contend that Plaintiff's claims are preempted by provisions of the Federal Boat Safety Act of 1971 ("FBSA"). Plaintiff argues that his common law claims are preserved by the FBSA's savings clause. After consideration of the Motion, briefs and arguments of counsel and the relevant legal authority, it is the opinion of the Court that Plaintiff's common law product liability claims based upon OMC's failure to provide a propeller guard on its product is preempted by the FBSA. In addition, the Court is of the opinion that Plaintiff's claim is not permitted by the FBSA's "savings clause".

DISCUSSION

On May 7, 1995, the Plaintiff, Steve Lady, was operating a personal water craft commonly called a "jet ski". Richard Rychetsky, one of Plaintiff's friends, was following in a boat. The two vessels suddenly collided. As a result of the impact, Plaintiff was thrown from his jet ski and under Rychetsky's boat. Plaintiff was severely injured when he came into contact with the boat's moving propeller. A products liability claim was subsequently filed against OMC, the manufacturer of Rychetsky's boat. The gravamen of Plaintiff's complaint is OMC's failure to provide a propeller guard.¹ OMC argues that Plaintiff's state common law claims, based upon the failure of Defendant to install propeller guards, are preempted by the FBSA, 46 U.S.C. § 4303. Plaintiff disagrees and further contends that the § 4311(g) savings clause permits maintenance of his product liability claim.

Congress enacted the Federal Boat Safety Act, 46 U.S.C. § 4301 et. seq., in part "to improve boating safety by requiring manufacturers to provide safer boats and boating equipment to the public through compliance with safety standards to be promulgated by the Secretary of the Department in which the Coast Guard is operating — presently the Secretary of Transportation." P.L. 92-75, Federal Boat Safety Act of 1971, S.Rep. No. 92-248. The FBSA preemption clause, 46 U.S.C. § 4306 provides:

Unless permitted by the Secretary under section 4305 of this title, 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 carrying or use of marine safety articles to meet uniquely hazardous conditions or circumstances within the State) that is not identical to a regulation prescribed under section 4302 of this title.

Thus, § 4306 preempts state laws or regulations that are not identical to regulations promulgated under the Act. The United States Coast Guard has been delegated the exclusive authority to establish safety regulations under the FBSA. 49 C.F.R. § 1.46(n)(1). Before promulgating a regulation, the Coast Guard is required to consult with the National Boating Safety Advisory Council ("the Advisory Council") on the need for regulation. 46 U.S.C. § 4302(c)(4). In 1988, the Coast Guard directed the Advisory Council to examine the feasibility and potential safety advantages and disadvantages of propeller guards. In response, the Advisory Council appointed a Propeller Guard Subcommittee "to consider, review and assess available data concerning the nature and incidence of recreational boating accidents in which persons in the water are struck by propellers." National Boating Safety Advisory Council, Report of the Propeller Guard Subcommittee 1 (1989). After reviewing the available scientific data and testimony, the Subcommittee concluded that propeller guards would not increase overall safety, because they increased the chances of contact between a blunt object and a person in the water. Consequently, the Advisory Council Subcommittee recommended that the Coast Guard take no regulatory action to require propeller guards. Acting upon the recommendation of the Advisory Council, and concluding that available accident data did not support the imposition of a regulation requiring propeller guards on motorboats, the Coast Guard decided not to implement regulations requiring propeller guards.

The Eleventh and Eighth Circuits have held that the FBSA preempts propeller guard product liability claims. Lewis v. Brunswick Corp. 107 F.3d 1494 (11th Cir.1997); Carstensen v. Brunswick Corp. 49 F.3d 430 (8th Cir.1995). In addressing the issue, this Court held in Parker v. Outboard Marine Corp., No. J90-001(L), slip op. at 2-3 (S.D.Miss. Feb. 25, 1991) (order granting summary judgment) (citations omitted), that "[t]he Coast Guard's decision not to require propeller guards `takes on the character of a ruling that no such regulation is appropriate', and precludes states from imposing liability based on the absence of such guards... A state common law action seeking to impose liability for the failure to have a propeller guard is preempted." In Arkansas Electric Cooperative Corp. v. Arkansas Public Service Commission, 461 U.S. 375, 384, 103 S.Ct. 1905, 1912, 76 L.Ed.2d 1 (1983), the court held that "a federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left unregulated, and in that event would have as much preemptive force as a decision to regulate. Plaintiff correctly points out that a decision not to regulate does not always have a preemptive effect." See Freightliner Corp. v. Myrick, 514 U.S. 280, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995)(holding that the National Traffic and Motor Vehicle Safety Act did not expressly preempt state common-law design defect claims against manufacturers of trucks not equipped with antilock braking systems); Puerto Rico Dept....