Sprietsma v. Mercury Marine, No. 1-99-0012.

• Court: United States Appellate Court of Illinois
• Citation: 729 N.E.2d 45,246 Ill.Dec. 45,312 Ill. App.3d 1040
• Docket Number: No. 1-99-0012.
• Parties: Rex R. SPRIETSMA, Administrator of the Estate of Jeanne Sprietsma, Deceased, Plaintiff-Appellant, v. MERCURY MARINE, A DIVISION OF BRUNSWICK CORPORATION, a corporation, Defendant-Appellee.
• Decision Date: 06 April 2000

729 N.E.2d 45
312 Ill. App.3d 1040
246 Ill.Dec. 45

Rex R. SPRIETSMA, Administrator of the Estate of Jeanne Sprietsma, Deceased, Plaintiff-Appellant,
v.
MERCURY MARINE, A DIVISION OF BRUNSWICK CORPORATION, a corporation, Defendant-Appellee

No. 1-99-0012.

Appellate Court of Illinois, First District, Fourth Division.

April 6, 2000.

729 N.E.2d 46

Power, Rogers & Smith, P.C., Chicago (Joseph A. Power, Jr., Todd A. Smith, Devon C. Bruce, of counsel), for Appellant

Cassidy, Shade & Gloor, Alison E. O'Hara, Michael J. Cucco, Chicago, Faegre & Benson, LLP, Daniel J. Connolly and Mark J. Carpenter, Minneapolis, MN, admitted proc hac vice, for Appellee.

Justice BARTH delivered the opinion of the court:

The plaintiff, Rex Sprietsma, as administrator of the estate of his deceased wife, Jeanne, filed this wrongful death action against, inter alia, Mercury Marine, a division of Brunswick Corporation (Mercury), for the benefit of himself, the surviving spouse, and his son, Ross. Jeanne died after falling from a motor boat and being struck by the propeller blades of the boat's outboard engine. That engine was not equipped with a propeller guard.

Mercury moved to dismiss pursuant to section 2-619 (735 ILCS 5/2-619 (West 1998)), on the ground that the common law tort claims on which Sprietsma's wrongful death action is based are preempted by provisions of the Federal Boat Safety Act (FBSA or Act) (46 U.S.C. § 4301 et seq. (1971)). The trial court granted the motion, this appeal followed, and we now affirm.

Background

A. Facts of this case

In July of 1995, plaintiff's decedent, Jeanne Sprietsma, was a passenger on board a motor boat. While the driver was in the process of making a right turn, Jeanne fell from the boat. Once in the water, she was repeatedly struck by the propeller blades of the boat's outboard engine. This caused her to suffer serious injury and resulted in her death shortly thereafter. The engine, designed by Mercury, was not equipped with a propeller guard.

Sprietsma filed a wrongful death action against, inter alia, Mercury to recover damages for the personal injuries of Jeanne, and for the loss of consortium suffered by both himself and his son Ross. Sprietsma's complaint alleged that Mercury's engine was defectively designed in that it was not equipped with propeller guards. Mercury moved for dismissal pursuant to section 2-619 (735 ILCS 5/2-619 (West 1998)) on the ground that Sprietsma's claims were preempted by the FBSA.

Finding that Sprietsma's cause of action was impliedly preempted by the FBSA, the trial court granted Mercury's motion to dismiss on November 20, 1998. The court included language in its order that it was final and appealable pursuant to Illinois Supreme Court Rule 304(a).

On appeal, Sprietsma contends that the trial court erred in granting dismissal, since the FBSA does not expressly or impliedly preempt state law tort claims based on the absence of a propeller guard. In support of his contention, Sprietsma asserts: (1) if Congress had intended to preempt common law claims, it would have explicitly done so in the FBSA's preemption clause; (2) even if the Act's preemption language ordinarily includes common law claims, the Act's savings clause alters this conclusion; (3) this court is required to apply a presumption against finding preemption; and (4) claims relating to propeller

729 N.E.2d 47

guards cannot be in conflict with federal law where there is no federal law on the subject

B. The Federal Boat Safety Act

At issue is the construction of sections 4306 and 4311(g) of the FBSA, otherwise known as the preemption and savings clauses respectively. Section 4306 provides:

"Unless permitted by the Secretary under section 4305 of this title, a State or a 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." 46 U.S.C. § 4306.

And section 4311(g) provides:

"[c]ompliance with this chapter or standards, regulations, or orders prescribed under this chapter does not relieve a person from liability at common law or under State law." 46 U.S.C. § 4311(g).

The FBSA was enacted in 1971 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 Transportation." See P.L. 92-75, Federal Boat Safety Act of 1971, S.Rep. No. 92-248, reprinted in 1971 U.S.C.A.N. 1333. To implement that goal, the Act grants the Secretary the exclusive authority to prescribe regulations establishing minimum safety standards for recreational boats. See 46 U.S.C. § 4302. To facilitate this duty, the Secretary has the option to delegate regulatory functions to a designated agency that operates under [his or her] supervision. See 46 U.S.C. § 4303(a). The United States Coast Guard has been designated as that agency. See 49 C.F.R. § 1.46(n)(1) (1996).

Pursuant to the Act, the Coast Guard must consult with the National Boating Safety Advisory Council (NBSAC) concerning the need for regulation in a given area and the extent to which proposed regulations will contribute to recreational boating safety. See 46 U.S.C. § 13110.

C. Regulating the use of propeller guards

In 1988, the Coast Guard directed the NBSAC to examine the feasibility and potential safety advantages and disadvantages of propeller guards. The NBSAC appointed a Propeller Guard Subcommittee for the purpose of reviewing and analyzing data relating to recreational boating accidents in which persons in the water were struck by boat propellers. See National Boating Safety Advisory Council, Report of the Propeller Guard Subcommittee (1989). The NBSAC also asked the Subcommittee to consider whether "the Coast Guard [should] move towards a federal requirement for some form of propeller guard." See Report of the Propeller Guard Subcommittee, at Appendix A.

After a year-long study and three different public hearings on the matter, the Subcommittee reached the unanimous conclusion that the "U.S. Coast Guard should take no regulatory action to require propeller guards." See Report of the Propeller Guard Subcommittee, Nov. 7, 1989, at 24. The Subcommittee determined that "[t]he development and use of devices such as `propeller guards' can * * * be counterproductive and can create new hazards of equal or greater consequence." See Report of the Propeller Guard Subcommittee, Nov. 7, 1989, at 23. Among other negative effects, propeller guards were found to have the potential to decrease an operator's ability to maintain control over the boat at "normal" speeds, increase the probability of striking a body in the water, and create a possibility of causing greater

729 N.E.2d 48

injury to those struck. See Report of the Propeller Guard Subcommittee, Nov. 7, 1989, at 23-24

The Subcommittee's recommendation that no regulatory action be taken was accepted by both the NBSAC and the Coast Guard. See Letter from Robert T. Nelson, Rear Admiral, U.S.Coast Guard, Chief, Office of Navigation, Safety and Waterway Services to A. Newell Garden, Chairman, National Boating Safety Advisory Council (Feb. 1, 1990).

Analysis

We review de novo the grant of a motion brought pursuant to 2-619. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993). The Supremacy clause of the Constitution provides that "the laws of the United States ... shall be the supreme Law of the Land * * * any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Pursuant to the Supremacy Clause, Congress has the authority to preempt state law. Louisiana Public Service Comm'n v. FCC, 476 U.S. 355, 106 S.Ct. 1890, 1898, 90 L.Ed.2d 369, 381 (1986). "In determining whether Congress has preempted state law, our task is to discern congressional intent." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381-82, 112 S.Ct. 2031, 2036, 119 L.Ed.2d 157, 167 (1992). A court interpreting a federal statute pertaining to a subject traditionally governed by state law (such as safety) will be reluctant to find preemption. CSX Transp. Inc. v. Easterwood, 507 U.S. 658, 663-64, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387, 396 (1993); Weiland v. Telectronics Pacing Systems, Inc., 188 Ill.2d 415, 416, 242 Ill.Dec. 618, 721 N.E.2d 1149 (1999). In fact, preemption will be found only in those situations where it is "the clear and manifest purpose of Congress." CSX, 507 U.S. at 664, 113 S.Ct. 1732, citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947). Federal preemption of state law can occur in three circumstances: (1) express preemption, where Congress explicitly preempts state law; (2) implied preemption, where Congress has occupied the entire field (field preemption); and (3) implied preemption, where there has been an actual conflict between federal and state law (conflict preemption). English v. General Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65, 74-75 (1990).

Preliminarily, we note that the second district of this court has considered the precise issue with which we are now presented in Farner v. Brunswick Corp., 239 Ill.App.3d 885, 180 Ill.Dec. 493, 607 N.E.2d 562 (1992). As in the case sub judice, the plaintiff in Farner filed suit after being injured by a propeller on a boat motor designed and manufactured by the defendant. Farner, 239 Ill.App.3d at 887, 180 Ill.Dec. 493, 607 N.E.2d 562. The...