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Miller v. Rinker Boat Co.
State: Illinois
Court: 4th District Appellate
Docket No: 4-03-0541 Rel
Case Date: 09/15/2004

 

NO. 4-03-0541

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

ANGELA L. MILLER, Individually and as
the Independent Executrix of the Estate
of DARRIN R. MILLER, Deceased,
               Plaintiffs-Appellants,
               v.
RINKER BOAT COMPANY, INC.,
               Defendant-Appellee.
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Appeal from
Circuit Court of
Adams County
No. 00L41

Honorable
Mark A. Schuering,
Judge Presiding.


JUSTICE MYERSCOUGH delivered the opinion of thecourt:

In July 2000, plaintiffs, Angela L. Miller (hereinafterplaintiff), filed a complaint individually and as executrix of herdeceased husband's estate against defendant, Rinker Boat Company,Inc., an Indiana corporation, alleging wrongful death of her husband,Darrin R. Miller (decedent), based on strict liability and negligence. In October 2002, defendant filed a motion for summary judgment. In January 2003, after a hearing on the motion, the trialcourt granted summary judgment for defendant. Plaintiff appeals,arguing (1) in granting summary judgment to defendant on the strict-liability count, the court erred in concluding that plaintiff has notsufficiently demonstrated the existence of a design defect that madethe boat unreasonably dangerous; (2) the court erred in findingdefendant owed no duty to warn, or, in the alternative, defendantprovided adequate warning as matter of law; and (3) in grantingsummary judgment to defendant on the negligence count, the courterred in concluding that plaintiff failed to present any evidence tosupport any breaches of duty by defendant and failed to prove defendant's breaches, if any, proximately caused decedent's death. Wereverse and remand.

 

I. BACKGROUND

A. Procedural Background

On July 24, plaintiff filed a wrongful-death complaintagainst defendant based on a strict-liability theory and also anegligence theory. Specifically, plaintiff claimed that the boat inquestion had the following defects:

(1) The boat had slippery surfaces inlocations utilized by passengers for ingress toand egress from the passenger compartment;

(2) the boat had no antiskid surface alongthe rear in a location that passengers had tostand on and cross for ingress to and egressfrom the passenger area; and

(3) the boat contained no markings, warnings, or instructions to discourage and preventpassengers from standing on the slippery surfaces described above.

On October 21, 2002, defendant moved for summary judgment,arguing as follows:

(1) Under the strict-liability count,

(a) plaintiff did not sufficiently prove that defendant manufactured a boat that was defective orunreasonably dangerous, and

(b) defendant had no duty towarn because plaintiff complainsabout a danger that is open and obvious, and, in any event, defendantprovided adequate warning in the instructional manual;

(2) under the negligence count,

(a) plaintiff failed to demonstrate that defendant breached itsduty of care to decedent, and

(b) defendant owed no duty towarn, or defendant provided adequatewarning in the instruction manual.

Defendant attached to its memorandum of law in support of its motionfor summary judgment a photocopied picture of the Rinker 232 CaptivaCuddy boat and the Rinker owner's manual for Cuddy Cabin boats.

On November 21, 2002, plaintiff filed a response todefendant's motion for summary judgment and a memorandum of lawopposing summary judgment. Plaintiff attached to her memorandum oflaw the following: (1) plaintiff's deposition, (2) Randy Rinker'sdeposition, (3) Angela Walker's deposition, (4) Robert "Whitey"Walker's deposition, (5) Todd Miller's deposition, (6) James Allen'sdeposition, (7) Lloyd Standridge's deposition, (8) Dr. TravisHindman's deposition, (9) Dr. Christopher Long's deposition, (10) KimSlocum's deposition, (11) Robert Dumford's deposition, (12) ChristianVon Der Hyde's deposition, (13) U.S. Paint Company's (U.S. Paint)instructions for mixing sand-and-paint mixture, (14) a Rinker owner'smanual, and (15) Tom Richardson's deposition. Plaintiff's memorandumof law in opposition to the motion for summary judgment and theattachments thereto set forth the following evidence.

1. The Incident

This suit arose from a drowning incident that occurred onAugust 30, 1998, on the Mississippi River. On July 17, 1998,decedent purchased a 1998 Model 232 Captive Cuddy motor boat from theGreat Lakes Boat Company (Great Lakes) in Hamilton, Illinois. Defendant manufactured the boat, and Great Lakes is an authorizeddealer for defendant. Decedent's family members testified that thisis the first boat that decedent personally owned. Decedent, however,was raised around the boats that his family owned and was familiarwith boating on the Mississippi River.

On August 30, 1998, after owning the boat for over sixweeks, decedent took plaintiff and three friends (Kent Sawyer, whodied shortly thereafter, Angela Walker, and Whitey) out on theMississippi River to go to an annual boat festival on Hog's BackIsland. Plaintiff stated that they left at about 11 a.m. from apublic boat ramp in Warsaw, Illinois, which is about 10 miles awayfrom her home in Hamilton, Illinois. Whitey stated that Hog's BackIsland is just north of Quincy, Illinois, and is about 30 miles awayfrom Warsaw. When the group arrived at the island, the shore wasalready full of boats. They anchored behind other boats out in thewater and stayed there for about three to four hours.

Plaintiff and Whitey testified that the group brought withthem a cooler of beer and soft drinks and part of a bottle of CrownRoyal. They estimated the cooler contained about a case or a caseand a half of beer. Whitey also stated the bottle of Crown Royal wasabout one-quarter full. Everyone drank beer except Angela Walker,who was pregnant at the time. Angela Walker and Whitey testifiedthat decedent, plaintiff, Kent, and Whitey each drank about the sameamount of beer. The group did not drink the Crown Royal until theywere on their way home. Whitey stated that decedent, Kent, and he"probably had about two [Crown Royals] a piece [sic]" and finishedwhat was left in the bottle. Whitey further estimated that "over thecourse of the day" he drank "somewhere between seven to nine" drinks,and decedent drank "probably the same amount." No one is certain,however, how many beers were left in the cooler and exactly how muchand what decedent drank.

At about 4:30 p.m., the group decided to leave Hog's BackIsland. On the way home, decedent wanted to go tubing. To preparefor tubing, decedent and Kent removed the tube, pump, rope, and othernecessary items from the boat's storage area. Whitey and AngelaWalker testified that, while Kent was blowing up the tube, decedentstepped onto the engine-cover area (transom) from the rear bench seatwith ropes in his hand, preparing to tie the tube to the back of theboat. Whitey stated he was standing, facing decedent, when decedentwas stepping up to the rear deck. As Whitey was turning away fromdecedent (from the stern side to the port side of the boat) to getinto the driver's seat, he heard a "squeak" and saw decedent's feet"in the corner of my eye slide up to this [port side] direction." Whitey admitted that he only "caught the motion of [decedent's] onefoot in the air" and he did not see decedent fall. Whitey then heardone hard "thump," and he immediately stood up on the bench seat andlooked at the water to see if decedent was okay. Whitey stated heinitially thought decedent might be "goofing off," but at the sametime, he was also "a little concerned" because of "how hard the thumpwas on the back of the boat."

Angela Walker stated that she also did not see decedentfall because she was watching Kent blow up the tube. Angela Walkerstated that she heard a "thump" and a "splash." Angela Walker didnot know the source of the sound, but she immediately "stood up" tosee "what was going on," and she saw decedent's body "already underthe water." Angela Walker recalled that decedent was "face up ***lying parallel with the stern of the boat," and then "just went down"under the water. Angela Walker stated that when decedent's body didnot resurface, everyone started yelling for decedent to "come back"and "quit messing with us." Angela Walker and Whitey recalled thatin "probably less than five seconds," Kent jumped into the water tolook for decedent. Whitey then jumped into the water to help Kent. Soon after, plaintiff also jumped in. Angela Walker describedplaintiff as "hysterical," crying for help while floating in thewater. Angela Walker jumped into the water soon after "to get a lifejacket to [plaintiff] cause [sic] [she] knew [plaintiff's] state wasalready going to start deteriorating real quick."

Plaintiff testified that she witnessed the entire slip andfall. She stated she was sitting in the chair next to the driver'sseat, and, as decedent was preparing to tie the rope to the back ofthe boat, she swivelled around to watch decedent. Plaintiff statedthat she watched her husband because she wanted to go home and wasnot happy with his decision to go tubing. Plaintiff saw decedentstep from the floor of the boat onto the rear bench with his rightfoot, then onto the transom with his left foot. Plaintiff did notrecall whether decedent had anything in his hands. After decedentstepped on the transom, he took another step with his right foot intothe rear starboard stern corner. At that time, plaintiff sawdecedent's right foot "just come right out from underneath of him"and his legs "just went up in the air." Plaintiff stated that sheremembered decedent's back "went down" from the side and decedent'shead was "like snapped." Plaintiff heard "a big[,] loud thud" and"felt it when [decedent] hit," and then decedent was out of hersight. Plaintiff stated that she "jumped up immediately" and yelled,"he hit his head." Kent initially said, "Oh, he probably is justmessing with us," but everyone looked over in the water, and they didnot see anything. Plaintiff told Kent again that decedent hit hishead, and Kent "dove right in" to search for decedent. Withinseconds, plaintiff and the other passengers also jumped into thewater to search for decedent. Plaintiff testified that they couldnot find decedent and eventually Kent and Whitey pulled plaintiff outof the water.

Lloyd Standridge, captain of a towboat, witnessed theaccident as it happened. Standridge testified that on August 30,1998, he and his towboat were northbound on the Mississippi River. Standridge stated that the weather was pretty on that day andpleasure boats were all over the river. Sometime between 6 and 7p.m., Standridge noticed a pleasure boat about 200 yards away with"two guys and two girls" on board. Standridge slowed his boat down,got his binoculars out, and "eased on by them" to "check out thegirls." Standridge stated that the pleasure boat passed by histowboat on the starboard side, then turned and stopped, and was "moreor less drifting" at about 30 yards away.

Standridge stated that as he was watching the girls, henoticed three people facing each other talking while a male "stood upand stepped down on the platform." Standridge testified that as themale "raised his left foot up" to step from the platform to theboat's ladder, "his other foot just went out from under him." Standridge saw the male hit the ladder, which was already in thewater, with the back of his neck or head. The male did not make asplash and went straight down. Standridge thought to himself, "God,he hit hard," but "the other three people" on the boat "weren'tpaying any attention" to what happened and "kept on talking." Standridge believed that at the time of accident, the male did nothave a life jacket on and was barefoot. In addition, none of thepassengers on board wore life jackets.

When the male did not come up from the water, Standridgegot worried and started hollering at the people on the boat andpointing toward the water. Standridge stated that, initially, thepeople on the pleasure boat could not hear him and "must [have]thought I was crazy." But then the passengers must have realized thesituation was serious because "their eyes got big" and they "startedwalking around [and] looking around." Standridge stopped his towboatto make sure he could mark the spot where the male fell in. He thencalled the Coast Guard to stop all towing traffic and to notifySearch and Rescue. Standridge stated that, as he was talking to theCoast Guard about what had happened, the people on the pleasure boatwere "all over the place going crazy looking for [the male]."

Standridge stated that the Coast Guard requested him toget one of the passengers to come to his towboat so that the CoastGuard could get information about the person that had fallen into thewater. Standridge sent two of his crews to the pleasure boat, andthey brought a male passenger (Kent) back to the towboat. Standridgenoticed that the passenger was "emotionally distraught" and"completely confused." Standridge stated that he smelled alcoholfrom the passenger's breath but the passenger was not "staggeringdrunk." Standridge stayed at the scene to assist the search effortuntil it was dark.

Plaintiff testified that after she got out of the water,she sat on the boat, crying and screaming, knowing decedent "wasgone." Plaintiff then asked Whitey to inform decedent's parents andbrothers about the drowning. Later that afternoon, the MissouriWater Patrol and the Illinois Conservation Department arrived at thescene to search for decedent and to investigate the incident. No onewas able to find decedent. Two days later, decedent's body washed upon shore, and a coroner's report was prepared pursuant to the requestof the coroner of Adams County.

2. Decedent's Autopsy

Dr. Travis Hindman, a forensic pathologist, testified tothe results of decedent's autopsy. Dr. Hindman stated that the causeof decedent's death was "drowning." Dr. Hindman found a lacerationon the left side of decedent's face but no evidence of significanttrauma. Dr. Hindman stated that he could not determine the cause ofthe laceration. Dr. Hindman also testified that at time of theautopsy, decedent's blood-alcohol level was .185. Dr. Hindman statedthat because of the decomposition, he was not able to obtain"vitreous humor," a transparent jelly that fills the eyeballposterior to the lens, from decedent's body. As a result, he was notable to compare decedent's vitreous-alcohol level to decedent'sblood-alcohol level. Dr. Hindman therefore stated that he could notdetermine decedent's blood-alcohol level immediately before his deathbecause "there is an unpredictable rate of production by organismsacting upon the decedent's body tissues and fluids" that wouldincrease decedent's blood-alcohol level. Dr. Hindman further statedthat in some individuals, postmortem decomposition could contributeup to 0.2 of the blood alcohol.

Dr. Christopher Long, a forensic toxicologist and one ofplaintiff's expert witnesses, also testified to the cause of thedecedent's blood-alcohol level. Dr. Long agreed with Dr. Hindmanthat the .185 postmortem blood-alcohol level is not indicative of anyamount of alcohol decedent consumed prior to the time of his death. In addition, based on the description of decedent's decomposition inthe autopsy, "it is quite reasonable that [.185] alcohols [sic] aregenerated strictly from decomposition."

3. Defendant's Manufacturing Process

Kim Slocum, defendant's general manager, and RobertDumford, defendant's plant manager, testified that defendantmanufactured the boat in question in October 1997 at its Indianaplant. Dumford stated that defendant intended its boats to be usedon the waterways for tubing and skiing. Slocum and Dumford statedthat defendant uses a two-step process in manufacturing boats. First, the research and development department creates a full-scaleprototype of a boat from a drawing of what the boat should look like;second, defendant casts a fiberglass mold of the prototype and makesall the boats from that mold. Dumford testified that in producingthe prototype, defendant sprays a slip-resistant sand-and-paintmixture onto the swim platform. The nonskid paint on the prototypethen creates a texture in the fiberglass poured into the mold for allboats manufactured from that mold. The swim platform and theforedeck of the prototype are the only surfaces that are painted withthe nonskid paint mixture.

U.S. Paint manufactured the nonskid sand-and-paint mixturethat defendant used in manufacturing the boat in question. Christianvon der Hyde, president and chief executive officer of U.S. Paint,testified that the sand-and-paint mixture can be applied in two ways: (1) by mixing the sand into the paint and spraying it on the boat or(2) by adding the sand to tacky paint already on the boat. Von deHyde also stated that for the first method, spray application, U.S.Paint recommends its customers mix four ounces of sand with everygallon of paint.

Dumford testified that he is not aware of any standard formixing the sand and the paint. The employee who paints the boatcreates a mixture of sand and paint, places the mixture onto a sheetof paper, and shows it to the plant manager for approval. Dumfordstated that as the plant manager, he examines and approves the sand-and-paint mixture by feeling the texture of the test paper and bylooking at how many grains of sand are in a square-inch area. OnceDumford approves it, the mixture is deemed adequate for the swimplatform of the prototype. Dumford further stated that after theprototype is completed, he and other employees would walk around onthe prototype barefoot to test the adequacy of the slip resistance ofthe swim platform and foredeck. Dumford admitted, however, that (1)he tests the prototype's slip resistance under a dry condition, (2)defendant does not conduct any coefficient-of-friction test of theprototype surface, and (3) defendant does not add additional nonskidsurfacing after a boat is removed from the mold.

Dumford testified that defendant began manufacturing awalk-through transom after 1989 to make ingress and egress from theback of the boat easier. A passenger, however, would have to step onthe transom to reach the swim platform on the boat in question. Dumford also stated that defendant does not add any nonskid materialsto the transom area of the prototype or the mold.

Slocum and Dumford stated that at the end of themanufacturing process, defendant's employees inspect every boat peran inspection checklist. Defendant also tests its large boats byplacing them in a water tank in one of the factories. For a boatthat is between 18 and 23 feet, which is the size of the boat inquestion, defendant only sprays water on the boat to check for leaks. On occasion, defendant's employees take a random boat out in thenearby lakes and test the boat by using it themselves. Slocum statedin his deposition that when the boat is taken out in the water, theemployees walk around the boat, including the entire front, back, andupholstery barefoot. In addition, they climb across the seats in theupholstered area and step onto the swim platform, where they jump offthe boat into the water. Dumford stated in his deposition thattesting in the lake involves checking the "engine, electrical, andmechanical, that's it." Dumford further stated that decedent's boatwould never have been tested in the lake because it came off theproduction line in November, and the lake was frozen.

4. The Instruction Manual

Defendant provides owners' instruction manuals with itsboats. Plaintiff testified decedent received an instruction manualwith the boat he purchased. The instruction manual for decedent'sboat contains three different types of warnings: (1) a "DANGER"indication, which means severe personal injury or death will result;(2) a "WARNING" indication, which means severe personal injury ordeath could result; and (3) a "CAUTION" indication, which means minorpersonal injury or product or property damage could result. Themanual provides in two areas the possibilities of slipping and statesas follows:

"CAUTION: Wet surfaces can be slippery.Passengers should wear adequate deck shoeswhile boarding and underway to avoid accidentalslipping and injury."

"CAUTION: Deck areas and swim platform areslippery when wet. Passengers must be carefulwhen passing through companionway to preventaccidental slipping or tripping. Passengersshould wear adequate deck shoes at all times toprevent accidental slipping. Passengers muststay off swim platform while underway toprevent falling overboard."

The above provisions are contained in the "Getting Underway" section. The boat itself has no warning labels regarding the danger ofslipping or falling from the boat.

5. Plaintiff's Experts' Deposition Testimonies

James Allen, a retired member of the Coast Guard and amarine consultant, testified with regard to decedent's fall and theslipperiness of the boat surfaces. Allen examined the transom, theswim platform, and the steering areas of the boat in question. Allenthen sprayed some water on the platform and walked on it barefoot. Allen stated that he believes the mechanics of decedent's fall aremost consistent with a slip on the transom. Allen also stated thatbased on his barefoot walking on the boat, he concluded the nonskidsurface on the swim platform of the boat in question is inadequate. Allen stated that the American Boat & Yacht Council (ABYC) recommendsthat all walkways and companionways have nonskid surfacing and mostmanufacturers follow these guidelines. Allen indicated that thetransom on the boat is the only way for a passenger to reach the swimplatform of the boat and is a walkway. Therefore, defendant failedto meet the ABYC's guidelines by not having any skid-resistantmaterials on the transom. Allen did acknowledge, however, thatABYC's guidelines are recommendations to the boat manufacturers andare not mandatory. Allen also stated that, based on his experiencewith the Coast Guard, he believes defendant failed to provideadequate warnings on the possibilities of passengers slipping andfalling because no warnings are on the boat and the warningscontained in the instruction manual are insufficient.

Thomas Richardson, an engineering consultant, alsotestified by way of deposition. Richardson stated that he conductedcoefficient-of-friction testing of the transom and swim-platformsurfaces of the boat in question. Richardson stated that he alsoconducted a similar test on a teak surface, a material that is widelyused on boats as a nonskid surface. Richardson then compared theresults of the two tests and concluded that, based on the measuredcoefficient of friction, the surface of the boat transom is tooslippery and not suitable for walking on when wet.

B. The Trial Court's Ruling on the Motion for Summary Judgment

On December 31, 2002, the trial court conducted a hearingon defendant's motion for summary judgment. Plaintiff and defendantpresented no evidence at the hearing. On February 20, 2003, thecourt granted defendant's motion for summary judgment. In reachingits decision, the court reasoned as follows:

(1) A triable issue does not exist thatthe boat was defective or unreasonablydangerous because plaintiff has notsufficiently demonstrated the existence of adesign defect that made the boat unreasonablydangerous;

(2) under the facts and circumstances ofthis case, defendant owed no duty to warn, and,even if there is a legal duty to warn, thewarning provided by the instruction manual isadequate as a matter of law; and

(3) plaintiff failed to present anyevidence to support any breaches of duty bydefendant and failed to prove defendant'sbreaches, if any, proximately caused decedent'sdeath.

On March 19, 2003, plaintiff filed a motion to reconsider. On May 27, 2003, the trial court heard and denied plaintiff's motion. This appeal followed.

 

II. ANALYSIS

A. Standard of Review

We review a trial court's grant of summary judgment denovo. Sollami v. Eaton, 201 Ill. 2d 1, 6-7, 772 N.E.2d 215, 218(2002). Summary judgment is appropriate when "the pleadings,depositions, and admissions on file, together with the affidavits, ifany, show that there is no genuine issue as to any material fact andthat the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2002); Sollami, 201 Ill. 2d at 6, 772N.E.2d at 218. Because summary judgment is a drastic means ofdisposing of litigation, it should be allowed only when "the movant'sright to judgment is clear and free from doubt." Outboard MarineCorp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607N.E.2d 1204, 1209 (1992). In addition, a court must consider allevidence presented, including expert depositions, in favor of thenonmoving party and strictly against the movant. Outboard MarineCorp., 154 Ill. 2d at 131-32, 607 N.E.2d at 1223. At the summaryjudgment stage, a plaintiff is not required to establish his case ashe would at trial but must present some factual basis that wouldarguably entitle him to a judgment. West v. Deere & Co., 145 Ill. 2d177, 182, 582 N.E.2d 685, 687 (1991).

B. Plaintiff's Strict-Liability Claim

Illinois has adopted the strict-liability formula setforth in section 402A of the Restatement (Second) of Torts(Restatement (Second) of Torts

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