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05/27/94 TERRANCE G. BOYLE v. JOHN MANLEY

May 27, 1994

TERRANCE G. BOYLE, PLAINTIFF-APPELLEE,
v.
JOHN MANLEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable John G. Laurie, Judge Presiding.

Released for Publication July 14, 1994.

Giannis, Egan, McNamara

The opinion of the court was delivered by: Giannis

Justice Giannis delivered the opinion of the court:

Plaintiff brought suit in the circuit court of Cook County seeking recovery for property damage sustained to his yacht. Following a bench trial, Judge Willie B. Wright entered judgment in favor of defendant. Judge Wright subsequently granted plaintiff's post-trial motion for a new trial, however, and transferred the matter to Judge John G. Laurie. At the second bench trial, Judge Laurie entered judgment in favor of plaintiff for $2,888.76. In addition, Judge Laurie awarded plaintiff costs in the amount of $1,449.92. Defendant brought this timely appeal pursuant to Supreme Court Rule 303 (134 Ill. 2d R. 303).

In 1987 plaintiff moored his yacht, the Pegasus, in Chicago's Belmont Harbor. Defendant John Manley also kept his yacht, the Tiger, at Belmont Harbor. Belmont Harbor is primarily a harbor used by pleasure boats such as the Tiger and Pegasus and provides direct access to Lake Michigan. The harbor is occasionally used by commercial boats, however, and has been designated a "harbor of refuge" for use by boats in distress or in times of adverse weather. The harbor facilities include a commercial refueling and sanitary pumpout station as well as a harbormaster's office building.

Belmont Harbor's facilities include stationary docks or "slips" for use by boats such as the Tiger and Pegasus. Each slip consists of a steel walkway which juts out about 50 feet into the harbor and perpendicular to land. These walkways rest on several large steel pilings driven into the harbor bed. The slips also include a cement seawall and steel bulkhead that is attached to the land. Between walkways and about 50 feet from the bulkhead stands a "lonesome piling" which consists of a single steel pipe driven into the harbor bed. The lonesome pilings are evenly spaced between the ends of the walkways and are surrounded by water. A steel cable stretches from the lonesome piling to the bulkhead. Thus, the lonesome piling and the end of the walkway serve to mark the entrance of each slip.

Each slip at Belmont Harbor has at least six mooring points to which a boat could be tied with ropes called "mooring lines." The mooring points consist of steel cleats and three inch diameter steelpipes called "stanchions" which were welded to the deck of the pier, the bulkhead and the lonesome piling. Each slip also has vertical wooden posts attached with bolts to the walkway. These posts run along the walkway at about twelve foot intervals.

Prior to the re-trial before Judge Laurie, lawyers for both parties indicated their intention to offer expert testimony. Plaintiff identified his expert, Belmont Harbor harbormaster Michael Oltean. Defendant's attorney stated that he was not yet ready to name an expert and needed additional time. The trial court indicated that the parties might wish to rely upon a recognized treatise in lieu of presenting experts in order to minimize trial costs. Nonetheless, the court granted defendant an extension of time to find an expert. Defendant did not name an expert within the time allowed by Judge Laurie's order. Instead, defendant elected to proceed by relying upon a generally recognized boating treatise, Chapman: Piloting, Seamanship and Small Boat Handling (hereinafter referred to as "Chapman's ").

At trial, Harbormaster Oltean testified both as an occurrence witness and as an expert for the plaintiff. He stated that in early October 1987, a storm with strong winds arose on Lake Michigan. On the morning after the storm he arrived early at Belmont Harbor to check for damage. He found that the stern of the Tiger had broken loose from its mooring, broken through the steel cable and had made contact with the Pegasus. He noticed that the Tiger had been tied on the slip's wooden posts and that one of the posts had broken. He also testified that the rear spring line of the Tiger had been tied high up on a wooden post near the end of the pier.

Oltean pulled the Tiger away from the Pegasus. He saw the port stern and rear spring line still tied to part of a broken post which was floating in the water between defendant's boat and the walkway. He partially lifted the broken post out of the water using the other end of the mooring line that was still attached to defendant's boat. Oltean could not lift it onto the pier. He could, however, see the spot on the post where the rope was tied. He testified that it was a point that was at least three to four feet up from the surface of the pier. A photograph entered into evidence showed the chafe mark that the mooring line had made on the wood.

Oltean stated that, in his opinion, the sole purpose of the wooden posts was to act as fenders so that a boat would not be damaged if it hit the steel pier while entering or exiting the slip. He indicated that the wooden posts were not appropriate mooring points. He testified that prior to the incident involving the two yachts in 1987, he noticed defendant had tied his mooring lines to the wooden posts instead of what he believed were proper mooring points -- the steel stanchionsand cleats. He also noticed that defendant had tied his mooring lines high up on the posts. Oltean testified that he warned defendant not to tie to the posts or to the wooden handrails on the walkway; he explained that tying high on the posts increased the leverage on the wood. He also testified to making the same warning to defendant's wife later in the season after noticing that she had also tied the Tiger's mooring lines high on the wooden posts.

Oltean stated that it was his opinion the accident occurred because defendant had moored his boat to the wooden posts and because the mooring lines were tied at such an angle so as to create excessive leverage.

Defendant argues that the trial court's finding in favor of plaintiff is against the manifest weight of the evidence. A reviewing court will not substitute its judgment for that of the trial court unless the trial court's judgment is against the manifest weight of the evidence. ( Central Production Credit Association v. Kruse (1987), 156 Ill. App. 3d 526, 532, 509 N.E.2d 136, 108 Ill. Dec. 710; Williams v. Estate of Cross (1980), 85 Ill. App. 3d 923, 925, 407 N.E.2d 704, 41 Ill. Dec. 206.) A trial court's judgment is against the manifest weight of the evidence ...


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