Appeal from the Circuit Court of Cook County.
The Honorable Joseph N. Casciato, Judge, Presiding.
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.
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 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 sub-division 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 sub- division 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]compliance with this chapter or standards, regulations, or orders prescribed under this chapter does not relieve a person from liability at common law or ...