Appeal from Circuit Court of Adams County. No. 00L41. Honorable Mark A. Schuering, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
In July 2000, plaintiffs, Angela L. Miller (hereinafter plaintiff), filed a complaint individually and as executrix of her deceased 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 trial court 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 not sufficiently demonstrated the existence of a design defect that made the boat unreasonably dangerous; (2) the court erred in finding defendant owed no duty to warn, or, in the alternative, defendant provided adequate warning as matter of law; and (3) in granting summary judgment to defendant on the negligence count, the court erred in concluding that plaintiff failed to present any evidence to support any breaches of duty by defendant and failed to prove defendant's breaches, if any, proximately caused decedent's death. We reverse and remand.
On July 24, plaintiff filed a wrongful-death complaint against defendant based on a strict-liability theory and also a negligence theory. Specifically, plaintiff claimed that the boat in question had the following defects:
(1) The boat had slippery surfaces in locations utilized by passengers for ingress to and egress from the passenger compartment;
(2) the boat had no antiskid surface along the rear in a location that passengers had to stand on and cross for ingress to and egress from the passenger area; and
(3) the boat contained no markings, warnings, or instructions to discourage and prevent passengers 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 or unreasonably dangerous, and
(b) defendant had no duty to warn because plaintiff complains about a danger that is open and obvious, and, in any event, defendant provided adequate warning in the instructional manual;
(2) under the negligence count,
(a) plaintiff failed to demonstrate that defendant breached its duty of care to decedent, and
(b) defendant owed no duty to warn, or defendant provided adequate warning in the instruction manual.
Defendant attached to its memorandum of law in support of its motion for summary judgment a photocopied picture of the Rinker 232 Captiva Cuddy boat and the Rinker owner's manual for Cuddy Cabin boats.
On November 21, 2002, plaintiff filed a response to defendant's motion for summary judgment and a memorandum of law opposing summary judgment. Plaintiff attached to her memorandum of law the following: (1) plaintiff's deposition, (2) Randy Rinker's deposition, (3) Angela Walker's deposition, (4) Robert "Whitey" Walker's deposition, (5) Todd Miller's deposition, (6) James Allen's deposition, (7) Lloyd Standridge's deposition, (8) Dr. Travis Hindman's deposition, (9) Dr. Christopher Long's deposition, (10) Kim Slocum's deposition, (11) Robert Dumford's deposition, (12) Christian Von Der Hyde's deposition, (13) U.S. Paint Company's (U.S. Paint) instructions for mixing sand-and-paint mixture, (14) a Rinker owner's manual, and (15) Tom Richardson's deposition. Plaintiff's memorandum of law in opposition to the motion for summary judgment and the attachments thereto set forth the following evidence.
This suit arose from a drowning incident that occurred on August 30, 1998, on the Mississippi River. On July 17, 1998, decedent purchased a 1998 Model 232 Captive Cuddy motor boat from the Great Lakes Boat Company (Great Lakes) in Hamilton, Illinois. Defendant manufactured the boat, and Great Lakes is an authorized dealer for defendant. Decedent's family members testified that this is the first boat that decedent personally owned. Decedent, however, was raised around the boats that his family owned and was familiar with boating on the Mississippi River.
On August 30, 1998, after owning the boat for over six weeks, decedent took plaintiff and three friends (Kent Sawyer, who died shortly thereafter, Angela Walker, and Whitey) out on the Mississippi River to go to an annual boat festival on Hog's Back Island. Plaintiff stated that they left at about 11 a.m. from a public boat ramp in Warsaw, Illinois, which is about 10 miles away from her home in Hamilton, Illinois. Whitey stated that Hog's Back Island is just north of Quincy, Illinois, and is about 30 miles away from Warsaw. When the group arrived at the island, the shore was already full of boats. They anchored behind other boats out in the water and stayed there for about three to four hours.
Plaintiff and Whitey testified that the group brought with them a cooler of beer and soft drinks and part of a bottle of Crown Royal. They estimated the cooler contained about a case or a case and a half of beer. Whitey also stated the bottle of Crown Royal was about one-quarter full. Everyone drank beer except Angela Walker, who was pregnant at the time. Angela Walker and Whitey testified that decedent, plaintiff, Kent, and Whitey each drank about the same amount of beer. The group did not drink the Crown Royal until they were on their way home. Whitey stated that decedent, Kent, and he "probably had about two [Crown Royals] a piece [sic]" and finished what was left in the bottle. Whitey further estimated that "over the course 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 much and what decedent drank.
At about 4:30 p.m., the group decided to leave Hog's Back Island. On the way home, decedent wanted to go tubing. To prepare for tubing, decedent and Kent removed the tube, pump, rope, and other necessary items from the boat's storage area. Whitey and Angela Walker testified that, while Kent was blowing up the tube, decedent stepped onto the engine-cover area (transom) from the rear bench seat with ropes in his hand, preparing to tie the tube to the back of the boat. Whitey stated he was standing, facing decedent, when decedent was stepping up to the rear deck. As Whitey was turning away from decedent (from the stern side to the port side of the boat) to get into 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] one foot in the air" and he did not see decedent fall. Whitey then heard one hard "thump," and he immediately stood up on the bench seat and looked at the water to see if decedent was okay. Whitey stated he initially thought decedent might be "goofing off," but at the same time, he was also "a little concerned" because of "how hard the thump was on the back of the boat."
Angela Walker stated that she also did not see decedent fall because she was watching Kent blow up the tube. Angela Walker stated that she heard a "thump" and a "splash." Angela Walker did not know the source of the sound, but she immediately "stood up" to see "what was going on," and she saw decedent's body "already under the 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 did not resurface, everyone started yelling for decedent to "come back" and "quit messing with us." Angela Walker and Whitey recalled that in "probably less than five seconds," Kent jumped into the water to look for decedent. Whitey then jumped into the water to help Kent. Soon after, plaintiff also jumped in. Angela Walker described plaintiff as "hysterical," crying for help while floating in the water. Angela Walker jumped into the water soon after "to get a life jacket to [plaintiff] cause [sic] [she] knew [plaintiff's] state was already going to start deteriorating real quick."
Plaintiff testified that she witnessed the entire slip and fall. She stated she was sitting in the chair next to the driver's seat, and, as decedent was preparing to tie the rope to the back of the boat, she swivelled around to watch decedent. Plaintiff stated that she watched her husband because she wanted to go home and was not happy with his decision to go tubing. Plaintiff saw decedent step from the floor of the boat onto the rear bench with his right foot, then onto the transom with his left foot. Plaintiff did not recall whether decedent had anything in his hands. After decedent stepped on the transom, he took another step with his right foot into the rear starboard stern corner. At that time, plaintiff saw decedent's right foot "just come right out from underneath of him" and his legs "just went up in the air." Plaintiff stated that she remembered decedent's back "went down" from the side and decedent's head was "like snapped." Plaintiff heard "a big[,] loud thud" and "felt it when [decedent] hit," and then decedent was out of her sight. Plaintiff stated that she "jumped up immediately" and yelled, "he hit his head." Kent initially said, "Oh, he probably is just messing with us," but everyone looked over in the water, and they did not see anything. Plaintiff told Kent again that decedent hit his head, and Kent "dove right in" to search for decedent. Within seconds, plaintiff and the other passengers also jumped into the water to search for decedent. Plaintiff testified that they could not find decedent and eventually Kent and Whitey pulled plaintiff out of the water.
Lloyd Standridge, captain of a towboat, witnessed the accident 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 and pleasure boats were all over the river. Sometime between 6 and 7 p.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 the girls." Standridge stated that the pleasure boat passed by his towboat on the starboard side, then turned and stopped, and was "more or less drifting" at about 30 yards away.
Standridge stated that as he was watching the girls, he noticed three people facing each other talking while a male "stood up and stepped down on the platform." Standridge testified that as the male "raised his left foot up" to step from the platform to the boat's ladder, "his other foot just went out from under him." Standridge saw the male hit the ladder, which was already in the water, with the back of his neck or head. The male did not make a splash and went straight down. Standridge thought to himself, "God, he hit hard," but "the other three people" on the boat "weren't paying any attention" to what happened and "kept on talking." Standridge believed that at the time of accident, the male did not have a life jacket on and was barefoot. In addition, none of the passengers on board wore life jackets.
When the male did not come up from the water, Standridge got worried and started hollering at the people on the boat and pointing toward the water. Standridge stated that, initially, the people on the pleasure boat could not hear him and "must [have] thought I was crazy." But then the passengers must have realized the situation was serious because "their eyes got big" and they "started walking around [and] looking around." Standridge stopped his towboat to make sure he could mark the spot where the male fell in. He then called the Coast Guard to stop all towing traffic and to notify Search and Rescue. Standridge stated that, as he was talking to the Coast Guard about what had happened, the people on the pleasure boat were "all over the place going crazy looking for [the male]."
Standridge stated that the Coast Guard requested him to get one of the passengers to come to his towboat so that the Coast Guard could get information about the person that had fallen into the water. Standridge sent two of his crews to the pleasure boat, and they brought a male passenger (Kent) back to the towboat. Standridge noticed that the passenger was "emotionally distraught" and "completely confused." Standridge stated that he smelled alcohol from the passenger's breath but the passenger was not "staggering drunk." Standridge stayed at the scene to assist the search effort until it was dark.
Plaintiff testified that after she got out of the water, she sat on the boat, crying and screaming, knowing decedent "was gone." Plaintiff then asked Whitey to inform decedent's parents and brothers about the drowning. Later that afternoon, the Missouri Water Patrol and the Illinois Conservation Department arrived at the scene to search for decedent and to investigate the incident. No one was able to find decedent. Two days later, decedent's body washed up on shore, and a coroner's report was prepared pursuant to the request of the coroner of Adams County.
Dr. Travis Hindman, a forensic pathologist, testified to the results of decedent's autopsy. Dr. Hindman stated that the cause of decedent's death was "drowning." Dr. Hindman found a laceration on the left side of decedent's face but no evidence of significant trauma. Dr. Hindman stated that he could not determine the cause of the laceration. Dr. Hindman also testified that at time of the autopsy, decedent's blood-alcohol level was .185. Dr. Hindman stated that because of the decomposition, he was not able to obtain "vitreous humor," a transparent jelly that fills the eyeball posterior to the lens, from decedent's body. As a result, he was not able to compare decedent's vitreous-alcohol level to decedent's blood-alcohol level. Dr. Hindman therefore stated that he could not determine decedent's blood-alcohol level immediately before his death because "there is an unpredictable rate of production by organisms acting upon the decedent's body tissues and fluids" that would increase decedent's blood-alcohol level. Dr. Hindman further stated that in some individuals, post-mortem decomposition could contribute up to 0.2 of the blood alcohol.
Dr. Christopher Long, a forensic toxicologist and one of plaintiff's expert witnesses, also testified to the cause of the decedent's blood-alcohol level. Dr. Long agreed with Dr. Hindman that the .185 post-mortem blood-alcohol level is not indicative of any amount of alcohol decedent consumed prior to the time of his death. In addition, based on the description of decedent's decomposition in the autopsy, "it is quite reasonable that [.185] alcohols [sic] are generated strictly from decomposition."
3. Defendant's Manufacturing Process
Kim Slocum, defendant's general manager, and Robert Dumford, defendant's plant manager, testified that defendant manufactured the boat in question in October 1997 at its Indiana plant. Dumford stated that defendant intended its boats to be used on the waterways for tubing and skiing. Slocum and Dumford stated that defendant uses a two-step process in manufacturing boats. First, the research and development department creates a full-scale prototype of a boat from a drawing of what the boat should look like; second, defendant casts a fiberglass mold of the prototype and makes all the boats from that mold. Dumford testified that in producing the prototype, defendant sprays a slip-resistant sand-and-paint mixture onto the swim platform. The nonskid paint on the prototype then creates a texture in the fiberglass poured into the mold for all boats manufactured from that mold. The swim platform and the foredeck of the prototype are the only surfaces that are painted with the nonskid paint mixture.
U.S. Paint manufactured the nonskid sand-and-paint mixture that defendant used in manufacturing the boat in question. Christian von 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 de Hyde also stated that for the first method, spray application, U.S. Paint recommends its customers mix four ounces of sand with every gallon of paint.
Dumford testified that he is not aware of any standard for mixing the sand and the paint. The employee who paints the boat creates a mixture of sand and paint, places the mixture onto a sheet of paper, and shows it to the plant manager for approval. Dumford stated that as the plant manager, he examines and approves the sand-and-paint mixture by feeling the texture of the test paper and by looking at how many grains of sand are in a square-inch area. Once Dumford approves it, the mixture is deemed adequate for the swim platform of the prototype. Dumford further stated that after the prototype is completed, he and other employees would walk around on the prototype barefoot to test the adequacy of the slip resistance of the 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 the prototype surface, and (3) defendant does not add additional nonskid surfacing after a boat is removed from the mold.
Dumford testified that defendant began manufacturing a walk-through transom after 1989 to make ingress and egress from the back of the boat easier. A passenger, however, would have to step on the transom to reach the swim platform on the boat in question. Dumford also stated that defendant does not add any nonskid materials to the transom area of the prototype or the mold.
Slocum and Dumford stated that at the end of the manufacturing process, defendant's employees inspect every boat per an inspection checklist. Defendant also tests its large boats by placing them in a water tank in one of the factories. For a boat that is between 18 and 23 feet, which is the size of the boat in question, defendant only sprays water on the boat to check for leaks. On occasion, defendant's employees take a random boat out in the nearby lakes and test the boat by using it themselves. Slocum stated in his deposition that when the boat is taken out in the water, the employees walk around the boat, including the entire front, back, and upholstery barefoot. In addition, they climb across the seats in the upholstered area and step onto the swim platform, where they jump off the boat into the water. Dumford stated in his deposition that testing in the lake involves checking the "engine, electrical, and mechanical, that's it." Dumford further stated that decedent's boat would never have been tested in the lake because it came off the production line in November, and the lake was frozen.
4. The Instruction Manual
Defendant provides owners' instruction manuals with its boats. Plaintiff testified decedent received an instruction manual with the boat he purchased. The instruction manual for decedent's boat 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 or death could result; and (3) a "CAUTION" indication, which means minor personal injury or product or property damage could result. The manual provides in two areas the possibilities of slipping and states as follows:
"CAUTION: Wet surfaces can be slippery. Passengers should wear adequate deck shoes while boarding and underway to avoid accidental slipping and injury."
"CAUTION: Deck areas and swim platform are slippery when wet. Passengers must be careful when passing through companionway to prevent accidental slipping or tripping. Passengers should wear adequate deck shoes at all times to prevent accidental slipping. Passengers must ...