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Miller v. Rinker Boat Co.9/15/2004
ff's memorandum of law in opposition to the motion for summary judgment and the attachments thereto set forth the following evidence.
1. The Incident
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 " 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
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