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Matthews v. Howell6/8/2000
peal denied, 152 Ill. 2d 582, 190 Ill. Dec. 912, 622 N.E.2d 1229 (1993). In Williams, 320 Ark. at 621-22, 899 S.W.2d at 458, a drowning case similar to the case sub judice, the Arkansas Supreme Court rejected the application of maritime law largely because the decedent's wife had not raised maritime law in the trial court below and was given adequate jury instructions based on state tort law concerning the duty of care owed to the decedent. We disagree with the holding in Woltering, in which the decedent was killed after falling from a boat while it was being operated on the Mississippi River. The Illinois Appellate Court held that maritime law did not apply, noting that "the relevant activity giving rise to the incident was aquatic recreation involving a pleasure boat," and that there was no "evidence that negligent navigation played a role in the accident." Woltering, 245 Ill. App. 3d at 687, 688, 185 Ill. Dec. 791, 615 N.E.2d at 88, 89. Accidents occurring during the navigation of a vessel, whether the navigation itself was negligent or not, generally fall within the "nexus" test. See Mink v. Genmar Indus., Inc., 29 F.3d 1543, 1545-47 (11th Cir. 1994) (holding that maritime jurisdiction extended to a products liability action when the injured party broke a vertebra during operation of a speed boat, due to the lack of a handrail). That the involved activity was recreational also had no import under the edicts of Foremost Insurance.
Finally, we reject appellee's "swimming and diving" analysis based on our own independent analysis of this case under the "nexus" test. As we have noted, the Supreme Court's interpretation of the "nexus" test and how that test is to be applied requires us to take a "general" view of the incident involved. To call the incident in the case sub judice "swimming and diving" would focus on one specific fact in the case -that Ms. Matthews was not on the boat at the time of her death. Factually, there is more to this case than just "swimming and diving," particularly when compared with the facts in the "swimming and diving" cases cited by appellee, Foster and Williams, as well as another "swimming and diving" case cited by appellee, and relied on by the trial court below, Smith v. Knowles, 642 F. Supp. 1137 (D. Md. 1986). In those cases, the injured party clearly dove from the boat voluntarily. In the case sub judice, it is unclear whether Ms. Matthews dove or fell into the water. Cf. Polly, 859 F. Supp. at 273 (finding that, in a drowning accident, navigation was the relevant maritime activity because it was unknown how the captain and his passenger ended up in the water). In addition, if Ms. Matthews did dive into the water, she did so at the implied encouragement of appellee, who, unlike the boat operators in the cases he cites, dove into the water himself, despite the potentially hazardous swimming conditions. The cases cited by appellee do not involve allegations, as this case does, that the boat captain abandoned his helm, and did so without taking proper precautions for the safety of himself and his guests.
Applying a broader view of the "traditional maritime activity" in this case, we would equate appellee's actions to maritime navigation, or, to be more accurate, the lack of proper navigation. Appellee's arguments imply, and the trial court below agreed, that because he was not physically operating the boat at the time of Ms. Matthews' drowning, he was not engaged in any maritime activity. "Navigation" involves much more than the simple operation of a vessel. The Random House Dictionary of the English Language 954 (unabr. ed. 1983), for instance, defines "navigate" in part as "2. to direct or manage (a ship . . . ) on its course. 3. to ascertain or plot and control th
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