Sprietsma v. Mercury Marine

Propeller Guard Case decided Against Mercury Marine /
Brunswick Corporation by the
U.S. Supreme Court on 3 Dec. 2002

Sprietsma v. Mercury Marine, a propeller guard case - full coverage of the U.S. Supreme court decision.
Sprietsma is pronounced "SPREETS-ma" - Spreetsma.

History and Background Behind the Case
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Boating Industry Consortium Proposed to Address Propeller Injuries
U.S. Supreme Court Rules Finds Against Mercury Marine / Brunswick in Sprietsma Propeller Guard Case

On Dec. 3rd 2002, the U.S. Supreme court unanimously reversed the decision of the lower courts. Mercury Marine / Brunswick Corporation relied upon the 1971 Federal Boating Safety Act (FBSA) which did not require propeller guards and repeated U.S. Coast Guard findings that no propeller guard existed that could provide protection for all boats as its defense. The Supreme Court ruled that when the Coast Guard found no single type of propeller guard could uniformly prevent injuries on all types boats, those findings did not mean that a propeller guard of some type might not have prevented injury on this specific type of boat and motor. The specific language used in the opinion was:
"nothing in its official explanation (explanation of Coast Guard's findings) would be inconsistent with a tort verdict premised on a jury's finding that some type of propeller guard should have been installed on this particular kind of boat equipped with respondent's particular type of motor."
The Sprietsma v. Mercury Marine case been sent back down to the lower courts for trial.

Joe Pomeroy, General Counsel for Mercury Marine says they expect to win the case in the lower courts because manufacturers have won all those cases to date. Mr. Sprietsma's lawyer, Leslie Brueckner, points out those cases were all tried over a decade ago.

Coverage of the Decision

Note: some of these references are temporary in nature. If you want to keep a copy of them you should print them out or save them.
U.S. Supreme Court notifies Supreme Court of Illinois of its decision
Immediately after making their decision, the U.S. Supreme Court prepared and sent the certiorari (letter explaining its findings) to the Supreme Court of Illinois which will then take up the case, or send it further back down to the lower courts.

Their letter explains why the FBSA does not pre-empt (take precedence over) state law in this case and provides several examples.

The letter is followed by an opinion on the case written by Justice Stevens. The opinion further explains the reasoning employed by the court. Since the decision was unanimous, there is no dissenting opinion. In addition to the link above on FindLaw, the certiorari and opinion are also available from Cornell.

RBBI Thoughts on the decision:
Ruling out the FBSA defense will have MAJOR impact on the way the industry approaches prop injury cases in the future. To date, the industry has been slow in developing effective means of reducing the frequency and severity of these injuries. This may partially be due to fear that any successful efforts would have to installed on all craft (both new and old). The U.S. Supreme Court seemed to open the window to a variety of guard designs being installed on a variety (and NOT all) types of vessels. Lawyers representing the injured would obviously try to push for coverage of all types of vessels, but much remains to be decided in this area. Even if the Sprietsma Case is decided in Mercury Marine's / Brunswick's favor in the lower courts based on its merits (specific circumstances surrounding the accident), other cases will be rapidly following it. Plus those previously dropped or settled may come back under this ruling?

For those not familiar with the pre-history surrounding this case (the settlement of the Lewis suit in 1998), we suggest the reference: 

Unusual Settlement Removes Third Case 
Washington Post
Joan Biskupic
May 26, 1998; Page A02
It discusses how Brunswick settled a somewhat similar previous suit before the U.S. Supreme Court at the last moment in 1998 to avoid the possibility of losing the Federal Boating Safety Act / Coast Guard pre-emption, which has now been lost.

If the Sprietsma Case is tried on its merits (actual boat and motor, situation, conditions, local laws and common sense) some reports are saying Mrs. Sprietsma may have substantially contributed to the accident by her position in the boat.

On the marketing side, with the economy sagging and boat sales sliding downward, when the general public hears any sort of news about propeller injuries (this case is being reported by about every major media outlet) it certainly does not stimulate them to run out and buy a boat. Hopefully the industry will now put some serious resources into reducing the frequency and severity of propeller injuries.

  Boating Industry Consortium to Address Propeller Injuries

Wouldn't that make a much nicer headline than another propeller guard case in the news? A coalition of several firms could fund and cooperate in a propeller guard information clearinghouse (web site) and other efforts to help each other in their efforts to reduce propeller injuries. The Consortium and Clearinghouse could:

The Clearinghouse web site could resemble a toned down version of the U.S. Governments anti-terrorism information center, TSWG. Cooperation and dissemination of information would stimulate projects to reduce propeller injuries, result in higher quality proposed solutions and reduce their "time to market". Plus, actively supporting and participating in an effort of this nature might be taken into consideration by juries making a punitive damages awards. I venture to guess that less than 10 percent of the money spent on defending the Sprietsma case could fund an effort like this for a few years. If anybody is seriously interested in this or has other suggestions in this area, please contact us.

For further information on the Sprietsma v. Mercuy Marine / Brunswick Case, please see the History and Background section below. For additional information on propeller guards, please see our Propeller Guard Update 2002 and Virtual Propeller Guards page.

History and Background Behind the Case

 
Our major coverage began in April 2002
The U.S. Supreme Court recently agreed to hear Sprietsma v. Mercury Marine. The issue before the court is does the Federal Boating Safety Act of 1971 preempt common state law causes of action (injury suits) based on the manufacturer's failure to install propeller guards.

The case stems from a July 1995 accident in Tennessee in which Mr. Rex Sprietsma's wife, Jeanne Sprietsma fell from a boat powered by a 1988 115 horsepower outboard motor built by Mercury Marine.

The case began in Cook County Illinois 312 ILL. App. 3d 1040. Mercury Marine won.

It went to Illinois 1st District Court of Appeals. Mercury won again. Findings of that court are posted as Sprietsma v. Mercury Marine No. 1-99.0012. 6 April 2000.

A Petition for a Writ of Certiorari (request to be reviewed by the Illinois Supreme Court was filed.

The Illinois Supreme Court case reference is 197 Ill. 2d 112 (Ill. Sup. Ct. 2001) or 757 N.E. 2d 75 (2001)
Illinois Supreme Court Docket Number 89492 presents the Supreme Court of Illinois Opinion filed August 16, 2001. They affirmed (upheld) the Cook Country court's decision the federal government's refusal to issue a regulation, in effect constitutes federal preemption.

This case was widely reported, including in:

A Writ of Certiorari (request to review) the case was filed with the U.S. Supreme Court.

On January 22, 2002, the U.S. Supreme Court granted Certiorari (agreed to review) the case. Boating Today Online News filed a report on the U.S. Supreme Court taking up the case. Most other boating publications have been pretty quiet on it.

In 1997 the U.S. Supreme Court agreed to hear the same issue in Lewis v. Brunswick. That case involved the death of a child from injuries sustained in a propeller accident. Brunswick settled, (1998 WL 423665 and Lewis v. Brunswick Corp., 118 S.Ct. 1793 (1998)), before the court delivered its decision. Per, Weighing in on the Supreme Court, published by the American University Washington College of Law, Brunswick settled in the face of an "assuredly adverse judgement". If the court had ruled against them, every circuit, including those that had not yet decided the issue would be bound by the decision. They would rather "play the odds" in each state than risk a judgement binding in every state.

Brunswick's most recent 10K filed with the Security and Exchange Commission (SEC) acknowledges the case and states:

Nine federal courts and many state courts, including Illinois Supreme Court in Sprietsma, have previously found such claims to be preempted by the United States' Coast Guard's 1990 decision, pursuant to the Federal Boating Safety Act, not to require propeller guards. This company does not believe that the resolution of this matter will have a material adverse effect on the Company's consolidated financial position or results of operations.
In the first round (Cook County Court), Mercury Marine successfully moved to strike the first five pages of a Sprietsma reply brief arguing the preemption defense was unavailable because the boat motor was manufactured in 1988 (before the Coast Guard 1990 decision). The striking of this text was never addressed or ruled upon by the circuit or appellate courts.

Previous Status of the Case and Our Comments

Note: status of the case in the U.S. Supreme Court can be followed from the case docket on their site.

Oral arguements are expected to be scheduled for October 2002.

The Maritime Law Association of America filed a brief with the U.S. Supreme Court on May 20, 2002.

Seventeen states filed a joint brief in support of Mr. Sprietsma's position.

The Product Liability Advisory Council, Inc. filed an extensive brief in support of Mercury Marine.

The U.S. Solicitor General has filed a brief in support of Mr. Sprietsma's position.

Soundings Trade Only July 2002 had a feature article by Jim Flannery titled "Second prop guard suit heads to Supreme Court." It reports Joe Pomeroy, general counsel for Mercury Marine, says he does not think the devices will work, there is no evidence they will prevent injuries and he thinks several potential dangers are associated with guards. The article reports the prosecution suggests that as long as manufacturers are immune from prop guard claims the technology will not move forward. There is no incentive for manufacturers to even try.

National Public Radio did an excellent background piece on the situation from the family's perspective in October 2002. Profile: Family of boating accident victim. National Public Radio. Morning Edition with Bob Edwards. October 15, 2002. [PDF]

Will be interesting to see if the case is settled before a decision as was done in the prior Lewis v. Brunswick U.S. Supreme Court case. Settlement will in part depend on Mr. Sprietsma's feelings about "its the principle of the thing" vs. weighing the potential results of an all or nothing financial outcome. Brunswick might offer a settlement in excess of a potential award to prevent an adverse decision at this level from impacting future cases all over the nation. A coalition of boat and drive manufacturers (Genmar, Bombardier, Yamaha, Volvo, Honda, etc.) could possibly come to Brunswick's aid and help fund the settlement offer to reduce future suits against them as well?

But this route has a problem. Mr. Sprietsma is being represented by Trial Lawyers for Public Justice. TLPJ takes on precedent setting, socially significant legislation. Most of their work is done pro bono (without charge). It is reasonable to suspect an agreement was reached with Mr. Sprietsma at the outset stating they would not settle, but force a decision by the courts. Mr. Sprietsma might have little chance of coming this far without their bankroll.

It is our understanding, that if he wins, the case will be passed back down and he will receive the right to sue for recovery. TLPJ will have provided others with similar accidents access to a possible venue for recovery. If the case goes back down and is eventually won by Mr. Sprietsma, TLJP would received their costs, a percentage of the award.

When the case begins to precede in the U.S. Supreme Court, lawyers will begin to estimate the court's position. The case begins to work into a matrix of possible estimations. Brunswick makes offers when they anticipate medium or high risk of losing. Mr. Sprietsma's group would only accept those offers if they felt the case was going the other way (felt strong risk of them losing). A huge "Pot of Gold" might be tempting in the other boxes, but TLPJ has been in those boxes before, probably even for this case in earlier venues. They can defeat the temptation to "take the money and run".

The actual estimation of how the case is going is much more complex than in non-jury trials. Here they must estimate how the trial is generally going plus how each judge feels based on body language and their past voting records. Wonder how many of them have been power boaters? Because the case has already been tried several times, there should be few surprises in the references used, but lawyers always worry about that one.

Whatever the eventual outcome of the case, many difficult decisions remain to be made by all parties, including the Supreme Court Justices. We hope this trial will raise the awareness level within the industry of the seriousness of this problem and result in some significant efforts to develop methods (whatever they may be) to reduce the frequency and severity of propeller injuries.

One interesting side note: On March 12, 2002 Brunswick was issued U.S. Patent # 6,354,892 for an infrared device that senses people in the water near a marine drive (Virtual Propeller Guard).

Who are We?

As Polson Enterprises we have been covering the propeller guard situation for several years, supplying information to those developing guards and to attorneys working on propeller guard cases. We also promote the development of sensors capable of detecting people in the water near (or soon to be near) marine drives. These sensors could be utilized in Virtual Propeller Guard system to detect people and object near a propeller. The system could take appropriate actions to prevent or minimize injuries to those in the water and those in the boat. In addition, we provide market, technical, patent and legal research supporting the development of new marine products and operate the RBBI web site.

Some of our coverage of propeller guard issues can be seen at:

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