Bruce Lindholm, individually and as personal representative of the estate of Alexander Nels Lindholm; Vanoosheh Lindholm, individually Plaintiffs - Appellants
BMW of North America, LLC Defendant-Appellee
Submitted: June 5, 2017
from United States District Court for the District of South
Dakota - Pierre
WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
ARNOLD, Circuit Judge.
jack supplied by his car's manufacturer, Alex Lindholm
was repairing his car when, tragically, it fell and killed
him. Relying on federal courts' diversity jurisdiction,
Alex's father sued BMW of North America, LLC, the
car's American distributor, on behalf of Alex's
estate, and both of Alex's parents sued in their
individual capacities. They laid claims for strict liability
based on defective design, negligence, negligent design,
breach of implied warranties, and wrongful death. The
district court granted BMW's motion for summary
judgment on each of the Lindholms' claims, and they
before the accident, while working on the car's exhaust
system located near the center of the car's
undercarriage, Alex and his father used the relevant jack to
raise it off the ground. Alex told his father that the jack
was the proper one for the job. After using the jack to raise
the car, Alex placed a jack stand under it to hold it in
place while they worked.
continued working on the job the next day. When one of his
friends picked him up at one point to run errands, the friend
noticed that the car was lifted in the back passenger area
with the jack. Alex informed the friend that he wanted to use
that particular jack because it was the manufacturer's
jack. Other jacks and jack stands were in the storage unit
where the work was performed, but on the day of the accident,
only the jack in question supported the car. While Alex was
working, the jack evidently tipped and the car fell on him.
He asphyxiated and died.
Lindholms' expert testified that the jack was not
defective per se but that that type of jack represented a
"regression in design" that compromised safety. In
reaching the conclusion that the jack was unsafe, he noted
its narrow base, its plastic (rather than steel) pivot head,
and two polymer castings in the upper pivot that
"click" together to fit, whereas other jacks are
"rigidly pinned" together. He calculated that the
jack could bear a lateral load of up to 65 pounds while fully
extended, whereas a different kind of jack known as a scissor
jack with a wider base could withstand a lateral load of up
to 260 pounds while fully extended, at least in part because
it has a wider base. He opined that jacks like the one Alex
used are defective and unreasonably dangerous because
consumers do not always use them correctly.
expert thought that the deficiencies that the Lindholms'
expert identified either did not cause the accident or were
not deficiencies at all. He explained that Alex was probably
able to use enough force to knock the jack over only by
rocking the car back and forth. Based on his opinion that
Alex had to be rocking the car back and forth, he thought it
was likely that Alex was trying to loosen an intractable
bolt. Alex's father had found items under the car after
the accident that were consistent with this hypothesis: In
fact, Alex's father tried to loosen the bolt in question,
but it was on so tight that the bolt broke off in his effort
to remove it.
review the district court's grant of summary judgment de
novo. Jackson v. Riebold, 815 F.3d 1114, 1119 (8th
Cir. 2016). We will affirm if the record indicates that there
is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law.
Id. We review the facts in the light most favorable
to the Lindholms. See id. We apply state substantive
law in diversity cases, and where state courts have not
decided a particular substantive legal issue of relevance, we
must try to predict how the state's highest court would
do so and decide the case accordingly. See Miller v.
Redwood Toxicology Lab., Inc., 688 F.3d 928, 936-37 (8th
first to the Lindholms' design-defect claim. South Dakota
has adopted the rule of strict liability set out in the
Restatement (Second) of Torts § 402A, Karst v.
Shur-Co., 878 N.W.2d 604, 609 (S.D. 2016), which says
that "[o]ne who sells any product in a defective
condition unreasonably dangerous to the user or consumer . .
. is subject to liability for physical harm thereby
caused." So to prevail, the Lindholms must prove that
the jack Alex used was defective and unreasonably dangerous
and that it caused the injury sustained. See Brech v.
J.C. Penney Co., Inc., 698 F.2d 332, 333-34 (8th Cir.
district court concluded that BMW was not liable because Alex
had misused the jack on the day of the accident. Misuse can
involve using a product for an unintended function or using
the product for its intended function but in an improper
manner. Peterson v. Safway Steel Scaffolds, Co., 400
N.W.2d 909, 913 (S.D. 1987). Though a product manufacturer
can be liable for a customer's reasonably foreseeable
misuse, id., a manufacturer cannot be liable for a
misuse that it cannot reasonably anticipate. Kappenman v.
Action Inc., 392 N.W.2d 410, 413 (S.D. 1986).
parties dispute whether Alex misused the jack. The Lindholms
argue that Alex used the jack in exactly the way it was
intended to be used-to lift a car. They also maintain that,
should we nonetheless conclude that Alex misused the jack,
BMW should be liable because his misuse was reasonably
foreseeable. BMW emphasizes the warnings that Alex
disregarded: The car's owner's manual said that the
jack "is designed for changing tires only" and that
one should "[n]ever lie beneath the vehicle or start the
engine while the car is supported by the jack - risk of fatal
injury!" And a picture on the jack itself warned against
lying under the car while using the jack. BMW argues that
Alex's disregard for these warnings resulted in misuse.
agree with BMW and the district court that a reasonable jury
would have to conclude that Alex misused the jack. Though it
could be said that Alex used the jack for its intended
purpose-to lift a car-he did so in an improper manner.
See Peterson, 400 N.W.2d at 913. The warnings in the
owner's manual and on the jack made it clear that Alex
should not have used the jack while doing something other
than changing a tire or while lying under the car. Alex could
have used other available jacks or jack stands to support the
car; in fact, the evidence showed that he had done so the day
before the fatal accident. Besides, the Lindholms'
argument that Alex used the jack ...