By John W. Scanlan, J.D.
BMW North America was not liable for the death of a BMW owner who was asphyxiated when the cantilever jack holding up his car tipped because it was not foreseeable that he would ignore the clear safety warnings against working underneath his car while using that particular jack, the U.S. Court of Appeals for the Eighth Circuit ruled in upholding a district court’s grant of summary judgment favoring BMW (Lindholm v. BMW of North America, LLC, July 3, 2016, Arnold, M.).
The owner of the 1997 BMW 540i sedan at issue had used its accompanying Storz cantilever jack while working on the exhaust system near the center of the vehicle while it was parked in a storage unit. The owner’s manual specified that this jack was designed only for changing tires, and that lying under the vehicle or starting the engine while the Storz jack was in use carried the risk of fatal injury; the jack itself bore an illustration with a similar warning. There were other jacks and jack stands in the storage unit with him. His parents and his estate brought claims for strict liability design defect, negligence, negligent design, breach of implied warranties, and wrongful death against BMW North America, the distributor of the vehicle. The district court granted summary judgment favoring BMW on all claims, finding that the owner’s action was an unforeseeable misuse of the jack and that his contributory negligence was more than "slight" compared to any negligence by BMW [see Products Liability Law Daily’s August 18, 2016 analysis]. The parents and the estate appealed.
Design defect. The owner’s failure to follow the safety warnings accompanying the jack were not foreseeable, the Eighth Circuit ruled in affirming the district court’s grant of summary judgment on the father’s design defect claim. Although the owner had used the jack for its intended purpose of lifting a car, he did so in an improper manner by doing so by lying under the car or by doing anything other than changing a tire, which the warnings in the owner’s manual for the jack clearly stated should not be done. Along those lines, comment j of Sec. 402A of the Restatement (Second) of Torts provides that a seller may presume that a warning will be read and heeded, and that a product that is safe if the warning is followed is not defective or unreasonably dangerous. The Eighth Circuit noted that the South Dakota Supreme Court has not specifically adopted comment j, but given that the state high court frequently relies on Sec. 402A and has specifically relied upon comment h, which refers to comment j, the Eighth Circuit concluded that the state high court would apply comment j under these circumstances. Therefore, because the estate and the parents did not argue that the warnings were inadequate, the Eighth Circuit determined that the owner’s misuse of the jack was legally unforeseeable.
Another basis for summary judgment on the design defect claim was a state statute providing that a product distributor cannot be held liable unless it knew or should have known of the product’s defective condition. Two reports about failing jacks that caused injuries did not give BMW knowledge of this jack’s allegedly defective condition because they involved incidents that occurred after the purchase of this particular vehicle. Although the estate and the parents argued that BMW should have known that the jack was defective for the same reasons cited by their expert, proof of defect alone was not sufficient because the substance of their expert’s opinion could not be imputed to the distributor.
Negligence/negligent design. The estate and the parents could not maintain negligence and negligent design claims due to the contributory negligence of the car owner. Under South Dakota law, it is appropriate to find in favor of a negligent defendant when the plaintiff’s negligence is more than slight in comparison to the defendant. According to the Eighth Circuit, it was clear that the owner’s negligence was the primary cause of the accident, whereas it saw no evidence that BMW had been negligent in any way. Furthermore, BMW of North America could not be held liable for negligent design because it was the distributor of the car, and did not design or manufacture the car or the jack.
Wrongful death. Finally, BMW could not be held liable for a wrongful death claim. The relevant South Dakota statute does not provide an independent basis for a wrongful death claim, but clearly requires an underlying basis for it to succeed. Because BMW properly was granted summary judgment on all of the underlying claims in this case, there was no basis for a wrongful death claim against it.
The case is No. 16-3516.
Attorneys: Mark A. Schwab (Grande, Frisk & Thompson) for Bruce Lindholm. Jeffrey Thomas Gorcyca (Bowman and Brooke LLP) and Robert B. Anderson (May, Adam, Gerdes & Thompson LLP) for BMW of North America, LLC.
Companies: BMW of North America, LLC
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