                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 16-3516
                          ___________________________

    Bruce Lindholm, individually and as personal representative of the estate of
          Alexander Nels Lindholm; Vanoosheh Lindholm, individually

                        lllllllllllllllllllll Plaintiffs - Appellants

                                             v.

                            BMW of North America, LLC

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                     Appeal from United States District Court
                      for the District of South Dakota - Pierre
                                   ____________

                                Submitted: June 5, 2017
                                  Filed: July 3, 2017
                                   ____________

Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
                         ____________

ARNOLD, Circuit Judge.

       Using a 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 court1 granted BMW's motion for summary judgment on each of the
Lindholms' claims, and they appeal.

       The day 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.

       Alex 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.

       The 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




      1
       The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota.

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wider base. He opined that jacks like the one Alex used are defective and
unreasonably dangerous because consumers do not always use them correctly.

       BMW's 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.

       We 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
Cir. 2012).

       We turn 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. 1983).

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      The 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).

       The 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.

       We 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 for its intended purpose of lifting a car has only a surface appeal: The
manufacturer's warnings make it clear that Alex used the jack for a purpose for which
it was not intended.



                                          -4-
        We conclude that Alex's misuse of the jack was not foreseeable as a matter of
law, given the warnings that accompanied it. Comment j to § 402A addresses this very
issue: "Where warning is given, the seller may reasonably assume that it will be read
and heeded; and a product bearing such a warning, which is safe for use if it is
followed, is not in defective condition, nor is it unreasonably dangerous." Though the
Supreme Court of South Dakota has not adopted this comment to our knowledge, we
agree with the district court that it would likely do so if confronted by a case like this
one. That court frequently relies on the comments to § 402A; it did so four times in
Peterson alone. 400 N.W.2d at 912–13. The Peterson court even relied on comment
h, which expressly refers to comment j. See id. at 913. We therefore have no difficulty
concluding that the Supreme Court of South Dakota would apply comment j to these
circumstances. That comment makes clear that it is unforeseeable that a user would
fail to heed safety warnings, and the Lindholms do not argue that the warnings were
somehow inadequate. Alex's misuse of the jack was therefore legally unforeseeable.

        As an independent ground for granting summary judgment on the strict-liability
claim, the district court relied on a South Dakota statute that provides that a product
distributor cannot be held strictly liable unless the distributor "knew, or, in the
exercise of ordinary care, should have known, of the defective condition of the final
product." S.D. Codified Laws § 20-9-9. The time for assessing knowledge that a
product is defective is the time that the product was first sold; knowledge acquired
later is irrelevant. First Premier Bank v. Kolcraft Enters., Inc., 686 N.W.2d 430, 452
(S.D. 2004), superseded on other grounds by rule, Supreme Court Rule 06–67, as
recognized in Karst, 878 N.W.2d at 610 n.4.

       The Lindholms point out that BMW had received two reports of their jacks
failing and injuring others, giving BMW either knowledge or constructive knowledge
that they were defective. But these incidents occurred after the car here was sold in
1997, so they do not reveal anything about BMW's knowledge at the relevant time.
The Lindholms also maintain that BMW should have known that the jack was

                                           -5-
defective for the reasons given by the Lindholms' expert. We reject their attempt to
circumvent § 20-9-9; a claimant cannot prove that a distributor knew or should have
known that a product was defective just by proving that the product was defective.
Otherwise the application of the statute would rise and fall with the plaintiff's proof
on defectiveness, relegating the statute to superfluity. If the expert had identified some
relevant event that occurred before the sale of the product, or explained how the jack
was so manifestly defective that anyone (or any manufacturer) would have to realize
that it was, then maybe the Lindholms' approach would work. But where the expert
merely states reasons why he concludes that a product is defective, we cannot simply
impute the substance of the opinion to the distributor. We therefore agree with the
district court that § 20-9-9 provides an independent ground for summary judgment on
the strict-liability claim. Since the record taken as a whole could not lead a rational
jury to find for the Lindholms on this claim, summary judgment was appropriate.

        As for the Lindholms' negligence and negligent-design claims, we think that
Alex's misuse of the jack also constitutes contributory negligence, which bars the
Lindholms from recovering. See Burhenn v. Dennis Supply Co., 685 N.W.2d 778,
786–87 (S.D. 2004). We recognize that under South Dakota law, "the fact that the
plaintiff [in a negligence case] may have been guilty of contributory negligence does
not bar a recovery when the contributory negligence of the plaintiff was slight in
comparison with the negligence of the defendant." S.D. Codified Laws § 20-9-2. But
when facts show beyond dispute that the plaintiff's negligence is more than slight, then
it is appropriate to hold as a matter of law for a negligent defendant. Schmidt v. Royer,
574 N.W.2d 618, 627 (S.D. 1998). "Slight" in this context means "small of its kind or
in amount; scanty; meager." Wood v. City of Crooks, 559 N.W.2d 558, 560 (S.D.
1997). Even assuming that BMW was somehow negligent, and we see no real
evidence of that, we think that a reasonable factfinder would have to conclude that
Alex's contributory negligence was anything but slight; it was quite clearly the
primary cause of the accident. We therefore have no trouble concluding as a matter
of law that Alex's contributory negligence defeats the Lindholms' negligence and

                                           -6-
negligent-design claims. Summary judgment on the negligent-design claim was
appropriate, moreover, since BMW, as distributor, did not design or manufacture the
car or the jack. We also affirm the grant of summary judgment on the Lindholms'
implied-warranties claim because of Alex's misuse. See Herrick v. Monsanto Co., 874
F.2d 594, 598 (8th Cir. 1989).

       Finally, a wrongful-death claim arises when death is "caused by a wrongful act,
neglect, or default, and the act, neglect, or default is such as would have entitled the
party injured to maintain an action and recover damages in respect thereto" had the
injured party lived. S.D. Codified Laws § 21-5-1. As the district court did, we read
§ 21-5-1 as not supplying an independent theory of recovery for a death: It plainly
requires an underlying legal basis for a wrongful-death claim to succeed, that is, a
reason to hold that a death was wrongful. Because we have already concluded that
summary judgment was appropriate on all of the underlying claims that the Lindholms
advanced, we affirm the grant of summary judgment on the wrongful-death claim.

      Affirmed.
                        ______________________________




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