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From Products Liability Law Daily, August 18, 2016

Use of wrong jack to lift car despite clear warnings was unforeseeable misuse

By John W. Scanlan, J.D.

A BMW owner’s use of a Storz cantilever jack to lift his car and work underneath it despite clear warnings against using it in this manner was an unforeseeable misuse of the jack, a federal court in South Dakota said in granting summary judgment on negligence, strict liability, wrongful death, and breach of implied warranty claims brought by the owner’s father against BMW (Lindholm v. BMW of North America, LLC, August 17, 2016, Lange, R.).

The owner of a 1997 BMW 540i Sedan placed it on a Storz cantilever jack that had been provided with the car in order to repair a component located near the center of the underside of the car. While he was underneath, the jack tipped and the car fell onto him, causing his death from asphyxia. Found in the storage unit with him and the car were other hydraulic jacks and jack stands that did not appear to have been used at the time. His friend testified that on the day prior to the accident, the owner said that the Storz jack was the proper jack for the job and that the car had designated receptacles where the jack was to be used. 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.

The owner’s father brought negligent and strict liability design defect, negligence, wrongful death, and breach of warranty claims against BMW of North America. BMW moved for summary judgment on all claims.

Misuse/foreseeability. While there was a genuine issue of fact as to whether the jack might be defective—the court observed that its design was not ideal and that it was inferior to certain scissor jacks—causation could not be established because no reasonable juror could find that the car owner had not misused the jack. The owner’s father argued that the owner’s misuse was foreseeable because the Storz jack would be used to lift the car and it would be foreseeable that user would be in danger if underneath when it failed. However, the owner’s actions were in direct opposition to the warnings on the jack and in the owner’s manual not to get underneath the vehicle while it was supported by the jack. Although comment j to §402A of the Restatement (Second) of Torts has not previously been addressed by South Dakota courts, the present court believed that the state supreme court would apply it in this case. Comment j provides that a seller may reasonably assume that a warning will be read and heeded and that a product is not defective or unreasonably dangerous if following the warning makes it safe to use. Because the father did not prove that the jack was unsafe if the warnings were followed, the jack was not defective or unreasonably dangerous.

Similarly, the negligence and negligent design claims failed as a matter of law due to the car owner’s contributory negligence. His clear misuse of the jack made his contributory negligence more than "slight" compared to any negligence by BMW.

The case is No. 3:15-CV-03003-RAL.

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

MainStory: TopStory DesignManufacturingNews DefensesLiabilityNews MotorEquipmentNews SouthDakotaNews

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