Rennert, Shmuel v. Great Dane Limited ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2989
S HMUEL R ENNERT, Individually and as Personal
Representative of the Estate of D EVORAH R. R ENNERT,
Plaintiff-Appellant,
v.
G REAT D ANE L IMITED P ARTNERSHIP,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 0390—Virginia M. Kendall, Judge.
____________
A RGUED F EBRUARY 25, 2008—D ECIDED S EPTEMBER 11, 2008
____________
Before R OVNER, W OOD , and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. On July 1, 2005, Rabbi Shmuel
Rennert and his wife Devorah were driving on Skokie
Valley Road behind a large truck towing a trailer designed
by Great Dane. Unfortunately, the Rennerts’ minivan
collided with the trailer; the underride guard on the
back of the trailer failed; and the minivan slipped under
2 No. 07-2989
the trailer. Shmuel Rennert was injured, but Devorah,
who had been sitting in the passenger seat, was killed.
Rennert brought a single-count action in state court
against Great Dane, alleging that Great Dane was liable
to him under Illinois’s strict products liability regime.
Great Dane removed to federal court under diversity
jurisdiction. Once in federal court, Great Dane moved to
dismiss under F ED . R. C IV. P. 12(b)(6) for failure to state a
claim. The district court dismissed the claim with preju-
dice; we generally agree with its analysis and affirm. We
decline the invitation to certify this case to the Supreme
Court of Illinois for resolution, because it does not
satisfy our criteria for certification.
I
Rennert based his claim on the following allegations: the
trailer’s underride guard was in an unreasonably danger-
ous condition because it was badly designed (too weak
and too high above the road); a better design was feasible;
the risks of this design outweigh its benefits; and, most
importantly for this case, the risk of an impact of this
nature was reasonably foreseeable. All of the parties
agree that Illinois law governs, and so the question before
us is whether the Supreme Court of Illinois would recog-
nize a cause of action based on these allegations. See Allen
v. Transamerica Ins. Co., 128 F.3d 462, 466 (7th Cir. 1997).
Where the state supreme court has not ruled definitively,
we must take our guidance from the appellate courts
unless there are persuasive indications that the state
No. 07-2989 3
supreme court might rule otherwise. See Liberty Mut. Ins.
Co. v. Statewide Ins. Co., 352 F.3d 1098, 1100 (7th Cir. 2003).
It is Rennert’s bad luck that Illinois is not among the
states—by at least one count, nine—that have recognized
a cause of action in a case such as this. See Beattie v.
Lindelof, 633 N.E.2d 1227 (Ill. App. Ct. 1994); Mieher v.
Brown, 301 N.E.2d 307 (Ill. 1973), but cf. Harris v. Great Dane
Trailers, Inc., 234 F.3d 398 (8th Cir. 2000) (Arkansas law);
Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777 (3d Cir.
1992) (Pennsylvania law); Rivers v. Great Dane Trailers, Inc.,
816 F. Supp. 1525 (M.D. Ala. 1993); Worldwide Equipment,
Inc., v. Mullins, 11 S.W.3d 50 (Ky. Ct. App. 1999); Detillier v.
Sullivan, 714 So. 2d 244 (La. Ct. App. 1998); Quay v.
Crawford, 788 So. 2d 76 (Miss. Ct. App. 2001); Garcia v.
Rivera, 553 N.Y.S.2d 378 (N.Y. App. Div. 1990); Hagan v.
Gemstate Mfg., Inc., 982 P.2d 1108 (Or. 1999); Great Dane
Trailers, Inc. v. Wells, 52 S.W.3d 77 (Tex. 2001).
Although in Mieher the Supreme Court of Illinois was
considering a negligence claim, rather than one based on
strict liability, the court in the end “d[id] not consider
that the alleged defective design created an unreasonable
danger or an unreasonable risk of injury.” 301 N.E.2d
at 310. The court drew a bright line based on R ESTATEMENT
(SECOND) OF T ORTS § 435(2): a manufacturer has a duty
to design a vehicle that is reasonably safe for the occu-
pants, but it owes no duty to those who collide with that
vehicle. Even if accidents are foreseeable, the court rea-
soned, the manufacturer is obliged to secure the occu-
pants of only its vehicle from that foreseeable harm: the
manufacturer does not owe a duty to protect those who
4 No. 07-2989
collide with its vehicle. See Mieher, 301 N.E.2d at 308-10;
but see id. at 310-11 (Goldenhersh, J. dissenting) (arguing
that the duty of care should extend to prevent unreason-
able risk to occupants, other drivers, and pedestrians).
Twenty-one years later, the Illinois Appellate Court
decided Beattie v. Lindelof, 633 N.E.2d 1227 (Ill. App. Ct.
1994). Like Mieher and this case, Beattie involved an
underride accident; like this case and unlike Mieher,
Beattie was brought in strict liability; unlike both Mieher
and this case, Beattie was brought against a former
owner for failure to maintain, rather than a manufacturer.
Nevertheless, the court found that the allegation in
Beattie “[wa]s effectively the same as the plaintiff’s allega-
tion in Mieher,” id. at 1233, and dismissed it. Importantly,
the Beattie court extended the reasoning of Mieher to
cover a strict liability claim and predicted that the
state supreme court would agree with it. Id. at 1235
(“Although the court in Mieher did not address [the
strict liability] issue . . . we believe that the court would
have reached the same conclusion for strict liability claims
as it did with negligence claims.”). (For what it is worth,
the Supreme Court of Illinois indeed denied leave to
appeal. 642 N.E.2d 1273 (Ill. 1994).) In sum, we have a
fairly clear articulation of law from the state supreme
court, and the state appellate court has extended this
ruling to cover facts materially identical to those now
before us.
Rennert seems at times to be urging us to rule in his
favor simply because, in his view, the Mieher dissent and
the nine states that do recognize this cause of action are
No. 07-2989 5
correct. Whether or not they are, however, is beside the
point. We cannot overturn or disagree with a state court’s
authoritative rulings when we sit in diversity. Quite to the
contrary, we are bound by them: “we apply the law of
Illinois as we believe the Illinois Supreme Court would
apply it.” Liberty Mutual, 352 F.3d at 1100. Given the
consistent position Illinois has taken, we would need
strong evidence that the Supreme Court of Illinois is on
the brink of changing its position before we could do
likewise. The evidence instead supports a finding of
continuity. Beattie extended Mieher’s analysis to a case
just like Rennert’s, and the state supreme court has
been silent since.
Acknowledging this problem, Rennert has also tried to
argue that the Supreme Court of Illinois would indeed
overturn Mieher if it had the chance. We are not per-
suaded. He criticizes Mieher’s analysis (or lack thereof) of
the duties involved, arguing that they do not meet
the standards set by other state precedents. But (even if
this were relevant), he overlooks the reason for the limita-
tions in the opinion: the Mieher court never reached the
question of duty because it ruled as a matter of law that
there was no unreasonable risk. Mieher, 301 N.E.2d at 310.
With no unreasonable risk, there would be no reason
to determine to whom a duty would be owed. This per-
ceived failure therefore provides no reason for the state
supreme court to revisit Mieher. Rennert also points out
that Mieher was discussing only the negligence theory, and
not strict liability, but Beattie extended Mieher’s reasoning
to strict liability and the supreme court passed up the
opportunity to revisit the issue by denying leave to appeal.
6 No. 07-2989
Rennert also argues that the Supreme Court of Illinois
might abandon Mieher if it rethinks its approach to R E -
STATEMENT (S ECOND ) OF T ORTS § 402A. (The state’s prod-
ucts liability law traditionally drew heavily from that
Restatement, but the Supreme Court of Illinois has now
begun to refer to the R ESTATEMENT OF THE L AW T HIRD ,
T ORTS: P RODUCTS L IABILITY (1998). See Blue v. Environmental
Eng’g, Inc., 828 N.E.2d 1128, 1139-40 (Ill. 2005). Rennert has
not relied on this shift to support his position.) See Suvada
v. White Motor Co., 210 N.E.2d 182, 187 (Ill. 1965) (overruled
on other grounds). A district court in Florida faced with a
claim under § 402A sent a case similar to Rennert’s to a
jury. See Rivers v. Great Dane Trailers, Inc., 816 F. Supp. 1525
(M.D. Fla. 1993). Mieher, however, relied on R ESTATEMENT
(SECOND) § 435(2), not on § 402A. Be that as it may, this
argument merely offers one more reason why the Illinois
Supreme Court might abandon Mieher; it does not prove
to us that it will do so or that it is very likely to do so,
which is what needs to be shown before we can disre-
gard a state’s governing precedent.
The change that would have been most likely to prompt
a corresponding adjustment in Illinois’s policy about
truck regulations and underride liability was the promul-
gation of regulations for rear guards by the National
Highway Traffic Safety Administration in 1996, see 49
C.F.R. §§ 390.1, 390.5, and 393.86 (1996), and later ex-
tended to all commercial motor vehicles, see 64 Fed. Reg.
47,703 (Sept. 1, 1999). This rulemaking postdates both
Mieher and Beattie. The commentary accompanying these
regulations, however, counsels against judicial interfer-
ence: the regulations explicitly discuss the complicated
No. 07-2989 7
tradeoff between excessively firm and excessively
yielding rear guards, and they acknowledge that there is
no perfect solution given the vast number of variables
involved in any given accident. See 61 Fed. Reg. 2004, 2004
(1996). We must assume that the Illinois General Assembly
has long been aware of Mieher, Beattie, the federal
rulemaking, the state’s arguable outlier status on this
legal issue, and the dangers posed by tractor-trailers.
Nevertheless, the General Assembly has not acted either
to overrule Mieher legislatively or even to suggest a differ-
ent balancing of the relevant policy considerations. Accept-
ing Rennert’s invitation to shape Illinois policy on this
matter would transgress limitations imposed both by
federalism and the separation of powers.
II
We express no opinion on the wisdom of Illinois’s choice.
It is enough to say that the choice is Illinois’s to make, and
it is our responsibility to respect it. That leads to Rennert’s
final argument: recognizing our limited authority (and
stuck in federal court because of the defendant’s exercise
of its right to remove, not because he consciously chose
to stay out of state court), Rennert asks that we certify
this question to the Supreme Court of Illinois. 7TH C IR. R.
52; ILL. S. C T. R. 20. “Certification is appropriate when the
case concerns a matter of vital public concern, where the
issue will likely recur in other cases, where resolution
of the question to be certified is outcome determinative
of the case, and where the state supreme court has yet
to have an opportunity to illuminate a clear path on the
8 No. 07-2989
issue.” State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666,
672 (7th Cir. 2001). Certification of a question to a state
supreme court is not proper where the state supreme
court and state appellate courts have spoken to the issue,
and are not in conflict. See Liberty Mutual, 352 F.3d at 1100.
The Supreme Court of Illinois may accept certifications
from the United States Supreme Court and the Seventh
Circuit on questions “which may be determinative of
the said cause, and there are no controlling precedents
in the decisions of this court . . . .” ILL. S. C T. R. 20.
The latter two standards decide the case at hand: the
supreme court spoke in Mieher, and the appellate court
in Beattie not only did not contradict the ruling but ex-
tended it. The Supreme Court of Illinois had “an opportu-
nity to illuminate a clear path on the issue,” Pate, 275 F.3d
at 272, but it declined to do so. There is no indication that
there is any confusion in the state on the matter. The state
supreme court has been silent on this issue since Mieher,
but “that may be because Illinois appellate courts have
spoken, and they are not in conflict [with the state su-
preme court].” Liberty Mutual, 352 F.3d at 1100. Standing
alone, the fact that a number of Illinois’s sister states
have chosen a different rule is not enough to require
certification.
The judgment of the district court is A FFIRMED.
9-11-08