In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2989

SHMUEL RENNERT, Individually and as Personal

Representative of the Estate of DEVORAH R. RENNERT,

Plaintiff-Appellant,

v.

GREAT DANE LIMITED PARTNERSHIP,

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.

____________

ARGUED FEBRUARY 25, 2008—DECIDED SEPTEMBER 11, 2008

____________

Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, 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 FED. R. CIV. P. 12(b)(6) for failure to state a

claim. The district court dismissed the claim with prejudice; 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 dangerous 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 recognize 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 RESTATEMENT

(SECOND) OF TORTS § 435(2): a manufacturer has a duty

to design a vehicle that is reasonably safe for the occupants, but it owes no duty to those who collide with that

vehicle. Even if accidents are foreseeable, the court reasoned, the manufacturer is obliged to secure the occupants 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 unreasonable 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 allegation 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 persuaded. 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 limitations 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 perceived 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 RESTATEMENT (SECOND) OF TORTS § 402A. (The state’s products liability law traditionally drew heavily from that

Restatement, but the Supreme Court of Illinois has now

begun to refer to the RESTATEMENT OF THE LAW THIRD,

TORTS:PRODUCTS LIABILITY (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 RESTATEMENT

(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 disregard 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 promulgation 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 extended 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 interference: 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 different balancing of the relevant policy considerations. Accepting 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 CIR. R.

52; ILL. S. CT. 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. CT. 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 extended it. The Supreme Court of Illinois had “an opportunity 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 supreme 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 AFFIRMED.

9-11-08