The opinion of the court was delivered by: Judge Sylvia H. Rambo
This case arises out of a single-vehicle accident that occurred on May 12, 2005, when Plaintiff Charles Spence's tractor-trailer overturned as he was rounding a curve in Hanover, Pennsylvania. At the time of the accident, Spence was hauling welding supplies manufactured by Defendant, The ESAB Group, Inc. ("ESAB"). These supplies were loaded onto Spence's trailer by employees of ESAB shortly before the accident. Spence asserts that ESAB was negligent in loading and securing the welding materials, and this negligence was the proximate cause of the accident. Before the court is ESAB's motion for summary judgment. That motion was fully briefed by the parties, and is ripe for disposition. For the reasons that follow, the court will grant ESAB's motion.
Plaintiff Charles Spence is a professional truck driver for Deep South Trucking. On May 12, 2005, Spence was involved in a single-vehicle accident when his tractor trailer overturned in Hanover, Pennsylvania. Defendant ESAB manufactures welding supplies, and was the shipper of the cargo that Spence was transporting at the time of the accident.
Spence has been a professional truck driver since 1999. He attended a professional truck driving school, obtained a Commercial Driver's License, and has an endorsement to transport hazardous materials. As a professional truck driver, Spence is familiar with the various techniques and methods used to secure cargo. Additionally, Spence is aware of federal regulations requiring a driver to ensure that his cargo is adequately secured, and admitted in his deposition that "it is his responsibility to make sure that the load is secure to his satisfaction period." (Doc. 53-2, Def.'s Ex. A, Charles Spence Dep. 27:3-5.)
Spence is a resident of Texas, and is aware that the Texas Commercial Motion Vehicle Drivers Handbook requires a driver to make sure that his cargo is properly secured, and specifies blocking and bracing as one of several techniques for securing cargo. Spence is also aware of several other methods of securing cargo, including: the use of load locks; load stars or cleats; ratchet straps; and the use of dunnage. Of these various securement devices, Spence has used two in the past to secure loads that he carried for ESAB: load locks and load stars. A load lock is a device that expands against the sides of the trailer, and is placed against the cargo to secure it. Although Spence does not dispute this description, he adds that a load lock only prevents forward and backward motion, but does not stop lateral or sideways shifting of cargo. (Doc. 61-9, Pl.'s Ex. G, Roger Allen Dep. 40:24-42:7.) A load star is a small metal cargo securement device that is placed between the bottom of the pallet and the deck of the trailer.
Prior to the accident, Spence had transported welding supplies from ESAB's Hanover facility on approximately five prior occasions. On each of these prior trips, Spence secured the loads using a load lock that was supplied by his employer. He also typically also used load stars, but on one occasion Spence only used his load lock and did not use any load stars.*fn2 On that occasion, when Spence arrived at his destination, he opened the door of his trailer and noticed that the load had shifted slightly during transit. Spence did not inform ESAB at that time that his load had shifted. He only reported it the day of the accident in question here, when he told an ESAB employee, Charles Gladhill; however, even then, Spence did not mention any specifics of the load shift. (Doc. 61-4, Pl.'s Ex. B, Charles Gladhill Dep. 81:7-15.) Spence never experienced any load shift on the prior trips from ESAB when he used both load stars and load locks to secure the cargo.
Each time that he hauled welding supplies loaded by ESAB, Spence observed that the cargo was not blocked and braced. Spence complained about the lack of blocking and bracing the first time that he hauled for ESAB. Specifically, he indicated that he did not like the way that the welding supplies were loaded, but did not do anything to further secure the load other than using load locks and load stars. (Spence Dep. 53:20-54:10.) Spence acknowledges that he could have refused the load, but that he did not do so, and there were no problems with the load shifting on that particular occasion. (Id. at 54:24-55:4.) Moreover, after this initial experience, each time Spence hauled ESAB supplies, the cargo was loaded and packaged the same way. (Id. at 55:5-12.) Spence never asked ESAB to load the cargo differently.*fn3
On May 12, 2005, Spence arrived at the ESAB facility and an ESAB employee placed the pallets of cargo onto Spence's trailer. Spence's cargo was individually packaged boxes and cartons of welding supplies stacked onto pallets and stretch wrapped. Spence's cargo was the same type of cargo, loaded and packaged the same way, that he had picked up and transported on several prior occasions. Spence was present as the cargo was loaded, and put load stars onto the bottom of the trailer. ESAB then stacked the pallets on top of the load stars placed by Spence. Unlike every previous occasion, Spence did not secure the cargo with a load lock because he did not have one with him. If Spence had a load lock with him on May 12, 2005, he would have used it.*fn4 Despite not using a load lock, Spence did not ask that ESAB load his trailer differently. Instead, Spence inspected the cargo, and accepted it by signing the bill of lading.*fn5 Spence personally closed, locked, and sealed his trailer door. Spence then got into his cab and drove his tractor-trailer away from ESAB's facility traveling the same route that he always took. As Spence drove his truck around a curve at the intersection of Third Street and State Route 116 in Hanover, Pennsylvania, his vehicle overturned causing him to be injured.
Spence avers that he was told by an ESAB employee that his loads were safe and secure, (Doc. 60 ¶ 42), however, he cites no support in the record for this specific of a conclusion. To the contrary, the portion of his deposition to which he cites states that "ESAB assured me that they have never had a problem with any of their loads." (Spence Dep. 54:7-9.) This assurance occurred at some point before August 2004, when Spence picked up his "very first load." (Id. 53:24.) It is undisputed that each time Spence picked up cargo from ESAB, he accepted, secured and transported the cargo, (Doc. 54 ¶ 44; Doc. 60 ¶ 44), and that no time did Spence reject the cargo or ask ESAB to load it differently. (Doc. 54 ¶ 42; Doc. 60 ¶ 42.)
On March 28, 2007, Spence filed his original complaint asserting claims of negligence, negligence per se, and gross negligence. (Doc. 1.) ESAB filed a motion to dismiss Spence's negligence per se claim on June 13, 2007. (Doc. 7.) After briefing, ESAB's motion to dismiss was granted on February 15, 2008. (Doc. 22.) ESAB filed its answer to Spence's complaint on February 29, 2009. (Doc. 23.) On July 15, 2008, Spence filed a motion to amend his complaint. (Doc. 26.) On September 25, 2008, ESAB filed a motion for summary judgment, brief in support, and statement of material facts. (Docs. 31-33.) Spence filed his brief in opposition to ESAB's motion for summary judgment, and statement of material facts on October 10, 2008. (Docs. 34-35.) On October 20, 2008, the court held a conference call with the parties, and issued an order granting Spence's motion to amend his complaint and suspending ESAB's motion for summary judgment. (Doc. 39.)
Spence filed an Amended Complaint on October 27, 2009. (Doc. 42.) Spence's Amended Complaint asserts five counts: (1) General Negligence; (2) Negligent Failure to Warn; (3) Breach of an Assumed Duty; (4) Fraudulent/Negligent Misrepresentation Claim; and (5) Gross Negligence. (See id.) ESAB filed an answer to Spence's Amended Complaint on November 13, 2007.
(Doc. 43.) On January 16, 2009, ESAB filed a motion in limine to preclude Spence from introducing any evidence of an accident that occurred in March of 2005. (Doc. 46.) That motion was fully briefed by the parties, and on March 16, 2009, the court issued an order granting ESAB's motion in limine. (Doc. 62.)
While the motion in limine was pending, on February 13, 2009, ESAB filed another motion for summary judgment, brief in support, and statement of material facts. (Docs. 52-54.) On March 2, 2009, Spence filed his brief in opposition to ESAB's motion for summary judgment, and his response to ESAB's statement of material facts. (Docs. 60-61.) ESAB filed its reply brief on March 19, 2009. (Doc. 63.) On March 25, 2009, Spence filed a motion for leave to file a sur-reply, (Doc. 64), which motion wad denied on April 20, 2009. (Doc 68.) ESAB's motion for summary judgment is now ripe for disposition.*fn6
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23. "'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
Because subject matter jurisdiction in this case is based on diversity of citizenship, the court looks to the substantive law of Pennsylvania to determine the rights and obligations of the parties. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 77 (1938). The law of the Commonwealth is declared by "its Legislature in a statute or by its highest court." Id. The Pennsylvania Supreme Court is the best authority on Pennsylvania law, but when the Supreme Court has not issued a clear pronouncement in a particular area, the court "must consider relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data" to determine what the law is. McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 661, 663 (3d Cir. 1980); see also Comm'r v. Estate of Bosch, 387 U.S. 456, 465 (1967). Opinions from lower Pennsylvania courts are not controlling, but they are entitled to significant weight when there is no indication that the Pennsylvania Supreme Court would rule otherwise.
Spence's claims in his Amended Complaint all flow from the assertion that the May 12, 2005 accident would not have happened if the welding supplies loaded onto Spence's truck by ESAB would have been properly secured against shifting during transit, and that ESAB owed Spence a duty of care when loading the cargo to secure these materials. ESAB asserts that, as the shipper of the cargo, it did not owe any duty to Spence because under both federal regulatory law and common law, the driver, and not the shipper, is responsible for ensuring that cargo is adequately secured once it has been loaded. Spence states that the law is to the contrary, and that a shipper's duty extends to loading a truck safely to prevent roll-over accidents and resultant injury to the driver.
The crux of the dispute between the parties appears to be ESAB's insistence that it owed Spence no duty to secure the cargo, whereas Spence asserts that ESAB did owe him a duty. Thus, because the success of Spence's claims turns on whether ESAB owed ...