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Spence v. Esab Group

October 18, 2010

CHARLES SPENCE, APPELLANT,
v.
THE ESAB GROUP, INC.,



Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 1:07-cv-00583) District Judge: Honorable Sylvia H. Rambo.

The opinion of the court was delivered by: Vanaskie, Circuit Judge.

PRECEDENTIAL

Argued July 15, 2010

Before: FUENTES, VANASKIE and WEIS, Circuit Judges.

OPINION OF THE COURT

This appeal calls upon us to determine whether Pennsylvania law imposes upon a shipper a duty of due care to safely secure the goods the shipper has loaded in a third-party carrier's tractor-trailer. The District Court, concluding that Pennsylvania law did not impose such a duty, awarded summary judgment in favor of the shipper, The ESAB Group, Inc. ("ESAB"), and against the carrier's injured driver, appellant Charles Spence. Because we find that, under the circumstances of this case, Pennsylvania law imposed a duty of care on ESAB, we will reverse the District Court's judgment and remand for further proceedings.

I. Facts

On May 12, 2005, Spence was injured when his tractor-trailer overturned as he was rounding a turn in Hanover, Pennsylvania. The accident occurred shortly after Spence, an experienced truck driver, picked up a load of cargo from ESAB to transport to Houston, Texas. The cargo -- welding supplies manufactured by ESAB -- was packaged by ESAB into boxes and cartons, stacked onto pallets, and then stretch wrapped. Spence was on the trailer while ESAB loaded the pallets by forklift onto the trailer. Spence secured the cargo with "load stars" furnished by ESAB. Load stars are small metal cleats that are placed on the floor of the trailer and secure the pallets that are loaded onto them.

Spence had transported welding supplies for ESAB -- packaged and loaded the same way as on the day of the accident -- on approximately five occasions. On the first occasion, Spence complained to ESAB that he did not like that the load was not blocked and braced, referring to a method of securing cargo which would have required nailing wooden boards to the trailer's floor to completely surround the pallets to safeguard against movement of the cargo during transit. ESAB assured Spence that it never had a problem with any of its loads. Believing that ESAB "knew better" than he about securing ESAB's product, Spence hauled the load without blocking and bracing. (A. 124.)

In addition to utilizing the load star securement devices provided by ESAB, Spence also used a device known as a "load lock" to secure the ESAB cargo. A load lock is an expandable pole with rubber on each end that is wedged between the trailer walls behind the last item in a row of pallets. According to Spence, the purpose of a load lock is to prevent the load from shifting backwards towards the rear doors of the trailer. Spence's employer provided the load lock that he used to secure the ESAB cargo.

Although Spence did not encounter any problems during that first haul of ESAB product, on a subsequent trip, when Spence arrived at his destination, he opened the door of the trailer and saw that the pallets had shifted during transit. Spence does not dispute that only his employer-provided load lock was used to secure the load on this prior occasion.*fn1 With the exception of that particular load, on all of his prior hauls for ESAB, Spence had secured the cargo with both load stars and a load lock. On none of Spence's hauls for ESAB, including on the day of the accident, was the cargo blocked and braced. Spence's expert testified that it is the industry practice for shippers, not drivers, to block and brace the cargo.

On the day of the accident, because he did not have a load lock with him, Spence secured the cargo only with ESAB's load stars. After the pallets were loaded onto the trailer, Spence closed, locked, and sealed his trailer doors and signed the bill of lading. Spence then got into the cab of his truck and drove the tractor-trailer away from ESAB's facility. As Spence rounded a curve a short distance from the ESAB facility, his tractor-trailer overturned, causing Spence serious injuries. Spence claims that the accident occurred because the load shifted laterally.

II. Procedural History

On March 28, 2007, Spence brought suit against ESAB in the United States District Court for the Middle District of Pennsylvania, asserting claims of negligence, negligence per se, and gross negligence. The claims were based on Spence's assertion that the accident was a result of ESAB's failure to secure the cargo it loaded onto the trailer, which, Spence alleged, was a violation of its duty of care to Spence and the proximate cause of his injuries.

On June 13, 2007, ESAB filed a motion to dismiss the negligence per se claim, which the District Court granted on February 15, 2008. On September 25, 2008, ESAB moved for summary judgment. On October 20, 2008, the District Court granted Spence's request for leave to file an amended complaint and stayed consideration of ESAB's summary judgment motion. On October 27, 2008, Spence filed an amended complaint, which contained five claims: Negligence, Negligent Failure to Warn, Breach of Assumed Duty, Fraudulent/Negligent Misrepresentation, and Gross Negligence.*fn2

ESAB filed an amended summary judgment motion on February 13, 2009. ESAB argued that, as the shipper, it owed no duty to Spence, the driver. ESAB cited federal regulations, which ESAB argued "squarely" and "exclusively" place the duty to ensure that cargo is adequately secured on the driver, and not the shipper. ESAB also cited United States v. Savage Truck Line, Inc., 209 F.2d 442 (4th Cir. 1953), for the common-law rule that the shipper who loads cargo is only liable for defects in loading that are latent and not apparent to the driver. In opposition to ESAB's motion for summary judgment, Spence argued, citing Kunkle v. Continental Transportation Lines, Inc., 92 A.2d 690 (Pa. 1952), that under Pennsylvania law, the shipper, ESAB, owed a duty of care to Spence in both loading and securing the cargo, notwithstanding the fact that Spence admits that under federal regulations he also had a duty to properly secure the load.

On October 13, 2009, the District Court granted ESAB's motion for summary judgment on all five claims of the Amended Complaint. As to Spence's negligence claim, on which the instant appeal centers, the District Court found that Pennsylvania law did not impose on ESAB a duty of care under the circumstances of this case. In this regard, it found persuasive the Federal Motor Carrier Safety Regulations that impose upon the carrier the obligation to safely secure cargo to prevent shifting during transit, citing 49 C.F.R. § 392.9(a) and (b), as well as 49 C.F.R. § 393.100.*fn3 As to the Pennsylvania Supreme Court's holding in Kunkle, the District Court found that it concerned only the shipper's duty of care in relation to loading the cargo, and was thus not controlling on the question of a shipper's duty to secure the load. The District Court also questioned Kunkle's continuing "vitality," as it was decided before the promulgation of the federal regulations that make the carrier responsible for securing the cargo. Beyond finding Kunkle not to be on point, the District Court concluded that it conflicted with the "prevailing common law duty" announced in Savage that the primary duty to secure cargo rests with the carrier, and the shipper's duty is to avoid latent defects in the way the cargo is secured. Savage, 209 F.2d at 445. The District Court reasoned that because Spence knew that the load was not blocked and braced, he could not show that ESAB had created a latent hazard. The District Court thus ...


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