Canipe v. National Loss Control Service Corp., Civ. A. No. DC 81-192-WK-O.
| Decision Date | 27 May 1983 |
| Docket Number | Civ. A. No. DC 81-192-WK-O. |
| Parties | Billy CANIPE, Plaintiff, v. NATIONAL LOSS CONTROL SERVICE CORPORATION, Defendant. |
| Court | U.S. District Court — Northern District of Mississippi |
John H. Cocke, Merkel & Cocke, Clarksdale, for plaintiff.
Walter W. Thompson, Luckett, Luckett, Luckett & Thompson, Clarksdale, for defendant.
In this diversity action, plaintiff, Billy Canipe, a Tennessee citizen, sues National Loss Control Service Corporation (NATLSCO), an Illinois corporation qualified to do business in Mississippi, for personal injuries allegedly suffered as a result of NATLSCO's negligence and breach of contract. The court has before it defendant's motion for summary judgment.1
Plaintiff was an employee of the Kraft-Humko plant in Memphis, Tennessee, where he was the operator of a machine known as a flake roll machine. As a part of his job duties, plaintiff was required to perform a clean out procedure on the flake roll machine that required him to lift a plastic dust cover and clean material from the machine's auger trough when converting from one product to another. This procedure required plaintiff to place his hand into the auger trough and, using an air hose, to blow the product down to the bottom of the trough. Plaintiff alleges that the procedure which he had been taught allowed him to clean the trough while the auger was in motion. On the date of his injury, the plaintiff was cleaning the auger trough when his shirt sleeve caught on a large pin on the end of the auger which pulled him into the auger trough. As a result of the injury, plaintiff's right arm was pulled off above the elbow and, although later reattached by surgeons, his arm remains basically useless at the present time.
Plaintiff relies upon two theories for recovery. First, plaintiff argues that he is entitled to recovery under the tort theory embodied in § 324A of the Restatement (Second) of Torts. Second, plaintiff contends he is entitled to recovery under a third-party beneficiary contract theory. Moreover, plaintiff stoutly maintains that on either theory he has raised issues of fact which mandate the denial of summary judgment to the defendant.
Before determining whether plaintiff is entitled to recovery under any theory, we must consider what state law applies to this action. Plaintiff argues that under the center of gravity rule, the contacts predominate in favor of application of Mississippi law. Defendant, however, argues that the law of Tennessee applies.
It is well settled that in federal diversity cases the choice of law is determined by conflict of law principles recognized by the forum state. Johnson v. Knight, 459 F.Supp. 962, 967 (N.D.Miss. 1978). Under the applicable Mississippi conflict of law principles, Tennessee law will apply to both a contract and tort theory of recovery. Under the tort theory, Tennessee law would apply since the alleged tortious acts and injury occurred in Memphis, Tennessee. Browning v. Shackleford, 196 So.2d 365 (Miss.1967). Under a contract theory, Tennessee law would also apply. Plaintiff was a resident of Tennessee at the time of his injury and the alleged contract was entered into and performed in Tennessee. The only relation this suit has to the State of Mississippi is that defendant is qualified and licensed to do business in the state and that plaintiff chose to file his lawsuit here. Therefore, the law of Tennessee will apply. See Johnson v. Knight, 459 F.Supp. 962, 967 (N.D.Miss.1978).
Plaintiff's tort theory of recovery relies on § 324A of the Restatement (Second) of Torts, which states:
Id. at 675. Plaintiff relies, however, on Neal v. Bergland, 646 F.2d 1178 (6th Cir. 1981), for its proposition that § 324A would be applied by the Tennessee Supreme Court if it were presented with the issue.
The Neal litigation, originally filed in the Circuit Court of Roane County, Tennessee, was removed upon application of defendant Bergland, the then Secretary of Agriculture, to the United States District Court for the Eastern District of Tennessee. 646 F.2d at 1179. The suit was brought as a direct action against the Secretary of Agriculture asserting that Title V of the Housing Act of 1949, 42 U.S.C. § 1471 et seq., and the regulations issued thereunder, 7 C.F.R. § 1802.71 et seq., create an obligation on the part of the Farmers Home Administration (FmHA) to supervise, inspect or warrant the construction of houses built with FmHA financing. Id. Holding that no such duty was created under the federal laws, the district court dismissed the federal defendants, and remanded the case to state court as to the nonfederal defendants. Neal v. Bergland, 489 F.Supp. 512, 516 (E.D.Tenn. 1980). On appeal, the Sixth Circuit reversed because of:
the principle expressed in § 323 of the Restatement (Second) of Torts (1965) that one who undertakes to act, even though gratuitously, is required to act carefully and with the exercise of due care and will be liable for injuries proximately caused by failure to use such care.
Neal v. Bergland, 646 F.2d 1178, 1181-82 (6th Cir.1981). Although we might be inclined to agree with the conclusion reached in Cross Brothers Meat Packers v. United States, 533 F.Supp. 1319 (E.D.Pa.1982), that the Sixth Circuit in Neal was applying federal law rather than Tennessee state law, nevertheless the Supreme Court in Block v. Neal, ___ U.S. ___, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), appears to have indicated a contrary interpretation. The Court in Neal characterized the action as one falling under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671-2680. Id. 103 S.Ct. at 1092, 75 L.Ed.2d at 73. Because of this characterization, the Supreme Court assumed the Sixth Circuit was applying Tennessee law when discussing the Good Samaritan rule embodied in § 323 of the Restatement,2 stating in footnote three:
The Court of Appeals found that respondent stated a claim against the United States under the common law Good Samaritan doctrine which is described in § 323 of the Restatement (Second) of Torts (1965). However, the court did not expressly find that Tennessee law recognizes this doctrine, see 28 U.S.C. § 1346(b), and would apply it to a private person responsible for similar negligence.
Id. at n. 3. In view of the Supreme Court's interpretation, we must assume the Sixth Circuit was attempting to make an educated Erie guess of Tennessee state law in Neal. This being the case, the conflicting holdings of the district court in Mosley and the Sixth Circuit in Neal must be resolved in favor of the appellate court opinion. Indeed, if we were writing on a clean slate, the progressive principles of § 324A would be favored by us. Therefore, we hold that if the Tennessee Supreme Court were presented with the question, it would apply the Good Samaritan rule embodied in § 323 and § 324A of the Restatement (Second) of Torts. Because we so hold, we must now determine whether plaintiff has presented an issue of material fact under § 324A requiring resolution by a jury.
Section 324A of the Restatement (Second) of Torts states:
Id. In order to present a factual issue to defeat the motion for summary judgment, plaintiff must submit, by affidavit, deposition or other discovery material, some evidence that defendant's actions fall into category (a), (b), or (c) of § 324A. Viewing the evidence in the light most favorable to plaintiff, we are compelled to conclude no material factual question remains for the trier of fact.
On November 9, 1978, Kraft, Inc. of Glenview, Illinois (Kraft), entered into an "Agreement for Services" with National Loss Control Service Corporation (NATLSCO). The agreement provided that NATLSCO would "provide Loss Control services on a request basis as approved and initiated by Kraft's Director of Safety and Security or other authorized employee." Though specifying the rate of compensation for any services rendered, the agreement made no mention of what services would actually be performed. Pursuant to discussions between NATLSCO and Kraft personnel, a service directive was issued by R.D. Mulder, NATLSCO's account coordinator, to the service...
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