Haile v. Hickory Springs Mfg. Co.
| Decision Date | 14 November 2014 |
| Docket Number | Case No. 3:13-cv-00053-KI |
| Court | U.S. District Court — District of Oregon |
| Parties | MUSIE W. HAILE, Plaintiff, v. HICKORY SPRINGS MANUFACTURING COMPANY, a North Carolina company; INTERNATIONAL FOAM SUPPLY, INC., a California corporation; SEA MASTER LOGISTICS, INC., a California corporation; INTERNATIONAL CONTAINER TERMINAL SERVICES, INC., a foreign corporation in the Philippines; SHENZHEN ZHONGFU TRADING COMPANY, a foreign corporation in China; JOHN DOE 1; JOHN DOE 2; JOHN DOE 3; JOHN DOE 4; and JOHN DOE 5, Defendants. HICKORY SPRINGS MANUFACTURING COMPANY, a North Carolina company, Third-Party Plaintiff, v. PORTLAND CONTAINER REPAIR CORPORATION, an Oregon corporation, Third-Party Defendant. |
Richard A. Mann
Joseph M. Mabe
Brownstein Rask
1200 S.W. Main Street
Portland, OR 97205-2040
Attorneys for Plaintiff
Jeffrey W. Hansen
Joseph A. Rohner IV
Smith Freed & Eberhard P.C.
111 SW Fifth Avenue, Suite 4300
Portland, OR 97204
Attorneys for Defendant
In this diversity action, plaintiff Musie Haile brings a complaint for an injury he sustained while attempting to deliver an intermodal container packed with scrap foam to the property of defendant Hickory Springs Manufacturing Company ("Hickory"). When plaintiff opened the container, two pallets of cargo, weighing approximately 600 pounds each, knocked plaintiff to the ground.
Plaintiff alleges premises liability, the sole surviving claim, against Hickory. For the following reasons, I grant Hickory's Motion for Summary Judgment and dismiss this case.
Plaintiff alleges he was Hickory's business invitee. He alleges Hickory owed a duty to exercise reasonable care to protect plaintiff from the unreasonable risk of dangerous and defective conditions posed by overseas shipments of containers, which it regularly received, and that it knew or should have known the cargo was not properly secured inside the container. He alleges Hickory failed to warn delivery drivers about unsecured cargo, and failed to implement protective measures to avoid injuring delivery drivers.
Plaintiff transported cargo as an independent contractor for Portland Container. Over the course of his five-year working relationship with Portland Container, plaintiff had handled 2,431 loads-including 19 for Hickory. He had only delivered foam and nothing else to Hickory, although he often did not know what he was carrying until he opened the container upon arrival at the premises. The U.S. Department of Transportation licensed plaintiff as an interstate driver who could carry general freight and intermodal shipping containers.
Plaintiff reported the events from April 13, 2011, the day of his injury. He obtained the intermodal container and chassis for the load from Terminal 6 at the Port of Portland, then drove down Marine Drive, without making any stops, until he arrived at Hickory's property. He did not break the seal or open the doors prior to arriving at Hickory's premises. When he checked into the receiving office, a Hickory employee, Steve Hartwell, told plaintiff to cut the shipping seal and put the shipping container at a specific loading dock bay. Plaintiff does not remember receiving any other instruction or warning. He then drove around the back of the building.Plaintiff began backing up to the cargo door, stopped, got out, and walked toward the container's doors. Because he understood Hickory wanted the container open and available for its employees to unload, plaintiff cut the seal on the container. Plaintiff opened the rear right-hand door of the container, swung the right-hand door open and secured it to the side of the container. Plaintiff was able to see inside the shipping container and saw the foam. His deposition testimony gave little detail about the position of the foam, however.
Q. Did you stick your head into the container to see if there was anything pressing against the left-hand door?
A. There's no room to go in to see.
Q. Okay. Why not?
A. So the load and the door was very close.
Q. On the right-hand side?
A. Yes.
Q. Would it have been possible for you to stand right next to the load and see the inside of the left-hand door?
A. No.
In the process of opening the second container door (the left-hand side), plaintiff lifted the locking device. The door sprang open, knocked plaintiff to the ground and two pallets of foam weighing 600 pounds each fell out of the container. Plaintiff reports, "Hickory Springs did not offer to help me open the container doors with any type of mechanical equipment, such as a forklift." Pl.'s Decl. ¶ 12.
Because the container doors have no windows, the driver cannot view the inside of the container without breaking the seal and opening the doors. In order to open the container doors, a person must stand in front of the container door to release the latches allowing the door to open. The driver customarily breaks the seal and opens the container, after delivering a sealed load, but the right to break the seal and the manner in which it is broken is for the customer to exercise. Plaintiff opened the rear cargo doors approximately 75% of the time he made a delivery.
Hickory's employees, Steve Hartwell and Kevin Trafton, have seen cargo shift, including "baled springs, carpet pad, and foam packages." Hartwell Dep. 22:4-5. When cargo shifts, most of the time the cargo is simply not in its place in the trailer. A couple of times cargo has fallen out. Hartwell would often warn drivers to be careful opening the container doors. In the 27 years Trafton worked for Hickory he had never seen a bale of scrap foam fall from a container.
Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court "must view the evidence on summary judgment in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party." Nicholson v. Hyannis Air Service, Inc., 580 F.3d 1116, 1122 n.1 (9th Cir. 2009) (citation omitted).
Hickory relies on two alternative theories in arguing for summary judgment. First, no one else but plaintiff, as a federally regulated motor carrier, was responsible for the safety and security of his cargo. Second, as a matter of law, Hickory cannot be liable to plaintiff under Oregon's premises liability law. In short, Hickory contends there are only three potentially liable parties: the company that loaded the container (Shenzhen Zhongfu Trading Co., which has not been served); the company for whom plaintiff transported cargo (Portland Container, which has not been sued); and plaintiff himself. It argues a customer (i.e. Hickory) receiving a loaded shipping container cannot be liable to the truck driver (i.e., plaintiff) who injures himself in a way unrelated to any condition of the property.
Hickory argues federal law makes plaintiff-as a federal motor carrier with an assigned USDOT number and Motor Carrier Number-responsible for the safety of his cargo. Plaintiff was required to comply with the federal regulations applicable to motor carriers. Those regulations include a requirement that cargo be "properly distributed and adequately secured" prior to "operat[ing] a commercial motor vehicle[.]" 49 C.F.R. § 392.9(a)(1). Specifically, "[c]argo must be firmly immobilized or secured on or within a vehicle by structures of adequate strength, dunnage or dunnage bags, shoring bar, tiedowns or a combination of these." 49 C.F.R. § 393.106(b). Plaintiff was required to secure the cargo before he drove, inspect the cargo to ensure it "cannot shift on or within," and reexamine the cargo during the course of transportation. 49 C.F.R. §§ 392.9(b)(1), 392.9(b)(2), and 392.9(b)(3).
I am not persuaded. Even if the safety regulations applied in this context-a dispute between a carrier and a receiver, as opposed to a carrier and a shipper-the inspection responsibility is inapplicable to a driver of a container (1) "who has been ordered not to open it to inspect its cargo" and inapplicable to the driver of a container (2) "that has been loaded in a manner that makes inspection of its cargo impracticable." 49 C.F.R. § 392(b)(4). Here, the container was sealed at the time plaintiff picked it up; he had no opportunity or authority to inspect the contents of the container prior to driving it to Hickory's premises. This makes plaintiff's situation easily distinguishable from the facts of the cases on which Hickory relies. Aragon v. Wal-Mart Stores E., LP, 735 F.3d 807, 811 (8th Cir. 2010) (); White v. Dietrich Metal Framing, 1:06-cv-554, 2007 WL 7049797, at *7 (E.D. Tex. July 5, 2007) (); Decker v. New England Pub. Warehouse, Inc., 749 A.2d 762, 767 (Maine 2000) ().
Hickory asserts the exceptions do not apply because plaintiff had not completed his delivery. The regulations do not use the word "delivery." Rather, the inspection obligation is implicated before a driver "operate[s] a commercial motor vehicle," before a driver "drives that commercial motor vehicle," and "during the course of transportation." 49 C.F.R. §§ 392.9(a), 392.9(b)(1) and (2). In other words, the regulations related to inspection...
To continue reading
Request your trial