Rector v. General Motors Corp., 91-5624

• Decision Date: 06 May 1992
• Docket Number: No. 91-5624,91-5624
• Citation: 963 F.2d 144
• Parties: Benjamin Franklin RECTOR and Janice M. Rector, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION and Federal-Mogul, Inc., Defendants-Appellees, Eagle Expediting, a subsidiary of Gravel Trucking Company, Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 144

963 F.2d 144

Benjamin Franklin RECTOR and Janice M. Rector, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION and Federal-Mogul, Inc. Defendants-Appellees Eagle Expediting, a subsidiary of Gravel Trucking Company, Defendant.

No. 91-5624.

United States Court of Appeals Sixth Circuit.

Argued March 26, 1992.

Decided May 6, 1992.

James P. Jones (argued and briefed), Centerville, Ohio, Thomas Lee Gentry, Harrodsburg, Ky., Katherine L. Billingham (briefed), Centerville, Ohio, for plaintiffs-appellants.

Linda M. Hopgood (argued and briefed), Geralds, Moloney & Jones, Linsey W. West (argued and briefed), Woodward, Hobson & Fulton, Louisville, Ky., for defendants-appellees.

Before: JONES, GUY and BATCHELDER, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

Plaintiffs, Benjamin Franklin Rector and his wife, Janice, appeal the entry of summary judgment in favor of defendants, Federal-Mogul, Inc. and General Motors Corporation ("GM"), in this personal injury action arising out of Benjamin Rector's fall while handling cargo in his employer's tractor trailer. For the reasons that follow, we affirm.

I

The injury giving rise to this dispute occurred on the morning of January 10, 1989 in Harrodsburg, Kentucky. ¹ Benjamin Rector, acting in his capacity as an employee of Rite Trucking Lines, slipped and fell on small automotive gears (also known as "races"), which had been packaged in oil and which had spilled to the floor of a tractor trailer he had driven to Harrodsburg from Dayton, Ohio. Rector experienced severe pain upon his fall, and the accident caused permanent injury to his lower back.

Defendants' involvement in this matter arises as follows. The gears on which Rector injured himself were manufactured and packaged by Federal-Mogul. On January 4, 1989, Federal-Mogul shipped the gears from Gallipolis, Ohio to GM's Buick Motor Division in Flint, Michigan via Eagle Expediting, a third-party carrier not a party to the instant appeal. The gears were packed in oil and loaded into five boxes, which were then placed on a skid. Pursuant to Federal-Mogul's usual practice, the skid and boxes were then shrink-wrapped eight times. ² The package was subsequently loaded onto the Eagle truck by means of a forklift. The driver of the Eagle truck requested that the skid on which the boxes were packaged be secured by two-by-four boards placed into the truck and hammered into the front and back of the skid.

During the course of their journey to the GM plant in Michigan, the gears apparently shifted and fell out of their boxes. On January 5, 1989, the gears arrived at GM's Flint plant. Due to the damaged and dirty condition of the spilled gears, GM rejected them as unusable, and Federal-Mogul agreed to accept their return. Because the truck that had delivered the gears was not returning to Gallipolis, GM agreed to allow the gears to remain at its loading dock until a truck belonging to Rite Trucking could transport them back to Federal-Mogul. On January 9, 1989, the gears were loaded onto a Rite truck. Before the gears were loaded, GM did not shrink-wrap the gears.

That evening, the Rite truck carrying the gears arrived at the Rite Trucking terminal in Dayton, Ohio. Terminal manager John Mullins then directed two Rite employees to transfer the gears to another Rite truck for further shipping. The record does not indicate whether the employees merely moved the gears to another trailer, or also repackaged the gears in some manner.

Rector was assigned to transport this second trailer through Harrodsburg, where he was to obtain additional cargo at another warehouse, then proceed to Gallipolis. Rector did not check the contents of the trailer before departing from Dayton, nor was he aware that the cargo consisted solely of the rejected gears.

Upon his arrival in Harrodsburg, Rector discovered the spilled gears. Employees at the warehouse in Harrodsburg told Rector that if he repackaged the gears, they would shrink-wrap the load to prevent further spillage during the remainder of the journey. As he repacked the gears, Rector slipped on either the spilled gears or the oil in which they had been packaged.

On January 9, 1990, the Rectors filed this personal injury action in state court against Federal-Mogul and GM. The action was subsequently removed to the United States District Court for the Eastern District of Kentucky.

Defendants filed a motion for summary judgment, to which plaintiffs responded. On April 12, 1991, the district court issued an order entering summary judgment in favor of defendants. The Rectors subsequently filed this timely appeal.

II

We review a district court's grant of summary judgment de novo. Vollrath v. Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 345, 112 L.Ed.2d 310 (1990). A federal court of appeals reviews de novo a district court's determination of state law. Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991). In applying state law, this court follows the law of the state as announced by that state's supreme court. Miles v. Kohli & Kaliher Assocs., 917 F.2d 235, 241 (6th Cir.1990). "Where the state supreme court has not spoken, our task is to discern, from all available sources, how that court would respond if confronted with the issue." Id.

Plaintiffs devote the majority of their brief to the claim that defendants owed Rector a duty to load the gears for shipment in a reasonably safe manner, and that their breach of that duty proximately caused his injury. Under Kentucky law, " '[a]ctionable negligence consists of a duty, a violation thereof, and consequent injury. The absence of any one of the three elements is fatal to the claim.' " M & T Chems. v. Westrick, 525 S.W.2d 740, 741 (Ky.1975) (quoting Illinois Cent. R.R. v. Vincent, 412 S.W.2d 874, 876 (Ky.1967)). As a general rule, duty is defined as the exercise of ordinary care to prevent foreseeable injury from occurring to another person. Id.

Neither party directs this Court to any precedent from the highest court of Kentucky that addresses whether a shipper owes a duty to a common carrier or its employees to load cargo into the carrier's vehicle in a reasonably safe manner. While the case law nationally on this issue is sparse, it appears that, "[a]s a general rule, the carrier has the primary duty to load and unload goods or inanimate freight shipped in less than carload lots, and is liable for damages resulting from its failure to perform that duty in a proper manner." 13 Am.Jur.2d Carriers § 319 (1964) (emphasis added) (footnote omitted); see also Bonifield Bros. Truck Lines v. Edwards, 450 S.W.2d 240, 243 (Ky.1970) (holding that one who accepts goods, whether from a shipper or another carrier, has duty of ordinary observation to determine whether goods were loaded properly); J.A. Bryant, Jr., Annotation, Liability, Because of Improper Loading, of Railroad to Consignee or his Employee Injured While Unloading Car, 29 A.L.R.3d 1039, 1054-55 (1970) ("As a general rule, the carrier by rail has the duty of loading and unloading shipments consisting of less than carload lots and is liable for negligence in doing so."). In Louisville & N.R.R. v. White's Adm'r, 167 Ky. 244, 180 S.W. 353 (1915) the Kentucky Court of Appeals, the Commonwealth's highest court, held that whenever a carrier delivers a car to be unloaded by the consignee of the cargo, the carrier is under a duty to load the cargo in such a way as to leave the cargo in a reasonably safe condition to be unloaded. Id. 180 S.W. at 353. If a common carrier owes such a duty to a consignee, it follows that the carrier, rather than the shipper, owes such a duty to its own employees. Thus, the duty to load the cargo in a reasonably safe manner lies with Rector's employer, Rite Trucking, rather than with defendants. ³

We recognize that courts have, in certain circumstances, found a shipper liable to a consignee of goods for injuries resulting from unloading where the shipper undertook the loading of the cargo. See Annotation, Shipper's Liability to Consignee or his Employee Injured While Unloading Car Because of Improper Loading, 35 A.L.R.2d 609, 609 (1954); 13 Am.Jur.2d Carriers § 320. This rule makes sense as a policy matter, as the consignee in such a situation cannot reasonably be expected to...