Whiting v. Central Trux & Parts, Inc.

Decision Date12 November 1997
Docket NumberNo. 96-73969.,96-73969.
Citation984 F.Supp. 1096
CourtU.S. District Court — Eastern District of Michigan
PartiesWilliam WHITING, Plaintiff, v. CENTRAL TRUX & PARTS, INC., an Ohio Corporation, Toledo Pipe Transport, Inc., an Ohio Corporation, Anthony Ross, jointly and severally, Defendants.

Gene Zamler, Southfield, MI, for Plaintiff.

Thomas J. Foley, Detroit, MI, for Defendants.


ROSEN, District Judge.


This matter arises out of Plaintiff William Whiting's Complaint alleging claims of common law negligence and respondeat superior.

Plaintiff is an employee of the U.S. Customs Service. During the course of his employment, Plaintiff was inspecting under the hood of a tractor. Defendant Anthony Ross, who was hauling the tractor, allegedly failed to raise the hood to its full open position and later released it, causing Plaintiff to suffer various injuries. Plaintiff asserts a claim of negligence against Defendant Ross, and claims of respondeat superior against his purported employers, Defendants Central Trux & Parts and/or Toledo Pipe Transport.

Presently before the Court is Defendants' Motion for Summary Judgment, brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Among the issues raised by Defendants' Motion are the following:

1) Whether Defendant Ross had a duty to ensure Plaintiff's safety;

2) Whether Defendant Ross's actions were the proximate cause of Plaintiff's injuries; and,

3) Whether Plaintiff is a "safety officer," and, if so, whether he is precluded by the "fireman's rule" from recovering for injuries resulting from the performance of his official duties.


On April, 1, 1995, Plaintiff William Whiting ("Plaintiff") was performing in his capacity as a U.S. Customs inspector on the Ambassador Bridge, which spans the Detroit River between Windsor, Ontario and Detroit, Michigan. (Defense Exhibit R).1 On that date, at approximately 12:30 a.m., Plaintiff and Customs Inspector Cathy Horste stopped a flatbed truck carrying a cargo of two semi-tractors. (Ross Deposition, p. 7). Defendant Anthony Ross, an employee of Toledo Pipe Transport, Inc., and Jerry D. Schaffner, an employee of Central Trux & Parts, Inc., were attempting to drive the flatbed into the United States from Canada. (Ross Deposition, p. 7). At the border, Plaintiff and Inspector Horste conducted a preliminary inspection of the flatbed and its cargo, and discovered discrepancies between their observations and what was declared on the prepared customs form. The Inspectors reported the discrepancies to their supervisors, who instructed them to seize the flatbed. (Whiting Deposition, p. 83).

Following this seizure, Plaintiff and Inspector Horste went back out to the flatbed to note the specific violations for each truck. (Whiting Deposition, p. 83). In the course of the second inspection2 Plaintiff asked Defendant Ross and Mr. Schaffner to open the hood of the second semi on the flatbed, the one farthest from the cab of the flatbed, so he could record some information from the EPA label within the engine compartment. (Whiting Deposition, pp. 116, 122). The hood on this semi, a model called the Western Star, opened outward from the windshield to the front, as opposed to the hoods of most passenger vehicles, which open outward from the front of the vehicle to the windshield. (Whiting Deposition, p. 116; Schaffner Deposition, p. 22). To reach the hood of the semi, Plaintiff, Defendant Ross, and Mr. Schaffner had to climb 15 feet up, onto the flatbed where it was located. (Whiting Deposition, pp. 118, 122). Inspector Horste remained on the ground. (Schaffner Deposition, p. 25). After Plaintiff asked Defendant Ross and Mr. Schaffner to open the hood of the semi, they did so, opening it into a position which Plaintiff visually checked and believed to be the open position, based on his prior experience with that type of hood, which rocks open and is held in place by gravity (Whiting Deposition, pp. 116, 117, 119). At this time Defendant Ross was on the passenger side of the semi and Mr. Schaffner was on the driver's side of the semi, to Plaintiff's left. (Whiting Deposition, p. 118).

After opening the hood, Plaintiff testified that neither Defendant Ross nor Mr. Schaffner told him anything about the hood being fully open and that he did not ask them if it was fully open. (Whiting Deposition, p. 119). However, Mr. Schaffner and Defendant Ross testified they informed Plaintiff that the hood was not open all the way. (Ross Deposition, pp. 26, 27; Schaffner Deposition, p. 22). The two tractors were nose to nose on the flatbed, which may have been on an incline,3 and the open nose of the Western Star was touching the Ford Truck. (Whiting Deposition, p. 119; Ross Deposition, p. 25). Defendant Ross testified that the hood was a few inches short of being open all the way, but that it did not necessitate him having to hold it so it would not fall back. (Ross Deposition, p. 26). However, Plaintiff testified that he believed the hood was in the open position, and for that reason he did not tell either Defendant Ross or Mr. Schaffner to hold the hood open. (Defense Exhibit L). Inspector Horste testified that she did not believe the hood was entirely open and, with clear direction, told Defendant Ross and Mr. Schaffner to hold it open. (Horste Deposition, p. 81). Inspector Horste also testified that she remembered Plaintiff "looking right at" Mr. Schaffner and telling him to hold the hood open, or to hold it tight. (Horste Deposition, p. 82).

After opening the hood, there is some disagreement about where Defendant Ross and Mr. Schaffner were located. According to Plaintiff's testimony, Mr. Schaffner moved to Plaintiff's right to allow him to see the EPA markings in the engine compartment. (Whiting Deposition, pp. 120, 121). Defendant Ross, after opening the hood, moved in front of the truck, behind the hood, where Plaintiff could not see him or his actions. (Id.). Plaintiff also testified that, while he was conducting his one to two minute inspection under the hood, he neither saw nor heard anyone get off the truck. (Id. at 122, 123).

Inspector Horste, from her ground-level position on the driver side of the flatbed, could only see Defendant Ross (located on the passenger side of the flatbed) near the hood, not actually holding the right side of it, while she saw Mr. Schaffner holding the left side of the hood. Inspector Horste later testified that she did not actually see Mr. Schaffner's hands gripped on the hood, but believed Mr. Schaffner was holding the hood open because of his posture and his later verbal declaration to her that he doing so. (Horste Deposition, pp. 79, 83, 84).

Defendant Ross and Mr. Schaffner both testified that after opening the hood, Plaintiff ordered them off the truck and onto the ground. They also stated that the hood fell down about one or two minutes after they reached the ground. (Ross Deposition, p. 27; Schaffner Deposition, p. 24).

After the hood fell on Plaintiff's head, neck, and shoulders, Inspector Horste testified that she observed Defendant Ross' hands held up near his shoulders and open like two stop signs. (Horste Deposition, p. 85). She also testified that, seeing neither Defendant Ross nor Mr. Schaffner move, she climbed up onto the flatbed and attempted to raise the hood off Plaintiff, but to no avail. (Id.). She yelled at Defendant Ross and Mr. Schaffner to help her and, when they did not, yelled more forcefully and gave a direct order, to which the men responded by pulling the hood off Plaintiff, after he was under it for about one minute. (Horste Deposition, pp. 85, 87-8). Plaintiff testified that, after pulling the hood off him, Defendant Ross said "it slipped." (Whiting Deposition, p. 127). Inspector Horste testified that, in a nearby customs building about five minutes later, both drivers said "it slipped" or "it fell" and one of the drivers said something to the effect of "It slipped out of my hand/s." (Horste Deposition. pp. 91, 93).

Following these events, Plaintiff was diagnosed on April 20, 1995, with a soft tissue injury similar to whiplash, which prevented him from working and caused him to enter into a physical therapy program lasting four weeks. (Whiting Deposition, p. 155; Plaintiff Exhibits G-I). He asked to go back on restricted duty and was allowed to do so with hours, lifting, and firearms restrictions. (Id.).


Summary judgment is proper "`if the pleadings, depositions, answer 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 judgment as a matter of law.'" Fed.R.Civ.P. 56(c).

Three 1986 Supreme Court casesMatsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)—ushered in a "new era" in the standards of review for a summary judgment motion. These cases, in the aggregate, lowered the movant's burden on a summary judgment motion.4 According to the Celotex Court,

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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 of proof at trial.

Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

After reviewing the above trilogy, the Sixth Circuit established a series of principles to be applied to motions for summary judgment. They are summarized as follows:

* Cases involving state of mind issues are not necessarily...

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    ...Cf. Columbus, Ga., Consolidated Govt. v. Schmidt13 (EMTs are considered public safety employees for compensation purposes). In Whiting v. Central Trux & Parts,14 the court referred to 28 CFR § 32.2(j) (for purposes of death and disability benefits, "public safety officer" includes law enfor......

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