Opinion
No. COA07-1544.
Filed 4 November 2008.
Negligence — freight falling from flatbed truck — responsibility for loading truck — issue of fact
Summary judgment should not have been granted for defendant shipper in a negligence action which resulted from a death of a motorcycle passenger after a coil of wire fell from a pallet on a flatbed truck onto an interstate highway. There was an issue of fact as to whether the shipper or the carrier was responsible for loading the truck.
Judge Tyson dissenting.
Appeal by plaintiff from judgment entered 23 August 2007 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 May 2008.
Guthrie, Davis, Henderson Staton PLLC, by Dennis L. Guthrie, John H. Hasty, and Justin N. Davis, for plaintiff appellant. Womble Carlyle Sandridge Rice, PLLC, by James P. Cooney and Trida Morvan Derr, for TDY Industries, Inc., d/b/a Allvac defendant appellee.
Plaintiff appeals from a trial court order granting defendant's motion for summary judgment. We reverse and remand.
FACTS
On 30 June 2005, Robert Smith ("Robert"), a truck driver who worked for National Freight Transportation, Inc. ("National Freight"), drove a flatbed truck to the TDY Industries, Inc., d/b/a Allvac ("Allvac") facility in Richburg, South Carolina to pick up a load of zirconium wire coil. The coils were lying on four pallets that were to be loaded onto the truck. One of the pallets held four coils, while the remaining pallets each held a single coil. Robert instructed the facility's forklift operator to load the pallets onto the truck and provided guidance as to where the pallets should be placed. Unhappy with the look of the pallet holding four coils, Robert instructed the facility workers to remove that pallet and band the coils. Robert then directed the forklift operator to replace the coils and used additional straps to secure the coils. After securing the coils, Robert signed a bill of lading and drove the truck to the Allvac plant in Monroe, North Carolina. Once in Monroe, Robert was informed that the plant was closed, so he checked the straps securing the load, tightened those straps that felt loose, and drove the truck to Harrisburg, North Carolina.
On 1 July 2005, Robert again drove to the Allvac Plant in Monroe. Before he left, he checked the load and tightened some of the straps. Upon arriving at the Monroe plant, Robert directed Allvac employees as to where to place additional materials on the truck. Robert tied down the materials, checked all the straps, tightened them, and drove the truck to a garage in Harrisburg.
On 4 July 2005, Larry Smith ("Larry"), who also worked for National Freight, left the garage with the truck and began to drive to Huntsville, Alabama. On his way to Huntsville, Larry heard a noise while driving southbound on Interstate 85. Larry looked in his right-hand mirror and saw sparks coming from the back of the truck. Thinking he may have lost a wheel, Larry stopped the truck at the side of the road. After inspecting the truck and his cargo, Larry determined that, one of the coils had fallen off his truck.
On the evening of 4 July 2005, Ashley Nicole Hensley Raymer ("decedent") was riding on the back of a motorcycle being driven by Jeffrey Eugene Wellman. The two were driving on Interstate 85 in Mecklenburg County when Mr. Wellman observed sparks approximately 25 to 35 yards ahead of the motorcycle. Mr. Wellman moved the vehicle to dodge debris in the road, but was unable to dodge the coil lying in the road. The motorcycle struck the coil and ejected decedent into the road. An oncoming truck then struck decedent, causing her to sustain serious injuries. Decedent died as a result of those injuries later that evening.
On 8 December 2005, Debra Sizemore Hensley, Administratrix of the Estate of Ashley Nicole Hensley Raymer, deceased ("plaintiff"), filed a complaint against National Freight, Allvac, Larry Allen Smith, Paul Wayne Smith, and Larry Allen Smith Trucking ("defendants") alleging defendants' negligence was the proximate cause of decedent's injuries. On 10 July 2007, Allvac filed a motion for summary judgment, asserting that no material question existed as to Allvac's liability for decedent's injuries. On 23 August 2007, the trial court granted the motion and dismissed all of plaintiff's claims against Allvac. Plaintiff now appeals.
I.
Plaintiff argues on appeal that the trial court erred in entering summary judgment in favor of Allvac. We agree.
"In ruling on a motion for summary judgment, the court does not resolve issues of fact and must deny the motion if there is a genuine issue as to any material fact." Ragland v. Moore, 299 N.C. 360, 363, 261 S.E.2d 666, 668 (1980). Where a party has moved for summary judgment, the movant bears the burden of showing "that there is no triable issue of fact and that he is entitled to judgment as a matter of law." Id. The movant may meet this burden "by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim[.]" Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). However, "[a]ll inferences of fact must be drawn against the movant and in favor of the nonmovant." Lord v. Beerman, 191 N.C. App. 290, 293, 664 S.E.2d 331, 334 (2008). "[I]t is only in exceptional negligence cases that summary judgment is appropriate, since the standard of reasonable care should ordinarily be applied by the jury under appropriate instructions from the court." Ragland, 299 N.C. at 363, 261 S.E.2d at 668. On appeal, a trial court's grant of summary judgment will be reviewed de novo. Lord, 191 N.C. App. at 293, 664 S.E.2d at 334.
"North Carolina follows the lex loci delicti rule (law of the situs of the claim) in resolving choice of law for tort claims." Terry v. Pullman Trailmobilc, 92 N.C. App. 687, 690, 376 S.E.2d 47, 49 (1989). "The law of the place where the injury occurs controls tort claims, because an act has legal significance only if the jurisdiction where it occurs recognizes that legal rights and obligations ensue from it." Id. Here, decedent was injured in North Carolina so her substantive' rights with regard to negligence must be determined by North Carolina law. See id.
Our state Legislature has determined that "[t]he [North Carolina Division of Motor Vehicles] may adopt any rules necessary to carry out the provisions of this Article." N.C. Gen. Stat. § 20-37.22 (2007). According to the Division,
[t]he rules and regulations adopted by the U.S. Department of Transportation relating to safety of operation and equipment (49 CFR Parts 390-397 and amendments thereto) shall apply to all forhire motor carriers and all forhire motor carrier vehicles, and all private motor carriers and all private motor carrier vehicles engaged in interstate commerce over the highways of the State of North Carolina if such vehicles are commercial motor vehicles as defined in 49 CFR Part 390.5.
19A N.C.A.C. 3D.0801 (2007).
The Code of Federal Regulations provides, in pertinent part, that "[a] driver may not operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless . . . [t]he commercial motor vehicle's cargo is properly distributed and adequately secured[.]" 49 CFR. § 392.9(a)(1) (2007). Further, under these regulations, the driver of the truck has an affirmative duty to ensure the truck's cargo is properly distributed and adequately secured before he operates the vehicle. Id. "While not dispositive, [these regulations are] indicative of the proper allocation of duty as between a common carrier and a shipper for the proper loading of goods." Rector v. General Motors Corp., 963 F2d 144, 147 (6th Cir. Ky. 1992).
Under federal law, "[t]he primary duty as to the safe loading of property is therefore upon the carrier." U.S. v. Savage Truck Line, 209 F2d 442, 445-46 (4th Cir. Va. 1953), cert. denied, 347 U.S. 952, 98 L. Ed. 1098 (1954). However,
"[w]hen the shipper assumes the responsibility of loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper."
Franklin Stainless Corp. v. Mario Transport Corp., 748 F2d 865, 868 (4th Cir. Va. 1984) (citation omitted).
In the case sub judice, Allvac filed a motion for summary judgment alleging National Freight assumed the responsibility for the loading of the truck, and thus, Allvac was not liable for the accident. The trial court reviewed the motion and granted summary judgment, holding that there existed no genuine issue of material fact and that Allvac was entitled to judgment as a matter of law. On appeal, plaintiff argues the trial court erred in granting summary judgment because a genuine issue of material fact remains as to whether Allvac is liable for the negligent loading of the truck.
Our review of the record reveals that the loading of the truck was supervised by Robert Smith, the driver for National Freight. Robert instructed the facility workers on where to put the coils on the truck, directed that facility workers remove some of the coils, and requested that these coils be banded. Robert then instructed the facility workers on where to place the banded coils on the truck. Once the truck was loaded, Robert inspected the load and signed a bill of lading indicating that the truck had been "loaded and braced in accordance with the truck drivers' instructions."
Although the evidence demonstrates that Robert played a prominent role in the loading of the truck, the record on appeal also contains some evidence that Allvac, the shipper, maintained responsibility as to how the truck should be loaded. Mr. Smith testified that when the facility workers first loaded the truck, the four coils on the pallet in question were stacked on top of each other. According to Robert's testimony, when he inquired as to why they were being shipped in this manner, the forklift operator at the facility responded, "that's the way they wanted them shipped." Further, Robert testified that although he requested the coils be banded by the facility workers, he could not "tell them how to band it." Thus, Robert's testimony serves as evidence that Allvac maintained the ultimate responsibility in determining how the coils would be packaged and shipped on the truck.
After reviewing the arguments before us, we hold an issue of material fact remains as to which party bore the responsibility for the loading of the truck. Thus, the jury, and not the trial court, should make the determination of whether Allvac is liable for plaintiffs injuries. Accordingly, we reverse the trial court's grant of summary judgment and remand the case for further proceedings not inconsistent with this opinion.
In its brief, Allvac argues that even if it. bore responsibility for the loading of the truck, such improper loading was apparent, and thus, National Freight would be liable for failing to take further steps to secure the cargo. Although Allvac may be correct in this assertion, we hold this to be a quest ion for the trier of fact. Therefore, summary judgment, is not appropriate on this issue. See, Ebasco Service, Inc. v. Pacific Inlermountain Express Co., 398 F. Supp. 565 (S.D.N.Y. 1975).
Reversed and remanded.
Judge STROUD concurs.
Judge TYSON dissents by separate opinion.