NOTICE: NOT DESIGNATED FOR PUBLICATION. SEE REVISED SUPREME COURT RULE 5-2.

Court of Appeals of Arkansas,

Division I.

Danny BALLINGER, Appellant

v.

HERITAGE LOG HOMES, INC., Larry Morris, and R & L Carriers, Inc., Appellees.

Jan. 26, 2005.

DAVID M. GLOVER, Judge.

Danny Ballinger has appealed from an order of summary judgment entered by the Cleburne County Circuit Court in favor of appellees Heritage Log Homes, Inc., Larry Morris, and R & L Carriers, Inc. We affirm the summary judgment for Heritage and reverse and remand as to Morris and R & L.

In June 1998, Thomas Simoneaux was in the process of building his log home with materials that he purchased from Heritage. The materials involved in this dispute, some wooden handrails, were shipped by Heritage to Simoneaux with R & L, which is a less-than-full-load carrier. Morris was the driver of the truck. The shipment of handrails consisted of two loads on pallets weighing approximately 650 pounds each. According to his agreement with Heritage, Simoneaux was responsible for providing sufficient crew and equipment for unloading the materials. The tariff under which the handrails were shipped restricted R & L’s liability and provided that Simoneaux was responsible for safely unloading them without assistance from R & L, except that Morris could use a two-wheeled hand-truck to make the load accessible to Simoneaux. While Simoneaux was using a rented forklift to unload a bundle of handrails, it slipped and hit appellant Ballinger, a bystander, seriously injuring him.

In May 2002, appellant sued Heritage, Morris, and Simoneaux for negligence. He also sued R & L and asserted that it was vicariously liable for Morris’s negligence. In February 2003, R & L and Morris moved for summary judgment and attached to their motion copies of the tariff, R & L’s invoice, and Simoneaux’s contract with Heritage. R & L and Morris argued that their only duty was to position the goods so that they were accessible to the consignee, Simoneaux, and that they had no legal duty to provide any loading equipment or to unload the shipment and that they did not assume such a duty. They relied upon the following provisions of the tariff:

LOADING BY CONSIGNOR–UNLOADING BY CONSIGNEE

….

2. The complete loading and/or unloading service of the freight including the count thereof, must be performed by the shipper and/or consignee at his expense without any assistance from the carrier. The carrier’s employee and power unit are to be released while loading, and/or unloading is performed. At carrier’s option, the carrier’s employee and power unit may remain during the loading or unloading but will render no assistance in loading or unloading.

3. a) The complete loading service includes the counting and loading of the freight into or on the carriers arranging thereof. Any temporary blocking, flooring or lining, racks, standards, strips, stakes or similar bracing, dunnage or supports, not constituting a shipping carrier, container or package, or a part of the vehicle when required to protect and make shipments secure for transportation must be furnished and installed by the shipper.

b) The complete unloading service means that the consignee must remove the freight from the position in which it is transported in or on the carrier’s vehicle.

….

5. RESTRICTIONS ON LOADING OR UNLOADING BY CARRIER: (NOTE D)

a) Loading or unloading service does not include assembling, packing, unpacking, dismantling, inspecting, sorting or segregating freight, except as provided in Paragraphs (b) and (c).

b) Loading or unloading service does not include furnishing by the carrier of rigging or special loading or unloading equipment such as platform vehicles (other than two-wheeled hand trucks), winches, cranes, jacks, blocks, or falls, chain falls or other special equipment used in hoisting, lowering, handling or placing freight in position. When such equipment is used in loading or unloading, the consignor or the consignee, as the case may be shall furnish same and the necessary labor to operate such equipment at its expense, and shall also assume responsibility for safe loading or unloading, except carrier’s employee may use hand trucks or four-wheeled hand carts and hand or electrically operated Pallet jacks (non-riding type) when furnished by the consignor or consignee.

c) Loading or unloading service does not include opening of packages or unitized shipments including shrink wrapped or bonded freight on pallets or skids.

….

8. HEAVY OR BULKY FREIGHT–LOADING OR UNLOADING: (See NOTE D)

When freight (per package or piece) in a single container, or secured to pallets, platforms or lift truck skids, or in any other authorized form of shipments:

….

c) Weighs 500 lbs. or more, the consignor will perform the loading and the consignee will perform the unloading. On request of consignor or consignee, the truck driver will assist the consignor or the consignee, in loading or unloading.

d) Exceeds 8 feet in its greatest dimensions or exceeds 4 feet in each its greatest and intermediate dimension the consignor will perform the loading and the consignee will perform the unloading. On request of the consignor or consignee, the truck driver will assist the consignor or the consignee in loading or unloading. The provisions of this paragraph will not apply to the extent provisions are published in Paragraph (b) 2 of this item.

Simoneaux’s contract with Heritage included the following delivery and confirmation checklists:

Delivery Checklist

The following items are important to check after the log kit has been delivered to the construction site:

….

5. Provide adequate means for off loading the log package. A yard type fork truck is required, with 4′-0″ minimum forks and 6,000 lbs. capacity. Allow for eight (8) hours rental.

6. It is the sole responsibility of the owner to unload the product and provide proper means of storage and stacking of material.

….

Confirmation Checklist

….

13. Review all contract requirements, material lists and construction guidelines, and have all appropriate material on the job site the day of delivery.

14. Insure adequate means is available to off-load materials. Plan for eight (8) hours rental of 6,000 lbs. capacity rough terrain fork truck.

Larry Morris’s affidavit was also filed. He stated:

4. The bundle of logs was loaded on the R & L truck by R & L employees at the R & L hub in North Little Rock, Arkansas.

5. The bundle of logs depicted in Exhibit “1” did not shift, become unbundled or loosened during transport. Further, even after having fallen fifty inches from the truck to the ground, the bundle did not change or shift and the band securing the bundle did not break. Further, the bundle did not shift or change in any fashion during Mr. Thomas Simoneaux’s attempt to unload the bundle from the rear of my truck.

6. Prior to attempting to unload the bundle of logs from the rear of my truck, neither I or Mr. Thomas Simoneaux had any complaints as to the manner in which the logs were bundled or shipped.

7. The door opening on my truck is eight feet wide and the bundle of logs was ten to twelve feet long. It is impossible to move the bundle sideways to offload the bundle.

8. As the recipient of the goods being shipped, Mr. Thomas Simoneaux was solely responsible for unloading the bundle of logs.

9. Using a hand jack or pallet jack, I moved the bundle of logs to the rear of my truck so that Mr. Thomas Simoneaux could reach the logs, for off loading with a forklift on site at the delivery point.

10. After I pulled the bundle of logs to the rear of my truck, I moved out of the way so that Mr. Thomas Simoneaux could reach the bundle of logs with his forklift. However, the forks on the forklift operated by Mr. Thomas Simoneaux were set too wide to allow placement of both forks under the narrow end of the bundle. Mr. Simoneaux indicated that he was aware that the forks were set too far apart but said that he was unable to reposition the forks. Rather than parking the forklift and repositioning the forks, allowing for the use of both forks, Mr. Simoneaux attempted to lift the twelve foot bundle of logs from the narrow end with a single fork and drag the bundle of logs from the truck.

11. Due to the logs being balanced on a single fork, the bundle fell off the fork, falling to the ground. The bundle itself did not shift during this attempt at unloading and, did not shift even after having fallen to the ground.

12. The bundle of logs could have been lifted with a forklift, had both forks been used.

In his response to the motion for summary judgment, appellant asserted that, regardless of whether R & L and Morris had contractual duties to assist in the unloading process, Morris undertook such a duty when he assisted and/or directed the unloading of the handrails and that a party who undertakes a duty, even gratuitously, can be liable for negligently performing that duty. With his response, appellant filed an excerpt from his deposition and a copy of Simoneaux’s deposition. In their depositions, both men testified that Morris took an active part in the unloading process.

In May 2003, Heritage also moved for summary judgment, noting that, in his complaint, appellant had accused Heritage only of negligently banding and packing the materials, thereby causing the logs to shift, fall, and injure appellant. Heritage noted that, in Simoneaux’s deposition testimony, he stated that the handrails were securely tied to pallets with steel bands that remained intact, even after the handrails fell to the ground, and that, in Morris’s affidavit, he stated in his affidavit that the bundle did not shift during shipment or unloading. Heritage also filed the affidavit of Craig Bull, its vice president, who stated:

3. Heritage Log Homes, Inc. is a seller of log home kits. As noted in our Purchase Order and Delivery Checklist, it is the purchaser’s sole responsibility to provide an adequate means for off loading the material and for off loading the materials in a proper manner.

4. Heritage Log Homes, Inc. is not a “carrier” of goods. Rather, it hires independent contractors such as separate defendant R & L Carriers, Inc. to ship its products.

5. In the case at hand, Heritage Log Homes, Inc. hired R & L Carriers, Inc. to ship two bundles of log handrails to the separate defendant, Thomas Simoneaux. Heritage Log Homes, Inc. relied upon the expertise of R & L Carriers, Inc. and did not control any aspect of the manner in which R & L Carriers completed the delivery to Mr. Simoneaux. Rather, the manner in which the handrails were shipped and the equipment on which the handrails were shipped was left entirely to the discretion of the authorized carrier, R & L Carriers, Inc.

In his response to Heritage’s motion for summary judgment and supplemental response to Morris’s and R & L’s motion, appellant argued that Heritage and Morris had known that Simoneaux was not a professional unloader and that, because the bundle was shipped in a container truck, the only way to remove it, from the rear of the truck, was dangerous. Appellant attached the affidavit of Gerald Wilson, a supervisor in the lumber-shipping business, who stated that it was unsafe to have shipped the load of lumber in the container or box truck in which it was shipped and that Heritage, Morris, and R & L violated good safety practices in doing so. He said that the load could not have been safely unloaded out of a box truck with a single forklift.

On July 3, 2003, appellant filed an amended complaint. A hearing on the motions for summary judgment was held on July 7, 2003, and on July 21, 2003, the circuit court granted summary judgment to Heritage, Morris, and R & L. On October 31, 2003, the circuit court entered an order granting appellees’ motions to strike the amended complaint, stating:

Separate defendants, Heritage Log Homes, Inc., Larry Morris and R & L Carriers, Inc., filed Motions for Summary Judgment in response to the plaintiff’s original Complaint. That Complaint was at a minimum several months old and was in fact an identical re-filing of a Complaint originally filed nearly two years ago i.e. the original theory of liability was one two years old. At the defendants’ request, the Court scheduled a hearing on the Motions for Summary Judgment and all parties had at least two months notice of the hearing. That hearing was scheduled for and took place on Monday, July 7, 2003.

Despite the Complaint’s extreme age and despite ample notice of the hearing on the Motions for Summary Judgment, plaintiff filed an Amended Complaint on July 3, 2003, the last business day prior to the Monday, July 7, 2003, hearing. During that hearing, plaintiff’s counsel failed to mention to the Court or opposing counsel that an Amended Complaint had been filed, and instead, argued against the Motions for Summary Judgment relying only on the issues raised in the original Complaint.

The Court finds, as a matter of law, that had the plaintiff desired the Court to consider the issued raises [sic] in the amendment to the Complaint, the plaintiff was under a duty to inform the Court, at the hearing, of the Amended Complaint. Despite the Court’s discussion with the plaintiff’s counsel concerning the need for fact pleading in Arkansas, counsel did not make the Court, or opposing counsel, aware of the Amended Complaint.

In light of the plaintiff’s delay in the filing of the Amended Complaint (the last business day prior to the hearing on the Motions for Summary Judgment) and given plaintiff’s failure to raise the issue of an Amended Complaint or even inform the Court of the existence of the Amended Complaint at the hearing, the Court finds that any new issues raised in the Amended Complaint were waived and the First Amendment to Complaint should be and hereby is stricken.

On December 18, 2003, appellant moved to dismiss his claim against Simoneaux with prejudice. On December 30, 2003, the circuit court entered an order stating: “On this day, the Court, being advised of all matters of fact and law, does hereby order that this case be dismissed with prejudice.” This appeal followed. Appellant has not appealed from the order dismissing his amended complaint.

Summary judgment is to be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. State Farm Mut. Auto. Ins. Co. v. Henderson, 356 Ark. 335, 150 S.W.3d 276 (2004). In considering whether to grant summary judgment, we consider pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any. Curley v. Old Reliable Cas. Co ., — Ark.App. —-, — S.W.3d —- (Mar. 24, 2004). Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Id. When the facts are not at issue but possible inferences therefrom are, we will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds differ on those hypotheses. Castaneda v. Progressive Classic Ins. Co., — Ark. —-, — S.W.3d —- (May 6, 2004).

Morris and R & L

In his first point on appeal, appellant argues that the circuit court erred in entering summary judgment for Morris and R & L because a question of fact remains as to whether Morris assisted in and directed a part of the unloading process. If he did, appellant contends, Morris (and R & L) undertook a legal duty of care to appellant. Appellant points out that the tariff provided in subsection 8 that, on request of the consigner or consignee, the truck driver would assist the consigner or consignee in loading or unloading. In response, R & L and Morris note that, under the purchase agreement between Simoneaux and Heritage, Simoneaux was solely responsible for supplying all equipment and personnel for the unloading process. They argue that, as a matter of law, they were not responsible for unloading the materials nor was Morris responsible for directing or controlling the unloading process. R & L and Morris also stress that the tariff’s provisions placed responsibility for unloading on Simoneaux and that they were required only to place the materials in a position accessible to Simoneaux. Appellant replies that, regardless of whether R & L Carriers and Morris had a contractual duty to unload the materials, Morris’s actions created a duty of care to appellant in tort.

R & L and Morris also assert that the motor carrier’s regulations and the tariff preempt Arkansas tort law. We disagree. The cases they cite in support of this contention did not involve the imposition of a legal duty of care to a third party in tort, and they do not hold that federal law regarding common carriers preempts Arkansas tort law in this context.

In order to prove negligence, there must be a failure to exercise proper care in the performance of a legal duty that the defendant owed the plaintiff under the circumstances surrounding them. Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997). Duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other. Id. The question of what duty, if any, is owed by one person to another is always a question of law. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). When no duty of care is owed, a negligence action is decided as a matter of law, and an award of summary judgment is proper. Capel v. Allstate Ins. Co., 78 Ark.App. 27, 77 S.W.3d 533 (2002).

To establish a prima facie case in tort, a plaintiff must show that damages were sustained, that the defendant was negligent, and that such negligence was a proximate cause of the damages. J.E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001). Proximate cause is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Chambers v. Stern, 347 Ark. 395, 64 S.W.3d 737 (2002), cert. denied, 536 U.S. 940 (2002). When there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. Id. Ordinarily, proximate cause is a question of fact for the jury. See Wilson v. Evans, 284 Ark. 101, 679 S.W.2d 205 (1984). However, when evidence of a lack of proximate cause is such that reasonable minds cannot differ, that issue becomes a question of law. Id.

Arkansas has adopted the principle that one who gratuitously renders services to another may be subject to liability to a third person for physical harm resulting from his failure to use reasonable care. See Wilson v. Rebsamen Ins., Inc., 330 Ark. 687, 957 S.W.2d 678 (2004); Haralson v. Jones Truck Lines, 223 Ark. 813, 270 S.W.2d 892 (1954). According to the Restatement (Second) of Torts:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965).

In his deposition, Simoneaux discussed Morris’s participation in the unloading process and his knowledge of the problem with the forklift:

I told him about the one fork being underneath the load. I told him I didn’t think that was a good idea and it wasn’t going to be as stable as getting both forks under there. I told him I could just back it out and then lower it down, and you could put the forks together. He told me “No, it will be fine because I’ve got mine in the back.” He had a little jack, floor jack, whatever, forklift jack in the truck. And he had both of his under it. He knew I only had one fork because he could see the other one.

“Mr. Morris, I only have one fork under the back end of this load.” That’s what I told him the first time. I said “I’ve only got one fork under here.” I originally wanted to get it turned sideways where I could get both the forks under it to get it out and it would be a lot more stable that way.

The original conversation was, when I got on the forklift, I told him if he had to adjust those forks or needed to adjust those forks he needed to do them before I got up the hill because once I got up that hill I could not get off this thing because I did not have any parking brake and that he needed to do his adjustments there. But he said, no, he wasn’t going to let me come up there on the truck to help him. So he said we’ll unload it this way, the way he wanted to unload it, that way. I told him when he got the load to where the end of the truck was right here and I pulled up, I told him only one of the forks is going to get under there.

Before I even drove up to it. He was in the middle of the truck and he could see, too, that I only had one fork under it.

I couldn’t get off the machine to move the fork myself. Before I even raised the forks up there, before I got to the truck we talked about it. I told him to do all the adjusting he needed to do because I couldn’t get off the machine once I got up there. I had brakes, but I didn’t have any parking brakes. He said it would work. He said, “I’ve got my end in the back and it’s fine.” Once he got me where he wanted me to be with this forklift under this back of the load, I told him, “I’ve only got one fork under it to get it up.” And he said, “That’s fine.” He said, “All you need to do is pick it up that much anyway.” He said “once I get it off the ground I can turn it back and get it straight and then we can just back it straight out.”

I did not ask him to come up and move the forks closer together. I asked him if he had any adjustments to do on that forklift he needed to do them before we started doing any unloading because I could not get off the machine. And I didn’t know how far I needed to go in there because the door of this truck wasn’t even open. I couldn’t even see what the load looked like in there of how it was even loaded. This door was closed. By the time I got the forklift up there that’s when he opened the back of the truck.

I was doing what he wanted me to do. He does this for a living. I don’t. He drives trucks for a living and hauls loads for a living and I’m sure he knows what he’s talking about. He said that one fork would be fine because he has his two under the back. All I had to do was get it up enough to where it would clear the floor for it would be easier for him to turn it and push it to get it straightened out.

When he had the load up against to the back of the truck. When he got it close enough for me to get the fork to it. I told him, “There’s only one fork getting under there.” And he said, “That’s fine.” He’s got control of the back. He said, “Once you get it up a couple inches, I can turn it any way I want to back here .”

Appellant’s deposition testimony also shows Morris’s active role in unloading the handrails:

I recall overhearing a conversation between Larry Morris and Tom Simoneaux. They were talking about how they were going to unload it. They were talking about the hand truck (hand jack) and how they were going to get the load off the truck. They were discussing the power lift of the tailgate and Tom said, “I can come around from the side over here.” And that he could push that load out onto the forks and Tom could lift it and he could lift and lower the gate up and down so that he could get underneath the load, the forks underneath the load.

Both loads were lengthwise, ran up and down the side of the truck longways. Yes, the loads were lengthwise, ran up and down the side of the truck. Tom had asked the truck driver if he wanted him to get up in the truck with him and get the load down, further towards the Tommy Lift, if you want to call it. And then that way he would have gotten it longways, the forks underneath the pallet. Tom also told him that he wouldn’t be able to get off this forklift once he got up there. And the driver told him “No, don’t come in from the side; come in from the end and put your forks underneath the end of it here, and we’ll pull it out.” I believe Tom told him maybe three times that we needed to get it from the side and he kept arguing with Tom. Tom says, “Well then you have to tell me what you want me to do.”

And he said now once I get that machine on there I can’t get off and adjust or do anything like that, so, you’re going to have to do whatever he’s supposed to do. The reason was, the brake, it doesn’t have a hand brake where you can get off and put a parking brake on. So once Tom got on the forklift and was using it, he would have to stay on it. That’s the only way you could keep control of the forklift. And he couldn’t get off and help anyone do anything with the load. That was discussed with the operator of the truck prior to starting to pull the load.

I never got in the truck. He told Tom when Tom said he would get up there and help him push the load out, he said, “The insurance will not allow anyone else in the truck. I can’t allow anyone in here.”

Tom was wanting to take the forklift and bring it up to get up under the pallets from the side and the operator of the truck wanted Tom to grab the load from the end of the load. I don’t remember the exact length of the forks on the truck. I know they are able to move in and out. The forks are heavy enough where it takes more than one person really to probably lift it so the other guy can shove it down and let it back. But the forks on the lift are adjustable. So you can put them out wider or more narrow to get up under a load on a pallet.

The truck driver told Tom to come in from the end. Tom had told him, I’d say at least three times, “We need to get it from the side .” The driver said, “No; we’re going to do it this way.” I guess that’s what they ended up doing.

Appellant sufficiently established that, regardless of R & L’s contractual obligation to Heritage or Simoneaux, Morris not only participated in the unloading process, but directed it, and that Morris knowingly chose to proceed in spite of the problems with the forklift. Therefore, we hold that Morris undertook a duty of care to appellant and that the circuit court erred in entering summary judgment to R & L and Morris.

R & L and Morris also contend that appellant failed to present proof that some act by Morris proximately caused his injury. Proximate cause, however, is usually a question for the jury. See Keck v. American Employment Agency, Inc., supra. In this case, appellant produced sufficient evidence to raise a fact question as to whether Morris’s actions played a part in causing appellant’s injuries. We therefore reverse and remand as to Morris and R & L.

Heritage

In his second point, appellant argues that the trial court erred in granting summary judgment to Heritage because an issue of fact exists as to whether Heritage shipped the logs in an unsafe manner by (1) failing to inspect the load prior to shipment so that it could be safely unloaded; (2) failing to warn R & L of the dangerous nature of the load; (3) negligently loading the materials for shipment; (4) otherwise failing to use ordinary care; (5) failing to ship the load on a flat bed truck; and (6) failing to warn Simoneaux that the load could not be safely unloaded with a single forklift. He states: “Heritage placed a bundle of logs that was ten to twelve feet long in a box truck with a door opening of only eight feet wide thereby making it impossible to access the bundle from the side with a forklift.”

In response, Heritage correctly points to the unrebutted proof that it did not select the truck or load it, that the banded bundle of handrails retained its shape and did not shift during the shipping process, and that it did not do so after it was dropped.

Heritage also correctly notes that appellant did not assert in his original complaint that it was negligent in shipping the handrails in an enclosed truck instead of a flatbed trailer. Arkansas is a “fact,” rather than a “notice,” pleading state. Arkansas Rule of Civil Procedure 8(a)(1) provides:

Claims for Relief. A pleading which sets forth a claim for relief, whether a complaint, counterclaim, crossclaim, or third party claim, shall contain (1) a statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the pleader is entitled to relief….

Although appellant made this allegation in his amended complaint, the court struck that pleading, and he has not appealed from the order striking it. In any event, Heritage offered proof, in Craig Bull’s affidavit, that it did not load the handrails into the truck or select the type of truck to be used. Further, appellant has not offered any citation to authority that a shipper of goods has a duty to direct the manner in which the independent contractor carrier selects the equipment on which the goods will be shipped. The circuit court, therefore, did not err in awarding summary judgment to Heritage.

Affirmed in part; reversed and remanded in part.

PITTMAN, C.J., and BAKER, J., agree.