United States District Court,

S.D. Ohio,

Eastern Division.

OHIO STAR TRANSPORTATION LLC, Plaintiff,

v.

ROADWAY EXPRESS, INC., Defendant.

No. 2:09-cv-00261.

 

Sept. 14, 2010.

 

OPINION AND ORDER

 

MICHAEL H. WATSON, District Judge.

 

Plaintiff Ohio Star Transportation LLC (“Plaintiff”) brings this federal question claim against Defendant Roadway Express, Inc. (“Defendant”) for damages to a shipment of used computers transported by Defendant from Draper, Utah to Columbus, Ohio. The action is now before the Court on Defendant’s Motion for Summary Judgment. (Doc. 22.) For the reasons that follow, the Court GRANTS Defendant’s Motion for Summary Judgment.

 

I. FACTS

 

Plaintiff and Defendant contracted for Defendant to transport a shipment of used computers for Plaintiff. Plaintiff separated the computers onto two pallets and shrink-wrapped the pallets and computers before the shipment was picked up by Defendant. At the time it accepted the computers, Defendant issued Plaintiff a clean Bill of Lading that stated “ROADWAY’S TARIFFS LIMIT ITS LIABILITY. ALL FREIGHT RECEIVED IN GOOD ORDER AND SHRINKWRAP/BANDING INTACT UNLESS NOTED BELOW” (Def.’s Mot. for Summ. J. Ex. 1 Sub-Ex D (Doc. 22-1)) There were no notes below indicating a problem with the packaging.

 

During shipment, some of the computers on one of the pallets broke through the shrink-wrapping and slid off the pallet. When Plaintiffs agent examined the shipment upon arrival in Columbus, Ohio, the agent took pictures of the strewn computers. The agent refused all 112 computers on the pallet with the torn shrink-wrap, but accepted the other pallet of computers.

 

Plaintiff then filed suit against Defendant, seeking to recover $34,681.92 for damage to all 112 computers on the refused pallet under 49 U.S.C. § 14706 (the “Carmack Amendment”). Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c).

 

II. SUMMARY JUDGMENT

 

The standard governing summary judgment is set forth in Federal Rule of Civil Procedure 56(c), which provides:

 

The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

 

FED. R. CIV. P. 56(c).

 

The Court may grant summary judgment if the opposing party 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 Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Petty v. Metro. Gov’t of Nashville-Davidson County, 538 F.3d 431, 438-39 (6th Cir.2008). It is “[o]nly disputed material facts, those ‘that might affect the outcome of the suit under governing law,’ [that] will preclude summary judgment.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (emphasis added).

 

When reviewing a summary judgment motion, the Court must draw all reasonable inferences in favor of the nonmoving party, who must set forth specific facts showing that there is a genuine issue of material fact for trial, and the Court must refrain from making credibility determinations or weighing the evidence.   Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th Cir.2006). The Court disregards all evidence favorable to the moving party that the jury would not be not required to believe. Reeves, 530 U.S. at 150-51. Summary judgment will not lie if the dispute about a material fact is genuine; “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir.2009).

 

Thus, the central issue is “ ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234-35 (6th Cir.2003) (quoting Anderson, 477 U.S. at 251-52).

 

III. ANALYSIS

 

Defendant moves for summary judgment on Plaintiffs claim on three grounds. First, Defendant argues Plaintiff cannot prove the elements of a prima facie case for carrier liability for loss under the Carmack Amendment. Second, Defendant asserts that any damage to the shipment in question was caused by Plaintiff’s own negligence in the packaging, handling, and loading of the goods, and thus Plaintiff is precluded from recovering amounts for Defendant’s alleged damaging of the computers. Third, Defendant asserts that summary judgment is proper as to the amount of any possible damages due to Plaintiff.

 

A. Establishment of a Prima Facie Case

 

Defendant asserts, and Plaintiff does not deny, that the claim in this case arises under the Carmack Amendment. To establish a prima facie case for carrier liability for loss under the Carmack Amendment, a plaintiff must present evidence of (1) delivery of goods to carrier in good condition, (2) arrival to the consignee in damaged condition, and (3) the amount of damages. Plough, inc. v. Mason & Dixon Lines, 630 F.2d 468, 470 (6th Cir.1980) (citing Mo. Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 138, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964)); Great W. Cas. Co. v. Flandrich, 605 F.Supp.2d 955, 966 (S.D.Ohio 2009) (citing Mo. Pac. R.R. Co., 377 U.S. at 138). Defendant challenges the evidence presented for all the elements but focuses on the first element. Defendant asserts that despite requests for proof of the computers’ good condition at time of delivery to Plaintiff, Plaintiff has not provided any documents showing the computers were in good condition at the time of delivery. (Def.’s Mot. for Summ. J. Ex. 1 ¶ 10.) Instead, Plaintiff presents the Bill of Lading provided at the deposit of goods with Defendant to prove the original condition of the computers at issue. But Defendant argues, and the Court agrees, that due to the packaging of the goods and the resultant inability of Defendant to inspect the computers at the time of deposit, this Bill of Lading does not constitute prima facie evidence of delivery of goods to Defendant in good condition.

 

As a general rule, a shipper’s burden of proof that goods were delivered to a carrier in good condition is met by the proffer of a clean bill of lading.   A.I.G. Uru. Compania de Seguros, S.A. v. AAA Cooper Transp., 334 F.3d 997, 1003 (11th Cir.2003); Travelers Indem. Co. of Ct. v. Cent. Transp., Inc., No. 2:07-cv-14096, 599 Pa. 690, 960 A.2d 838, 2008 WL 4793404, at(E.D.Mich. Nov. 3, 2008) (“A ‘statement in the bill of lading as to “apparent good order” [, however,] is prima facie evidence … that, as to parts which were open to inspection and visible, the goods were in good order at the point of origin.” (alterations in original) (internal citations omitted)). This proffer, however, is only effective if the cargo at issue was packaged in a way that allowed its inspection by the carrier. See Travelers Indem. Co. of Ct., 599 Pa. 690, 960 A.2d 838, 2008 WL 4793404, at *5; Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir.2004) (“A shipper’s burden of proving that the goods were delivered to the carrier in good condition may be satisfied by the proffer of a clean bill of lading for the shipment, provided that the cargo was packaged in a way that permitted its inspection.”).

 

In the case sub judice, Plaintiff has not shown the computers were packaged in a way that allowed for their inspection by Defendant. Indeed, Plaintiff does not deny the computers were delivered to the carrier pre-wrapped in shrink-wrap. The contents were not visible or open to inspection by the carrier. In such a situation, a clean bill of lading does not meet a plaintiff’s burden of proof on the element of good condition at deposit; instead, a plaintiff must present additional evidence of the condition of the cargo. Travelers Indem. Co. of Ct., 2008 WL 4793403, at *6; Old Dominion Freight Line, Inc., 391 F.3d at 84; AAA Cooper Transp., 334 F.3d at 1004 (“When the shipment at issue is0 a sealed container, … [t]he bill of lading, by itself, is never sufficient to establish a prima facie case.”). In the instant case, Plaintiff presents only the clean Bill of Lading provided by Defendant and an affidavit of Plaintiff’s agent stating computers packaged on the other pallet were resold and, based on discussions with the purchaser, have operated without problems. This statement, however, does not provide evidence of the condition of the goods at issue at the time of deposit to Defendant; rather, the statement speaks to the condition of other goods post-delivery. Plaintiff presents no other evidence of the computers’ condition at the time of tender to Defendant.

 

Instead, Plaintiff asserts that the condition of the goods at time of delivery to carrier is a question of fact to be established at trial. This assertion belies a misunderstanding as to the evidence that must be established as of the time of the motion for summary judgment. Discovery has occurred and closed; it is no longer sufficient for Plaintiff to allege, without evidence to present in support, that the computers were in good condition at deposit to Defendant. Rather, Plaintiff must provide evidence of the good condition of the computers which, when taken in the light most favorable to Plaintiff, could support a verdict by a reasonable jury in favor of Plaintiff. Plaintiff has not done so, and thus has failed to meet its burden as to the first element of a claim for carrier liability for loss. Because Plaintiff has not presented a prima facie case, Defendant is entitled to summary judgment on the claim. As Plaintiffs failure to establish the first element of the prima facie case is dispositive, Defendant’s arguments regarding the other elements are rendered moot.

 

B. Defendant’s remaining arguments

 

Defendant’s remaining arguments are now moot, but even if Plaintiff had presented sufficient evidence for all elements of the claim, the claim would fail due to the “shipper defense”. This affirmative defense precludes a plaintiff’s recovery if the damage to the shipment was caused by the plaintiff’s own negligence in handling, packaging, and loading the goods. See Mo. Pac. R.R. Co., 377 U.S. at 137 (Under the Carmack Amendment, a carrier is liable for damage to goods unless it can show the damage was caused by the act of God, the public enemy, an act of the shipper, public authority, or the inherent nature of the goods.); accord Great W. Cas. Co., 605 F.Supp.2d at 965. Defendant raises this argument, but Plaintiff does not respond, thereby waiving its ability to challenge the argument and effectively conceding the point. Thus, even if the Plaintiff met its evidentiary burden, Plaintiff’s recovery would still be precluded.

 

Finally, Defendant argued that if the Court decided Defendant was liable for damage to the computers, which Defendant did not admit, then any recovery by Plaintiff must be limited to $312.50, and thus summary judgment is also appropriate as to the damages due. Plaintiff also fails to respond to this argument.

 

The agreement between Plaintiff and Defendant states that “[a]rticles which are subject to released or declared value provisions in the National Motor Freight Classification or any subsequent Classification applicable to release rates shall be considered to be released at the lowest released or declared value stated therein.” (Def.’s Mot. for Summ. J. Ex. 1 Sub-Ex. A ¶ 17 .) The computers were classified as NMFC Item # 116030-1, Class 92.5. (Id. at Sub-Ex. B.) The released value for this classification is $5.00 per pound. (Id. at Sub-Ex. C.) Defendant states, and Plaintiff does not contest, that the total weight of the 112 computers is approximately 1,750 pounds. Defendant concedes that four of the 112 computers were damaged. Plaintiff asserts that all the computers were damaged. Plaintiff offers that its agent took pictures of the strewn computers and that this constituted an inspection of the computers which, combined with “common sense”, provides evidence that all computers were damaged. The Court is not convinced. Such “common sense” is not evidence sufficient to withstand a summary judgment motion. Instead, the only inspection that presents evidence of certain damage is that of Defendant’s expert, and that inspection found that only four of the 112 computers have definite damage.  These four computers constitute 3.57% of the total weight of the 112 computers, and thus have an approximate weight of 62.5 pounds. As a result, Defendant’s liability, were it to have been found to be liable, would be limited to $312.50 (or $5.00 for every pound).

 

Plaintiff challenges this report stating that the report is merely a recitation of statements made by Defendant. However, upon inspection of the report, while the description of Plaintiff’s refusal is merely a recitation of a statement made by Defendant, the finding that “[f]our computers show severe cabinet damages” appears to be the inspector’s own findings. (Def.’s Mot. for Summ. J. Ex. 1 Sub-Ex. E.)

 

IV. DISPOSITION

 

Based on the above, the Court GRANTS Defendant’s summary judgment motion. (Doc. 22). The Court DISMISSES Plaintiff’s claims WITH PREJUDICE.

 

The Clerk shall remove Doc. 22 from the Court’s pending motions list.

 

IT IS SO ORDERED.

United States District Court,

M.D. North Carolina.

RUSH INDUSTRIES, INC., Plaintiff,

v.

MWP CONTRACTORS, LLC and BRANN’S TRANSPORT SERVICES, INC., Defendants.

No. 1:08CV810.

 

Sept. 13, 2010.

 

MEMORANDUM OPINION AND RECOMMENDATION

 

WALLACE W. DIXON, United States Magistrate Judge.

 

This matter is before the court on separate motions for partial summary judgment by Defendants MWP Contractors, LLC (docket no. 19) and Brann’s Transport Service, Inc. (docket no. 17). The parties have responded in opposition to the motions, and the matter is ripe for disposition. Because the parties have not consented to the jurisdiction of the magistrate judge, the motions must be dealt with by way of recommendation. For the following reasons, it will be recommended that the court grant both motions for partial summary judgment.

 

BACKGROUND

 

Plaintiff Rush Industries, Inc. is a North Carolina corporation with its principal place of business in Guilford County, North Carolina. Defendant MWP Contractors, LLC is a North Carolina corporation with its principal place of business in Roxboro, North Carolina. Brann’s Transport Service, Inc. is a North Carolina corporation with its principal place of business in Roxboro, North Carolina. Plaintiff originally filed this action in Guilford County Superior Court, and Defendants subsequently removed the action to this court based on 28 U.S.C. § 1331 federal question jurisdiction, as the claims arise under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 et seq.

 

In the complaint, Plaintiff alleges that Defendant shipper MWP Contractors, LLC (“MWP”) breached a written agreement with Plaintiff in which MWP agreed to disassemble, package, transport, and reassemble an industrial saw from South Boston, Virginia to Americus, Georgia. The complaint also includes negligence and bailment claims against Defendant MWP. Defendant carrier Brann’s Transport Services, Inc. (“Brann’s) was hired by MWP to transport the saw to Americus, Georgia. Plaintiff has also brought claims against Brann’s for breach of contract, negligence, and bailment.

 

Both MWP and Brann’s filed answers denying liability and asserting cross claims against each other in the event either was held liable. Furthermore, Defendant MWP has counterclaimed against Plaintiff for unjust enrichment based on failure to pay and for breach of oral contract. Both Defendants have now filed a motion for partial judgment on the issue of whether Plaintiff is entitled to recover consequential damages, including lost profits. In addition, MWP seeks dismissal of Plaintiff’s state law tort claims for negligence and bailment.

 

UNDISPUTED FACTS

 

The following facts are undisputed unless otherwise noted. Plaintiff Rush Industries, Inc. manufactures and distributes furniture and wood component parts. In late 2006, Plaintiff purchased a large piece of industrial machinery known as a panel saw (“the saw”) for use in its business. Plaintiff purchased the saw through an online auction for $14,300. The saw was located in South Boston, Virginia. On December 7, 2006, Plaintiff entered into a written agreement with MWP, in which MWP agreed to disassemble the saw, transport it to Americus, Georgia, and then reassemble it. The cost of the disassembly, transport, and reassembly was $8,300. Beyond that, MWP agreed, on a “time and material basis,” to assist in the start-up of the machine. Under the agreement, Defendant MWP was also responsible for delivering various items with the saw, including, but not limited to, the original set of start-up discs, parts to the electrical system, dust collection system and piping, electrical wiring computer communication cables, tooling, and saw blades.

 

MWP subsequently contacted Defendant Brann’s and hired Brann’s to transport the saw from South Boston to Americus. Pursuant to a Straight Bill of Lading, Plaintiff was identified as consignee, MWP was identified as shipper, and Brann’s was identified as carrier. During transit to Georgia, several cable connectors were damaged, and the saw was rendered inoperable. MWP eventually located replacement connectors and tendered them to Plaintiff. Plaintiff claims that it lost more than $1 million in profits during the time it took for MWP to locate replacement connectors. It is undisputed that the saw was fully operational before it was disassembled, transported, and reassembled by Defendants.

 

After Plaintiff discovered that the saw was damaged, Plaintiff made repeated efforts to contact MWP to, among other things, obtain MWP’s assistance in repairing the saw. Plaintiff contends that although MWP agreed to “take care” of the repairs of Plaintiff’s saw, MWP withheld vital and important information from Plaintiff that likely would have permitted Plaintiff to have the saw repaired in a timely and economical manner. MWP denies this allegation. During its communications with MWP while MWP was attempting to repair the saw, Plaintiff reminded MWP that it would lose significant business if MWP did not repair the saw promptly.

 

DISCUSSION

 

Motion for Partial Summary Judgment

 

Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Zahodnick v. Int’l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir.1997). The party seeking summary judgment bears the burden of initially coming forward and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a fact-finder to return a verdict for that party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817 (4th Cir.1995). Thus, the moving party can bear his burden either by presenting affirmative evidence or by demonstrating that the non-moving party’s evidence is insufficient to establish his claim. Celotex Corp., 477 U.S. at 331 (Brennan, J., dissenting). When making the summary judgment determination the court must view the evidence, and all justifiable inferences from the evidence, in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir.1997).

 

The dispute in this case is governed by the Carmack Amendment to the Interstate Commerce Act. The Carmack Amendment was designed “to create a national uniform policy regarding the liability of carriers under a bill of lading for goods lost or damaged in shipment.” Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 706 (4th Cir.1993); Parramore v. Tru-Pak Moving Sys., Inc., 286 F.Supp.2d 643, 648 (M.D.N.C.2003). Under the Carmack Amendment, damages are available for “the actual loss or injury to the property” that is transported. See 49 U.S.C. § 14706(a). This language has been construed as adopting the common law principle of damages. Generally, the appropriate measure of damages is the difference in the value between the goods as delivered and the value of the goods if they had not been damaged. Zarn, Inc. v. S. Ry., 50 N.C.App. 372, 376, 274 S.E.2d 251, 255 (1981). Other recoverable damages may include consequential damages such as lost profits. See Am. Nat’l Fire Ins. Co. v. Yellow Freight Sys., 325 F.3d 924, 931 (7th Cir.2003). It is well established, however, that any recoverable damages are “limited to those within the contemplation of the defendant at the time the contract was made.” Zarn, 50 N.C.App. at 376, 274 S.E.2d at 255; Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854) (damages recoverable in breach of contract action are only those damages reasonably foreseeable by the defendant at the time of entering into the contract). Thus, a carrier of goods will only be liable for lost profits if the “plaintiff shows that the contract … itself imposes such liability or that actual notice” of the possibility of such lost profits is conveyed to the carrier. Zarn, 50 N.C.App. at 375-76, 274 S.E.2d at 255; Avtex Fibers, Inc. v. Daily Express, Inc., 562 F.Supp. 124, 126-27 (W.D.Va.1983) (observing that the defendant carrier would only be liable for lost profits if it had actual notice of the profits at issue or if the contract pursuant to which it transported the goods imposed such liability).

 

Here, the written agreement between Plaintiff and Defendant MWP makes no mention whatsoever of consequential damages such as lost profits, or of MWP’s liability for any such losses. I further find that there is no genuine issue of material fact as to whether MWP or Brann’s, at the time the contract was entered, had actual notice of the profits Plaintiff stood to lose if the saw was not delivered and fully operational by a certain date. That is, at no point before the December 7, 2006, contract did Plaintiff inform either Defendant that it stood to lose more than $1 million in profits. Plaintiff points out that it informed Defendant MWP after the saw was damaged that the saw needed to be replaced quickly so that Plaintiff would not lose valuable jobs. This does not change the fact that when the parties contracted, Defendants were not put on notice that Plaintiff could potentially lose $1 million in profits if the saw was not operational by a certain date. Furthermore, the mere fact that Defendants knew that they were moving an industrial saw that was used in business operations does not mean that it was reasonably foreseeable that Plaintiff could lose more than $1 million in profits if Defendants failed to deliver the saw on time and in working order. Accord Avtex Fibers, 562 F.Supp. at 127. Thus, the court should grant partial summary judgment to Defendants on the issue of whether Plaintiff is entitled to recover lost profits.

 

According to Plaintiff’s own evidence, several weeks after the saw was transported to Georgia, Plaintiff informed MWP for the first time that Plaintiff would lose a job if the saw were not in operation soon.

 

Defendant MWP’s Motion for Partial Summary Judgment as to Plaintiff’s Claims for Negligence and Bailment

 

Next, Defendant MWP contends that Defendants are entitled to summary judgment on Plaintiff’s state law tort claims for negligence and bailment. For the following reasons, I agree. Under North Carolina law, “claims arising out of a commercial relationship, which are, at bottom, essentially claims for breach of contract, do not generally give rise to tort liability.” Int’l Designer Transitions, Inc. v. Faus Group, Inc., 663 F.Supp.2d 432, 439 (M .D.N.C.2009); see also Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 345-47 (4th Cir.1998). Here, Plaintiff has alleged as its First Claim for Relief that MWP breached its contract with Plaintiff to disassemble, package, transport, unload, reassemble, and start up the panel saw. Plaintiff then proceeds to assert three tort claims against Defendants-two negligence claims and a bailment claim. These claims do not involve “independent” or “distinct” allegations aside from the breach of contract allegations; rather, they allege nothing more than that MWP tortiously failed to perform under its contract with Rush. Defendants are therefore entitled to judgment as a matter of law on Rush’s tort claims for negligence and bailment.

 

Specifically as to the negligence claim, Plaintiff contends that MWP was negligent in repeatedly advising Rush that it would “take care” of the situation but failed to follow through and hid information from Plaintiff that could have allowed Plaintiff to have the saw repaired in a more timely manner. Plaintiff contends that this conduct serves as an independent basis for Plaintiff’s negligence claim against MWP. I do not agree, as these allegations merely arise out of Defendants’ purported failure to perform as required under the contract by reassembling the saw so that it was operational.

 

There is yet another reason why the negligence and bailment claims should be dismissed. The Fourth Circuit has joined other circuits in concluding that the Carmack Amendment “preempts a shipper’s state and common law claims of breach of contract and negligence for goods lost or damaged by a carrier during interstate shipment under a valid bill of lading.” Shao, 986 F.2d at 705; see also Rahim v. Truck Air of the Carolinas, Inc., 123 N.C.App. 609, 613, 473 S.E.2d 688, 690 (1996) (holding that the Carmack Amendment provides “the exclusive remedy for claims against carriers subject to the Interstate Commerce Commission”). Thus, Plaintiff’s state law claims of negligence and bailment are preempted by the Carmack Amendment. In sum, for the reasons stated here, the court should dismiss Plaintiff’s state law tort claims for negligence and bailment.

 

CONCLUSION

 

For the reasons stated above, IT IS RECOMMENDED that the court GRANT Defendants’ motions for partial summary judgment (docket nos. 17 and 19).