United States District Court,

W.D. Tennessee,

Western Division.

McKESSON CORPORATION, Plaintiff,

v.

LONGISTICS TRANSPORTATION, INC., Defendant.

No. 08-2605-STA.

June 3, 2009.

ORDER GRANTING MOTION TO TRANSFER CASE TO EASTERN DISTRICT OF NORTH CAROLINA

S. THOMAS ANDERSON, District Judge.

Before the Court is Defendant Longistics Transportation, Inc.’s Motion to Dismiss for Improper Venue or Alternatively Motion to Transfer to the Eastern District of North Carolina (D.E.# 3) filed on September 23, 2008. Plaintiff McKesson Corporation has filed a response in opposition to Defendant’s Motion. For the reasons set forth below, the Motion is GRANTED.

BACKGROUND

This is a diversity case involving a claim for damages due under a shipping contract between the parties. It is undisputed that Plaintiff and Defendant are parties to a Motor Contract Carrier Transportation Agreement (“the contract”), which was entered into on April 1, 2004. Def.’s Mot. to Transfer, 1. Under the terms of the contract, Defendant transported medical and pharmaceutical goods sold by Plaintiff. Id. The contract contains a clause governing loss or damage to freight by which Defendant’s liability to Plaintiff is limited to $250,000 in the case of theft or loss of freight during shipping. Id. at 1-2.Defendant was required to carry insurance to cover theft or loss of the freight equal to their liability limit. Id. at 4. Plaintiff argues that the contract further required that all shipments be delivered to the scheduled destination on the same day the freight left Plaintiff’s Memphis distribution center. Pl.’s Resp. 3. Defendant had a duty to ensure that it complied with all federal, state, and local laws for handling controlled substances which included security measures to prevent in-transit theft and procedures to hire qualified employees. Id. at 5. Defendant had to keep all vehicles locked in front and back at all times and activate alarms. Id. Plaintiff claims that with the exception of carrying appropriate insurance, Defendant failed to comply with all of these provisions.

On or about August 4, 2006, Defendant sent two drivers and two Kenworth trucks with refrigerated trailers to Memphis, Tennessee, where pharmaceutical products owned by Plaintiff were loaded onto the trailers and locked. Def.’s Mot. to Transfer, 3. According to Defendant, neither Defendant nor its drivers have access to the trailers or are informed about the contents of the freight.Id. On Friday, August 5, 2006, the drivers arrived at Defendant’s trucking terminal in Raleigh, North Carolina where the trailers were parked over night.Id. Defendant avers that the freight could not be accepted until August 7, 2006, in the Northeastern United States. Id. While parked over night at Defendant’s terminal, the freight was stolen. Id. Plaintiff argues that the terminal had no guardhouse, security fence, or other security to safeguard the trailers. Pl.’s Resp. 3. On Saturday, August 6, Duane Long, president of Longistics, notified Plaintiff’s Memphis facility of the theft. Id. at 4.

Defendant argues that the venue in this District is improper and that the Court should either dismiss the case or transfer it to the Eastern District of North Carolina. Defendant’s operations are based in Raleigh, North Carolina, including the terminal where the theft occurred. The trailers and trucks were both owned by Defendant. The drivers employed by Defendant are North Carolina residents. Defendant executed the contract upon which this suit is based at its headquarters in North Carolina. The investigations into the theft were conducted in Raleigh, North Carolina. For its part Plaintiff’s corporate headquarters are in San Francisco, California. Defendant contends that none of the material events in this case occurred in Memphis, Tennessee. Pursuant to 28 U.S.C. 1404(a), Defendant argues that the Eastern District of North Carolina would provide a more convenient forum for this suit. Many of the witnesses with knowledge of the events giving rise to this claim are located in North Carolina. All of the operative facts occurred in Raleigh, North Carolina including the theft of the freight at the trucking terminal. According to Defendant, all relevant evidence concerning the theft is kept in North Carolina, not Memphis. Finally, Defendant contends that there are few connections to this District in light of the fact that Plaintiff’s headquarters are in California and Defendant’s are in North Carolina. Therefore, Defendant moves that the matter be dismissed or transferred to the Eastern District of North Carolina.

Plaintiff opposes Defendant’s Motion to Transfer arguing that venue is proper in this District. This Court has personal jurisdiction over both parties and consequently venue is proper here. According to Plaintiff, Defendant has ongoing contacts in this District maintaining an office and dispatching trucks to Plaintiff’s Memphis distribution center. Plaintiff further argues that a substantial part of the events which give rise to this suit occurred in this District and that a majority of witnesses and documents associated with the parties’ contract are in Memphis and California. The freight was loaded and sealed by Plaintiff’s employees in Memphis. Plaintiff’s Memphis distribution center contacted Defendant’s Memphis office to arrange the pick-up and delivery of the freight according to shipping documents and shipping instructions created by Plaintiff in the Memphis distribution center. Those instructions did not include an overnight stop in Raleigh, North Carolina, and Plaintiff had no expectation that such a stop would be made.

Additionally, Plaintiff contends that Defendant has failed to show that the Eastern District of North Carolina will be a more convenient forum for the parties. Plaintiff argues that it would be greatly prejudiced by the transfer because it has no witnesses or other sources of proof in North Carolina. According to Plaintiff, the theft itself is undisputed, and only one witness would be necessary to testify as to the security of Defendant’s trucking terminal in North Carolina. On the other hand, all of the employees of both parties who arranged the shipment, set the delivery schedule, and sealed the containers were in Memphis. Concerning corporate witnesses, Plaintiff’s witnesses would travel from California. The additional travel to North Carolina would only increase their inconvenience. The majority of the relevant documentary evidence is also in Memphis including the shipping documents, the shipping instructions, and security sign-out sheets. The events which give rise to the dispute are centered in this District because the actual communications between the parties took place in Memphis. For these reasons, Plaintiff argues that venue is proper and that transfer is not warranted.

ANALYSIS

Pursuant to 28 U.S.C. 1404(a), “for the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any district or division where it might have been brought.”A district court is granted broad discretion when deciding a motion to transfer. Among the relevant factors, the Court should consider (1) the location of willing and unwilling witnesses, (2) the residence of the parties, (3) the location of sources of proof, and (4) the location of the events that gave rise to the dispute.

28 U.S.C. 1404(a).

Walker v. Consumers Power Co., 1990 WL 16387 (6th Cir.), cert. denied 498 U.S. 815, 111 S.Ct. 55, 112 L.Ed.2d 30 (1990).See also Blane v. American Inventors Corp., 934 F.Supp. 903 (M . D.Tenn.1996).

Although the Court does not believe that venue is improper in this District, it appears that in the interest of justice and for the convenience of the parties, this matter should be transferred to the Eastern District of North Carolina. It is undisputed that this is a suit for breach of contract and that Defendant executed the contract in Raleigh, North Carolina. Under the contract, Defendant undertook certain duties including the delivery of all shipments the same day; compliance with all federal, state, and local laws for handling controlled substances; adequate security measures to prevent in-transit theft; the hiring of qualified employees; and locking all vehicles in front and back at all times and activating alarms. It is further undisputed that the theft of Plaintiff’s freight from Defendant’s trucks took place in Raleigh, North Carolina. Plaintiff has alleged that the theft occurred as a result of Defendant’s breach all of these contract provisions. More specifically, Plaintiff’s Complaint states that Defendant breached the contract in the followings ways:

a) Unilaterally overnighting the two trailers with the subject Cargo in an unsecured and unprotected parking lot;

b) By failing to immobilize or otherwise secure the two trailers with the subject Cargo while they were left unprotected and unsecured in the parking lot;

c) Failing to properly and adequately provide for protection and security of the subject Cargo while left overnight in the parking lot;

d) By failing to adhere to the requirements of the Transportation Agreement;

e) By failing to safeguard the subject Cargo at all times pertinent hereto.

Compl. ¶ 11.

All of these specific allegations relate to Defendant’s conduct at Defendant’s trucking terminal in Raleigh, North Carolina. As a result, if any breach occurred, it appears to the Court that it occurred in Raleigh, North Carolina, and not Memphis, Tennessee. These facts all weigh in favor of transfer.

Applying the relevant factors to this case, transfer is warranted. First and foremost, the operative facts occurred primarily in North Carolina. While it is true that the shipment originated in Memphis and shipping instructions were given in Memphis, the alleged breach of the contract occurred as a result of events that took place in Raleigh, North Carolina. The decision to leave the trailers overnight at the terminal, Defendant’s alleged lack of security measures, and the resulting theft of the freight are the operative facts that led up to the alleged breach of contract. Plaintiff asks the Court to disregard the fact that the theft occurred in North Carolina because the shipments were never supposed to pass through North Carolina. However, had the trucks never ended up in Raleigh, North Carolina, the theft would not have happened and there would have been no alleged breach of the contract. Thus, the operative facts are largely based in North Carolina.

Second, it appears that more key witnesses are located in the Eastern District of North Carolina than in this District. Defendant has its corporate headquarters in Raleigh, North Carolina, and so its corporate witnesses with knowledge of the contract and its terms are located in that District. More importantly, the allegations concern the conduct of Defendant and its agents in Raleigh, North Carolina. Material facts about who decided to leave the trailers over night in Raleigh and how the trailers were secured at Defendant’s trucking terminal there will be central to this case. Witnesses with knowledge of the general security at the terminal in August 2006 and of the specific events of August 5-6, 2006 are more likely to be found in the Eastern District of North Carolina. This is not to say that there will not be witnesses from this District. Plaintiff has argued that its employees at the Memphis distribution center have knowledge of the shipping instructions and the manner in which the trailers were sealed when the shipments left. However, the witnesses with knowledge about the alleged material breach of the contract will presumably be available in North Carolina.

Third, transfer will promote ease of access to sources of proof. As previously discussed, because the operative facts occurred in Raleigh, North Carolina, and fact witnesses are available in Raleigh, North Carolina, access to sources of proof will be greater there than in this District. Furthermore, Defendant executed the contract in Raleigh, North Carolina and has its corporate headquarters there. As both parties are corporations conducting business in multiple states, both should be able to produce the relevant documentary evidence regardless of which district hears this case. The Court finds then that this factor also favors transfer.

Finally, as for the residence of the parties, neither party has its corporate headquarters or principal place of business in this District. Neither party appears to be incorporated under the laws of the state of Tennessee. It is true that this Court has personal jurisdiction over these parties by virtue of their continuous and ongoing contacts with this District. Both parties have offices in this District and conduct business here which gave rise to the claims in this suit. Consequently, Plaintiff is correct that venue is proper here. On the other hand, Plaintiff is a Delaware corporation with its headquarters in San Francisco, California. Defendant has its corporate headquarters in Raleigh, North Carolina and is incorporated under the laws of the state of North Carolina. Therefore, the Court holds that neither party is a resident of this District and transfer to the Eastern District of North Carolina where Defendant is a resident is appropriate.

Having considered the relevant factors, this Court finds that transfer to the Eastern District of North Carolina will be in the parties’ interests and in the interests of justice. Therefore, Defendant’s Motion to Transfer to the Eastern District of North Carolina is GRANTED.

IT IS SO ORDERED.

W.D.Tenn.,2009.

McKesson Corp. v. Longistics Transp., Inc.

Slip Copy, 2009 WL 1586884 (W.D.Tenn.)

END OF DOCUMENT

United States Court of Appeals,

Tenth Circuit.

I. Dale LAMB; Peggy Lamb, husband and wife; L. Renee Cage; Dennis Cage, husband and wife; G. Douglas Lowe; Linda Lowe, husband and wife; Gladys HARRIS, individually; Lanny Cartwright; Barbara Cartwright, husband and wife; Scott Hobbs; Jacquie Hobbs, husband and wife; Stacey Clark, husband; Saen Clark, wife and as mother of K. Clark, minor child of Stacey Clark; Randy Lynn, husband; Angelique Lynn, wife and as natural mother of B. Lynn and R. Lynn, minor children of Randy Lynn, Plaintiffs-Appellants,

v.

JB HUNT TRANSPORT SERVICES INC.; JB Hunt Transport Inc.; Daniel Kuder; Scotts Products, Co.; Scotts Professional Products, Co.; The Scotts Company; The Scotts Miraclegro Company; Illinois National Insurance Company, an Illinois Corporation; Lexington Insurance Company, a Massachusetts corporation; Lloyds of London Insurance Company; Underwriters at Lloyds London, Defendants-Appellees.

No. 07-7085.

June 1, 2009.

Before MURPHY, HOLLOWAY and O’BRIEN, Circuit Judges.

ORDER AND JUDGMENTFN*

FN* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

WILLIAM J. HOLLOWAY, JR., Circuit Judge.

I

Plaintiffs-appellants appeal from the judgment of the district court in favor of defendants-appellees in this personal injury case. Jurisdiction in the district court was based on diversity of citizenship, 28 U.S.C. § 1332, and this court has jurisdiction under 28 U.S.C. § 1291 because the district court entered final judgment on all claims as to all parties. The district court entered final judgment after having granted defendants’ motion for summary judgment. Other defendants also prevailed on motions for summary judgment in the district court, but plaintiffs have appealed only the judgment in favor of defendants J.B. Hunt Transport, Inc. (“Hunt”), Daniel Kuder, formerly a driver for Hunt, and Hunt’s liability insurer, Illinois National Insurance Company. As to Illinois National, both sides agree that no separate issues are raised in this appeal; because its liability, if any, is only as insurer for Hunt. The district court’s judgment in favor of Illinois National must be affirmed if the judgment against Hunt is affirmed and must be reversed if judgment against Hunt is reversed.

II

Plaintiffs were dock workers at a Georgia Pacific facility in Muskogee, Oklahoma.On June 26, 2004, defendant-appellant Kuder arrived at the Georgia Pacific dock driving a tractor-trailer loaded with recyclable waste paper that he had picked up from Standard Waste Systems in Dallas, Texas. After the trailer had been unloaded, plaintiffs began to clean it of remaining debris. A load of recyclable paper usually left about three wheelbarrows full of debris, according to the deposition testimony of one of the plaintiffs. As the debris was being swept up, plaintiffs began experiencing adverse reactions including extreme nausea, coughing, shortness of breath, and irritation of the skin, eyes, and nasal passages.

In addition to the dockworkers themselves, some spouses and children of the workers are named plaintiffs, but for purposes of this opinion we need not separately consider their claims.

As investigation of the incident progressed, chemical testing of materials remaining in the trailer revealed the presence of a hazardous chemical, sodium pentachlorophenlate or sodium pentachlorophenol (sodium PCP). Investigation and the subsequent discovery process in this litigation were unsuccessful, however, in determining the source of the sodium PCP. No hazardous chemicals had been hauled in the trailer in the past six months, according to Hunt’s records. Testing found no trace of the sodium PCP in the recyclable paper that had just been unloaded from the trailer. No other person known to have been in the trailer had experienced any unusual reaction from exposure to anything within the trailer. Moreover, the chemical is one that has not been available to the public for over twenty years. It is used commercially (after being liquified) to treat wooden utility poles to prevent infestation by insects, among other things.

III

The district court carefully analyzed the issues presented on summary judgment in an 18-page Order and Opinion. After reciting the basic facts, the judge noted a discrepancy between the legal theory on which the defendants had relied in support of their motion and the approach taken by the plaintiffs in their opposition to the motion. The judge said that the defendants had rested their motion on the contention that they did not have a duty under the circumstances to take action to avoid the injuries sustained by the plaintiffs, while the plaintiffs’ response had argued that negligence on the part of the defendants had been the proximate cause of plaintiffs’ injuries.

Faced with legal arguments “at cross-purposes,” the court proceeded to analyze the dispositive issues. First, the judge considered the theory that the hazardous chemical had been in the trailer before it received the load of waste paper from Standard Waste Systems. Plaintiffs had not produced any evidence to establish the basis for that theory. There was no evidence that the trailer had hauled any hazardous chemicals for the six months prior to the incident. Moreover, the plaintiffs had not challenged the defendant’s assertion that it was an undisputed fact that the trailer had been clean before picking up the Standard Waste load.Accordingly, the district judge concluded, plaintiffs could not show that any negligence in handling any prior loads had been the proximate cause of plaintiffs’ injuries.

Plaintiffs belatedly tried to contest this assertion with the driver’s deposition testimony. This minor controversy over the evidence is not material to our disposition of the issues on appeal.

Next, the judge considered the possibility that defendants had been negligent in handling the Standard Waste Systems load. The court noted that plaintiffs had asserted that the documents concerning this load had a reference to hazardous materials and that the driver had failed to secure the load inside the trailer. The court noted that these assertions suggested that plaintiffs were invoking the theory of negligence per se, under which the violation of a statute or ordinance may lead to liability when the injury was caused by the violation, the injury is of a type intended to be prevented by the regulation, and the injured party is a member of the class intended to be protected by the regulation. See Ohio Casualty Ins. Co. v. Todd, 813 P.2d 508, 510 (Okla.1991).

Concluding that plaintiffs could not prevail under the doctrine of negligence per se, the district judge observed that there was no evidence that the load from Standard Waste Systems included hazardous materials; plaintiff’s expert had testified that the reference to hazardous materials in one section of the document was probably “inadvertent” inasmuch as other sections of the document pertaining specifically to hazardous materials were blank. Certainly there was no evidence that defendants had knowingly transported hazardous materials in the trailer either in that load or in any recent load. Moreover, the judge reasoned, the plaintiffs were not in the class of persons intended to be protected by regulations requiring that cargo be secured.

The judge also concluded that defendants could not be held liable on a common law negligence theory because plaintiffs’ injuries were insufficiently foreseeable to impose a duty on defendants to use ordinary care to prevent the injuries. The defendants had no reason to believe that there were any hazardous materials in the trailer.

The district judge also found that summary judgment for defendants was proper on plaintiffs’ theory of res ipsa loquitur.One of the requirements for application of that doctrine is that the instrumentality that caused the injury must have been in the exclusive control of the defendants. The court recognized that “exclusive control” in this context is a term of art with flexible meaning, citing Qualls v. United States Elevator Corp., 863 P.2d 457, 462 (Okla.1993). Nevertheless, the court concluded that exclusive control could not be shown here, where the trailer had been on the premises of various shippers and receivers during the normal course of business. The judge noted that this trailer had been in possession of a Wal-Mart store in Sanger, Texas just before being picked up by defendant Kuder; that Kuder transported the trailer to the Standard Waste facility in Dallas, where Standard Waste employees loaded it; and that after Kuder had taken the trailer to the Georgia Pacific facility in Muskogee, it had been unloaded by the plaintiffs. The court cited Wheeler v. Koch Gathering Systems, Inc., 131 F.3d 898, 904 (10th Cir.1997), for the principle that “[c]ontrol is not exclusive for purposes of the res ipsa loquitur doctrine where the proof does not reasonably eliminate the activities of a third party or condition having access to the instrumentality, which could alternatively be a probable cause of the plaintiff’s accident.”

IV

“We review a grant of summary judgment de novo, applying the same standard as the district court.” McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.1998). Summary judgment should be entered by the district court “if the pleadings, depositions, answers 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 a judgment as a matter of law.”Fed.R.Civ.P. 56(c). On appeal,

[w]e examine the record to determine whether any genuine issue of material fact was in dispute; if not, we determine whether the substantive law was applied correctly, and in so doing we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing the motion.

McKnight, 149 F.3d at 1128 (brackets and quotations omitted).

The district court applied Oklahoma law in this diversity case, apparently without objection from any party. Oklahoma law seems the obvious choice because Oklahoma is both the forum state and the locus of the injury. With neither party suggesting on appeal that the district court erred by applying Oklahoma law, we will do likewise.

A

Under Oklahoma law, a plaintiff seeking to recover for injuries caused by a defendant’s alleged negligent acts must show that the defendant owed a duty of care to the plaintiff to protect the plaintiff from such harm, that the defendant breached the duty of care, and that the plaintiff’s injuries were caused by that breach of duty. See Lowery v. Echostar Satellite Corp., 160 P.3d 959, 964 (Okla.2007). Whether the defendant owed the plaintiff a duty of care is the “threshold question in any negligence action,” and is a question of law for determination by the court. Id. If the court determines that the defendant did not owe a duty of care to the plaintiff, “there can be no liability for negligence as a matter of law.”Id.

Plaintiffs’ argument in their opening brief is focused on the contention that the hazardous material was in the trailer before the waste paper was loaded at Standard Waste. From this, they reason that the driver (who admittedly was acting as agent for Hunt) had a duty to protect them from this material. There are several flaws in plaintiffs’ argument. First, there is no evidence that the hazardous material was in the trailer before the Standard Waste recyclable paper was loaded. The evidence that some of the paper bales had been tested and showed no trace of the hazardous material would help to support the inference that the chemical must have been in the trailer earlier if that inference were supported by other competent evidence. But standing alone this fact is not sufficient to make the inference more than mere speculation. An observation made by the district judge is worth noting here. The plaintiffs’ inability to find evidence that the hazardous material was in the waste paper is not sufficient to prove that the source of the hazardous material was in the trailer before the waste paper was loaded.

Plaintiffs cite Hunt’s company policy requiring drivers to ensure that trailers are clean before accepting loads and to sweep trailers out when necessary to meet that requirement. But plaintiffs offer no response to defendants’ evidence that the purpose of the policy is not to avoid unforeseeable harm to persons in plaintiffs’ position but rather for the purpose of customer relations. In any event, plaintiffs have not produced evidence that the trailer was not clean before the driver picked up the load from Standard Waste, nor have they shown that this fact is material in the circumstances of this case.

The district court erred, plaintiffs contend, in finding that it was an undisputed fact that the trailer was clean before the driver picked up the load from Standard Waste. Plaintiffs say that the driver’s credibility was in issue because in his deposition he said both that the trailer was “clean” and that it was “decently clean .” Moreover, they assert that a photo taken after plaintiffs reported their reactions to the dust stirred up in the process of sweeping the trailer proves that the trailer had been dirty before the waste paper from Standard Waste was loaded.

The last assertion is utterly unconvincing. One of the plaintiffs testified that two or three wheelbarrows full of debris would be removed from a trailer after unloading a cargo of waste paper. The photo, we are told, was taken after the waste paper had been unloaded and the trailer partially cleaned. To assert that the photo showed the condition of the trailer before the waste paper had been loaded and unloaded is simply untenable. And as for the discrepancy in the driver’s testimony, we cannot conclude, even taking this evidence in the light most favorable to the plaintiffs, that a reasonable jury could infer the presence of the hazardous material from this minor difference in wording.

In sum, then, we find no evidence from which a reasonable jury could conclude, as plaintiffs contend, that the hazardous material had been in the trailer before the waste paper had been loaded. Moreover, we conclude that even proof of that assertion would be insufficient in the circumstances of this case. The law of negligence is based on principles of fault; it is not strict liability. Thus, even if plaintiffs could establish that the hazardous material had been in the trailer before the load of waste paper was transported-which, we repeat, they have not been able to establish-that would be insufficient. Plaintiffs would still need to show that defendants knew or should have known, not merely that the trailer was not clean, but that the trailer contained hazardous material in order to establish, as a point of law, that the defendants owed a duty to plaintiffs to act with reasonable diligence to protect them from exposure to the material.

As a matter of law, foreseeability is “the most important consideration” in analyzing whether a defendant owes a duty of care to a plaintiff. Delbrel v. Doenges Bros. Ford, Inc., 913 P.2d 1318, 1321 (Okla.1996). See also Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162, N.E. 99 (1928). This often, as here, is a question of what the defendant knew or should have known. See Moran v. City of Del City, 77 P.3d 588, 592-93 & n. 5 (Okla.2003). Even if we were to assume, arguendo, that the trailer was visibly dirty when the driver picked it up and took it to Standard Waste to load the waste paper, we would still be unpersuaded by plaintiffs’ argument. Plaintiffs cite no support for the contention that the mere presence of something on the floor of the trailer should have been recognized by the driver as a threat of hazardous materials. There is no evidence, as far as we have found, that the toxic nature of the substance would have been detectable to the driver, or indeed to anyone, by its appearance to the eye, nor is there any evidence of which we are aware that the substance gave off any noxious odor that would have put the driver on notice of danger. Indeed, the plaintiffs testified that they noted nothing at all out of the ordinary until they dispersed the substance into the air as they cleaned out the remaining debris in the trailer after unloading the waste paper.

In sum, the source of the hazardous material remains a mystery. The evidence provides no basis for concluding that defendants knew or should have known of its presence before the plaintiffs were exposed to it. No fact has been identified from which we could infer that the risk to the plaintiffs was foreseeable. It follows that plaintiffs cannot show that defendants owed them a duty to protect them from this risk. We thus agree with and affirm the district court’s holding on this issue.

B

We likewise agree with and affirm the district court’s holding that plaintiffs have not shown that they can hold the defendants liable under the theory of res ipsa loquitur.

Res ipsa loquitur is a pattern of proof which may be applied to an injury that does not occur in the usual course of everyday conduct unless a person who controls the instrumentality likely to produce injury fails to exercise due care to prevent its occurrence. With the aid of res ipsa loquitur negligence may be inferred from the harm without the aid of circumstances pointing to the responsible human cause. The fundamental element of this evidentiary process is the “control of the instrumentality” which caused the damage. Whether a case is fit for the application of res ipsa loquitur presents a question of law; it is a judicial function to determine if a certain set of circumstances permits a given inference.

Qualls v. United States Elevator Corp., 863 P.2d 457, 460 (Okla.1993).

A plaintiff invoking res ipsa loquitur must establish the existence of four “foundation facts”: one, that the injury is one that does not usually occur in the absence of negligence; two, the defendant had exclusive control of the instrumentality that caused the injury; three, evidence of the true explanation for the incident is more accessible to the defendant than to the plaintiff; and four, the circumstances are not likely to produce an injury unless defendant has failed to exercise due care to prevent its occurrence. See Harder v. F.C. Clinton, Inc., 948 P.2d 298, 303 & n. 12 (Okla .1997). In this case, the district court discussed only the second of these factors, that of exclusive control by the defendant of the instrumentality of injury. Concluding that the trailer had not been in the exclusive control of these defendants, the court granted the defendants’ motion for summary judgment. We agree that res ipsa loquitur is not available to the plaintiff here because the instrumentality causing injury was not in the defendants’ exclusive control, but we think that the instrumentality is the hazardous chemical rather than the trailer.

In analyzing the issue we begin with recognition that “exclusive control” is a term of art with a meaning that is not absolute, as the words taken literally would suggest: “Exclusive control, which is a flexible concept … does no more than eliminate, within reason, all explanations for the injurious event other than the defendant’s negligence-i.e., it shows that defendant’s negligence probably caused the accident.” Qualls, 863 P.2d at 462 (emphasis in original).

Applying this concept to the facts of record in this case, we find that we are not able to eliminate, within reason, all explanations for the injurious event other than the defendants’ negligence. The instrumentality that caused the injury, the hazardous chemical, is of unknown origin. Nor is it known how the material came to be in the trailer, nor by whose hand. What we do know is that there is no fact in evidence that would support an inference that the defendant knew or should have known of its presence. With this state of knowledge, the likelihood that the defendants’ negligence caused the injury cannot be said to be greater than that the negligence of one of defendants’ shipping customers caused the injury. The evidence of record does establish that there are federal requirements for shipping hazardous materials, but it provides no basis for determining which party in this case might have failed to follow those requirements.

The district court focused primarily on one of our cases applying Oklahoma law in this area, Wheeler v. Koch Gathering Systems, Inc., 131 F.3d 898 (10th Cir.1997), which the judge reasoned was more analogous to this case than Qualls.We find more guidance in Avard v. Leming, 889 P.2d 262 (Okla.1994). In Avard, the plaintiff had been a babysitter in the home of the defendants. She was injured when she stepped on a shard of glass. The origin of the glass was unknown, although plaintiff testified that after her injury, she and one of the defendants had matched the shard with a flaw in a glass table top in defendants’ home. The table top introduced in evidence, however, did not support that testimony.

The Oklahoma Supreme Court in Avard held that the trial court had correctly refused to instruct the jury on res ipsa loquitur.The court held that the plaintiff had been unable to show that the defendants had been in control of the piece of glass, noting that possession alone is insufficient. 889 P.2d at 265. It was insufficient to show that the coffee table had been in defendants’ control. The evidence did not show that defendants had any knowledge of the presence of the sliver of glass that caused the injury, and its presence could easily be found to have been attributable to a cause other than defendants’ negligence, the court said. “The fact that an accident has occurred under mysterious or unexplained circumstances provide[s] no basis for applying res ipsa loquitur,” the court noted, which cannot be applied “ ‘where, after proof of the occurrence, without more, the matter still rests on conjecture, or is reasonably attributable to some cause other than negligence.’ “ 889 P.2d at 265-66 (quoting National Union Fire Ins. Co. v. Elliott, 298 P.2d 448, 451 (Okla .1956)).

We think these observations apply with full force to this case on the facts developed. The instrumentality of injury, the hazardous chemical, was not shown to be under control of the defendants, and a jury could reasonably find that the presence of the chemical was attributable to a cause other than negligence on the part of these defendants. Therefore, the district court did not err in granting defendants’ motion for summary judgment on plaintiffs’ res ipsa theory.

V

The judgment of the district court is AFFIRMED.