United States Court of Appeals,Seventh Circuit.

TREIBER & STRAUB, INC., d/b/a Treiber & Straub Jewelers, Plaintiff-Appellant/Cross-Appellee,

v.

UNITED PARCEL SERVICE, INC. and UPS Capital Insurance Agency, Inc., Defendants-Appellees/Cross-Appellants.

 

Argued Feb. 17, 2006.

Decided Jan. 9, 2007.

 

Before FLAUM, KANNE, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Treiber & Straub, Inc. (“Treiber”), a fine-jewelry store in Wisconsin, needed to return a diamond ring to a California jewelry wholesaler. It turned to United Parcel Service, the world’s largest package delivery company and, using the UPS website, it arranged to send the package via “Next Day Air.” As part of the transaction, it purchased $50,000 in insurance, the maximum permitted.

 

The ring was worth more than double that $50,000 limit-a fact that gave rise to Treiber’s problems here after UPS lost the package. Treiber reimbursed the wholesaler for the full loss and then filed this lawsuit against UPS and UPS Capital Insurance Agency, Inc., a wholly owned subsidiary of UPS that administers UPS’s excess value insurance program. (For simplicity, we refer in this opinion to both defendants as UPS.) Treiber wanted to collect the $50,000 for the lost package to which it believed it was entitled. UPS denied liability, pointing to the disclaimer found in its “Terms and Conditions,” its shipping tariff, and its insurance policy. These documents warn (repeatedly) that when customers ship items of “unusual value,” defined as those worth more than $50,000, there is no liability at all.

 

Finding federal jurisdiction proper because the case arose under the rules of federal common law that apply to lost or damaged goods shipped via air freight, the district court granted summary judgment for UPS. The court found that the company’s disclaimers gave reasonable notice and were enforceable; it declined to reach Treiber’s state law breach-of-contract theory, rejecting UPS’s argument that it too arose under federal law because of field preemption. Both UPS and Treiber appealed. We affirm the district court’s grant of summary judgment for UPS on the federal common law claim, and we modify the court’s decision dismissing the state law claims without prejudice to a dismissal with prejudice.

 

 

I

 

Michael J. Straub, the president of Treiber, initiated the shipping of the diamond ring by UPS Next Day Air by going to UPS’s website, www.ups.com. His plan was for the ring to be picked up in Wisconsin and delivered to Norman Silverman Co., the California jewelry wholesaler that owned it. The ring had a value of approximately $105,000. The Terms and Conditions of Service that UPS follows include the following restrictions on service:

(c) No service shall be rendered in the transportation of articles of unusual value (as defined in the UPS Tariff), including, but not limited to:

(i) Any package with an actual value of more than $50,000 (U.S.);

…

UPS will not be liable or responsible for loss or damage to: articles of unusual value [as defined in item 460 of the UPS Tariff].

 

 

Notwithstanding those exclusions, which Straub now claims were not prominent enough and were thus not properly drawn to his attention, he decided to purchase the maximum insurance permitted, $50,000, paying $174.65 for the policy. On the online airbill in the appropriate box, Treiber filled in “Insured Val. ($50,000.00).”

 

UPS picked up the ring on September 15, 2003, but the ring never arrived in California. On September 30, 2003, UPS acknowledged that the package was lost. Treiber submitted a claim for the $50,000 it thought was due to it under the policy, but on October 15, 2003, UPS disclaimed any liability because the ring’s actual value exceeded $50,000 and thus it was an article of “unusual value.” Treiber paid Silverman the ring’s actual value of $105,000 and then in January 2004 filed suit against UPS for $50,000.

 

In order to ship a package using UPS’s website, a shipper must first agree to the items described under the heading “My UPS Terms and Conditions,” which include a separate document called the “Terms and Conditions of Service.” As is common in Internet commerce, one signifies agreement by clicking on a box on the screen. In addition, a first-time shipper must click a second time to agree to these same terms and conditions. (Regular shippers also receive annually a Rate and Service Guide containing, among other things, the Terms and Conditions of Service, but there is no indication in the record that Treiber was a regular shipper.) The Terms and Conditions of Service include the language we quoted earlier, which states that UPS will not ship articles of unusual value (i.e., those valued at more than $50,000), nor will it be liable for or responsible for loss or damage to such articles.

 

UPS’s Tariff, the “exclusive agreement” between UPS and its shippers, is not short. It is available online at www.ups.com, and it offers a table of contents for easy reference. Item 460, titled “Definition of Articles of Unusual Value, Which Are Not Accepted by UPS for Transportation,” repeats that “[s]hippers are prohibited from shipping articles of unusual value via UPS,” and it defines the term “articles of unusual value” to include “[a]ny package having a value of more than $50,000.” Item 535, titled “Limitations of Liability,” also indicates that “UPS will not be liable or responsible for the loss of or damage to any package, the contents of which shippers are prohibited from shipping, which UPS is not authorized to accept, which UPS states that it will not accept, or which UPS has a right to refuse.” It too explicitly includes “articles of unusual value (as defined in Item 460)” as falling within that provision. Finally, Item 537 (if one gets that far) removes any remaining doubt about a shipment like Treiber’s: it says that “UPS’s maximum liability per package shipped domestically … shall not exceed $100 regardless of the amount of Excess Value Insurance purchased by the shipper” and that “excess value insurance does not provide any insurance protection for packages or letters having an actual value of more than $50,000, even if a lesser amount is specified in the insured value field in the UPS shipping system used.” The same item continues, “The excess value insurance policy does not cover or excludes coverage for: articles of unusual value (as defined in Item 460).”

 

Another document, the Excess Value Insurance policy, indicates (twice on the very first page) that it does not cover packages with actual values of more than $50,000. In a bullet point, the policy indicates that “Excess Value Insurance does not provide any protection for packages having an actual value in excess of $50,000 even if a lesser amount is specified in the insured value field” and then refers the reader to the exclusions section. Right below that, the policy contains a section called “What is Covered?” that provides almost word for word the same disclaimer. The warning appears a third time in the Exclusions section. The insurance policy, unlike the airbill generated by using the website or the Terms and Conditions and the Tariff, is not available online.

 

After the parties gave their consent to have a magistrate judge handle the proceedings, see 28 U.S.C. §  636(c), the district court ruled that Treiber “was provided plain and conspicuous notice of UPS’s limitation of liability as it relates to articles of unusual value.” With adequate notice, the limitation was binding; the court therefore granted summary judgment for UPS. In addition, concluding that Treiber’s breach of contract claim arose under state law and was thus within its supplemental jurisdiction, see 28 U.S.C. §  1367, the court relinquished jurisdiction over that claim. Treiber appeals from the district court’s judgment; UPS has cross-appealed, seeking outright dismissal of the breach of contract claim as one that also necessarily arose under federal law.

 

 

II

 

A

 

 

This case is somewhat unusual in that its alleged federal law basis comes from federal common law, something the parties themselves did not initially realize. Because Treiber is seeking only the $50,000 in insurance proceeds that it claims to have purchased validly, it appears that diversity jurisdiction is unavailable. See 28 U.S.C. §  1332 (amount in controversy must exceed $75,000). We therefore must first assure ourselves that federal question jurisdiction is secure. Normally, when one ships a package via UPS and there is a dispute, that dispute belongs in federal court because of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. §  14706. The Carmack Amendment, however, applies to ground carriers and not to air carriers. See Arkwright-Boston Mfrs. Mut. Ins. Co. v. Great Western Airlines, Inc., 767 F.2d 425, 428 (8th Cir.1985); Kemper Ins. Co. v. Federal Exp. Corp., 252 F.3d 509, 514 n. 5 (1st Cir.2001) (collecting cases). Thus, when Straub selected “Next Day Air” shipping, he also took this dispute outside the jurisdiction provided by the Carmack Amendment.

 

In some circumstances, a claim in federal court may arise under federal common law, which is a permissible basis for jurisdiction based on a federal question under 28 U.S.C. §  1331. See Illinois v. City of Milwaukee, 406 U.S. 91, 100, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). A federal common law contractual claim will support jurisdiction so long as it demonstrates on the face of the complaint a “sufficiently proximate federal interest.” Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1318 (7th Cir.1997). In this case, the federal interest is the same as the one that underlies the Carmack Amendment for ground carriers: a need for uniformity in interstate shipping and commerce. See Adams Express Co. v. Croninger, 226 U.S. 491, 506, 33 S.Ct. 148, 57 L.Ed. 314 (1913) (“[I]t is evident that Congress intended to adopt a uniform rule and relieve such contracts from the diverse regulation to which they had been theretofore subject.”). Several of our sister circuits have already concluded that a suit against a common carrier that uses air rather than ground to transport goods arises under federal common law. See First Pennsylvania Bank, N.A. v. Eastern Airlines, Inc., 731 F.2d 1113, 1115-16 (3d Cir.1984); Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 928-29 (5th Cir.1997); Read-Rite Corp. v. Burlington Air Express, Ltd., 186 F.3d 1190, 1195 (9th Cir.1999); Nippon Fire & Marine Ins. Co. Ltd. v. Skyway Freight Systems, Inc., et al., 235 F.3d 53, 59 (2d Cir.2000).

 

In Sam L. Majors, the Fifth Circuit offered an extensive analysis of the history of federal common law liability of common carriers as well as the progression of regulation and deregulation of air carriers. It concluded that cases such as this one, for lost goods against common air carriers, arise under federal law. 117 F.3d at 925-29. We are not aware of any circuit that has held otherwise. We therefore join our colleagues in holding that a claim for lost or damaged goods transported by a common air carrier arises under federal common law and thus falls within the district court’s federal question jurisdiction. This conclusion also means, at a minimum, that the district court would have supplemental jurisdiction over Treiber’s state law contractual claim assuming that it is part of the same constitutional case or controversy, as it appears to be. See 28 U.S.C. §  1367(a). The more important question, as we see below, is whether there really is a separate state contract theory left once federal law has spoken to this matter.

 

 

B

 

On the merits, Treiber contends that the disclaimer of liability for packages of “unusual value” on UPS’s website is not clear and conspicuous, a requirement that it believes federal common law imposes by analogy to the Carmack Amendment. This failure, Treiber reasons, resulted in its lack of notice or actual knowledge that there would be no insurance coverage (rather than coverage limited to $50,000) because the value of the package shipped exceeded $50,000. The “article of unusual value” provisions, it asserts, are “literally buried among all the other extensive terms and conditions on the vast UPS website.” We review the district court’s grant of summary judgment de novo. See Valentine v. City of Chicago, 452 F.3d 670, 677 (7th Cir.2006).

 

An initial question that the parties did not discuss is whether federal common law includes a specific requirement of “clear and conspicuous” notice in these circumstances; a generic requirement of “reasonable” notice would be more in keeping with a common law rule. We find it unnecessary to resolve that issue, as we explain below, but we note that a full analysis for the present case would need to take into account not only the analogy to the Carmack Amendment but also the McCarran-Ferguson Act, 15 U.S.C. § §  1011-12, which addresses the regulation of insurance. Here, the district court (understandably) bypassed those preliminary questions and evaluated the UPS airbill in the terms the parties were discussing. It adopted a test from the Fifth Circuit’s Sam L. Majors case, looking first to the “physical characteristics of the air bill” to determine “whether they provide reasonable notice to the shipper” and then to the “conditions under which the shipment was made.” 117 F.3d at 930. See also Casas v. American Airlines, Inc., 304 F.3d 517, 524 (5th Cir.2002) (“A court first examines whether the contract documents provide reasonable notice to the customer, and then considers whether the conditions under which the shipment was made offered the customer an opportunity to receive notice of the liability limitations.”). In Sam L. Majors, as in this case, a jeweler shipped jewelry that was lost. The shipper used an air bill that had language on the back that excluded liability for the loss of jewelry. The air bill also incorporated by reference a “service guide,” which was readily available and repeated the disclaimer that the air carrier was not liable for the loss of jewelry. 117 F.3d at 930. The Fifth Circuit decided that the prohibition of the shipment of jewelry in the air bill was sufficiently plain and conspicuous and that the shipper was experienced enough to make the limitation of liability enforceable.

 

Our examination of the relevant pages from UPS’s website satisfies us that UPS provided adequate notice that customers were not permitted to ship items of “unusual value” (meaning worth more than $50,000) and that UPS would not be liable, nor would it offer insurance-even limited to $50,000-on the defined high-value items. Although this case differs slightly from Sam L. Majors in that UPS may not have provided one single document that explained everything about the limitation of liability, that distinction does not call for a different result in light of everything else that was available to the shipper. The fact that Straub had to agree not once, but twice, to abide by the Terms and Conditions set forth in order to ship the package, is enough to ensure that Treiber had clear and reasonable notice of the rules. The Terms and Conditions of Service repeat the disclaimer of liability several times and refer pointedly to the pertinent parts of the Tariff, which is also available on the UPS website.

 

UPS does not have the burden of proving that Treiber had actual knowledge of the pertinent restrictions. As the district court observed, “[f] ailure of the plaintiff to read the matter plainly placed before it cannot overcome the presumption that the plaintiff assented to the terms of the carrier.” This is basic contract law: one cannot accept a contract and then renege based on one’s own failure to read it. See also Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir.2004) (“While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract. It is standard contract doctrine that when a benefit is offered subject to stated conditions, and the offeree makes a decision to take the benefit with knowledge of the terms of the offer, the taking constitutes an acceptance of the terms, which accordingly become binding on the offeree.”) (citing Restatement (Second) of Contracts §  69(1)(a) (1981)). It would be different if, for example, Treiber arranged for the shipment in a face-to-face transaction and was never given a copy of or required to agree to abide by the Terms and Conditions of Service. See, e.g., E.J. Rogers, Inc. v. United Parcel Service, Inc., 338 F.Supp.2d 935 (S.D.Ind.2004). While Treiber may not be a regular user of the UPS website, the company is a business customer that knew about the high value of its package-indeed, it is reasonable to assume that most packages it shipped were relatively high in value. Straub should have taken the time to examine the provisions of the Tariff and/or the Terms and Conditions of Service before he sent an item worth more than $100,000 via UPS.

 

[10] Treiber also contends that UPS’s disclaimer of liability violates the federal “released value doctrine,” which grew out of the Supreme Court’s decision in Hart v. Pennsylvania R. Co., 112 U.S. 331, 343, 5 S.Ct. 151, 28 L.Ed. 717 (1884). Under that doctrine, “if a carrier wishes to enforce a limited liability provision, its contract must offer the shipper (1) reasonable notice of limited liability, and (2) a fair opportunity to purchase higher liability.” Read-Rite Corp., 186 F.3d at 1198. We see no problem with UPS’s practices in that respect. UPS initially limits its liability to $100, and then it offers its customers the opportunity to purchase higher liability/insurance up to $50,000. If a shipper wants to send a package with an actual value of more than $50,000, however, UPS will neither accept nor insure the package. This is a business decision that UPS is entitled to take. If it were to do what Treiber wants, and permit all packages with a value greater than $50,000 to be insured at the $50,000 level, it would distort the mix of claims it is insuring, skewing it toward the high-value end, necessitating a significant change in premiums. The risk of theft would also increase for packages with higher declared values.

 

UPS’s policy is only marginally different from the one adopted by Federal Express that was discussed in King Jewelry, Inc. v. Federal Exp. Corp., 316 F.3d 961, 962-63 (9th Cir.2003). FedEx permits shippers to send packages worth up to $50,000, but it limits liability for items of extraordinary value to $500. The Ninth Circuit found that this policy did not violate the released value doctrine. Id. at 966. Nothing in the released value doctrine suggests that a common carrier is obliged to accept every package. According to the Tariff, UPS also rejects, among other things, poorly wrapped packages, human body parts, animals, currency, and negotiable instruments. As a practical matter, if UPS did not refuse to insure such packages, shippers might do what Treiber did here, which was to conceal a violation of UPS’s policy against accepting high-value items by indicating on the air bill the insured value (of $50,000 or less) rather than the actual value. In that way, Treiber effectively breached the shipping contract; UPS’s refusal to accept liability for packages its customers ship deceptively in violation of rules set out in the Terms and Conditions of Service and the Tariff does not violate the “released value doctrine.”

 

 

C

 

[11] After it dismissed Treiber’s federal common law claim against UPS, the district court said that it was declining to exercise supplemental jurisdiction over the state law breach of contract theory. In so doing, it rejected UPS’s argument that this part of the case was preempted by federal law. The court relied on American Airlines v. Wolens, 513 U.S. 219, 222, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), in which the Supreme Court held that the Airline Deregulation Act of 1978(ADA), 49 U.S.C.App. §  1305(a)(1), did not preempt regular breach of contract claims against airlines. While our case, of course, does not arise under statute but under the federal common law, the principle seems equally appropriate. There is no reason to assume that federal common law preempts an even wider swath of cases than the ADA, which overrides any state law that relates to rates, routes, or services. This is a broad standard that leaves to state law only breach of contract claims. See id. at 232 (“Nor is it plausible that Congress meant to channel into federal courts the business of resolving, pursuant to judicially fashioned federal common law, the range of contract claims relating to airline rates, routes, or services. The ADA contains no hint of such a role for the federal courts.”).

 

The problem is that this case is only nominally about a shipper seeking to enforce a contract that it contends UPS breached. In reality, Treiber wants to use state law to avoid the part of the contract that limits the carrier’s liability. Its claim is therefore not for the conventional breach of contract contemplated in Wolens. Treiber cannot prevail unless we were to require “enlargement or enhancement [of the contract] based on state laws or policies external to the agreement.” 513 U.S. at 233. See King Jewelry, 316 F.3d at 965 (“[W]e hold that the district court appropriately refused to allow King Jewelry to use California law to modify the liability provision.”). Because it would compel a certain kind of service, this would, in effect, be a rule “ ‘having the force and effect of law relating to rates, routes, or services of any air carrier….’ 49 U.S.C.App. §  1305(a)(1).” Wolens, 513 U.S. at 222-23. Rules of this type are explicitly preempted by the ADA and, we hold, are equally preempted by the analogous federal common law for air bills. The fact that one part of the contract deals with insurance does not alter our conclusion. UPS’s insurance contract and its shipping contract are so intertwined that to permit state contract law to affect one is to allow it to affect the other. The shipping contract between a common carrier of packages by air and the shipper, while enforceable in state court, cannot be rewritten by state law. Since that is what Treiber seeks to do, we must find that the state law breach of contract theory in this case is preempted.

 

 

III

 

For these reasons, we AFFIRM the judgment of the district court in favor of UPS on the federal common law claim. We MODIFY the court’s decision insofar as it dismisses the state law claim without prejudice. Because this theory is preempted by federal law, the judgment dismissing this claim must be changed to one with prejudice. UPS is entitled to recover its costs on appeal.

Fike v. Peace

Ala.,2007.

NOT YET RELEASED FOR PUBLICATION.

Supreme Court of Alabama.

Steven Allan FIKE et al.

v.

John Earl PEACE et al.

1051391.

 

Jan. 12, 2007.

 

Certified Questions from the United States District Court for the Northern District of Alabama, Middle Division (CV-03-PT-2783-M).

STUART, Justice.

The United States District Court for the Northern District of Alabama, Middle Division, certified to this Court the following questions pursuant to Rule 18, Ala. R.App. P.:

“1. Under Alabama law, does the mere contracting for the hauling of an oversize load make the shipper vicariously liable for the negligence of the independent contractor trucking company?

“2. If there is some general liability for negligence of an independent contractor merely because of the oversize load, does the liability of the shipper extend to causes unrelated to the oversize load per se, such as improper brakes or driving?”

 

We answer the first question in the negative. Because of our resolution of the first question, we need not address the second question.

 

 

Facts

 

This Court has no record from which to determine its own statement of the facts presented by the certified questions; we rely on the following statement of the facts as provided by the federal district court:

“On July 14, 2003, Steven Allan Fike (‘Fike’), Billie Nadine Bigham (‘Bigham’), Andrea Raiford Doxtator (‘Doxtator’), April Gowen (‘Gowen’)-Doxtator’s minor daughter-and two other minor children of Doxtator, not party to this suit, were driving in a 1997 Ford pickup truck on Alabama State Highway 35 in Cherokee County, Alabama. As traffic began backing up because of a slow vehicle, Fike, the driver of the truck, pulled into the left hand lane to pass. A tractor-trailer being driven by John Earl Peace (‘Peace’) pulled into the left lane at about the same time, behind the truck being driven by Fike. The brakes on the tractor-trailer failed to function properly, and the tractor-trailer began to pick up speed. Noticing that the tractor-trailer appeared to be out of control, Fike pulled his truck as far left off of the road as he could. Peace, not wanting to run his tractor-trailer off the road, attempted to squeeze through the gap made by Fike on the far left and the lane of slowed traffic on the right. The tractor-trailer’s load was oversized, and Peace was unable to navigate the gap. The load struck Fike’s truck on the right side, instantly killing Bigham, and injuring Gowen, Doxtator, and Fike, as well as destroying the pickup truck.

“Defendant General Shale Products, LLC (‘General Shale’) is in the business of manufacturing brick. In the summer of 2003, General Shale hired Defendant DG Trucking [and Equipment Sales, Inc.,] to haul equipment from the General Shale plant in Kentucky to its new plant in Georgia. The cargo in question was large steel kiln cars used in the manufacture of brick. Due to the size of the kiln cars, they are considered to be an oversized load. General Shale, though a licensed motor carrier, generally does not haul oversized loads; DG Trucking is a licensed motor carrier that specializes in hauling such loads. General Shale has had a fifteen-year relationship with DG Trucking, using them to haul oversize loads when necessary. There is no evidence that General Shale has ever had any problems with DG Trucking and its methods, safety history, or observation of legal requirements for a commercial motor carrier. At the time of the Fike accident, Peace was driving a DG Trucking tractor-trailer loaded with General Shale’s kiln cars. After the accident, an inspection of the tractor-trailer by the Alabama State Troopers revealed several violations of the federal safety regulations applicable to motor carriers, including brakes that were out of adjustment.

“On August 28, 2003, Fike, Bigham, Doxtator, and Doxtator as next friend of Gowen, filed suit against Peace, DG Trucking, and General Shale in the Circuit Court of DeKalb County, Alabama. In Count I of the complaint, titled ‘Negligence or Willful and Wanton Misconduct,’ the plaintiffs allege that Peace negligently, or willfully and wantonly, operated a tractor-trailer that was overloaded, without the required escort of a pilot vehicle, and attempted to navigate down the middle of the road, instead of risking injury to himself by pulling his own truck off the road. The plaintiffs further allege that DG Trucking negligently, or willfully and wantonly, entrusted the tractor-trailer into the hands of Peace in a defective and substandard condition -not having been properly inspected and maintained. The plaintiffs also allege that both DG Trucking and General Shale were negligent or willful and wanton when they contracted with each other to haul the oversized load, that DG Trucking was negligent or willful and wanton in allowing Peace to drive an overloaded tractor-trailer, and that General Shale breached its duty to operate in a safe manner when it ‘accepted without objection’ goods that had been unsafely transported by DG Trucking.

“In Count II of the Complaint, titled ‘Wrongful Death,’ the plaintiffs allege that the defendants’ behavior resulted in the death of Billie Nadine Bigham. Fike, as administrator of the estate of Bigham, his mother, claims to bring the action pursuant to Alabama Code §  6-5-410 (1975). The plaintiffs demand money damages in an amount to be determined by a jury. On October 9, 2003, the defendants removed this action to the Northern District of Alabama, Middle Division, based on diversity jurisdiction as outlined in 28 U .S.C. §  1332.”

 

 

 

Relevant Caselaw

 

Although this Court has not had an occasion to address the precise question presented by the first certified question, we have, in previous cases, concluded that an entity or person may be liable for the negligence of an independent contractor under limited circumstances. In Boroughs v. Joiner, 337 So.2d 340 (Ala.1976), this Court stated:

“The general rule in this state, and in most others, is that:

“ ‘… one is not ordinarily responsible for the negligent acts of his independent contractor. But this rule, as most others, has important exceptions. One is that a person is responsible for the manner of the performance of his nondelegable duties, though done by an independent contractor, and therefore, that one who by his contract or by law is due certain obligations to another cannot divest himself of liability for a negligent performance by reason of the employment of such contractor.  [Citations Omitted].’

“….

“It is also generally recognized that one who employs a contractor to carry on an inherently or intrinsically dangerous activity cannot thereby insulate himself from liability.”

 

337 So.2d at 342.

 

This general rule was applied by this Court in General Finance Corp. v. Smith, 505 So.2d 1045 (Ala.1987), which held a secured party vicariously liable for a breach of the peace by its independent contractor, which resulted when the independent contractor attempted to repossess the collateral used to secure the debt. This Court recognized that §  7-9-503, Ala.Code 1975 (now repealed), allowed a secured party to avoid judicial process by repossessing its collateral, but only if that repossession could be done without a breach of the peace. The Court concluded that, even if the secured party relied on an independent contractor to repossess the collateral, the secured party could not disclaim liability for any breach of the peace resulting from that attempted repossession. The Court in General Finance Corporation stated:

“The legislature, in enacting §  7-9-503, supra, did not attempt to set out with specificity the safeguards or precautions which a secured party must take in order to effect a peaceful repossession. By implication, however, a secured party is under a duty to take those precautions which are necessary at the time to avoid a breach of the peace. It is axiomatic that this duty is based on sound public policy.

“Assuming, without deciding, that the status of H & B Recoveries as an independent contractor was undisputed by the evidence, the defendant could not delegate to H & B Recoveries its liability for the wrongful manner in which the repossession was accomplished.”

 

505 So.2d at 1048. In reaching its conclusion, the Court in General Finance Corporation relied on, among other things, the Restatement (Second) of Torts §  424 (1965), which provides:“ ‘One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards.’ “

 

505 So.2d at 1048.

 

In Jones v. Power Cleaning Contractors, 551 So.2d 996 (Ala.1989), this Court recognized that the use of a highly caustic paint remover was an inherently dangerous activity and that the general contractor could not disclaim liability for its subcontractor’s negligence in the use of the remover. In Jones, the University of North Alabama (“UNA”) contracted with Sequoia Construction Company, a general contractor, to refinish one of its buildings. In order to perform the job it had contracted to do, Sequoia had to remove the old paint from the building. Sequoia subcontracted the entire project to another contractor, who, in turn, subcontracted the entire job to Quality Waterproofing, another contractor.

 

As Quality proceeded to remove the paint, one of Quality’s employees was injured when “PC X-25”-the highly caustic paint remover Quality selected to use for the project-splashed in his eye. The worker was blinded in that eye as a result. The injured worker sued Sequoia, Quality, and the supplier of the paint remover.

 

In analyzing whether the worker had a viable claim against Sequoia, this Court reviewed the law of negligence, stating that “[a]s a general rule, a contractor must accept responsibility for the negligent acts of his independent contractor if the independent contractor is engaging in inherently or intrinsically dangerous acts .” 551 So.2d at 998. The Jones Court noted that all parties had admitted that the chemical selected for use by Quality was extremely dangerous; as a result, the Court concluded that “[t]here is no doubt that the application of PC X-25 would fall within the ambit of” an intrinsically dangerous act. 551 So.2d at 999. The Court also observed that the contract between UNA and Sequoia specified that Sequoia would be responsible for the “acts and omissions of subcontractors” and that Sequoia would “take all necessary precautions” to provide a safe workplace for the workers. 551 So.2d at 999. For these reasons, the Court in Jones concluded that Sequoia, the general contractor, was liable for the negligence of Quality, the subcontractor.

 

In Boroughs v. Joiner, supra, this Court recognized that the use of pesticides and insecticides was an inherently dangerous activity. In reaching this conclusion, the Court noted:

“The Legislature of Alabama has recognized that insecticides and pesticides are intrinsically dangerous and has adopted statutes regulating the sale, distribution and application of those products in this state. The legislature stated its purpose in enacting the Alabama Pesticide Act of 1971 (Title 2, §  337(9a), et seq.). §  337(12a) is as follows:

“ ‘The purpose of this article is to regulate, in the public interest, the application of pesticides…. [S]uch materials when misused may seriously injure health, property, crops, wildlife, bees, and fish. Pesticides may also injure man and animals, either by direct poisoning or by gradual accumulation of poisons in the tissues…. A pesticide applied by aircraft or ground equipment for the purpose of controlling diseases, insects or weeds in a crop which is not itself injured by the pesticide may drift, sometimes for miles, and injure or contaminate other crops and other things with which it comes in contact. Therefore, it is deemed necessary and in the public interest to provide some means of regulating the application of pesticides.’

“Under the statutory scheme adopted by the legislature, such products must be registered with the Department of Agriculture and Industries. Each must bear a label describing the degree of toxicity, and each must bear warnings of the dangers inherent in the use thereof. One must have a permit to purchase such products. Aviators must be licensed to engage in crop dusting or spraying and must pass an examination satisfactory to the Commissioner of Agriculture demonstrating knowledge of the dangers involved in the application thereof.

“We hold that aerial application of insecticides and pesticides falls into the intrinsically or inherently dangerous category and, therefore, the landowner cannot insulate himself from liability simply because he has caused the application of the product to be made on his land by an independent contractor.

“….

“The test of liability on the part of the landowner is one of reasonableness. Liability is not absolute but is imposed on the landowner for his failure to exercise due care in a situation in which the work being performed is sufficiently dangerous that the landowner himself has a duty to third persons who may sustain injury or damage from the work unless proper precautions are taken in the performance thereof.”

 

337 So.2d at 343. For these reasons, the Court held that a landowner who contracted for the spraying of pesticides or insecticides was subject to liability if the contractor failed to use proper precautions in connection with the spraying.

 

Conversely, this Court has applied these general rules in other contexts to find the employer not vicariously liable for the negligence of an independent contractor. For example, in Stovall v. Universal Construction Co., 893 So.2d 1090 (Ala.2004), this Court recognized that the painting of the interior of a “rocket replica” at night was not an inherently dangerous activity when the issue before the Court was whether the general contractor should be held liable for the injuries sustained by an employee of the subcontractor who died after falling off a ladder. The Court stated:

“[A] general contractor is liable for injuries to a third person where the work is ‘ “of such kind or class that the doing of it, however carefully or skillfully performed, will probably result in damage, or is necessarily and intrinsically dangerous.” ‘ …

“We explained the concept of ‘intrinsically dangerous’ work in Boroughs v. Joiner, 337 So.2d 340 (Ala.1976). The risk posed by such an activity ‘ “inheres in the performance of the contract and results directly from the work to be done, not from the collateral negligence of the contractor.” ‘ Boroughs, 337 So.2d at 342 (quoting 41 Am.Jur.2d Independent Contractors §  41) (emphasis added). Such work involves a ‘ “special danger” ‘ that is ‘ “inherent in or normal to the work.” ‘ Boroughs, 337 So.2d at 342 (quoting Restatement (Second) of Torts §  427 (1965)). Intrinsically dangerous is work fraught with danger, ‘no matter how skillfully or carefully it is performed.’ 41 Am.Jur.2d Independent Contractors §  54.

“….

“We cannot say that any work done by [the employee] on the night of his death constituted ‘intrinsically dangerous’ work. First, common sense dictates that painting from a ladder is simply not dangerous work, so long as the most rudimentary care is taken. Thus, this is not the sort of work where there is some risk of injury even when the worker exercises the utmost care and attention.”

 

893 So.2d at 1099.

 

In Pope v. City of Talladega, 602 So.2d 890 (Ala.1992), the City of Talladega hired an independent contractor to perform construction work; this construction work required the contractor to excavate certain sites. Under his contract with the City, the independent contractor was liable for all “conditions of the job site, including safety of all persons and property….” The independent contractor hired another contractor to assist him. This subcontractor was killed when the wall of an excavation sight caved in.

 

The decedent’s widow sued, among others, the City of Talladega, claiming that the excavation work was inherently dangerous and that the City was therefore vicariously liable. However, the Court rejected that argument, holding that the cave-in would not have happened if the contractors had shored or sloped the walls as required by OSHA regulations. Because the danger could have been avoided by the use of reasonable care, the Court refused to find the excavation work at issue in Pope to be inherently dangerous. Pope, 602 So.2d at 893.

 

In Williams v. Tennessee River Pulp & Paper Co., 442 So.2d 20 (Ala.1983), this Court concluded that a logging company that had hired an independent contractor to haul logs could not be held liable for damage proximately caused by the contractor’s failure to properly maintain his truck. The Court noted that an accident involving the log truck and a vehicle was caused when a hub and a wheel of the truck fell off as a result of improper maintenance and repairs. The Court specifically noted that the accident was not caused by the manner in which the logs had been loaded onto the trailer portion of the truck.

 

After considering other theories of liability, the Court addressed the plaintiff’s claim that the hauling of logs presented a “peculiar risk of physical harm” and, therefore, that the general contractor could be held liable for damages caused by the subcontractor’s negligence in performing that act. In support of this argument, the plaintiff relied upon the Restatement (Second) of Torts §  416 (1965).

 

The Court in Williams v. Tennessee River Pulp & Paper Company rejected this theory, stating:

“No Alabama case has formally adopted §  416 and we do not need to reach the issue in this case.[] Rather, we hold, as a matter of law, that the faulty maintenance of wheels and the hauling of pulp timber do not constitute a peculiar risk of physical harm which requires special precautions. Comment d. of §  416 illustrates our view:

“ ‘[I]f a contractor is employed to transport the employer’s goods by truck over the public highway, the employer is not liable for the contractor’s failure to inspect the brakes on his truck, or for his driving in excess of the speed limit, because the risk is in no way a peculiar one, and only an ordinary precaution is called for .’

“Tennessee Paper [the logging company] may be responsible for special precautions to anchor a load of giant trees which constitute a peculiar risk, but it is not responsible for the independent contractor’s compliance with simple maintenance procedures and load factors…. Hence, appellants cannot impose liability under §  416 upon Tennessee Paper under the facts in this case.

“We hold that the trial court correctly granted summary judgment [to Tennessee Paper] on the grounds of Mauldin’s independent contractor status and liability under Restatement (Second) of Torts §  416 (1965).”

 

442 So.2d at 23 (footnote omitted).

 

 

Analysis of the Instant Case

 

We must determine whether General Shale Products, LLC, is subject to liability for the damage caused to the third parties as a result of DG Trucking’s negligence to properly maintain its truck. Applying the principles stated above to the facts presented in these certified questions, in order to find General Shale subject to liability for DG Trucking’s negligence, we must find (1) that General Shale owed a nondelegable duty to those third parties injured as a result of DG Trucking’s negligence; or (2) that General Shale caused DG Trucking to engage in an inherently dangerous activity.

 

We first consider the nondelegable-duty theory. We note that the legislature has enacted statutory limits applicable to the hauling of an oversized load by motor carrier. Chapter 9 of Title 32 of the Alabama Code 1975 addresses “Trucks, Trailers and Semi-Trailers.” Specifically, §  32-9-20, Ala.Code 1975, provides, in pertinent part:

“It shall be unlawful for any person to drive or move on any highway in this state any vehicle or vehicles of a size or weight except in accordance with the following:

“(1) Width. Vehicles and combinations of vehicles, operating on highways with traffic lanes 12 feet or more in width, shall not exceed a total outside width, including any load thereon, of 102 inches, exclusive of mirrors or other safety devices approved by the State Transportation Department. The Director of the State Transportation Department may, in his or her discretion, designate other public highways for use by vehicles and loads with total outside widths not exceeding 102 inches, otherwise; vehicles and combinations of vehicles, operating on highways with traffic lanes less than 12 feet in width, shall not exceed a total outside width, including any load thereon, of 96 inches, exclusive of mirrors or other safety devices approved by the State Transportation Department. No passenger vehicle shall carry any load extending beyond the line of the fenders. No vehicle hauling forest products or culvert pipe on any highway in this state shall have a load exceeding 102 inches in width.”

 

 

Section 32-9-29, Alabama Code 1975, is also applicable to this case; that section reads as follows:

“(1) The Director of the Department of Transportation or the official of the department designated by the director may, in his discretion, upon application and for good cause being shown therefor, issue a permit in writing authorizing the applicant to operate or move upon the state’s public roads a vehicle or combination of no more than two vehicles, and loads whose weight, width, length or height, or combination thereof, exceeds the maximum limit specified by law; provided, that the load transported by such vehicle or vehicles is of such nature that it is a unit which cannot be readily dismantled or separated; provided however, that bulldozers and similar construction equipment shall not be deemed readily separable for purposes of this chapter; and further provided, that no permit shall be issued to any vehicle whose operation upon the public roads of this state threatens to unduly damage a road or any appurtenances thereto.”

 

Finally, the penalties imposed for violation of Chapter 9 are set forth in §  32-9-5, Ala.Code 1975. That section provides:“The operation of any truck, semitrailer truck or trailer in violation of any section of this chapter or of the terms of any permit issued under this chapter, shall constitute a misdemeanor, and the owner thereof, if such violation was with his knowledge or consent, and the operator thereof shall, on conviction, be fined not less than $100.00 nor more than $500.00 and may also be imprisoned or sentenced to hard labor for the county for not less than 30 days nor more than 60 days.”

 

(Emphasis added.)

 

In Heathcock v. State, 415 So.2d 1198 (Ala.Crim.App.1982), the Court of Criminal Appeals discussed the purposes underlying these statutes:

“We have no doubt that one intention of the Legislature in enacting the law as now found in Code of Alabama 1975, §  32-9-20, a lengthy section governing the size and weight of trucks, trailers, and semi-trailers traveling on highways of Alabama, was, as appellant says, ‘to prevent injury to the roads,’ but we do not agree with appellant that this was the only intention of the Legislature:

“ ‘The obvious purposes for enacting truck weight laws is for the safety of the public, and keeping highways in good condition for the traveling public. Travel upon the highways must be as safe as it can reasonably be made consistent with their efficient use. Any overloaded truck creates a safety hazard upon the public highway as well as contributing to a bad state of repair.’ “

 

415 So.2d at 1203, quoting State Dep’t of Public Safety v. Scotch Lumber Co., 293 Ala. 330, 302 So.2d 844, 846 (1974). See also Leonard v. State, 38 Ala.App. 138, 142, 79 So.2d 803, 807 (Ala.1955) (“ ‘The purpose of statutes prohibiting the use of public highways by motor vehicles of excessive weight is to prevent injury to the public property in the form of damage to roads, bridges, etc., and further to insure the safety of persons traveling such highways.’ ”)

 

Thus, as did the legislature in Boroughs v. Joiner and General Finance Corp. v. Smith, supra, the legislature found it appropriate to regulate the activity at issue in this case: the transport of oversized loads by motor carrier. However, the express language of the statutes does not impose any duty upon the shipper of that oversized load. The relevant statutes impose a duty of compliance upon the operator of the truck, semitrailer truck, or trailer, and possibly upon the owner of such truck or trailer. See §  32-9-5, §  32-9-20, and §  32-9-29, Ala.Code 1975. Thus, we conclude that General Shale was not subject to a nondelegable duty as a result of Chapter 9 of Title 32 of the Alabama Code 1975. Because we find no other duties imposed upon General Shale by statute, caselaw, or common law that are relevant to the issues before us, we must conclude that General Shale is not subject to liability for the negligence of its independent contractor on the basis of a nondelegable duty.

 

We next consider whether this case involves an inherently dangerous activity, thereby imposing liability upon General Shale for the negligence of DG Trucking in the performance of that inherently dangerous activity. An “intrinsic danger” or “inherent danger” in an undertaking “ ‘is one which inheres in the performance of the contract and results directly from the work to be done, not from the collateral negligence of the contractor, and important factors to be understood and considered are the contemplated conditions under which the work is to be done and the known circumstances attending it.’ “ Boroughs v. Joiner, 337 So.2d at 342 (quoting 41 Am.Jur.2d, Independent Contractors §  41).

 

When considering the other activities previously recognized in this State as inherently dangerous-the aerial spraying of pesticides and insecticides, the use of a highly caustic chemical, and the use of dynamite as an explosive-we must conclude that the shipping of an oversized load does not rise to the same level. We agree with the statement in the brief submitted by the amicus curiae in support of Peace: “There is nothing to suggest that if the proper precautions are in fact taken in regard to [the shipping of an oversized load], that this activity is hopelessly fraught with danger, no matter how skillfully or carefully it is performed.” (Brief of amicus curiae Alabama Defense Lawyers Association at p. 9 .)

 

We find the analysis and reasoning of Inland Steel v. Pequignot, 608 N.E.2d 1378 (Ind.Ct.App.1993), particularly on point. In that case, Inland Steel contracted with a motor carrier to ship a 48,000-pound coil of steel from Illinois to Ohio. While hauling the steel coil, the motor carrier’s driver ran a red light and collided with Pequignot, who was on a motorcycle. Pequignot was seriously injured. Pequignot sued Inland Steel, asserting, among other theories, that because of the size and weight involved, the hauling of the steel coil was an inherently dangerous activity for which Inland Steel was vicariously liable.

 

In analyzing the liability issue, the Indiana Court of Appeals stated:

“Although the parties use the terms ‘inherently dangerous or intrinsically dangerous’ interchangeably, it is apparent to us they are alluding to what the First Restatement of Torts §  519 (1938) referred to as ‘ultra-hazardous’ activity and which the Restatement (Second) § §  519 & 520 (1977), calls ‘abnormally dangerous’ activity to impose strict liability…. This doctrine, which evolved from Rylands v. Fletcher (1868), L.R. 2 H.L. 330, provides:

“ ‘(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

“ ‘(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.’

“Restatement (Second) §  519.

“Section 520 of the Second Restatement provides:

“ ‘In determining whether an activity is abnormally dangerous, the following factors are to be considered:

“ ‘(a) Existence of a high degree of risk of some harm to the person, land or chattels of another;

“ ‘(b) Likelihood that the harm that results from it will be great;

“ ‘(c) Inability to eliminate the risk by the exercise of reasonable care;

“ ‘(d) Extent to which the activity is not a matter of common usage;

“ ‘(e) Inappropriateness of the activity to the place where it is carried on;

“ ‘(f) Extent to which its value to the community is outweighed by its dangerous attributes.’

“Restatement (Second) §  520. ‘The general principle derived from Rylands is that where a person chooses to use an abnormally dangerous instrumentality, that person is strictly liable without a showing of negligence for any injury proximately caused by that instrumentality.’ 57A Am.Jur.2d Negligence §  396 (1989).

“….

“We find that §  520(c) as well as our reasoning in Erbich Products [Co. v. Wills, 509 N.E.2d 850 (Ind.Ct.App.1987),] is dispositive of this question. Hauling steel, or any other heavy load, is not ‘inherently dangerous,’ ‘intrinsically dangerous,’ ‘ultra-hazardous’ or ‘abnormally dangerous’ as these terms are used in strict liability. It is readily apparent that if the driver of the truck, Hinds, had used reasonable care, this tragic accident would not have happened. It is undisputed that Hinds ran a red light at 40 [miles per hour.] It is also clear to us that the coil of steel was not the proximate cause of Pequignot’s injuries. While riding a motorcycle, he hit a tractor-trailer carrying 48,000 pounds of steel and traveling at 40 mph. He hit the trailer-the coil of steel did not fall off the trailer and hit him. It would make no difference if the tractor-trailer was carrying 48,000 pounds of steel or sand or even wood chips. When a motorcycle strikes or is struck by a tractor-trailer running a red light, especially one traveling at 40 mph, the motorcyclist is going to come out the loser-if at all.”

 

608 N.E.2d at 1384-85. For these reasons, the Indiana Court of Appeals held that Inland Steel was entitled to a summary judgment on Pequignot’s claims of liability.

 

Like the accident in Inland Steel, supra, the accident in this case was not caused by the oversized load but by the “collateral negligence” of the owner and/or operator of the tractor-trailer. See Boroughs v. Joiner, 337 So.2d at 342 (quoting 41 Am.Jur.2d, Independent Contractors §  41); see Inland Steel, 608 N.E.2d at 1385 (referring to the independent contractor’s failure to use reasonable care). It is undisputed that the brakes on Peace’s truck failed and that an inspection of Peace’s truck after the accident revealed numerous violations of the applicable Federal Department of Transportation regulations, including a failure to properly adjust the brakes. The fact that Peace was hauling an oversized load played no role in the accident, and there is no evidence to indicate that this accident would have occurred if Peace or DG Trucking had maintained the brakes on the tractor-trailer, as they had a duty to do. Thus, the hauling of this heavy load does not meet the definition of an “inherently dangerous” activity because the major risk of harm from the oversized load could have been alleviated if Peace and DG Trucking had used reasonable care.

 

 

Conclusion

 

Under the facts as presented to us by the district court, we conclude that General Shale did not owe a nondelegable duty to the third parties injured as a result of DG Trucking’s negligence. We also observe that the hauling of the kiln cars did not constitute an inherently dangerous activity. Therefore, we find no basis upon which to impose vicarious liability upon General Shale for the alleged negligence of DG Trucking. For these reasons, we answer the first certified question in the negative. Because of our resolution of the first certified question, we need not address the second certified question; we therefore decline to answer the second question.

 

QUESTION NO. 1 ANSWERED; QUESTION NO. 2 DECLINED.

 

NABERS, C.J., and WOODALL, BOLIN, and PARKER, JJ., concur.

SEE, LYONS, HARWOOD, and SMITH, JJ., concur specially.HARWOOD, Justice (concurring specially).

I concur specially. Rule 18(d), Ala. R.App. P. specifies that when a federal court certifies a question of law to this Court, the certification should contain “a statement of facts showing the nature of the cause and the circumstances out of which the questions or propositions of law arise and the question of law to be answered.” The main opinion points out that this Court has no record from which it can determine the underlying facts and necessarily must rely on the statement of facts as provided by the federal district court. The main opinion sets those facts out completely, and it is to be noted that the facts contain no reference whatsoever to the width of the oversized load of steel kiln cars being carried on the tractor trailer. The particulars of the load, so far as its size is concerned, do not form a part of the certified questions. Rather, the district court phrases its two questions entirely in the abstract, and asks in the first one only about the legal implications of “the mere contracting for the hauling of an oversize load.” The main opinion properly responds to this generic, generalized question, expressly stating that the conclusion reached is premised “[u]nder the facts as presented to us.”  — So.2d at —-. I agree that under the facts as provided by the district court, “the hauling of the kiln cars did not constitute an inherently dangerous activity.” — So.2d at —-.

 

However, the parties volunteer additional facts in their briefs, and they agree that the width of the kiln cars as loaded on the tractor trailer was 17 feet 8 inches, or 212 inches, and that the two-lane road on which the collision occurred was not more than 24 feet wide. Further, they agree that General Shale Products, LLC, loaded the kiln cars onto the tractor-trailer using its own crane, so that it was aware of the configuration of the load, including its width, when the tractor-trailer left its premises carrying the load. If the district court had included these facts in its certification, thus particularizing the situation, I would be inclined to answer the question thus shaped in a somewhat different fashion.

 

SEE, LYONS, and SMITH, JJ., concur.

 

In its brief filed with this Court, General Shale Products, LLC, indicates that the district court entered a summary judgment in favor of General Shale as to all claims asserted directly against it. (See General Shale’s brief at p. 19.) Although the district court’s recitation of the facts does not expressly include this statement, the court’s statement of the facts does intimate that General Shale is subject to liability only if it may be held liable for DG Trucking’s negligence, if any. We will not address the question of General Shale’s liability based on alleged negligent selection of DG Trucking.

 

Section 7-9-503, Ala.Code 1975, which has since been repealed, stated, in pertinent part: “Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.” The Court in General Finance Corporation defined “breach of the peace” to mean “without risk of injury to the secured party, the debtor, or innocent bystanders.” See 505 So.2d at 1048.

 

Additionally, this Court has held that the use of dynamite as an explosive is an inherently dangerous activity. See Bankers Fire & Marine Ins. Co. v. Bukacek, 271 Ala. 182, 123 So.2d 157 (1960). The opinion in Bankers Fire addressed insurance-coverage issues in the context of a constable who used dynamite to destroy an illegal still and thereby damaged the house in which the still was located. Because of the issues presented in Bankers Fire, the analysis and reasoning used by the Court in that opinion are not relevant here, and no further discussion of that case is necessary.

 

The Restatement (Second) of Torts §  416 provides:

“One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.”

 

The Court in Williams v. Tennessee River Pulp & Paper Co., indicated in a footnote that “[e]ven though we have not embraced §  416, we have adopted its general principles in an earlier case.” See 442 So.2d at 23 n. 2 (citing and quoting from Thomas v. Saulsbury & Co., 212 Ala. 245, 246-47, 102 So. 115, 116 (1924)).

 

In the facts provided to this Court by the federal district court, the district court observed that “[t]he brakes on the [DG Trucking] tractor-trailer failed to function properly, and the tractor-trailer began to pick up speed…. After the accident, the inspection of the tractor-trailer by the Alabama State Troopers revealed several violations of the federal safety regulations applicable to motor carriers, including brakes that were out of adjustment.” Certification of question of law, pp. at 2-3.

 

We recognize that the duty to exercise due care was applicable to General Shale under the common law. However, the facts as stated by the district court indicate that General Shale complied with that duty. We also interpret the questions certified to us to require the presumption that General Shale has not acted in a negligent manner.