United States District Court, C.D. Illinois.

James WALTERS, Plaintiff,

v.

DHL EXPRESS, Defendant.

 

DHL Express (USA), Inc.

 

 

April 21, 2006.

May 12, 2006.

 

 

ORDER

 

JOE BILLY McDADE, District Judge.

 

Before the Court is Magistrate Judge Cudmore’s Report and Recommendation [Doc. # 9], which addresses Defendant’s Motion to Dismiss [Doc. # 4]. The parties have not filed any objections within the ten (10) days allotted by 28 U.S.C. §  636(b)(1). Failure to object constitutes a waiver of any objections. See Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.1999); Video Views Inc. v. Studio 21 Ltd., 797 F.2d 538 (7th Cir.1986). Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge.

 

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss [Doc. # 4] is GRANTED IN PART and DENIED IN PART. Defendant’s motion is denied as to Count I of the Complaint, but is granted to the extent it seeks dismissal of Plaintiff’s claim for damages for an increased risk of future identity theft in Count II.

 

BYRON G. CUDMORE, U.S. Magistrate Judge:

 

REPORT AND RECOMMENDATION

This case is before the Court for a Report and Recommendation on Defendant’s Motion to Dismiss (d/e 4) pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons below, the Court recommends the motion be granted in part and denied in part.

 

Plaintiff’s counsel must be more attentive to deadlines and meeting same hereinafter.

 

STANDARD OF REVIEW

When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court takes the allegations in the complaint as true, viewing all facts, as well as any inferences reasonably drawn therefrom, in the light most favorable to the plaintiff. Patel v. City of Chicago, 383 F.3d 569, 572 (7th Cir.2004). ” ‘A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ ” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002), quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

 

BACKGROUND

The allegations from the Complaint are set forth as true for purposes of this order only.

 

The Complaint is docketed with the Notice of Removal at # 3, attachment 1.

 

Defendant contracted orally with Plaintiff to move five boxes of Plaintiff’s property from South Carolina to Pekin, Illinois, “in exchange for the usual rate of payment, determined by weight.” (Complaint, ¶  2). When Defendant’s driver arrived to pick up the boxes, Plaintiff at first refused because the driver would not permit Plaintiff to sufficiently insure the boxes. Plaintiff then spoke to another of agent of Defendant and “arranged to have the boxes properly insured for $2,000.00 each.” Id. at ¶  4. Plaintiff’s mother authorized the shipping and insurance charges to be placed on her credit card. Defendant then picked up the boxes for delivery. Defendant did not provide Plaintiff with a written contract.

 

The five boxes “arrived in Pekin, Illinois, in battered condition, with papers and files blowing down the street.” (Complaint, ¶  6). Many items were missing. The Complaint values the cost of the replaceable items at $7,821.50, and the cost of repair to damaged property at $2,000.00. Id. at ¶ ¶  7, 9. Also missing was a copy of Plaintiff’s birth certificate, his GED certificate, ten years of his tax returns, and some rare and irreplaceable CDs. Id., ¶ ¶  6-7. Plaintiff filed a claim with Defendant, but Defendant did not respond to the claim or to repeated attempts at communication by Plaintiff’s attorney. Defendant has, depending on which agent is speaking, either denied the boxes were insured at all, or maintained that the boxes were insufficiently insured.

 

On June 21, 2005, Plaintiff filed his Complaint in the Circuit Court of Tazewell County. Defendant was served on August 1, 2005, and filed its Notice of Removal on September 1, 2005 (d/e 3). Defendant then filed a motion to strike and dismiss the Complaint under Fed.R.Civ.P. 12(b)(6).

 

ANALYSIS

I. The Carmack Amendment

 

Count One claims a violation of the Carmack Amendment, 49 U.S.C. §  14706 et seq, and seeks damages for the value of the goods lost, stolen or damaged, and for attorneys fees. (Complaint, ¶ ¶  13-16).

 

Defendant argues that the Carmack Amendment applies only to rail carriers, citing 49 U.S.C. §  11706, which discusses the liability of rail carriers.

 

Defendant’s argument is, at best, mistaken. The “Carmack Amendment” refers collectively to federal statutory provisions governing a motor carrier’s liability for interstate shipment, provisions which “have at one time or another since 1906 resided in different sections of Title 49 of the United States Code.” North American Van Lines, Inc. v. Pinkerton Security Systems, Inc., 89 F .3d 452, 454 (7th Cir.1996). A glance at the Table of Contents of Title 49 shows that rail carriers are only a subset of the carriers covered. Motor carriers are covered under a different part, Part B–titled “Motor Carriers, Water Carriers, Brokers, and Freight Forwarders.” Section 14706(a)(1) expressly states that “motor carriers are liable … for the actual loss or injury to the property caused by” the carrier … Failure to issue a receipt or bill of lading does not affect the liability of a carrier.” 49 U.S.C. §  14706(a)(1). A skim of the annotations following that section gives many examples of cases against companies delivering property between states via motor vehicle, as does a cursory computer search on Westlaw with the term “Carmack Amendment.” 49 U.S.C. §  14706(a)(1).

 

Thus, the Carmack Amendment is not limited to rail carriers, and Defendant gives no other explanation why the Carmack Amendment would not apply here. Further, the Complaint clearly states a Carmack Amendment claim under federal notice pleading standards, assuming the $10,000 jurisdictional amount is satisfied (see below). Pizzo v. Bekin Van Lines Co., 258 F.3d 629, 634 (7th Cir.2001)(no special pleading rules for Carmack claims).

 

II. Damages for risk of future injury from identity theft

 

Plaintiff’s Count Two is titled “Increased Risk of Future Injury” and contends that “Defendant is liable for damages for increased risk of future injury in the form of identity theft…. Defendant acted negligently, or with willful and wanton disregard, or with intent in stealing, converting, or losing Plaintiff’s personal papers, including tax records, his birth certificate and his GED, more than enough information to make Plaintiff an easy target for identity theft….” (Complaint, ¶ ¶  18-19).

 

Defendant maintains that Count II must be dismissed because Illinois does not recognize an independent tort of identity theft. Plaintiff does not dispute this, but counters that he is not attempting to state a cause of action for “some independent tort of identity theft.” (d/e 8, p. 5). Rather, Plaintiff says he is putting Defendant on notice that he is claiming this increased risk of identity theft as part of his damages for Defendant’s loss or misappropriation of his papers. Id. Plaintiff asserts that recovery for the loss of personal papers and associated risk of identity theft is damage compensable under Illinois law. (d/e 8, p. 5)(citing Dillon v. Evanston Hosp., 771 N.E.2d 357 (Ill.2002)(holding that plaintiff in medical malpractice case could recover for plaintiff’s increased risk of future injuries caused by malpractice).

 

Plaintiff’s claim for damages in Count II is not attached to any particular cause of action, nor does Plaintiff argue that he is trying to assert a cause of action in Count II. He eschews any attempt at a cause of action for identity theft, though those are the only damages he seeks. If Plaintiff is trying to make out some sort of state tort in Count II, he must contend with the Carmack Amendment’s preemption of “all state law claims based upon the contract of carriage, in which the harm arises out of the loss of or damage to goods.” Gordon v. United Van Lines, Inc., 130 F.3d 282, 284 (7th Cir.1997)(state claims of breach of contract, common law and statutory fraud, and willful and wanton conduct preempted by Carmack Amendment, but not claim of intentional infliction of emotional distress); North Am. Van lines, Inc. v. Pinkerton Sec. Sys., Inc., 89 F.3d 452, 456 (7th Cir.1996)(Carmack “preempts all state or common law remedies available to a shipper against a carrier for loss or damage to interstate shipments”); Hughes v. United Van Lines, 829 F.2d 1407, 1412 n. 5 (7th Cir.1987) (affirming dismissal of state claims for negligence, breach of contract, conversion, intentional and negligent misrepresentation, and negligent infliction of emotional distress as preempted by Carmack Amendment); see also Glass v. Crimmins Transfer Co., 299 F.Supp.2d 878, 888 (C.D.Ill., 2004)(emotional distress and personal injury claims arising from mishandling of property preempted by Carmack); Schwarz v. Nat’l Van Lines, Inc., 2004 WL 1166632 (N.D .Il.2004)(not reported in F.Supp.2d)(conversion claim preempted, but not claim for emotional distress).

 

There is an exception to Carmack’s preemption for claims that are “separate and distinct” from the damage or loss of goods and independently actionable, but no such claim is apparent in the Complaint. Plaintiff does not argue in his response that he is trying to assert such a claim, nor does he ask for leave to file an amended complaint to do so. See Gordon, 130 F.3d 282 (7th Cir.1997)(allowing claim for intentional infliction of emotional distress that was based on conduct other than damage or loss of goods–“Carmack Amendment does not preempt those state law claims that allege liability on a ground that is separate and distinct from the loss of, or the damage to, the goods that were shipped in interstate commerce); North American Van Lines, 89 F.3d at 458 (acknowledging tort remedies may be available for “separate and independently actionable harm … distinct from the loss of, or damage to, the goods.”); see also Glass v. Crimmins Transfer Co., 299 F.Supp.2d 878, 888 (C.D.Ill.2004)(Carmack Amendment preempted state claims for emotional distress and personal injury where claims based on loss or damage to property). The Court therefore expressly does not address the viability of any state causes of action against Defendant–none are before the Court. []

 

Plaintiff’s Count II characterizes Defendant’s conduct as negligent, willful and wanton, stealing, and converting, but he seeks damages only for his increased risk of identity theft. Given the Carmack Amendment’s preemptive effect on state remedies, the Court does not believe it appropriate to read state causes of action into Count II that Plaintiff does not appear to be making.

 

The only cause of action presently before the Court is based on the Carmack Amendment. The Court’s only inquiry, then, is whether the Carmack Amendment encompasses Plaintiff’s damages for increased exposure to identity theft. Neither party addresses this question, but the Court believes the answer is clear from federal precedent interpreting the Carmack Amendment.

 

Before the Carmack Amendment, shippers were “bedeviled” by ” ‘such a diversity of legislative and judicial holding that it was practically impossible for [an interstate shipper].. to know, … what would be the carrier’s actual responsibility….” North American Van Lines, Inc. v. Pinkerton Security Systems, Inc., 89 F.3d 452, 456 (7th Cir.1996)(quoting Adams Express Co., 226 U.S. 491, 505 (1913)). The Carmack Amendment “manifested Congress’s intent ‘to take possession of the subject’ and to prescribe uniform rules governing liability of carriers to shippers regarding interstate shipments.” Id., quoting Adams, 226 U.S. at 152; see also Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1415 (7th Cir.1987)(Carmack Amendment’s purpose was to “establish uniform federal guidelines designed in part to remove the uncertainty surrounding a carrier’s liability …”).

 

Although 49 U.S.C. §  14706(a)(1) states that the carrier’s liability is for the “actual loss or injury to the property,” the Supreme Court has interpreted this language as ” ‘comprehensive enough to embrace all damages resulting from any failure to discharge a carrier’s duty with respect to any part of the transportation to the agreed destination.’ ” Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29 (1936)(quoted cite omitted). “Recoverable damages include damages for delay, … lost profits (unless they are speculative), … and all reasonably foreseeable consequential damages.” American Nat’l Fire Ins. Co. ex rel. Tabacalera Contreras Cigar Co. v. Yellow Freight Systems, Inc., 325 F.3d 924, 931 (7th Cir.2003) (citations omitted).

 

In its own research, the Court found no case directly dealing with a claim for damages under the Carmack Amendment for an increased risk of theft or injury. However, the Seventh Circuit decision Gordon, 130 F.3d 282 (7th Cir.1997), is analogous. In Gordon, a shipper lost her most treasured possessions when a United Van Lines driver delegated delivery to a day laborer, who threw them away; her possessions were incinerated, a complete loss. 130 F.3d at 285. The shipper sued under the Carmack Amendment and also made state claims for fraud, breach of contract, intentional infliction of emotional distress, and willful and wanton conduct. Id. The Seventh Circuit upheld dismissal of all the state claims, save the claim of intentional infliction of emotional distress. The Court further held that punitive damages and damages for emotional distress were not recoverable under the Carmack Amendment, reasoning that to allow such damages would frustrate the Amendment’s goal of uniformity and “exceed the proper role of the court for us to read in additional or different remedies” to those provided by Congress. 130 F.3d 282. [] See also Glass v. Crimmins Transfer Co., 299 F.Supp.2d 878, 888 (C.D.Ill.2004)(no recovery for personal injuries in form of special damages under Carmack Amendment).

 

‘The Gordon Court also affirmed dismissal of all the state claims, except for the claim of intentional infliction of emotional distress. 130 F.3d at 289-90.

 

Gordon’s reasoning applies with equal force to damages for an increased risk of identity theft. Allowing recovery for an increased risk of future theft would destroy the Carmack Amendment’s goal of “creat[ing] a measure of predictability for interstate carriers in the exposure to damages they face.” Gordon, 130 F.3d at 287. The amount of damages awarded would be highly unpredictably and speculative, “allow[ing] precisely the uncertainty the Carmack Amendment was designed to bar.” Gordon, 130 F.3d at 287. Such damages would be based upon speculation as to: 1) the likelihood that Plaintiff would suffer identity theft in the future; 2) the assumption that, if such theft did occur, it would be caused by Defendant’s actions, rather than anyone else’s; and, 3) the amount of damages that would be caused by that imagined future identity theft.

 

The Court notes that special damages–those that are not reasonably foreseeable as an ordinary consequence of a breach of contract when the contract is formed–might be recoverable under the Carmack Amendment if the shipper gives notice of the circumstances leading to special damages at the time the contract is made. See Mach Mold, Inc., 383 F.Supp.2d 1015, 1033; 29 U.S.C. §  14706(a)(1). This notice affords the carrier a chance, at the time of making the contract, to accurately assess the risk and adapt accordingly–in effect, to contract for the risk. However, cases discussing special damages under the Carmack Amendment involve actual loss or injury, not the risk of loss. See, e.g., Mach Mold, 383 F.Supp.2d at 1082; Glass, 299 F.Supp.2d at 888. In any event, Plaintiff’s allegations do not permit a reasonable inference that Defendant had notice of undertaking any special risks–Plaintiff admits the contract was for the carrier’s usual rates, and that Defendant eventually agreed to properly insure the boxes for $2,000 each.

 

The Court therefore recommends dismissal of Plaintiff’s claim for damages for his increased risk of identity theft in Count II, because those damages are not available under the Carmack Amendment. [] The Court expressly declines to opine whether such damages might be available under Illinois law based on a cause of action other than the Carmack Amendment, because that controversy is not before the Court.

 

‘It may be that Plaintiff is not even attempting to assert such damages under the Carmack Act, as the damages are listed in a separate Count II. As discussed above, the only cause of action before the Court is the Carmack claim, so that is the claim that is addressed.

 

III. Jurisdiction

A civil action in any State court against a carrier … to recover damages for delay, loss, or injury of shipments, arising under section 11706 or 14706 of title 49, may not be removed to any district court of the United States unless the matter in controversy exceeds $10,000, exclusive of interest and costs.

28 U.S.C. §  1445(b); see also 28 U.S.C. §  1337(a)(jurisdiction only “if the matter in controversy for each receipt or bill of lading exceeds $10,000, exclusive of interest and costs”). Defendant did not clearly address whether the jurisdictional amount was satisfied in its Notice of Removal (d/e 3). The stated amount claimed under the Carmack Amendment totals $9,821.50, if the Court’s recommendation concerning the dismissal of the damages in Count II is adopted. However, the Court believes that the jurisdictional amount has been met for removal purposes because the boxes were insured for $10,000; freight, taxes, fees and insurance may also be recoverable on the property lost or damaged. See American National Fire Ins. Co. V. Yellow Freight Systems, Inc., 325 F.3d 924, 935 (7th Cir.2003)(freight, taxes, fees and insurance may be recoverable).

 

WHEREFORE, the Court accordingly RECOMMENDS that Defendant’s Motion to Dismiss be granted in part and denied in part (d/e 4). The Court recommends the motion be denied as to Count I in the Complaint, but be granted to the extent it seeks dismissal of Plaintiff’s claim for damages for an increased risk of future identity theft in Count II.

 

Any objections to this Report and Recommendation must be filed in writing with the Clerk of the Court within ten working days after service of a copy of this Report and Recommendation. See 28 U.S.C. §  636(b)(1). Failure to timely object will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir.1986). See also Local Rule 72.2.

United States District Court,

E.D. Michigan,

Southern Division.

Earl GESCH III, Plaintiff,

v.

EMCEA TRANSPORT, Defendant.

No. 05-CV-73041-DT.

 

May 12, 2006.

 

 

ROBERT H. CLELAND, District Judge.

 

Pending before the court is Defendant EMCEA Transport’s (“EMCEA’s”)  “Motion For Summary Judgment.” The matter has been fully briefed and the court conducted a hearing on March 29, 2006. For the reasons stated below, the court will deny Defendant’s motion and will strike the supplemental briefing filed by the parties.

 

I. BACKGROUND

Plaintiff Earl Gesch III is employed by Roadway Express as a dock checker at its facility on Van Born Road in Taylor, Michigan. (Pl.’s Dep.19-20.)  [] On March 15, 2004, Plaintiff was operating a forklift and drove into an empty 53-foot trailer, set down the cargo he was carrying, and backed out of the trailer. (Id. at 80-81.) Both the “tractor and semi-trailer were motor vehicles owned by EMCEA.” (Compl. at ¶  4.) Plaintiff maintains that “[a]s a result of EMCEA’s negligence, [P]laintiff backed the forklift out of the trailer toward the dock and the forklift fell into the gap between the trailer and the dock. The forklift, with [P]laintiff inside, slammed into the dock causing [P]laintiff’s neck and shoulder area to slam into the seatback, causing serious injuries and impairment of body function.” (Id. at ¶  7.)

 

Plaintiff also held the position of safety man on the dock, driver, and switcher in the yard during his approximately thirty-one years with the company. (Id. at 23.)

 

Plaintiff alleges that EMCEA “owed [P]laintiff a duty to operate the tractor/trailer with ordinary care and to act in a reasonable and prudent manner so as to ensure the safety of other employees in the vicinity.” (Id. at ¶  5.) Plaintiff alleges that “EMCEA’s driver breached this duty by, among other things, improperly parking the tractor/trailer, failing to set the brakes, leaving the engine in neutral, and failing to chock the wheels.” (Id. at ¶  6.) Plaintiff alleges that “EMCEA is liable for the negligence of its employee under the principle of respondeat superior, and under the Michigan owner’s liability statute, [Mich. Comp. Laws Section] 247.401.” (Id.) Plaintiff avers that his damages exceed $100,000. (Id. at ¶  9.)

 

II. STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “Where the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial, entry of summary judgment is appropriate.” Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).

 

Summary judgment is not appropriate when “the evidence presents a sufficient disagreement to require submission to a jury.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The existence of some factual dispute, however, does not defeat a properly supported motion for summary judgment; the disputed factual issue must be material. See id. at 252 (“The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict-‘whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.’ “). A fact is “material” for purposes of summary judgment when proof of that fact would have the effect of establishing or refuting an essential element of the claim or a defense advanced by either party. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984).

 

In considering a motion for summary judgment, the court must view the facts and draw all reasonable inferences from the admissible evidence presented in a manner most favorable to the nonmoving party. Dunigan v. Noble, 390 F.3d 486, 492 (6th Cir.2004) (“[W]e must determine ‘not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it upon whom the onus of proof is imposed.’ “). The court does not weigh the evidence to determine the truth of the matter, but must determine if the evidence produced creates a genuine issue for trial. Sagan v. United States, 342 F.3d 493, 497 (6th Cir.2003).

 

III. DISCUSSION

The issue before the court is whether Defendant EMCEA owed a duty to protect Plaintiff under the circumstances that existed at the time of the incident in question.

 

In Michigan, as with most jurisdictions, there are four elements to the tort of negligence: duty, breach, causation (including both cause in fact and proximate cause), and damages. Case v. Consumers Power Co., 615 N.W.2d 17, 20, n. 6 (Mich.2000). Whether a duty of a care is owed to a plaintiff is a question of law. Simko v. Blake, 532 N.W.2d 842, 846 (Mich.1995). “Duty” is defined as any obligation the defendant has to the plaintiff to avoid negligent conduct. Id. (citing Moning v. Alfono, 254 N.W.2d 759 (Mich.1977)). Recognition of a duty implicates various considerations including the relationship between the parties, the nature and foreseeability of the risk to be avoided and the burdens and benefits of recognition. See Buczkowski v. McKay, 490 N.W.2d 330, 333 (1992). Whether a duty is owed depends on whether harm is reasonably foreseeable. See Monig, 254 N.W.2d at 759; Johnson v. City of Detroit, 579 N.W.2d 895, 902 (Mich.1998) (“Where the events leading to injury are not foreseeable, there is no duty, and summary disposition is appropriate.”).

 

There also exists an important distinction between the elements of duty and breach. Duty asks whether there is a legal obligation to avoid negligent conduct, while breach focuses on whether a party acted within the bounds of the appropriate standard of care. See Buczkowksi, 490 N.W.2d at 332-33. “[T]he duty to use ‘reasonable care’ is the standard for liability rather than the antecedent conclusion that a particular plaintiff has protection against a particular defendant’s conduct.” Id. at 332.

 

A. Whether Hewitt Owed A Duty to Plaintiff

Defendant contends that “Rick Hewitt [Defendant’s driver] owed no duty to Gesch under the circumstances, but that even if he did owe a duty, Hewitt could not have foreseen that Gesch would fail to protect himself as required by Michigan statute, thereby precluding establishment of proximate causation.” (Def.’s Mot. at 1.) On the other hand, Plaintiff argues that Hewitt owed him a duty to chock his vehicle.

 

In support of his argument that Defendant owed Plaintiff a duty, Plaintiff presents the deposition testimony of Mr. Thomas Siefert, who managed the Roadway terminal on the day of the accident. Mr. Siefert testified that:

Q: Now with regard to the policy [of chocking trailers], we have this … exam from 07/13/93–

A: Mm-hmm.

Q: And question number seven says, “Before entering a trailer for the first time, the forklift operator should, among other things, check to see–or make sure the trailer wheels are chocked.” Now, you’ve stated that that was not a policy enforced in 2004, is that correct?

A: We did not discipline for it.

Q: And it was not subject–a subject of safety meetings, is that also correct?

A: It certainly was not-no we did not have meetings–most of the meetings were with drivers on chocking trailers. In the–in the Roadway environment, the driver was responsible to make sure the unit was chocked.

 

* * *

Q: Because it wasn’t your personal policy or what?

A: Because it–it was our policy to make–to train our drivers to chock trailers.

Q: You mean your truck drivers?

A: Truck drivers, correct.

Q: Not the hi-low drivers?

A: Right.

(Siefert Dep. at 65-67.)

 

Plaintiff also maintains that Hewitt should have set the brakes and chocked the wheels pursuant to the Michigan Commercial Driver License Manual, which states:

Never leave your vehicle unattended without applying the parking brakes or chocking the wheels. Your vehicle might roll away and cause injury and damage.

(Pl.’s Resp. at Ex. 7.) Plaintiff also describes the interaction between the Michigan Occupational Safety and Health Act (“OSHA”), the federal OSHA, and the federal Department of Transportation (“DOT”) parking brake regulations.

 

Plaintiff’s primary argument is that “the [federal] OSHA is preempted from trucking operations if a working condition is regulated by another Federal agency. The Department of Labor concedes that the DOT’s parking brake regulations preempt OSHA’s forklift operations regulations concerning the securing of a tractor-trailer.” (Id. at 7.) Plaintiff maintains that “[b]ecause Michigan’s OSHA regulations exist only insofar as they are authorized by federal OSHA, and only insofar as they do not conflict with federal motor carrier regulations, the forklift operations rules cited by EMCEA are preempted by the DOT’s truck parking brake regulation.” (Id.) Plaintiff, however, has neither offered any cases standing for the proposition he argues, nor discussed the legal relationship that existed between Hewitt and Plaintiff that would create a duty on the part of Hewitt to protect Plaintiff. In other words, Plaintiff has not cited authority suggesting that the regulations he relies upon imposed a duty upon Hewitt to safeguard Plaintiff, but has only discussed how, in his view, certain statutes and regulations would apply in relation to one another based on various theories of pre-emption.

 

Irrespective of these failings in presentation, the court notes that there exists an undeniable, fundamental duty to operate a motor vehicle with reasonable safety. It is nothing more elaborate than common sense to observe that the “operation” of a vehicle includes causing it to move and causing it to stop. Michigan has recognized for almost eighty years that, once the vehicle is brought to a stop, there exists a duty for the driver to safely and adequately secure his vehicle while it remains parked. The Michigan Supreme Court, in Bacon v. Snashall, 213 N.W. 705 (Mich.1927) held that:

If the emergency brake [of the vehicle] was not properly set, there was a possibility, as appellant seems to recognize and cited cases show, that the jar of a heavy vehicle passing by or a bump by another auto might loosen the mechanism and permit the parked auto to slowly start down the grade on which it was left…. Clearly it was the duty of defendant to so leave his parked car on the top of this hill that such incidents would not affect it.

Id. at 707. Besides being long-established law, this explanation by the Michigan Supreme Court makes perfect sense on an intuitive level. Safe vehicle operation includes safely securing the vehicle as the surrounding circumstances may require.

 

Hewitt owed a general duty to Plaintiff and others to properly secure his vehicle while leaving it unattended.

 

B. Whether That Duty Was Breached

While Defendant contends that Plaintiff had a duty to assess whether the vehicle was secure, Defendant maintains that Hewitt set his brakes. Defendant has presented Hewitt’s testimony that he did indeed set the brakes:

Q: So, tell me what you did from the moment you cleared security and drove up towards the dock.

A: I drove off towards the dock, and when I got approaching the dock I positioned my trailer so it would be aligned with the loading dock, parked my brakes, got out, opened my doors, got back in my tractor, backed up to the loading dock, set my brakes, and then went to the dispatch office.

Q: Okay. Do you know which dock you parked at?

A: I don’t remember.

Q: What happened next?

A: I was in the dispatch office getting bills from one of the girls, and one of Roadway’s employees came down and said that my truck had rolled away from the dock. At that time, I proceeded with him back out toward the truck.

(Hewitt Dep. at 9) (emphasis added). Hewitt also testified that at no time during his career at EMCEA has he ever failed to set his brakes in similar circumstances.

Q: At any time during your career driving tractor-trailer, have you ever failed to set the brakes?

A: No, I have not.

(Id. at 7.)

 

Arguing that Hewitt did not set his brakes, Plaintiff presents Mr. Allen Sacco’s  [] deposition testimony, in which he stated that he heard Hewitt set his brakes after the incident:  []

 

Mr. Sacco is a maintenance employee of Roadway Express. (Sacco Dep. at 5.)

 

Mr. Sacco’s testimony does not necessarily bear on the issue of whether Hewitt set his brakes prior to the incident.

 

Q: Okay. And you heard the telltale sound of the brakes being set when he backed into the dock?

A: Yeah, I heard–I heard him set the brakes when he backed it in, yeah.

Q: After the incident?

A: Yes.

(Sacco Dep. at 29.) Plaintiff also points to the following testimony provided by Hewitt:

Q: So, tell me what you did from the moment you cleared security [at Roadway] and drove up towards the dock.

A: I drove off towards the dock, and when I got approaching the dock I positioned my trailer so it would be aligned with the loading dock, parked my brakes, got out, opened my doors, got back in my tractor, backed up to the loading dock, set my brakes and then went to the dispatch office.

 

* * *

Q: So you’ve given me an accurate and complete description of everything you did at Roadway up to this point?

A: Yes, I have.

(Hewitt Dep. at 9, 11.) Plaintiff argues form this testimony that Hewitt did not mention chocking or inspecting for chocks. (Pl.’s Resp. at 2.)

 

Plaintiff has also introduced a letter that, sent to EMCEA. In the letter, Siefert wrote that “[u]pon backing into the dock to be loaded, Mr. Hewitt failed to chock his wheels and did not set his unit’s parking brakes.” (See Pl.’s Resp. at Ex. 4.) In his testimony relating to the letter, Mr. Siefert stated:

Q: Let’s take a look at … the letter of April 28, 2004…. [Y]ou have a sentence here, quote, “Upon backing into the dock to be loaded, Mr. Hewitt failed to chock his wheels and did not set his unit’s parking brakes.” … Why did you write that sentence?

A: Because the unit rolled away from the dock. If–he had set the brakes to the tractor, it should not have rolled. He certainly did not chock the trailer, or it would not have rolled. It was my feeling at the time that he did not set the brakes.

(Siefert Dep. at 14.)

 

Based on the evidence presented, there is a genuine issue of fact as to whether Hewitt chocked his wheels, but no genuine issue as to whether the brakes were set. The only evidence that Hewitt did not set his brakes seems to be Siefert’s testimony that “[i]f–he had set the brakes to the tractor, it should not have rolled.” (Id. at 14) (emphasis added.) This statement, although not objected to at the deposition, constitutes an opinion on the question of whether the brakes were set, and would ordinarily be inadmissible. Evidence that is inadmissible cannot be offered to identify a genuine issue of fact. Lucas v. Chance, 121 Fed. Appx. 77, 2005 WL 95740, at(6th Cir.2005). Also, an expression to the effect that an observed event was unexpected or out of the ordinary is usually incapable of supplying a genuine issue of fact as to the causation of the event. See Hunter v. Caliber System, Inc., 220 F.3d 702, 709 (6th Cir.2000); see also Klepper v. First American Bank, 916 F.2d 337, 343 (6th Cir.1990).

 

Defendant argues that, regardless of whether Hewitt chocked his wheels, Plaintiff should have confirmed that the vehicle’s wheels were chocked before driving his vehicle into the trailer. Defendant asserts that at the time of the incident at issue, Part 21 of the Michigan Occupational Safety and Health Act regulations regarding “Powered Industrial Trucks” was in effect. This regulation states that:

The purpose of this part is to provide, in or about places of employment, minimum safety rules for the care and use of powered industrial trucks and to provide for operator safety and specifications of equipment.

(See Def.’s Mot. at Ex. D.) Rule 408.12183 of the regulation states in relevant part:

(1) An operator shall operate a powered industrial truck according to the rules of this part and in accordance with local traffic rules when on a public road.

(Id.) In addition, Rule 408.12176 provides that:

(1) An employer shall ensure that a highway truck and trailer shall not be boarded by a powered industrial truck before the highway truck and trailer has its brakes set and not less than 2 wheels blocked or be restrained by other mechanical means installed in a manner that will hold the trailer from movement.

(Id.) Defendant argues that Plaintiff “had an obligation to comply with the MIOSHA regulations, and his employer, Roadway Express, had an obligation to ensure that he did so.” (Id. at 7.) Defendant also points out that “[o]ver the course of his years of employment with Roadway, [P]laintiff was periodically given a Forklift Certification Exam” and “[o]ne of the questions which appeared on this examination was discussed by [Plaintiff] at this deposition.” (Id. at 2.) Defendant has attached the following deposition testimony provided by Plaintiff on this point:

Q: Mr. Gesch, I’m going to hand you what’s been marked as Exhibit Number 6, which is Forklift Certification Exam dated July 13, 1993, and draw your attention to question number 7 on this written exam.

 

* * *

Q: Have you reviewed question number 7, Mr. Gesch?

A: Yes.

Q: Can you state for the record what the question is and what the answers are for number 7?

A: The question is, before entering a trailer for the first time, a forklift operator should–

Q: And what are the four answers?

A: Check the trailer floor for holes and weak spots, make sure the trailer wheels are chocked, check to see–check to see if the dock plate is secured.

Q: And what is D?

A: All of the above.

Q: You circled D, all of the above?

A: Yes.

(Pl.’s Dep. at 51-52.) Defendant points out that Plaintiff testified that he never “check[s] to see if the trailer is chocked before [he] begin[s] the loading procedure.” (Id. at 44.)

 

Even if Plaintiff, operating with due care, should have confirmed that the trailer wheels were chocked before driving his vehicle into, it whether a defendant has breached a duty of due care is an issue of fact. Murdock v. Higgins, 559 N.W.2d 639, 642-43 (1997) (“Only after finding that a duty exists may the factfinder determine whether, in light of the particular facts of the case, there was a breach of the duty.”). If Plaintiff breached a duty of due care in addition to Hewitt, the jury will examine his negligence comparatively with Defendant’s. Rodriguez v. Solar of Michigan, Inc., 478 N.W.2d 914, 918 (Mich.Ct.App.1991).

 

Hewitt had a duty to properly secure his vehicle. Even though it appears that Hewitt did “set” his brakes, there remains conflicting evidence relating to whether Hewitt secured his vehicle in a way that would effectively prevent it from moving under the circumstances as they existed at that time, including whether the brakes were properly set. Bacon, 213 N.W. at 707.

 

The court will leave to the jury the question of whether Defendant breached its duty and deny Defendant’s motion.

 

IV. CONCLUSION

IT IS ORDERED that Defendant’s “Motion for Summary Judgment” [Dkt. # 14] is DENIED.

 

IT IS FURTHER ORDERED that the Supplemental Briefing [Dkt. 25, 26, 27, 29] is STRICKEN from the record.