United States District Court for the Western District of Texas, San Antonio Division

June 29, 2022, Decided; June 29, 2022, Filed

SA-21-CV-00961-XR

Reporter

2022 U.S. Dist. LEXIS 115155 *

AMY MARR, Plaintiff -vs- HAROLD E CROXTON, AVAILABLE MOVERS & STORAGE, INC., Defendants

Prior History: Marr v. Croxton, 2022 U.S. Dist. LEXIS 106904, 2022 WL 2161059 (W.D. Tex., June 14, 2022)

Core Terms

gross negligence, fatigued, nonmovant, driving, driver, hiring, summary judgment, negligence claim, genuine, entitled to summary judgment, time of an accident, material fact, entrustment, vicarious

Counsel:  [*1] For Amy Marr, Plaintiff: Christopher Ryan Brasure, LEAD ATTORNEY, Brasure Law Firm, PLLC, Edinburg, TX.

For Harold E Croxton, Available Movers & Storage, Inc, Defendants: David Louis Ortega, LEAD ATTORNEY, Naman, Howell, Smith and Lee, San Antonio, TX; Erik L. Krudop, Naman Howell Smith & Lee, PLLC, San Antonio, TX.

Judges: XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE.

Opinion by: XAVIER RODRIGUEZ

Opinion

ORDER

On this date, the Court considered Defendants Harold Croxton and Available Movers & Storage’s motion for partial summary judgment (ECF No. 26), Plaintiff’s response (ECF No. 41), and Defendants’ reply (ECF No. 44). After careful consideration and holding a hearing on the motion, the Court issues the following order.

BACKGROUND

This case arises from a lane-change accident between Defendant Harold Croxton (“Croxton”) and Plaintiff Amy Marr (“Marr”) that occurred on July 27, 2020, in Leon Valley Texas. ECF No. 40-3 at 2-3. Croxton was driving a 2020 Freightliner box truck that his employer, Defendant Available Movers & Storage (“AMS”), leased from Ryder Truck Rental (“Ryder”). Id. at 2; ECF No. 40-1 at 1.

Marr and Croxton were driving eastbound on Huebner Road in Leon Valley, Texas when the accident occurred. ECF [*2]  No. 40-3 at 2-3. While Marr was driving alongside Croxton in the righthand lane, Croxton began to move into the right lane and struck Marr’s vehicle. Croxton Dep. 57:9-17. Croxton testified that, before making the lane change, he checked his mirror and signaled. Id. When Croxton moved into the right lane, he “heard a thump,” and shifted back to the left lane. Id. Marr was looking straight ahead and did not see Croxton’s vehicle until it collided with hers. Marr Dep. 37:4-21. Both Marr and Croxton stopped and exited their respective vehicles. Croxton Dep. 57:22-58:1. Croxton called law enforcement, and after speaking with law enforcement, left the scene. Id.

Marr originally filed suit in the 57th Judicial District Court of Bexar County, Texas, bringing claims of negligence and gross negligence against Croxton, AMS, and Ryder. ECF No. 1-3 at 7-10. Marr asserts that Croxton was both negligent and grossly negligent for failing to log his on-duty time in compliance with the Federal Motor Carrier Safety Regulations (“FMCSR”) and for allegedly driving while fatigued.¹Id. at 7-8; ECF No. 41 at 9-11. Additionally, Marr claims that AMS was both negligent and grossly negligent in failing to comply [*3]  with the FMCSR and in its hiring and supervision of Croxton. ECF No. 1-3 at 9; ECF No. 41 at 11-17.

Defendants then removed the case to this Court on the basis of diversity jurisdiction. ECF No. 1. After removal, Ryder moved for summary judgment, which this Court granted. ECF No. 52. The remaining Defendants, AMS and Croxton, now move for summary judgment as to Marr’s gross negligence claims and direct negligence claim against AMS. ECF No. 26.

DISCUSSION

I. Legal Standard

The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56. To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the non-moving party’s claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant’s claim or defense. Little v. Liquid Air Corp., 952 F.2d 841, 847 (5th Cir. 1992), on reh’g en banc, 37 F.3d 1069 (5th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Once the movant carries its initial burden, the burden shifts to the nonmovant [*4]  to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991). Any “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment,” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003), and neither will “only a scintilla of evidence” meet the nonmovant’s burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Rather, the nonmovant must “set forth specific facts showing the existence of a ‘genuine’ issue concerning every essential component of its case.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). The Court will not assume “in the absence of any proof . . . that the nonmoving party could or would prove the necessary facts” and will grant summary judgment “in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.” Little, 37 F.3d at 1075.

For the Court to conclude that there are no genuine issues of material fact, the Court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In making this determination, the Court should review all the evidence in the record, giving credence to the evidence favoring the [*5]  nonmovant as well as the “evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). The Court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment, id. at 150, and must review all facts in the light most favorable to the nonmoving party, First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 181 (5th Cir. 2009).

II. Analysis

Defendants Croxton and AMS argue that they are entitled to summary judgment as to Marr’s gross negligence claims. AMS further asserts that it is entitled to summary judgment as to Marr’s negligent hiring and entrustment claims.

A. There is no evidence that Croxton was grossly negligent.

In order prevail on a gross negligence claim, a plaintiff must prove two elements by clear and convincing evidence: “(1) viewed objectively from the actor’s standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.” Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). “The first element, ‘extreme risk,’ means [*6]  not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.” Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). “The second element, ‘actual awareness,’ means that the defendant knew about the peril, but its acts or omissions demonstrated that it did not care.” Id. “An act or omission that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994).

Even viewing all the evidence in the light most favorable to her, Marr cannot make a threshold showing of gross negligence as to Croxton because Croxton’s conduct did not involve an extreme degree of risk. Marr argues that there is a genuine dispute of material fact as to whether Croxton was driving while fatigued, which, Marr contends, constitutes gross negligence. ECF No. 41 at 9-11. Driving a large truck while fatigued may constitute gross negligence in some circumstances. See, e.g., Rayner v. Dillon, 501 S.W.3d 143, 152-53 (Tex. App.—Texarkana 2016, pet. dism’d by agr.) (upholding a jury verdict finding gross negligence where there was evidence that a tractor-trailer driver collided with plaintiff’s vehicle while fatigued); Greene v. W&W Energy Servs., Inc., No. 4:19-CV-4343, 2021 U.S. Dist. LEXIS 217142, 2021 WL 5155675, at * 3 n.2 (S.D. Tex. Feb. 5, 2021); Gaines v. Shelvin, No. 9:08-CV-40, 2009 U.S. Dist. LEXIS 147203, 2009 WL 10677820, at *3 (E.D. Tex. Apr. 9, 2009). However, Marr has failed to present any evidence that Croxton was in fact fatigued at the time of the accident. The night before the accident, [*7]  GPS data shows that the truck was stopped for approximately eleven hours. ECF No. 41-15 at 11. The crash report does not indicate that law enforcement perceived that Croxton was fatigued. See ECF No. 26 at 38-39. Further, in her interaction with Croxton immediately after the accident, Marr did not describe Croxton as being fatigued.² Hearing Tr. 68:3-9.

Marr points to Croxton’s alleged noncompliance with the FMCSR as evidence of fatigue. Specifically, Marr contends that the fact that Croxton did not log his on-duty time shows that Croxton was fatigued and consciously disregarded the risk his fatigue posed to other drivers. ECF No. 41 at 9. However, Croxton’s failure to log his on-duty hours standing alone is insufficient to create a genuine dispute of material fact as to whether he was actually fatigued at the time of the accident. In cases where a driver’s failure to record their on-duty time was found to be evidence of fatigue, additional evidence existed that allowed the jury to infer that the driver was fatigued, such as evidence that the driver had been previously cited multiple times for over-hour violations or had falsified driving logs. See Rayner, 501 S.W.3d at 150. In contrast, there is no evidence [*8]  in this case that Croxton, prior to the accident, had been cited for any over-hour violations or falsified records.³ Indeed, the GPS data shows that Croxton, on the day of the accident, had complied with FMCSR hours requirements by resting for eleven hours the night before and spent less than eight hours driving the day of the accident. See 49 C.F.R. § 395.3; ECF No. 41-15 at 11-12.

Marr also argues that Croxton’s sleeping passenger was asleep and Croxton’s hunger at the time of the accident show that Croxton was fatigued. ECF No. 41 at 6. This argument is unpersuasive. Whether Croxton’s passenger was fatigued has little, if anything, to do with whether Croxton himself was fatigued when the accident occurred. Additionally, driving while hungry does not involve an extreme risk, otherwise every fender bender that occurs when driving to a restaurant would be a grossly negligent act.

Ultimately, the evidence in the record shows that this was, at most, a simple lane-change accident. A garden-variety vehicle collision, such as this one, cannot form the basis of a gross negligence claim. See Medina v. Zuniga, 593 S.W.3d 238, 250 (Tex. 2019). For example, in Medina, the Texas Supreme Court concluded that, though the defendant driver had been “thoughtless, careless, [*9]  and risky” in his driving, “those failures, even taken together, do not amount to gross negligence.” Id. at 249-50. “If they did,” the Texas Supreme Court explained, “punitive damages would be routinely available in the most common types of auto accidents.” Id. at 250; see also Ochoa v. Mercer Transp. Co., No. 5:17-CV-1005-OLG, 2018 U.S. Dist. LEXIS 223237, 2018 WL 7505640, at *2 (W.D. Tex. Dec. 10, 2018) (granting summary judgment as to a gross negligence claim against a driver in a lane-change accident). Therefore, Croxton is entitled to summary judgment as to Marr’s gross negligence claim.

B. There is no evidence that AMS was grossly negligent.

Marr further claims that AMS was grossly negligent in its decision to hire, retain, and entrust a vehicle to Croxton, as well as for its failure to follow the FMSCR. To support a claim based on failure to properly screen an employee, “a plaintiff must show that anything found in a background check ‘would cause a reasonable employer to not hire’ the employee, or would be sufficient to put the employer ‘on notice that hiring [the employee] would create a risk of harm to the public.'” TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 240 (Tex. 2010) (quoting Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 796-97 (Tex. 2006)) (alteration in original). When AMS hired Croxton, he had a valid commercial driver’s license and no record of any accidents or tickets. ECF No. 44-2. Nothing in Croxton’s driving record would have reasonably [*10]  caused AMS not to hire Croxton or put AMS on notice that Croxton’s driving created a risk of harm or danger. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007) (employer was not liable as a matter of law under a negligent hiring or entrustment theory where a driver had a record of two tickets and one accident).

With respect to whether AMS complied with the FMCSR, Marr has not established that any alleged violation of the FMCSR caused the accident at issue in this case. The regulations Marr cites seek to prevent driver fatigue and ensure that employers do not hire unsafe drivers. See ECF No. 41 at 11-12. However, as discussed, there is no evidence that Croxton was fatigued at the time of the accident or that Croxton had a history of being a reckless or unsafe driver.⁴ Thus, the Court cannot conclude that the alleged FMCSR violations on their own support a gross negligence claim in this case. As such, AMS is entitled to summary judgment as to Marr’s gross negligence claim.

C. Because AMS has stipulated that Croxton was acting in the course and scope of his employment when the accident occurred, Marr cannot assert direct negligence claims against AMS.

The direct negligence claims against AMS concern its decision to hire, retain, [*11]  and entrust a vehicle to Croxton. “[W]here, as here, no viable gross negligence claims remain and the defendant employer does not dispute the applicability of vicarious liability, direct and vicarious liability are ‘mutually exclusive modes of recovery[.]'” Ochoa, 2018 U.S. Dist. LEXIS 223237, 2018 WL 7505640, at *3; see also Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App.—Dallas 2002, pet. denied) (“[N]egligent hiring or negligent entrustment and respondeat superior are mutually exclusive modes of recovery.”). AMS does not dispute that Croxton was acting within the course and scope of his employment with AMS at the time of the accident. ECF No. 26 at 12-13. If a jury were to conclude that Croxton was negligent and that Croxton’s negligence was the proximate cause of Marr’s injuries, AMS would be vicariously liable for Marr’s injuries regardless of any alleged inadequacy in its hiring, training, retention, or supervision of Croxton. See Ochoa, 2018 U.S. Dist. LEXIS 223237, 2018 WL 7505640, at *3. Consequently, AMS is entitled to summary judgment as to Marr’s direct negligence claim, and Marr may only recover from AMS on a theory of vicarious liability.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment (ECF No. 26) is GRANTED. Plaintiff’s gross negligence claims against Defendants Available Movers & Storage and Harold Croxton are DISMISSED WITH [*12]  PREJUDICE. Plaintiff’s direct negligence claim against Defendant Available Movers & Storage is DISMISSED WITH PREJUDICE. Plaintiff’s negligence claim against Defendant Harold Croxton and vicarious liability claim against Defendant Available Movers & Storage remain pending.

It is so ORDERED.

SIGNED this 29th day of June, 2022.

/s/ Xavier Rodriguez

XAVIER RODRIGUEZ

UNITED STATES DISTRICT JUDGE

End of Document

---

¹ The Court assumes, but does not decide, for purposes of this motion that AMS and Croxton were subject to the FMCSR at the time of the accident.

² Marr avers that she saw Croxton driving erratically before the accident. ECF No. 40-9. However, the Court will not consider this affidavit as it is unclear that it comports with the requirements of 28 U.S.C. § 1746, which requires an unsworn declaration be signed by the declarant. Further, the affidavit is clearly a sham as it directly contradicts Marr’s prior statements that she did not see Croxton’s vehicle at all until the collision. See Winzer v. Kaufman County, 916 F.3d 464, 472 (5th Cir. 2019).

³ Marr also points to AMS’s noncompliance with the FMCSR, which will be discussed infra.

⁴ While Marr points to the single accident in Croxton’s driving and employment record, the evidence plainly shows that this was a minor accident in which Croxton backed into a parked car. Croxton Dep. 48:4-50:1. A singular, minor accident in a driver’s history cannot form the basis of a negligent hiring or entrustment claim, let alone a gross negligence claim. See Goodyear Tire & Rubber Co., 236 S.W.3d at 758.

Supreme Court of Michigan

January 12, 2022, Argued; July 1, 2022, Decided; July 1, 2022, Filed

No. 162076

Reporter

2022 Mich. LEXIS 1319 *

DEAN McMASTER, Plaintiff-Appellant, v DTE ENERGY COMPANY and FERROUS PROCESSING AND TRADING COMPANY, doing business as FERROUS PROCESSING & TRADING CO., Defendants, and DTE ELECTRIC COMPANY, Defendant-Appellee.

Core Terms

shipper, loading, cargo, carrier, common law, driver, abrogated, container, common-law, truck, pipe, transport, regulations, commercial motor vehicle, inspect, summary disposition, comparative-fault, common carrier, latent defect, scrap, reasonable care, fault, unpub, door, genuine issue of material fact, ordinary care, parties, blue, motor carrier, psychiatrist’s

Case Summary

Overview

HOLDINGS: [1]-The common-law duty of care that a shipper owed to a carrier was not abrogated by the passage of MCL 480.11a, adopting the Motor Carrier Safety Act; but, under the common law and the shipper’s exception, when the shipper assumed the responsibility of loading, it was only liable for the defects which were latent and concealed and could not be discerned by ordinary observation by the carrier’s agents, and the carrier was liable notwithstanding the shipper’s negligence if the improper loading was apparent; [2]-Summary disposition was properly granted to the shipper as the accident was not caused by a latent defect in loading the pipe parallel to the back of the container because the pipe’s placement which caused the injury was readily observable to the driver; and he testified that the pipe’s position did not cause him any concern while he was still at the shipper’s facility.

Outcome

Judgment affirmed.

LexisNexis® Headnotes

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN1  Particular Actors, Circumstances, & Liabilities, Motor Carriers

A shipper responsible for loading cargo may be held liable for injury to persons or property only for hidden defects – those not readily observable by the carrier or its agents.

Civil Procedure > Appeals > Standards of Review > De Novo Review

Governments > Courts > Common Law

Civil Procedure > … > Summary Judgment > Summary Judgment Review > Standards of Review

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Governments > Legislation > Interpretation

HN2  Standards of Review, De Novo Review

A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. The court must consider all evidence submitted by the parties in the light most favorable to the party opposing summary disposition. Only when the record does not leave open an issue upon which reasonable minds might differ may a motion under MCR 2.116(C)(10) be granted. On appeal, the trial court’s determination on a motion for summary disposition is reviewed de novo. So too are issues of statutory interpretation, including whether the common law has been abrogated by statute.

Torts > Negligence > Elements > Breach of Duty

Torts > … > Proof > Evidence > Burdens of Proof

Torts > Negligence > Elements > Duty

Torts > Negligence > Elements > Causation

HN3  Elements, Breach of Duty

To establish a prima facie case of negligence, a plaintiff must prove the existence of a legal duty, the defendant’s failure to exercise ordinary care in the performance of that duty, and harm proximately caused by the breach of that duty.

Governments > Courts > Common Law

Torts > Negligence > Elements > Duty

HN4  Courts, Common Law

It is well established that every person engaged in the prosecution of any undertaking owes an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others. That rule of the common law arises out of the concept that every person is under the general duty to so act, or to use that which he controls, as not to injure another.

Governments > Courts > Common Law

Governments > Legislation > Interpretation

HN5  Courts, Common Law

The common law remains in force until changed, amended or repealed. The Legislature may alter or abrogate the common law through its legislative authority. Const. 1963, art 4, § 1. Yet the mere existence of a statute does not necessarily mean that the Legislature has exercised that authority. The supreme court presumes that the Legislature knows of the existence of the common law when it acts. Therefore, the supreme court has stated that it will not lightly presume that the Legislature has abrogated the common law and that the Legislature should speak in no uncertain terms when it exercises its authority to modify the common law. As with other issues of statutory interpretation, the overriding question is whether the Legislature intended to abrogate the common law.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN6  Common Carrier Duties & Liabilities, State & Local Regulation

It is plain from the statute’s text that the Motor Carrier Safety Act, MCL 480.11 et seq., contains no unequivocal statement that the common law has been abrogated.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

Governments > Courts > Common Law

HN7  Common Carrier Duties & Liabilities, State & Local Regulation

Nothing in the common law or the Motor Carrier Safety Act, MCL 480.11 et seq., indicates that the duties of shippers and carriers are a zero-sum game such that if one has the duty to ensure safe transport, the other does not.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

Governments > Courts > Common Law

HN8  Common Carrier Duties & Liabilities, State & Local Regulation

While the Motor Carrier Safety Act (MCSA), MCL 480.11 et seq., describes the duties of carriers and drivers in detail, the MCSA does not define the duties of shippers as to their responsibility for loading cargo. But the MCSA, which regulates all employers, employees, and commercial motor vehicles that transport property or passengers in interstate commerce, 49 CFR 390.3(a), does not occupy the entire field of liability questions regarding shippers in that industry. It is not fully comprehensive on the question of negligence because it does not speak to the shipper’s duties in loading cargo – at all. Legislative silence as to the shipper’s duties in that realm is not indicative of abrogation. In sum, the Motor Carrier Safety Act, MCL 480.11 et seq., does not repeal the common law, either explicitly or through occupation of the field.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

Governments > Courts > Common Law

HN9  Common Carrier Duties & Liabilities, State & Local Regulation

The supreme court formally adopts the shipper’s exception: when the shipper assumes the responsibility of loading, the general rule is that it becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper. The Savage rule properly delineates the duties of shippers and carriers and that rule is consistent with Michigan’s common law, with its comparative-fault regime, and with the Motor Carrier Safety Act, MCL 480.11 et seq.

Governments > Courts > Common Law

Torts > … > Standards of Care > Special Care > Common Carriers

Transportation Law > Carrier Duties & Liabilities > Damages

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN10  Courts, Common Law

The common law liability of a common carrier is that of an insurer for loss or damage of goods in transit. But the carrier’s liability does not reach losses arising from acts of God, acts of the public enemy, the inherent nature of the goods, and acts of the shipper. The duty rests upon the carrier to see that the packing of goods received by it for transportation is such as to secure their safety. The duty of every common carrier is to furnish adequate facilities for the transportation of property and to establish and enforce just and reasonable regulations and practices relating to the manner of packing and delivering goods for transportation. That duty was derived from federal regulations.

Torts > … > Standards of Care > Special Care > Common Carriers

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN11  Special Care, Common Carriers

When the shipper assumes the responsibility of loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper.

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN12  Particular Actors, Circumstances, & Liabilities, Motor Carriers

The default rule, then, is that a carrier and its drivers will generally shoulder responsibility for issues stemming from the loading of cargo. Only when the shipper assumes the responsibility of loading and there are hidden defects may the shipper be held responsible – even if the shipper negligently loads the cargo. The shipper’s exception initially pertained only to the damage of goods during shipment but has been extended to the personal-injury context in which employees or contractors of carriers are injured because of allegedly negligent loading.

Torts > … > Standards of Care > Special Care > Common Carriers

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN13  Special Care, Common Carriers

A common carrier is generally liable for damages to goods, with narrow exceptions including the fault of the owner. In other words, the common carrier is the default insurer.

Insurance Law > … > Coverage > Compulsory Coverage > Motor Carriers

Torts > … > Elements > Duty > Foreseeability of Harm

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN14  Compulsory Coverage, Motor Carriers

The shipper’s exception is consistent with considerations governing whether a legal duty exists, including foreseeability of the harm, degree of certainty of injury, closeness of connection between the conduct and injury, moral blame attached to the conduct, policy of preventing future harm, and the burdens and consequences of imposing a duty and the resulting liability for breach. Given the responsibilities outlined in the Motor Carrier Safety Act, MCL 480.11 et seq., the rule properly recognizes that a carrier and its drivers are generally in the best position to foresee harm, with limited exceptions. One such limited exception is latent defects; the shipper is in the best position to know of latent defects caused while the goods were within its exclusive control. That refinement of when a duty will give rise to liability reflects the unique allocation of responsibility in that specialized setting.

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN15  Particular Actors, Circumstances, & Liabilities, Motor Carriers

The onus is generally on the carrier’s driver to ensure that the cargo is secured and distributed properly and to perform safety checks throughout the trip. 49 C.F.R. § 392.9. The driver may refuse to accept a load from a shipper if they believe that the cargo is dangerously loaded. 49 C.F.R. § 392.9(b)(1). In addition, the regulations excuse a driver from such responsibilities if the driver is unable to inspect the cargo, such as if the container is sealed or if the manner of loading makes inspection impracticable. 49 C.F.R. § 392.9(b)(4). Those exemptions are wholly consistent with shifting the responsibility for latent defects to shippers, because a driver would be unable to detect them.

Torts > … > Standards of Care > Special Care > Common Carriers

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN16  Special Care, Common Carriers

A shipper may be liable for negligent loading only when there is a latent defect. Moreover, even in circumstances under which the carrier has some degree of fault, the shipper may still be held liable.

Governments > Courts > Common Law

Torts > … > Standards of Care > Special Care > Common Carriers

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

Torts > … > Defenses > Comparative Fault > Procedural Matters

HN17  Courts, Common Law

A shipper owes a common-law duty to use reasonable care while loading cargo and will be liable for injury to persons or property for defects that are not readily discernible by the carrier. The carrier still owes a duty to inspect and correct any defects that it can perceive, even if the shipper was the one who initially caused the defect. When both the shipper and the carrier have acted negligently by breaching their respective duties and proximately causing damage, Michigan’s comparative-fault scheme requires a jury to apportion fault between them.

Civil Procedure > Judgments > Summary Judgment > Burdens of Proof

Torts > … > Proof > Evidence > Burdens of Proof

HN18  Summary Judgment, Burdens of Proof

To defeat summary disposition on a negligence claim, a plaintiff must do more than present evidence that the defendant’s conduct possibly caused the injury.

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HN19  Common Carrier Duties & Liabilities, State & Local Regulation

The adoption of the federal motor carrier safety regulations at MCL 480.11a did not abrogate the common-law duty of care owed by shippers to carriers. Under Michigan common law, consistently with the shipper’s exception, a shipper is not liable in negligence for a defect in loading that is apparent to the carrier or its agents, but is instead only liable if the defect is hidden.

Syllabus

Dean McMaster brought a negligence action in the Oakland Circuit Court against DTE Energy Company, Ferrous Processing and Trading Company (Ferrous), and DTE Electric Company (DTE), seeking compensation for injuries he sustained when a metal pipe fell out of a scrap container and struck him in the leg. DTE, the shipper, contracted with Ferrous to sell scrap metal generated by its business. As part of the deal, Ferrous placed its large metal roll-off containers at various DTE facilities, and DTE filled the containers with pieces of scrap metal. Ferrous, in turn, subcontracted with P&T Leasing Company (P&T), the carrier, to transport the containers between DTE and Ferrous. McMaster worked as a truck driver for P&T; he picked up containers from DTE and transported them to a Ferrous scrap yard. In October 2014, McMaster arrived at a DTE facility to drop off an empty container and pick up one that DTE had loaded. McMaster inspected the container and saw a large blue steel pipe, approximately the length of the container’s width, lying parallel to and up against the back door of the container. McMaster secured the container to his trailer and headed to Ferrous’s facility. At the Ferrous scrap yard, McMaster drove to the dumping location as instructed by Ferrous’s inspector. He began the typical process of dumping the scrap by getting out of his truck and walking to the back of the trailer that held the container. As was customary, McMaster edged open the container door to ensure that no materials fell out. When nothing fell out, he proceeded to pull the safety chain to fully open the door. After about five minutes, the inspector determined that the scrap should be placed in a different area. McMaster then began to walk toward the front of the truck. At that point, the pipe fell out of the container, hitting McMaster in the back of his left leg and ultimately resulting in a below-the-knee amputation. McMaster brought this action, alleging negligent loading and failure to warn of improper loading. To support his theory, McMaster retained trucking industry expert Larry Baareman, who testified that the orientation of the blue pipe parallel to and up against the container door was hazardous. DTE and Ferrous moved for summary disposition, and the trial court, Cheryl A. Matthews, J., granted the motion as to DTE but denied the motion as to Ferrous. McMaster settled with Ferrous and appealed with regard to DTE. The Court of Appeals, JANSEN, P.J., and METER and STEPHENS, JJ., affirmed in an unpublished per curiam opinion issued November 8, 2018 (Docket No. 339271) (McMaster I), reasoning that DTE did not have a duty to warn of or protect McMaster from a known danger, relying on the open and obvious danger doctrine. McMaster sought leave to appeal in the Supreme Court, and the Supreme Court peremptorily vacated Part III of the opinion and remanded the case to the Court of Appeals for consideration of DTE’s legal duty under the law of ordinary negligence. 504 Mich. 967, 933 N.W.2d 42 (2019). On remand, the Court of Appeals again affirmed the trial court in an unpublished per curiam opinion issued July 2, 2020 (Docket No. 339271) (McMaster II), this time reasoning that Michigan’s adoption of federal motor carrier safety regulations at MCL 480.11a of the Motor Carrier Safety Act (the MCSA), MCL 480.11 et seq., abrogated DTE’s common-law duty to McMaster or, in the alternative, that the “shipper’s exception” set forth in United States v Savage Truck Line, Inc, 209 F.2dd 442, 445 (CA 4, 1953), applied to bar McMaster’s claim. McMaster again sought leave to appeal in the Supreme Court, and the Supreme Court granted the application. 507 Mich. 958, 959 N.W.2d 531 (2021).

In a unanimous opinion by Justice CAVANAGH, the Supreme Court held:

Michigan’s adoption of the federal motor carrier safety regulations did not abrogate the common-law duty of care shippers owe to carriers; however, under Michigan common law and consistently with the shipper’s exception, a shipper responsible for loading cargo is not liable in negligence for a defect in loading that is apparent to the carrier or its agents, but is instead only liable if the defect is hidden. Accordingly, summary disposition for DTE was affirmed; there was no genuine issue of material fact—DTE was not liable to McMaster because, even assuming that DTE was negligent in how it loaded the container, the defect was not hidden given McMaster’s admission that he had seen the pipe’s position in the container before he transported it and when he cracked the container door open after transport. Further, McMaster’s theory that the pipe’s placement on top of concealed materials was a latent defect lacked evidentiary support.

1. The MCSA adopted into Michigan law the federal motor carrier safety regulations under 49 CFR 392.9. The MCSA contains no unequivocal statement that the common law has been abrogated. The Court of Appeals erroneously concluded that the MCSA occupied the field of discernable duties. While the MCSA describes the duties of carriers and drivers in detail, the MCSA does not define the duties of shippers as to their responsibility for loading cargo and therefore does not occupy the field of duties owed by shippers. The Court of Appeals’ reasoning was also inconsistent with the underlying premise that the shipper owes a duty of reasonable care at common law. To the extent that the Court of Appeals’ reasoning suggested that duties of shippers and carriers to ensure safe transport could not overlap, it failed to consider Michigan’s comparative-fault system, in which one party’s failure to use ordinary care may reduce the other party’s liability without wholly absolving them of it. Accordingly, the MCSA did not repeal the common law, either explicitly or through occupation of the field.

2. The shipper’s exception set forth in Savage, 209 F2d at 445, was formally adopted: when the shipper assumes the responsibility of loading, the general rule is that it becomes liable for the defects that are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier, but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper. The Savage rule properly delineates the duties of shippers and carriers and is consistent with Michigan’s common law, Michigan’s comparative-fault regime, and the MCSA. The rule is also consistent with considerations governing whether a legal duty exists, including foreseeability of the harm, degree of certainty of injury, closeness of connection between the conduct and injury, moral blame attached to the conduct, the policy of preventing future harm, and the burdens and consequences of imposing a duty and the resulting liability for breach. Given the responsibilities outlined in the MCSA, the Savage rule properly recognizes that a carrier and its drivers are generally in the best position to foresee harm, with limited exceptions, such as latent defects. The shipper is in the best position to know of latent defects caused while the goods were within its exclusive control. The rule also accords with Michigan common law in that a common carrier is the default insurer of damages to goods. Further, the rule is consistent with the federal regulations codified in the MCSA and reflects the balance of responsibilities in the trucking industry. Adoption of the Savage rule was not a wholesale adoption of Savage and its discussion of the concepts of contributory negligence. The adopted rule does not allow a shipper to wholly escape liability, as might be possible under a contributory-negligence framework. Instead, the shipper’s exception defines when liability will attach to the shipper. A shipper may be liable for negligent loading only when it assumes responsibility for loading and there is a latent defect. Moreover, even in circumstances under which the carrier has some degree of fault, the shipper may still be held liable. In other words, the carrier’s negligence does not extinguish liability for the shipper, but the jury could reduce the recovery amount when allocating comparative fault. Such a state of events is exactly what is contemplated by a comparative-fault system—multiple, potentially overlapping duties, with only some breaches giving rise to liability.

3. DTE was properly granted summary disposition because there existed no genuine issue of material fact. To establish a prima facie case of negligence, a plaintiff must prove the existence of a legal duty, the defendant’s failure to exercise ordinary care in the performance of that duty, and harm proximately caused by the breach of that duty. In this case, DTE owed McMaster a duty of reasonable care, and Michigan’s adoption of the federal motor carrier safety regulations at MCL 480.11a did not abrogate that duty. Further, under the adopted rule, liability for a shipper that is responsible for loading may arise only if there is a latent defect. McMaster’s theory of liability was that the blue pipe was improperly loaded parallel to the back of the container. But even assuming that it was negligent to load the pipe in this manner, the placement of the pipe was not a latent defect. McMaster admitted in his deposition that during his safety inspections he saw that the large blue pipe was loaded such that it was parallel to and up against the rear door of the container. He also testified that the position of the pipe did not cause him any concern at that time. Finally, McMaster testified that when he began the unloading process at the Ferrous facility, he cracked open the rear door of the container to see whether any material would fall out and again observed the blue pipe in the back of the container. Because the placement of the pipe that caused the injury was readily observable to McMaster—and, in fact, was observed by McMaster—no reasonable jury could conclude that DTE breached its duty to him. McMaster’s additional argument—that the fact that the pipe was loaded on top of other concealed materials was a latent defect that made the pipe more susceptible to rolling out of the container—was too speculative to defeat summary disposition.

Affirmed on alternate grounds.

Counsel:  [*1] For DEAN, MCMASTER, Plaintiff – Appellant: SIMA G. PATEL.

For DTE ELECTRIC COMPANY, Defendant – Appellee: TIMOTHY A. DIEMER.

For FERROUS PROCESSING AND TRADING COMPANY, Defendant – Appellee: JOHN J. O’SHEA.

For DEAN MCMASTER, Plaintiff: Robert G. Kamenec.

For DTE ELECTRIC COMPANY, Defendant: Timothy A Diemer.

For FERROUS PROCESSING AND TRADING COMPANY, Defendant: John J. O’Shea.

Judges: Chief Justice: Bridget M. McCormack. Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Elizabeth M. Welch.

Opinion by: Megan K. Cavanagh

Opinion

BEFORE THE ENTIRE BENCH

CAVANAGH, J.

This case concerns the duties of shippers, common carriers, and drivers in the trucking industry. The issue presented is whether and when shippers may be held liable for damage to persons and property. The Court of Appeals determined that the common-law duty of a shipper was abrogated by Michigan’s passage of MCL 480.11a, which adopted the federal motor carrier safety regulations as part of the Motor Carrier Safety Act (the MCSA), MCL 480.11 et seq. We disagree and hold that the common-law duty of care owed by a shipper to a driver was not abrogated by MCL 480.11a. As an issue of first impression, we adopt the “shipper’s exception” or “Savage rule” [*2] ¹ to guide negligence questions involving participants in the trucking industry, as this rule is consistent with our laws—including Michigan’s comparative-fault paradigm. HN1[] A shipper responsible for loading cargo may be held liable for injury to persons or property only for hidden defects—those not readily observable by the carrier or its agents. See United States v Savage Truck Line, Inc, 209 F2d 442, 445 (CA 4, 1953). Finally, we apply this rule and affirm, on alternate grounds, the grant of summary disposition to DTE Electric Company (DTE) because there exists no genuine issue of material fact that DTE did not breach its duty to plaintiff.

I. FACTS AND PROCEDURAL HISTORY

This is a negligence action seeking compensation for injuries caused when a metal pipe fell out of a scrap container, striking plaintiff, Dean McMaster, in the leg. Defendant DTE, the shipper, contracted with Ferrous Processing and Trading Company (Ferrous) to sell scrap metal generated by its business. As part of the deal, Ferrous placed its large metal roll-off containers at various DTE facilities, and DTE filled the containers with pieces of scrap metal. Ferrous, in turn, subcontracted with P&T Leasing Company (P&T), the carrier, to transport the containers, or boxes, between DTE and [*3]  Ferrous. McMaster worked as a truck driver for P&T doing just that—picking up containers from DTE and transporting them to a Ferrous scrap yard.

In October 2014, McMaster arrived at DTE’s Belle River Power Plant to drop off an empty container and pick up one that had been loaded by DTE. McMaster inspected the container and saw a large blue steel pipe, approximately the length of the box’s width, lying parallel to and up against the back door of the container. He observed that the cargo consisted of heavy materials below the top of the box and determined that no tarp was necessary for the trip. McMaster then used his trailer’s hydraulic system to lift the roll-off container onto the trailer, secured the container to the trailer, and headed to Ferrous’s Pontiac facility.

At the Ferrous scrap yard, McMaster had the truck weighed, drove to the inspection area, and then drove to the dumping location as instructed by Ferrous’s inspector. He began the typical process of dumping the scrap by getting out of his truck and walking to the back of the trailer that held the container. As was customary, McMaster kept the hydraulics running while he edged open the container door about 12 inches to ensure [*4]  that no materials fell out. When nothing fell out, he proceeded to pull the safety chain to fully open the door. McMaster observed that the majority of the load contained I-beams. With the Ferrous inspector and another Ferrous employee, McMaster then stood 8 or more feet behind and in view of the open container to discuss where to dump its contents. After about five minutes, the inspector determined that the scrap should be placed in a different area. McMaster then began to walk toward the front of the truck to turn off the hydraulics, which wouldn’t be needed until the container was moved to the new area for dumping. At that point, the pipe fell out of the container, hitting McMaster in the back of his left leg and ultimately resulting in a below-the-knee amputation.

In June 2015, McMaster sued DTE and Ferrous for negligence, alleging negligent loading and failure to warn of such improper loading. To support his theory, McMaster retained trucking industry expert Larry Baareman, who testified at a discovery deposition that DTE loaded the scrap in a dangerous manner. More specifically, Baareman opined that the orientation of the blue pipe parallel to and up against the container door [*5]  was hazardous. Further, Baareman testified that the pipe being loaded on top of other material that was concealed underneath was a hidden defect that made the pipe more susceptible to falling off the truck. Baareman concluded that this positioning could have caused the pipe to roll off.

DTE and Ferrous moved for summary disposition under MCR 2.116(C)(10). The trial court granted DTE’s motion, stating:

After considering the legal arguments made by counsel and in looking at the evidence in the light most favorable to the plaintiff, the Court concludes that there’s no genuine issue of material fact that exists that would allow reasonable minds to differ in concluding that DTE did not breach the duty of reasonable care owed to plaintiff.

Further, the Court concludes that plaintiff has not sustained his burden as to causation and there’s no genuine issue of any material fact remaining as to the elements of negligence analysis.

The trial court denied the motion against Ferrous, and the case continued; McMaster ultimately settled with Ferrous, who is not a party to this appeal. McMaster appealed the final order disposing of the case, and the Court of Appeals affirmed. McMaster v DTE Energy Co, unpublished per [*6]  curiam opinion of the Court of Appeals, issued November 8, 2018 (Docket No. 339271) (McMaster I). The Court of Appeals reasoned that DTE did not have a duty to warn of or protect McMaster from a known danger, relying on the open and obvious danger doctrine. Id. at 3-4. McMaster appealed in this Court. Because the Court of Appeals erroneously applied open-and-obvious principles to an ordinary-negligence case, we peremptorily vacated Part III of the opinion and remanded for “application of the law of ordinary negligence and for consideration of the issues raised by the parties on the question of the defendant’s legal duty.” McMaster v DTE Electric Co, 504 Mich 967, 967; 933 N.W.2d 42 (2019).

On remand, the Court of Appeals again affirmed the trial court, this time reasoning that Michigan’s passage of MCL 480.11a abrogated DTE’s common-law duty or, in the alternative, that the shipper’s exception or Savage rule² applied to bar McMaster’s claim. McMaster v DTE Energy Co, unpublished per curiam opinion of the Court of Appeals, issued July 2, 2020 (Docket No. 339271) (McMaster II), pp 5-6.

McMaster appealed, and our June 2021 order granting leave asked the parties to address “(1) whether the enactment of MCL 480.11a abrogated the appellee’s common-law duty of ordinary care with respect [*7]  to loading cargo for transport by a commercial motor vehicle operated by the appellant; and (2) whether the appellee owed a duty to the appellant under the ‘shipper’s exception.’ See United States v Savage Truck Line, Inc, 209 F2d 442, 445 (CA 4, 1953).” McMaster v DTE Energy Co, 507 Mich 958, 958; 959 N.W.2d 531 (2021).

II. STANDARD OF REVIEW

HN2 A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019). The court must consider all evidence submitted by the parties in the light most favorable to the party opposing summary disposition. Id. Only when the record does not leave open an issue upon which reasonable minds might differ may a motion under MCR 2.116(C)(10) be granted. Id. On appeal, the trial court’s determination on a motion for summary disposition is reviewed de novo. Id. at 159. So too are issues of statutory interpretation, including whether the common law has been abrogated by statute. Murphy v Inman, 509 Mich    ,    ;     NW2d     (2022) (Docket No. 161454); slip op at 6.

III. ANALYSIS

HN3 To establish a prima facie case of negligence, a plaintiff must prove the existence of a legal duty, the defendant’s failure to exercise ordinary care in the performance of that duty, and harm proximately caused by the breach of that duty. Clark v Dalman, 379 Mich 251, 260; 150 NW2d 755 (1967). Duty and its breach are the focus of our inquiry in this case.

A. COMMON-LAW ABROGATION [*8] 

Our first question is whether the MCSA supplanted the common-law duty of care owed by a shipper such as DTE to a driver such as McMaster in the loading of cargo for transport. We conclude that it did not.

During its first review of the case, the Court of Appeals determined that McMaster, as an employee of a subcontractor, was owed a duty of reasonable care by DTE. McMaster I, unpub op at 3 (describing “the duty ‘imposed by law'” as “‘[t]he general duty of a contractor to act so as not to unreasonably endanger the well-being of employees of either subcontractors or inspectors, or anyone else lawfully on the site of the project'”), quoting Clark, 379 Mich at 261-262. However, on remand the Court of Appeals determined that the common-law duty of reasonable care had been abrogated by the Legislature’s adoption of the MCSA. McMaster II, unpub op at 5. McMaster argues that the common-law duty of ordinary care coexists with the MCSA and that there was no abrogation. DTE argues that there is no common-law duty, but regardless, that any duty was abrogated by the MCSA.

As a threshold matter, we agree with McMaster and the Court of Appeals that there is a common-law duty of ordinary care in this context. HN4 It is well established [*9]  that “every person engaged in the prosecution of any undertaking [owes] an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others.” Clark, 379 Mich at 261. “This rule of the common law arises out of the concept that every person is under the general duty to so act, or to use that which he controls, as not to injure another.” Id. See also Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 169-170; 809 NW2d 553 (2011). As the Court of Appeals correctly observed, under these facts, with a subcontractor, McMaster, on DTE’s premises with its permission, DTE owed McMaster a duty of reasonable care. The question that remains is whether the MCSA abrogated this common-law duty.

HN5 As we most recently discussed in Murphy, several principles guide whether this Court will deem the common law abrogated by statute:

Having concluded that corporate directors owe their shareholders certain fiduciary duties under this state’s common law, this Court, as “the principal steward of Michigan’s common law,” [Price v High Pointe Oil Co, Inc, 493 Mich 238, 258; 828 NW2d 660 (2013) (quotation marks and citation omitted),] must determine whether the Legislature abrogated these duties when it enacted the [ Business Corporation Act, MCL 450.1101 et seq.]. “The common law remains in force until ‘changed, amended or repealed.'” [Velez v Tuma, 492 Mich 1, 11; 821 NW2d 432 (2012), quoting Const 1963, art 3, § 7.] [*10]  The Legislature may alter or abrogate the common law through its legislative authority. [Rafaeli, LLC v Oakland Co, 505 Mich 429, 473; 952 NW2d 434 (2020); Const 1963, art 4, § 1.] Yet the mere existence of a statute does not necessarily mean that the Legislature has exercised this authority. We presume that the Legislature “know[s] of the existence of the common law when it acts.” [Wold Architects & Engineers v Strat, 474 Mich 223, 234; 713 NW2d 750 (2006).] Therefore, we have stated that “[w]e will not lightly presume that the Legislature has abrogated the common law” and that “the Legislature should speak in no uncertain terms when it exercises its authority to modify the common law.” [Velez, 492 Mich at 11-12 (quotation marks and citations omitted).] As with other issues of statutory interpretation, the overriding question is whether the Legislature intended to abrogate the common law. [Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006) (“Whether a statutory scheme . . . preempts the common law is a question of legislative intent.”).]. [Murphy, 509 Mich at    ; slip op at 16-17.]

The MCSA is designed, inter alia, “to promote safety upon highways open to the public by regulating the operation of certain vehicles” and “to provide consistent regulation of these areas . . . .” 1963 PA 181, title. As is evident from its title, the MCSA addresses safety in the Michigan trucking industry. In furtherance of those goals, the MCSA adopted several provisions of [*11]  Title 49 of the Code of Federal Regulations. MCL 480.11a. Germane to our purposes, the MCSA adopted into Michigan state law the federal motor carrier safety regulations under 49 CFR 392.9. MCL 480.11a(1)(b). 49 CFR 392.9 relates to the “[i]nspection of cargo, cargo securement devices and systems” and describes responsibilities for motor carriers and their drivers with regard to the cargo they transport. The statute imposes certain duties on the driver of the cargo to ensure that the cargo is properly secured through inspection and reexamination during the course of the trip. Those duties may be excused under extenuating circumstances, such as a directive not to inspect or impracticability. 49 CFR 392.9 provides, in relevant part:

(a) General. A driver may not operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless—

(1) The commercial motor vehicle’s cargo is properly distributed and adequately secured as specified in §§ 393.100 through 393.136 of this subchapter.

* * *

(b) Drivers of trucks and truck tractors. Except as provided in paragraph (b)(4) of this section, the driver of a truck or truck tractor must—

(1) Assure himself/herself that the provisions of paragraph (a) of this section have been complied with before he/she [*12]  drives that commercial motor vehicle;

(2) Inspect the cargo and the devices used to secure the cargo within the first 50 miles after beginning a trip and cause any adjustments to be made to the cargo or load securement devices as necessary, including adding more securement devices, to ensure that cargo cannot shift on or within, or fall from the commercial motor vehicle; and

(3) Reexamine the commercial motor vehicle’s cargo and its load securement devices during the course of transportation and make any necessary adjustment to the cargo or load securement devices, including adding more securement devices, to ensure that cargo cannot shift on or within, or fall from, the commercial motor vehicle. Reexamination and any necessary adjustments must be made whenever—

(i) The driver makes a change of his/her duty status; or

(ii) The commercial motor vehicle has been driven for 3 hours; or

(iii) The commercial motor vehicle has been driven for 150 miles, whichever occurs first.

(4) The rules in this paragraph (b) do not apply to the driver of a sealed commercial motor vehicle who has been ordered not to open it to inspect its cargo or to the driver of a commercial motor vehicle that has been loaded [*13]  in a manner that makes inspection of its cargo impracticable.

HN6 As an initial matter, it is plain from the statute’s text that the MCSA contains no unequivocal statement that the common law has been abrogated. In determining that the common law was nonetheless abrogated, the Court of Appeals compared the case to Dawe v Dr. Reuven Bar-Levav & Assocs., P.C., 485 Mich. 20; 780 N.W.2d 272 (2010). McMaster II, unpub op at 4-5. Dawe concerned whether a statute codifying a psychiatrist’s duty to warn or protect third parties abrogated the psychiatrist’s common-law special-relationship duty to protect their patients. Dawe, 485 Mich. at 25. The lower court in Dawe had found that the statute at issue preempted the field on the mental health professional’s duty to warn others. Id. But our Court rejected this analysis, holding that the psychiatrist’s common-law duty was not completely abrogated because the statute in question only addressed one aspect of a psychiatrist’s duties to patients. McMaster II, unpub op at 4. The Court of Appeals in this case distinguished Dawe on the basis that, unlike the many duties owed by a psychiatrist to their patient, no other tort duties flow from a shipper to a carrier and, therefore, the MCSA occupied the field of discernable duties. Id. at 4-5. But the MCSA addresses the duties of [*14]  drivers, not shippers—so it cannot be said that the field of duties owed by a shipper has been occupied. The Court of Appeals’ reasoning is also inconsistent with the underlying premise that the shipper owes a duty of reasonable care at common law.

The panel also made comparisons to Velez, in which we held that the Legislature did not intend to abolish the common-law setoff rule in joint and several liability medical malpractice cases. Velez, 492 Mich at 12. This Court reasoned in Velez that despite the repeal of a statute acknowledging the common law, the legislation in question was silent as to the application of the common-law rule, and there was no conflict between the common law and legislation. Id. The Court of Appeals determined that unlike in Velez, there were no other statutes addressing the manner of loading cargo or setting forth a relevant duty. McMaster II, unpub op at 5. Again, this reasoning fails to acknowledge the panel’s own premise that a common-law duty existed. It also puts the cart before the horse—searching for an intent to maintain the common law when the critical inquiry is whether there was an intent to abrogate it.

To the extent that the Court of Appeals’ reasoning suggests that duties of shippers [*15]  and carriers to ensure safe transport cannot overlap, it fails to consider Michigan’s comparative-fault system, in which one party’s failure to use ordinary care may reduce the other party’s liability without wholly absolving them of it. See Placek v Sterling Hts, 405 Mich 638; 275 NW2d 511 (1979); MCL 600.2957. HN7 Nothing in the common law or the MCSA indicates that the duties of shippers and carriers are a zero-sum game such that if one has the duty to ensure safe transport, the other does not.

DTE argues that the highly detailed and comprehensive course of conduct set forth in the MCSA supports a reading of abrogation. See Millross v Plum Hollow Golf Club, 429 Mich 178, 183; 413 NW2d 17 (1987) (providing that legislative intent to replace the common law may be found “where comprehensive legislation prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions”). In a similar vein, the Court of Appeals suggested that the MCSA occupied the field of duties owed by a shipper to a carrier. McMaster II, unpub op at 5. HN8 However, while the MCSA describes the duties of carriers and drivers in detail, the MCSA does not define the duties of shippers as to their responsibility for loading cargo. The shipper’s role within the universe of the trucking industry [*16]  is, of course, contemplated by the MCSA, which defines a “shipper” such as DTE, 49 CFR 390.5, and prohibits shippers from coercing a driver to haul an unsafe load in violation of the regulations, 49 CFR 386.12(c); 49 CFR 390.6. But the MCSA, which regulates “all employers, employees, and commercial motor vehicles that transport property or passengers in interstate commerce,” 49 CFR 390.3(a), does not occupy the entire field of liability questions regarding shippers in this industry. It is not fully comprehensive on the question of negligence because it does not speak to the shipper’s duties in loading cargo—at all. Legislative silence as to the shipper’s duties in this realm is not indicative of abrogation. In sum, the MCSA did not repeal the common law, either explicitly or through occupation of the field.

B. CONTOURS OF THE DUTY OWED

Having decided that the shipper’s common-law duty was not abrogated by the adoption of the MCSA, we address the contours of the shipper’s common-law duty of care to the carrier and its drivers. HN9 We take this opportunity to formally adopt the “shipper’s exception” as described in Savage, 209 F2d at 445:

When the shipper assumes the responsibility of loading, the general rule is that [it] becomes liable for the defects which are latent [*17]  and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper.

We find that the Savage rule properly delineates the duties of shippers and carriers and that this rule is consistent with our common law, with our comparative-fault regime, and with the MCSA.

In Savage, the defendant was a common carrier that had contracted with the federal government to transport a truck with a cargo of six airplane engines in cylindrical containers. Id. at 443. At some point during the transport, the cylinders shifted, and one fell off the truck, killing another motorist. Id. The way that the government’s agents loaded the cylinders had caused the cargo to jostle while being transported. Id. at 443-444. On appeal, the government argued that despite the finding of negligence on its part in loading the truck, it was still entitled to recover damages to the engines from the defendant because of the liability owed by a common carrier to a shipper. Id. at 444.

HN10 The United States Court of Appeals for the Fourth Circuit recognized that the “common law liability of a common carrier is that of an insurer for loss or [*18]  damage of goods in transit . . . .” Id. at 445. But the carrier’s liability does not reach “losses arising from acts of God, acts of the public enemy, the inherent nature of the goods, and acts of the shipper.” Id. The court noted that “the duty rests upon the carrier to see that the packing of goods received by it for transportation is such as to secure their safety,” and that the duty of every common carrier is “to furnish adequate facilities for the transportation of property and to establish and enforce just and reasonable regulations and practices relating to the manner of packing and delivering goods for transportation[.]” Id. This duty was derived from federal regulations, which stated at the time that “the load on every motor vehicle transporting property shall be secured in order to prevent unsafe shifting of the load and that no motor vehicle shall be driven unless the driver shall have satisfied himself that all means of fastening the load are securely in place.” Id. The Fourth Circuit concluded that “[t]he primary duty as to the safe loading of property is therefore upon the carrier.” Id. HN11 The court went on to explain:

When the shipper assumes the responsibility of loading, the general [*19]  rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper. This rule is not only followed in cases arising under the federal statutes by decisions of the federal courts but also for the most part by the decisions of the state courts. [Id.]

The court observed that both parties were negligent: the government’s agents failed to secure the engines properly when loading the cargo, and the carrier’s agents failed to use reasonable care in accepting the load as loaded as well as failed to operate the vehicle with ordinary care in light of the known deficiencies in loading and securing the cargo. Id. at 446. The court reasoned, “Obviously it was [the driver’s] duty, having this knowledge, to drive with particular attention to the speed of the vehicle but he conducted himself as if conditions were normal and the catastrophe ensued.” Id. Thus, under the rule it set out, the carrier was not entitled to recover from the government for damages to his truck, but the government was entitled to recover [*20]  from the carrier for the damage to its cargo. Id.

HN12 The default rule, then, is that a carrier and its drivers will generally shoulder responsibility for issues stemming from the loading of cargo. Only when the shipper assumes the responsibility of loading and there are hidden defects may the shipper be held responsible—even if the shipper negligently loads the cargo. The “shipper’s exception” initially pertained only to the damage of goods during shipment but has been extended to the personal-injury context in which employees or contractors of carriers are injured because of allegedly negligent loading. See Decker v New England Pub Warehouse, Inc, 749 A2d 762, 767; 2000 ME 76 (2000).

The Court of Appeals held, in the alternative to common-law abrogation, that the “shipper’s exception” applied. McMaster II, unpub op at 5. The panel reached this conclusion in part because it presumed that the Legislature knew about the Savage case, which preceded Michigan’s enactment of the MCSA. Id. While we agree that the Savage rule defines the scope of the duty question, we disagree that the mere existence of federal common law from the United States Court of Appeals for the Fourth Circuit bears on the question of legislative intent with regard to the continued vitality of Michigan common [*21]  law. We do not impute knowledge of federal common law to the Michigan Legislature. Nevertheless, we hold that the Savage rule is consistent with preexisting Michigan law, including our comparative-fault system.

The Savage rule accords with our recognition of the liability of common carriers at common law. HN13 A common carrier is generally liable for damages to goods, with narrow exceptions including the “fault of the owner.” Black v Ahsley, 80 Mich. 90, 96; 44 N.W. 1120 (1890). In other words, the common carrier is the default insurer. Id. The descriptions of the “fault of the owner” in Black, id., and the “acts of the shipper” in Savage, 209 F2d at 445, indicate a shared understanding that the default rule contained narrow exceptions reflecting who had control of the goods and was in a better position to control for risk. The shipper’s exception—limiting the scope of the shipper’s fault to latent defects—is a natural extension of this shared understanding.

HN14 The exception is also consistent with considerations governing whether a legal duty exists, including “foreseeability of the harm, degree of certainty of injury, closeness of connection between the conduct and injury, moral blame attached to the conduct, policy of preventing future harm, and . . . the burdens and consequences [*22]  of imposing a duty and the resulting liability for breach.” Brown v Brown, 478 Mich 545, 553; 739 NW2d 313 (2007) (cleaned up). Given the responsibilities outlined in the MCSA, the Savage rule properly recognizes that a carrier and its drivers are generally in the best position to foresee harm, with limited exceptions. One such limited exception is latent defects; the shipper is in the best position to know of latent defects caused while the goods were within its exclusive control. This refinement of when a duty will give rise to liability reflects the unique allocation of responsibility in this specialized setting. See Decker, 749 A2d at 766-767 (“The Savage rule simply extends the industry’s reasonable understanding to negligence suits involving carriers and shippers.”).

Further, the rule is consistent with the federal regulations codified by Michigan in the MCSA. In turn, these regulations reflect the balance of responsibilities in the trucking industry. HN15 For example, the onus is generally on the carrier’s driver to ensure that the cargo is secured and distributed properly and to perform safety checks throughout the trip. 49 CFR 392.9. The driver may refuse to accept a load from a shipper if they believe that the cargo is dangerously loaded. 49 CFR 392.9(b)(1). In addition, the regulations excuse a [*23]  driver from such responsibilities if the driver is unable to inspect the cargo, such as if the container is sealed or if the manner of loading makes inspection impracticable. 49 CFR 392.9(b)(4). These exemptions are wholly consistent with shifting the responsibility for latent defects to shippers, because a driver would be unable to detect them.

McMaster argues that the Savage rule is inconsistent with our comparative-fault system.³ To be sure, the Savage court applied its holding in the context of a contributory-negligence framework. But our adoption of the Savage rule is not a wholesale adoption of Savage and its discussion of the concepts of contributory negligence. The rule that we now adopt does not allow a shipper to wholly escape liability, as might be possible under a contributory-negligence framework. Instead, the shipper’s exception defines when liability will attach to the shipper. HN16 A shipper may be liable for negligent loading only when there is a latent defect. Moreover, even in circumstances under which the carrier has some degree of fault, the shipper may still be held liable. In other words, the carrier’s negligence does not extinguish liability for the shipper, but the jury could reduce the recovery amount when [*24]  allocating comparative fault. Such a state of events is exactly what is contemplated by a comparative-fault system—multiple, potentially overlapping duties, with only some breaches giving rise to liability. Notably, many other states with comparative-fault regimes have also adopted the “shipper’s exception.” See, e.g., Decker, 749 A2d 762; Wilkes v Celadon Group, Inc, 177 NE3d 786 (Ind, 2021); Smart v American Welding & Tank Co, Inc, 149 NH 536; 826 A2d 570 (2003). While not binding, these decisions from our sister jurisdictions have persuasive value.

In summary, we adopt the shipper’s exception because it is consistent with our common law, the MCSA, and our system of comparative fault. HN17 A shipper owes a common-law duty to use reasonable care while loading cargo and will be liable for injury to persons or property for defects that are not readily discernible by the carrier. The carrier still owes a duty to inspect and correct any defects that it can perceive, even if the shipper was the one who initially caused the defect. When both the shipper and the carrier have acted negligently by breaching their respective duties and proximately causing damage, Michigan’s comparative-fault scheme requires a jury to apportion fault between them.

IV. APPLICATION

Having outlined the nature and extent of DTE’s duty to McMaster, we next determine [*25]  whether McMaster has raised a genuine issue of material fact sufficient to survive a motion for summary disposition. We hold, on the basis of the record presented, that there exists no genuine issue of material fact that the accident was caused by a latent defect and, therefore, that DTE was properly granted summary disposition.

McMaster’s theory of liability was that the blue pipe was improperly loaded parallel to the back of the container. But even assuming that it was negligent to load the pipe in this manner, as we must when viewing the evidence in the light most favorable to McMaster, the placement of the pipe was not a latent defect. McMaster admitted in his deposition that during his safety inspections he saw that the large blue pipe was loaded such that it was parallel to and up against the rear door of the container. McMaster testified that he had climbed up a ladder to look inside the container while still at the DTE facility and could see that the pipe was “[i]n the very back up against the back door.” He also testified that the position of the pipe did not cause him any concern at that time. Finally, McMaster testified that when he began the unloading process at the Ferrous [*26]  facility, he cracked open the rear door of the container to see whether any material would fall out and again observed the blue pipe in the back of the container. Accordingly, because the placement of the pipe which caused the injury was readily observable to McMaster—and, in fact, was observed by McMaster—no reasonable jury could conclude that DTE breached its duty to him.

In addition, McMaster argues that the fact that the pipe was loaded on top of other concealed materials was a latent defect that made the pipe more susceptible to rolling out of the container. But this theory is too speculative to defeat summary disposition. When asked whether the material under the pipe played a role in the pipe rolling out of the container, McMaster’s proposed expert, Larry Baareman, testified, “I can only say it could have.” HN18 However, to defeat summary disposition, a plaintiff must do more than present evidence that the defendant’s conduct possibly caused the injury. Skinner v Square D Co, 445 Mich 153, 164-165; 516 NW2d 475 (1994) (“Nor is it sufficient to submit a causation theory that, while factually supported, is, at best, just as possible as another theory. Rather, the plaintiff must present substantial evidence from which a jury may conclude that more [*27]  likely than not, but for the defendant’s conduct, the plaintiff’s injuries would not have occurred.”). Given this evidence, there is no genuine issue of material fact either that the allegedly defective loading of the blue pipe was latent or that DTE breached the duty it owed to McMaster.

V. CONCLUSION

HN19 We hold that the adoption of the federal motor carrier safety regulations at MCL 480.11a did not abrogate the common-law duty of care owed by shippers to carriers. Under Michigan common law, consistently with the “shipper’s exception” discussed in Savage, a shipper is not liable in negligence for a defect in loading that is apparent to the carrier or its agents, but is instead only liable if the defect is hidden. Savage, 209 F2d at 445. This duty is consistent with our common law, with our comparative-fault system, and with the everyday experiences in the trucking industry as reflected in the MCSA. Applying this rule to the facts of this case, McMaster has failed to raise a genuine issue of material fact that there was a latent defect that caused his injuries. Therefore, we affirm the Court of Appeals’ determination that the trial court’s entry of summary judgment to DTE was proper.

Megan K. Cavanagh

Bridget M. McCormack

Brian [*28]  K. Zahra

David F. Viviano

Richard H. Bernstein

Elizabeth T. Clement

Elizabeth M. Welch

End of Document

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¹ United States v Savage Truck Line, Inc, 209 F2d 442, 445 (CA 4, 1953).

² Savage, 209 F2d at 445.

³ We adopted the doctrine of comparative negligence in Placek, 405 Mich 638, and the Legislature later codified the state’s modified comparative-negligence scheme, MCL 600.2957. After the jury has determined that a party is liable for damages in a tort action, the comparative-fault assessment kicks in for the jury to apportion liability on the basis of the relative fault of the parties. MCL 600.2957; see also M Civ JI 11.01. In contrast to our former contributory-negligence scheme, which we cast aside in Placek, an at-fault party generally may not escape liability by pointing to the plaintiff’s own negligence unless the jury determines that the plaintiff’s percentage of fault surpasses that of the at-fault party. MCL 600.2959; M Civ JI 11.01.