United States District Court for the Western District of Texas, Pecos Division

January 4, 2022, Decided; January 4, 2022, Filed

P:20-CV-00010-DC

Reporter

2022 U.S. Dist. LEXIS 35821 *; 2022 WL 576581

MIGUEL LARA and MARIA LARA, individually and as Administrators of the Estate of Luis Antonio Lara, Plaintiffs, v. POWER OF GRACE TRUCKING, LLC, and JOSE GUADALUPE PINA JACOBI, Defendants.

Core Terms

gross negligence, summary judgment, recommendations, mail, genuine, nonmoving, driver, material fact

Counsel:  [*1] For Miguel Lara, Individually and as Independent Administrato of the Estate of Luis Antonio Lara, Maria Estela Lara, Individually and as Independent Administrator of the Estate of Luis Antonio Lara, Plaintiffs: Rickey J. Brantley, Rickey J. Brantley, Attorney at Law, P.C., Fort Worth, TX.

For Power of Grace Trucking, LLC, Defendant: Eric Sherwood Rich, LEAD ATTORNEY, Shafer, Davis, O’Leary & Stoker, Odessa, TX.

Jose Guadalupe Pina Jacobi, Defendant, Pro se.

For Stephanie Coronado, as next friend to A.L., a minor, Intervenor Plaintiff: Jack Stick, LEAD ATTORNEY, Veris Law PLLC, Austin, TX; Michael S. Alfred, LEAD ATTORNEY, Hallett & Perrin, Dallas, TX.

Judges: DAVID COUNTS, UNITED STATES DISTRICT JUDGE.

Opinion by: DAVID COUNTS

Opinion

ORDER ADOPTING REPORT AND RECOMMENDATION

BEFORE THE COURT is United States Magistrate Judge David B. Fannin’s Report and Recommendation (R&R) filed in the above-captioned cause on October 4, 2021, in connection with the Motion for Partial Summary Judgment filed by Defendants Power of Grace Trucking, LLC (Power of Grace) and Jose Guadalupe Pina Jacobi (Jacobi) (together, Defendants) on June 3, 2021. (Docs. 39, 83). Plaintiffs Miguel Lara and Maria Lara (Plaintiffs) filed Objections to the [*2]  R&R on October 14, 2021. (Doc. 92). Power of Grace, with leave of Court, filed a response to the Objections on October 26, 2021. (Doc. 95-1). After due consideration, the Court ADOPTS the R&R to the extent that it is consistent with this Order (Doc. 83) and OVERRULES Plaintiffs’ Objections (Doc. 92). Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion for Partial Summary Judgment. (Doc. 39).

I. Background

This case arises from an automobile collision. (Doc. 1 at 4). On or about December 8, 2019, Luis Antonio Lara (Mr. Lara) was traveling northbound on SH 18. Id. Jacobi was also traveling on SH 18 northbound. Id. According to the Complaint, Jacobi made an illegal U-turn across SH 18’s northbound lane. Id. Jacobi struck Mr. Lara’s vehicle during the attempted U-turn, resulting in Mr. Lara’s death. Id. Power of Grace owned the commercial tractor-tanker trailer driven by Jacobi. Id. The parties agree that Jacobi was acting within the course and scope of his employment with Power of Grace at the time of the collision. Id.

The Plaintiffs are Mr. Lara’s parents. Id. at 1. On February 20, 2020, they filed the instant lawsuit against Defendants for negligence, gross negligence, [*3]  and wrongful death. See id. Moreover, Plaintiffs raise claims for respondeat superior and negligent hiring, training, supervision, retention, and monitoring against Power of Grace. Id. On June 8, 2020, Stephanie Coronado (Intervenor) filed a Complaint in Intervention as Next Friend to A.L., Mr. Lara’s son. (Doc. 14). Intervenor raises the same claims as Plaintiffs. Id.

On June 3, 2021, Defendants, represented by the same attorneys, jointly filed a Motion for Partial Summary Judgment. (Doc. 39). Defendants move for summary judgment on the gross negligence claim. Id.

The Magistrate Judge issued an R&R on October 4, 2021, recommending granting in part and denying in part the Motion for Partial Summary Judgment. (Doc. 83). Specifically, the Magistrate Judge finds Plaintiffs have provided sufficient evidence for a reasonable jury to find Jacobi liable for gross negligence. Id. As to Power of Grace, the Magistrate Judge finds there is no genuine issue of material fact for which a reasonable juror could find that Power of Grace is liable for gross negligence. See generally id.

Prior to the Magistrate Judge issuing the R&R, defense counsel moved to withdraw as the attorney of record for Jacobi. [*4]  (Doc. 82). The Magistrate Judge granted the motion to withdraw and ordered the Court of Clerk to mail by certified mail, return receipt requested a copy of the order granting the motion to withdraw and the R&R to Jacobi’s last known address,¹ which defense counsel provided. (Docs. 84, 85). The order and R&R were returned to the Clerk of Court labeled “Return to Sender” and “Unable to Forward.” (Doc. 102). The Magistrate Judge also issued an advisory to Jacobi, explaining his status as a pro se litigant. (Doc. 86). The advisory was mailed via certified mail, return receipt requested on October 4, 2021, to Jacobi’s last known address. (Doc. 87). The advisory has not been delivered to Jacobi.

On October 14, 2021, Plaintiffs filed timely Objections to the R&R. (Doc. 92). They argue that the Magistrate Judge erred in finding that there is not sufficient evidence in the summary judgment record for a reasonable jury to find Power of Grace grossly negligent and that a ruling on the gross negligence claim is premature. See id.

Power of Grace and Jacobi did not file objections. The Court reset the final pretrial conference and trial settings several times to provide Jacobi, proceeding pro se, additional [*5]  time to file objections, if any, to the R&R. (Docs. 93; 97; 98; Text Only Entry, Dec. 30, 2021). Additionally, the Court directed the Clerk of Court to mail the R&R, order granting the motion to withdraw as an attorney, and advisory to Jacobi via FedEx International Priority. To this date, the documents have not been delivered to Jacobi by FedEx.

II. Legal Standards

A. Objections to Report and Recommendation

Any party who desires to object to a Magistrate Judge’s findings and recommendations must serve and file written objections within fourteen (14) days after being served with a copy of the findings and recommendations. 28 U.S.C. § 636(b)(1). A party’s objections to an R&R entitle him to a de novo review of those claims by this Court. 28 U.S.C. § 636(b)(1). However, objections must specifically identify those findings or recommendations to which objections are being made. The Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d 419 (5th Cir. 1987).

Failure to file written objections to the R&R within fourteen (14) days after being served with a copy shall bar that party from de novo review by the district court of the proposed findings and recommendations. Id. Moreover, except upon grounds of plain error, it shall also bar [*6]  the party from appellate review of proposed factual findings and legal conclusions accepted by the district court to which no objections were filed. Id.; Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Wilson, 864 F.2d 1219 (5th Cir. 1989) (per curiam).

B. Motion for Summary Judgment

Summary judgment is proper if 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). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The Court must examine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. In making this determination, the Court must consider the record as a whole by reviewing all pleadings, depositions, affidavits, and admissions on file, and drawing all justifiable inferences in favor of the party opposing the motion. Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). The Court may not weigh the evidence or evaluate the credibility of witnesses. Id.

The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the moving party demonstrates an absence of evidence supporting the nonmoving party’s case, then [*7]  the burden shifts to the nonmoving party to come forward with specific facts showing that a genuine issue for trial exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The nonmoving party cannot rest on the mere allegations of the pleadings to sustain this burden. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248. “After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted.” Caboni, 278 F.3d at 451. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. The admissibility of summary judgment evidence is subject to the same rules of admissibility applicable to a trial. Resolution Tr. Corp. v. Starkey, 41 F.3d 1018, 1024 (5th Cir. 1995) (citing Munoz v. Int’l All. of Theatrical Stage Emps. & Moving Picture Mach. Operators of the U.S. & Can., 563 F.2d 205, 297 n.1 (5th Cir. 1977)). Federal courts sitting in diversity apply state substantive law and federal procedural law. Shady Grove Orthopedic Ass’n, P.A. v. Allstate Ins. Co., 559 U.S. 393, 437, 130 S. Ct. 1431, 176 L. Ed. 2d 311 (2010) (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996)).

III. Discussion

As a preliminary matter, the Court notes that the R&R, which recommends denying Jacobi’s Motion for Partial Summary Judgment on the gross negligence claim filed against him, has been mailed to Jacobi twice to the last known address provided by Jacobi’s former counsel. The first time, the R&R was sent by certified mail, return receipt requested. (Doc. 85). The second time, the R&R was mailed via FedEx [*8]  International Priority. (Doc. 99). The first receipt was returned to the Clerk of Court on December 3, 2021, marked “Return to Sender” and “Unable to Forward.” (Doc. 102). The only address on file for Jacobi is that provided by his former attorney. As of the date of this Order, Jacobi has not provided the Court with a change of address. Accordingly, the Court finds Jacobi did not file timely objections to the R&R. See, e.g., Wright v. Wells Fargo Bank, N.A., No. A-12-CV-753-LY, 2014 WL 625603, at *1 (W.D. Tex. Jan. 3, 2014). The Court now turns to Plaintiffs’ Objections.

Plaintiffs first generally object to the Magistrate Judge’s finding that there is “insufficient evidence of the subjective element of [Power of Grace]’s gross negligence.” (Doc. 92 at 2). However, Plaintiffs do not expand on this particular objection. Id. Because the Court is not required to review frivolous, conclusive, or general objections, Plaintiffs’ first objection is overruled. See Minor v. Child Protective Agency, No. 5:20-CV-00405-OLG, 2020 WL 8915668, at *1 (W.D. Tex. June 5, 2020), appeal dismissed, No. 20-50680, 2020 WL 8551905 (5th Cir. Sept. 8, 2020) (citing Battle, 834 F.2d at 421).

Plaintiffs also challenge the Magistrate Judge’s finding that “Plaintiffs had not asserted a claim for gross negligence and exemplary damages.” (Doc. 92 at 2). Although the Magistrate Judge did not enumerate the gross negligence claim in the list of claims raised by Plaintiffs against Defendants (see [*9]  Doc. 83 at 2), he did review the gross negligence claims asserted in Plaintiffs’ Complaint and Intervenor’s Complaint in Intervention (see Doc. 83 at 5, 14). Accordingly, the objection is overruled.

Next, Plaintiffs argue that the Magistrate Judge erred in failing to “recognize that by satisfying the objective burden of the gross negligence claims against [Power of Grace] there is sufficient evidence to support the subjective elements or at a minimum raise a genuine issue of material fact for the jury to determine.” (Doc. 92 at 3). Plaintiffs specify that evidence of the “extreme risk posed by Power of Grace placing an untrained and unqualified Jacobi behind the wheel of a deficient tractor-trailer on a high-speed highway” supports Power of Grace’s objective and subjective awareness and conscious disregard of the risk. Id.

A claim for gross negligence contains two elements: one is objective and the other subjective. See U-Haul Int’l Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). Plaintiffs challenge the Magistrate Judge’s analysis of the second prong. (Doc. 92 at 3). The subjective prong of a gross negligence claim “requires that the defendant knew about the risk, but that the defendant’s acts or omissions demonstrated indifference to the consequences [*10]  of its acts.” Phillips v. Super Servs. Holdings, LLC, 189 F. Supp. 3d 640, 654 (S.D. Tex. 2016) (citing U-Haul, 380 S.W.3d at 137). “An act or omission that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent.” See id. (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994)).

Plaintiffs allege that the following factors establish Power of Grace’s subjective awareness about the risk: hiring Jacobi even though he did not have a valid driver’s license, violating regulations affecting the tractor-trailer’s roadworthiness, and failing to verify driver qualifications or experience, resulting in hiring an inexperienced and unqualified driver. (Doc. 92 at 3). In Texas, however, the law is clear that a gross negligence claim in the context of negligent hiring or entrustment must be supported “by more than a finding that the driver was unlicensed or inexperienced[.]” Escalante v. Creekside Logistics, LLC, No. 5:18-CV-116-OLG, 2019 WL 9135758, at *5 (W.D. Tex. Feb. 12, 2019) (internal quotation marks omitted) (quoting Phillips, 189 F. Supp. 3d at 658). Likewise, “a failure to sufficiently inquire into the employee’s driving record is insufficient to impose punitive damages.” Baird v. Shagdarsuren, No. 3:17-CV-2000-B, 2020 WL 208815, at *5 (N.D. Tex. Jan. 14, 2020) (citation omitted). What is lacking, in this case, is evidence of Power of Grace’s knowledge of any “incompetence or habitual recklessness on [Jacobi’s] part.” See id. (quoting [*11]  Phillips, 189 F. Supp. 3d at 658) (explaining that punitive damages are available where “there is evidence that the driver was in fact incompetent or habitually reckless, and the owner knew or should have known that the driver was incompetent or reckless” (emphasis added)). For this reason, the Court overrules Plaintiffs’ third objection.

Finally, Plaintiffs argue that the Magistrate Judge’s ruling is premature because Jacobi has not been deposed. (Doc. 92 at 3-4). Plaintiffs maintain that Jacobi might have information regarding Power of Grace’s knowledge and awareness of “the extreme risk involved by placing Jacobi on the road.” Id. However, the trial in this case is set for March 21, 2022, and will proceed accordingly with or without Jacobi.² Thus, the Magistrate Judge’s ruling on the gross negligence claim, based on the summary judgment evidence before him, was not premature.

IV. Conclusion

For the foregoing reasons, the Court ADOPTS the R&R to the extent that it is consistent with this Order. (Doc. 83).

The Court further OVERRULES Plaintiffs’ Objections. (Doc. 92).

The Court finally GRANTS IN PART and DENIES IN PART Defendants’ Motion for Partial Summary Judgment. (Doc. 39).

It is so ORDERED.

SIGNED this 4th day of January, [*12]  2022.

/s/ David Counts

DAVID COUNTS

UNITED STATES DISTRICT JUDGE

End of Document

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¹ According to defense counsel, Jacobi left for Mexico and his last known address is: Prolongacion Eje 6 Sur 560, Bodega # 54, Area Federal Central de Abastos, Alcaldia Iztapalapa, Ciudad de Mexico C.P. 09040. (Doc. 82 at 3).

² There is very little Plaintiffs, Intervenor, or Power of Grace can do to ensure Jacobi appears for a deposition. The Court will not delay the trial any further in hopes that Jacobi will defend this case.

Supreme Court of Georgia

March 8, 2022, Decided

S21Q0909.

Reporter

2022 Ga. LEXIS 52 *

McENTYRE v. SAM’S EAST, INC.

Notice: NOT FINAL UNTIL EXPIRATION OF THE REHEARING PERIOD. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BY THE COURT.

Prior History: McEntyre v. Sam’s East, Inc., 2021 U.S. Dist. LEXIS 225273 (M.D. Ga., Mar. 19, 2021)

Disposition: Certified questions answered.

Core Terms

load, public road, fastened, assisting, users, covering, becoming, hazard, loose, mattresses, detached, questions, district court, third party, proximate, securing, box spring, injuries, truck

Case Summary

Overview

HOLDINGS: [1]-In a personal injury action arising from a car accident in which a mattress fell from defendant’s truck onto the road, the court held that O.C.G.A. § 40-6-248.1 (b) imposed a duty on a person assisting the operator of a vehicle with loading merchandise onto the vehicle to securely fasten the load, a person assisting in loading a vehicle may be liable in tort for injuries to a third party resulting from a breach of his or her duty to secure that load (and any covering thereon), and when serving as the basis for a civil tort suit, and a violation of § 40-6-248.1 (b) (1) was subject to ordinary tort principles and defenses.

Outcome

Certified questions answered.

LexisNexis® Headnotes

Governments > Legislation > Interpretation

 Legislation, Interpretation

Courts must afford the statutory text its plain and ordinary meaning, must view the statutory text in the context in which it appears, and must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

Governments > Legislation > Interpretation

 Legislation, Interpretation

The common and customary usages of the words are important, but so is their context. For context, courts may look to other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.

Governments > Legislation > Interpretation

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Personal Vehicle Operators & Owners

 Legislation, Interpretation

Under the plain language of O.C.G.A. § 40-6-248.1 (b) (1), a person assisting the operator of a vehicle with loading has a duty to other users of the public road to securely fasten the load.

Governments > Legislation > Interpretation

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Personal Vehicle Operators & Owners

 Legislation, Interpretation

The phrase “no person shall load for operation” as used in O.C.G.A. § 40-6-248.1 (b) (1) does not limit the duty imposed by the statute to secure a load and any covering thereon to the operator of the vehicle or a person primarily responsible for loading. “No person” is an expansive term, and the background law generally provides that those who assist others in violating a statute can be held individually liable for their actions. O.C.G.A. §§ 16-2-20. Section 40-6-248.1 (b) (1) does not contain any language restricting the duty it sets out only to those who have control over the operation of the vehicle.

Transportation Law > Commercial Vehicles > Traffic Regulation

 Commercial Vehicles, Traffic Regulation

O.C.G.A. § 40-6-248.1 (b) (1) imposes the duty to securely fasten loads and coverings on any person who operates a vehicle on a public road or loads a vehicle for operation on a public road. People who assist one another in loading items onto a vehicle that will be operated on a public road are all engaged in loading the vehicle, and therefore would all have a duty to secure the load and any covering thereon under the statute. That duty is owed to other users of the public road.

Governments > Courts > Authority to Adjudicate

 Courts, Authority to Adjudicate

It is not for the Supreme Court of Georgia to expand or contract the scope of the General Assembly’s legislative enactments, unless the policy choices it makes by enacting statutes exceed its constitutional authority.

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Personal Vehicle Operators & Owners

 Particular Actors, Circumstances, & Liabilities, Personal Vehicle Operators & Owners

Because ordinary principles of negligence apply to this civil tort case, a load becoming loose, detached, or in any manner a hazard to other users of the public road does not necessarily mean in every instance that the load was not securely fastened, and a person assisting in loading a vehicle may be liable only for injuries to a third party proximately caused by a breach of his or her duty to secure that load and any covering thereon.

Torts > Procedural Matters > Statute of Repose > Products Liability

Torts > Products Liability > Theories of Liability > Strict Liability

Torts > Strict Liability > Abnormally Dangerous Activities > Types of Activities

 Statute of Repose, Products Liability

In the civil tort context, there is no general rule of strict liability in Georgia, and strict liability typically applies only to certain circumstances involving abnormally dangerous activities or where the General Assembly has recognized a need to explicitly impose strict liability in tort for the protection of the public. O.C.G.A. § 51-1-11 (b).

Torts > … > Proof > Violations of Law > Standards of Care

 Violations of Law, Standards of Care

The provisions of O.C.G.A. § 40-6-248.1 (b) do not explicitly provide for strict liability in the context of a civil tort action, but rather provide the basis of the underlying duty. More specifically, the statute imposes a duty owed to users of public roads on all persons who assist in loading a vehicle for operation on a public road to secure the load and any covering thereon. When a person is allegedly injured by such a load or covering falling on a public road, ordinary principles of negligence apply, meaning that the plaintiff must establish a breach of this statutory duty, proximate causation, and damages in order to establish liability. O.C.G.A. § 51-1-6.

Torts > … > Causation > Proximate Cause > Foreseeability of Harm

 Proximate Cause, Foreseeability of Harm

Nothing in O.C.G.A. § 40-6-248.1 (b) (1) or in the background of civil tort law permits a trial court to skip over these traditional tort principles. A trial court cannot presume that in every instance where a load has become loose, detached, or in any manner a hazard to other users of the public road that the load was not securely fastened and that any person who assisted in loading or securing the load is liable. In order to recover for any injuries resulting from the breach of a duty, there must be evidence that the injuries were proximately caused by the breach of the duty. And the injuries must be the probable or natural consequence of that breach and must reasonably have been anticipated, apprehended, or foreseen.

Torts > … > Elements > Duty > Foreseeability of Harm

 Duty, Foreseeability of Harm

Probable, in the rule as to causation, does not mean more likely than not but rather not unlikely; or, more definitely, such a chance of harm as would induce a prudent man not to run the risk; such a chance of harmful result that a prudent man would foresee an appreciable risk that some harm would happen.

Torts > … > Elements > Causation > Intervening Causation

 Causation, Intervening Causation

A defendant who is not an operator of the vehicle but assists in loading can only be liable for failing to securely fasten the load in light of the reasonably foreseeable ways in which the load will be transported on a public road. This may require the factfinder to assess a variety of factors, including but not limited to the defendant’s knowledge regarding the nature of the load and the vehicle, road or weather conditions, the operator’s representations about the vehicle’s destination, the length of the drive, or anything else that might affect the loader’s assessment of whether the load was securely fastened. Further, it is possible that a defendant could satisfy his or her duty to secure the load only for that load to later become unsecured in some unforeseeable manner or due to some intervening cause after the defendant is no longer in a position to ensure the safety of the load.

Torts > … > Elements > Causation > Intervening Causation

 Causation, Intervening Causation

Where there is evidence that a third party was injured as a result of a vehicle’s load becoming loose, detached, or in any manner a hazard to users of the public road due to an unforeseeable or unavoidable intervening cause, the defendant-loader may not be liable for injuries arising from the load becoming unsecured.

Headnotes/Summary

Headnotes

Georgia Advance Headnotes

GA(1) (1)

Torts.  > Transportation Torts.  > Motor Vehicles.

OCGA § 40-6-248.1 (b) imposed a duty on a person assisting the operator of a vehicle with loading merchandise onto the vehicle to securely fasten the load, a person assisting in loading a vehicle may be liable in tort for injuries to a third party resulting from a breach of his or her duty to secure that load (and any covering thereon), and when serving as the basis for a civil tort suit, a violation of OCGA § 40-6-248.1 (b) (1) was subject to ordinary tort principles and defenses.

Judges:  [*1] BETHEL, Justice. All the Justices concur.

Opinion by: BETHEL

Opinion

Bethel, Justice.

This case involving personal injury claims arising from an automobile accident is before this Court on three certified questions from the United States District Court for the Middle District of Georgia. The questions seek this Court’s interpretation of OCGA § 40-6-248.1 (b), which provides that “[n]o person shall operate or load for operation, on any public road, any vehicle with any load” unless the load and any covering thereon is “securely fastened” and whether this code section applies to a tort claim. Our responses to the questions certified, as explained more fully below, can be summarized as follows: GA(1) (1) (1) OCGA § 40-6-248.1 (b) imposes a duty on a person assisting the operator of a vehicle with loading merchandise onto the vehicle to securely fasten the load; (2) a person assisting in loading a vehicle may be liable in tort for injuries to a third party resulting from a breach of his or her duty to secure that load (and any covering thereon); and (3) when serving as the basis for a civil tort suit, a violation of OCGA § 40-6-248.1 (b) (1) is subject to ordinary tort principles and defenses.¹

1. The pleadings and discovery materials indicate the following: On February 22, 2016, Mary Louise [*2]  McCall purchased two mattresses and two box springs from the Sam’s Club in Albany, Georgia, which Sam’s East, Inc. operated. Sam’s East employees Darion Ponder and Eddie Shorter assisted McCall by physically placing the mattresses and box springs onto McCall’s pickup truck bed. McCall did not physically load or handle the mattresses and box springs when Ponder and Shorter loaded them onto her truck. The parties dispute whether Ponder and Shorter simply loaded the mattresses and box springs onto the bed of McCall’s truck or whether they also tied the mattresses and box springs to the truck in an attempt to secure them. Upon leaving Sam’s Club, one of the mattresses became loose and fell from the bed of McCall’s truck onto a public roadway. Shortly after the mattress fell onto the road, Amanda McEntyre’s vehicle struck the mattress, resulting in serious injuries to her neck and shoulder.

McEntyre filed a lawsuit against McCall, which was later settled. McEntyre also filed a personal injury lawsuit in the United States District Court for the Middle District of Georgia against Sam’s East, alleging negligence and negligence per se and seeking punitive damages. After Sam’s East filed a motion [*3]  for summary judgment and McEntyre filed a cross-motion for partial summary judgment, the district court stayed the proceedings and certified the following questions to this Court:

(1) Does OCGA § 40-6-248.1 (b) (1) require a person — who is assisting the operator of a vehicle to load merchandise onto said vehicle — to “securely fasten” the load to the vehicle?

(2) Under OCGA § 40-6-248.1 (b) (1), would a person — who assists in loading or securing a load to a vehicle but is not operating the vehicle — be liable to a third party who is injured while the vehicle is in operation on a public road as a result of the load becoming loose, detached, or in any manner … a hazard to other users of the public road?

(3) Under OCGA § 40-6-248.1 (b) (1), does the occurrence of a load becoming loose, detached, or in any manner . . . a hazard to other users of the public road necessarily mean that the load was not securely fastened? That is to say, is OCGA § 40-6-248.1 (b) (1) a strict liability statute?

2. The district court’s certified questions call upon us to interpret the meaning of OCGA § 40-6-248.1 (b) (1), which provides:

(b) No person shall operate or load for operation, on any public road, any vehicle with any load unless such load and any covering thereon is securely fastened so as to prevent such covering or load [*4]  from: (1) Becoming loose, detached, or in any manner becoming a hazard to other users of the public road[.]

In considering the meaning of this statute,

we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013).

The common and customary usages of the words are important, but so is their context. For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.

(Citations and punctuation omitted.) Mobley v. State, 307 Ga. 59, 69 (4) (a) (834 SE2d 785) (2019).

(a) The first question the district court asked is whether OCGA § 40-6-248.1 (b) (1) requires a person to “securely fasten” the load when he or she is merely assisting the operator of a vehicle in loading it. ” the load.

The question posed by the district court assumes that the person assisting with the loading is not also the operator of the vehicle. ” a vehicle for operation on a public road. People who assist one another in loading items onto a vehicle that will be operated on a public road are all engaged in loading the vehicle, and therefore would all have a duty to secure the load and any covering thereon under the statute. That duty is owed to “other users of the public road.” OCGA § 40-6-248.1 (b) (1) (providing that such duty is “to prevent such covering or load from becoming a hazard to other users of the public road”).

Sam’s East and its amicus contend that interpreting the statute to impose on individuals who lack complete control a duty to secure a load on a vehicle will result in liability for well-meaning and helpful neighbors who assist operators in loading their vehicles or companies that offer such assistance with loading as a “courtesy.”   … the obligation of this Court is to apply the law by its terms, whether we like it or not.”). Accordingly, the policy concerns raised by Sam’s East and its amicus about the extent to which liability may be imposed by OCGA § 40-6-248.1 (b) (1) are properly addressed not by this Court exceeding its constitutional authority to impermissibly limit the duty imposed by the plain language of the statute, but by petitioning the General Assembly and advocating for a change in the law. Moreover, as discussed further in Division (2) (b) below, Sam’s East and its amicus’s concerns about the practical consequences that may flow from the plain text of the statute enacted by the General Assembly may be mitigated by application of traditional tort principles of proximate cause.

(b) The remaining questions posed by the district court asked whether OCGA § 40-6-248.1 (b) (1) is a “strict liability” statute such that the occurrence of a load becoming loose, detached, or in any manner a hazard to other users of the public road necessarily means that the load was not securely fastened, and whether a person who assists in loading or securing a load to a vehicle but who is not operating the vehicle would be liable to a third party who is injured as a [*8]  result. We conclude that because ordinary principles of negligence apply to this civil tort case, a load becoming loose, detached, or in any manner a hazard to other users of the public road does not necessarily mean in every instance that the load was not securely fastened, and a person assisting in loading a vehicle may be liable only for injuries to a third party proximately caused by a breach of his or her duty to secure that load and any covering thereon.

” Reeves v. Bridges, 248 Ga. 600, 602 (284 SE2d 416) (1981), and strict liability typically applies only to certain circumstances involving abnormally dangerous activities² or where the General Assembly has recognized a need to explicitly impose strict liability in tort for the protection of the public. See, e.g., OCGA § 51-1-11 (b) (establishing strict liability in a products liability context).³

  for operation on a public road to secure the load and any covering thereon. When a person is allegedly injured by such a load or covering falling on a public road, ordinary principles of negligence apply, meaning that the plaintiff must establish a breach of this statutory duty, proximate causation, and damages in order to establish liability.⁴ See Johnson v. American Nat. Red Cross, 276 Ga. 270, 272 (1) (578 SE2d 106) (2003); see also OCGA § 51-1-6 (“When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.”).

  of the duty.” Goldstein, Garber & Salama, LLC v. J.B., 300 Ga. 840, 841 (1) (797 SE2d 87) (2017). And the injuries must be the “probable or natural consequence” of that breach and must “reasonably have been anticipated, apprehended, or foreseen.” Id. at 843 (1).⁵ See also Tyner v. Matta-Troncoso, 305 Ga. 480, 485 (3) (826 SE2d 100) (2019) (“Inextricably entwined with concepts of negligence and proximate cause is a notion of foreseeability, the idea that a defendant could reasonably foresee that an injury would result from his act or omission.” (citations omitted)).

” (citation and punctuation omitted)). For example, the unanticipated actions of a third party or other external factors could cause to a “securely fastened” load to become unsecured.

Moreover, the causal chain could be broken in other ways that would prevent a person assisting with loading from completing the task of securing the load. By way of example only, the owner of the load or vehicle might direct the person assisting with loading to stop securing the load and discontinue contact with the owner’s property. Or the operator [*12]  might interrupt the loader’s efforts to secure the load by driving off or otherwise assuming complete control over the vehicle and the load before the person assisting with loading could complete the task of securing the load. Where there is evidence that a third party was injured as a result of a vehicle’s load becoming loose, detached, or in any manner a hazard to users of the public road due to an unforeseeable or unavoidable intervening cause, the defendant-loader may not be liable for injuries arising from the load becoming unsecured. Accordingly, we cannot say that every instance that a load becomes loose, detached, or in any manner a hazard to other users of the public road necessarily means that the load was not securely fastened and that a person who assisted in loading will be liable.

Certified questions answered. All the Justices concur.

End of Document

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¹ In addition to the parties’ briefs and presentations at oral argument, the Court was assisted in answering the three certified questions by an amicus curiae brief from Georgians for Lawsuit Reform.

² Historically, this has included activities like owning vicious animals or explosive blasting, though the statute pertaining to vicious animals was amended to clarify that the standard for liability is negligence, not strict liability. See OCGA § 51-2-7; Steagald v. Eason, 300 Ga. 717, 718 n.2 (797 SE2d 838) (2017) (noting the change). See also Berger v. Plantation Pipeline Co., 121 Ga. App. 362, 363 (6) (173 SE2d 741) (1970) (one who sets off an explosive blast “is absolutely liable to the injured party, despite the exercise of due care”).

³ We recognize that a violation of OCGA § 40-6-248.1 (b) is also a misdemeanor criminal offense. See OCGA § 40-6-249 (providing that violations of OCGA § 40-6-248.1 are misdemeanors and shall be punished as set forth in OCGA § 16-7-43); see also OCGA §§ 16-7-43 (b) (1) & (2) (providing that violations of OCGA § 16-7-43 (a) are misdemeanors and that violators may be directed by the court to pick up and remove litter, subject to certain conditions, as part of their sentence); 17-10-3 (a) (1) (providing that, except as otherwise provided by law, misdemeanor offenses are to be punished by a fine not to exceed $1000, 12 months in jail, or both). And these sorts of “Rules of the Road” offenses are sometimes referred to as “strict liability” crimes. See State v. Ogilvie, 292 Ga. 6, 8 (2) (a) (734 SE2d 50) (2012); see also Semones, 200 Ga. App. at 3-4 (trial court did not err in determining that violation of the predecessor to OCGA § 40-6-248.1 (b), when defendant failed to secure chairs in his vehicle before operating it on a public roadway, was a strict liability criminal offense). But strict liability criminal offenses are not the same as strict liability torts.

⁴ Because the question is not posed to us, we need not answer whether a violation of duty imposed by OCGA § 40-6-248.1 (b) may provide the basis for asserting a claim of negligence per se. See Murphy v. Bajjani, 282 Ga. 197, 200 (2) (647 SE2d 54) (2007) (“[N]egligence per se arises when a statute is violated, the person injured by the violation is within the class of persons the statute was intended to protect, and the harm complained of was the harm the statute was intended to guard against.” (citation omitted)); see also Amick v. BM & KM, Inc., 275 FSupp.2d 1378, 1381 (II) (A) (N.D. Ga. 2003) (“In Georgia, negligence per se arises when a defendant violates a statute or ordinance, satisfying, as a matter of law, the first two elements of a negligence claim.”).

⁵  We have recently clarified that

“probable,” … in the rule as to causation, does not mean “more likely than not” but rather “not unlikely”; or, more definitely, “such a chance of harm as would induce a prudent man not to run the risk; such a chance of harmful result that a prudent man would foresee an appreciable risk that some harm would happen.”

(Citation omitted.) Johnson v. Avis Rent A Car System, LLC, 311 Ga. 588, 592 (858 SE2d 23) (2021).

⁶ Given the questions presented in this case, we need not address the scope of the duty imposed upon the operator of the vehicle under this statute and the manner in which traditional tort principles would apply to the vehicle’s operator in the event a load on the vehicle became loose, detached, or otherwise hazardous.