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Doyle v. Watts Trucking of Nebraska

George DOYLE, Appellant,

v.

WATTS TRUCKING OF NEBRASKA, INC., et al., Appellees.

 

July 10, 2007.

 

IRWIN, CARLSON, and MOORE, Judges.MOORE, Judge.

 

INTRODUCTION

 

George Doyle sued Watts Trucking of Nebraska, Inc. (Watts Trucking), Central Waste Systems, Inc. (Central Waste), and Pablo Mendoza (collectively the defendants) for damages suffered in a motor vehicle accident. The district court for Douglas County entered a verdict for the defendants, finding that the “ sole and proximate cause”  of the collision and Doyle’s damages was Doyle’s negligence. Doyle now appeals, claiming that the court failed to properly apply legal principles in comparing the parties’ negligence. For the following reasons, we affirm.

 

BACKGROUND

 

At approximately 12:59 p.m. on January 2, 1999, Doyle and Mendoza were involved in a traffic accident at the intersection of Interstate 680 and 72d Street in Omaha, Nebraska. The weather conditions were poor that day, and the roads were snow packed. Doyle was driving a 1989 Ford Ranger pickup, and Mendoza was operating a 1991 Mack garbage truck. At the time of the accident, Mendoza was an employee of Central Waste, a subsidiary of Watts Trucking, and the garbage truck was owned by Watts Trucking. Just before the accident, Mendoza was traveling southbound on 72d Street and Doyle was traveling eastbound on the exit ramp from Interstate 680. The collision occurred in the intersection. Doyle sustained serious injuries as a result of the accident.

 

On July 2, 2001, Doyle filed a petition alleging that the defendants were negligent and seeking to recover damages for injuries he had sustained. Doyle alleged that the collision was proximately caused by the negligence of Mendoza in that (1) Mendoza was operating the truck at an excessive speed, considering the conditions; (2) Mendoza failed to keep a lookout; and (3) Mendoza failed to maintain control of the truck, so as to avoid the collision, by braking, changing lanes, and/or reducing speed. The petition also alleged that Mendoza was operating the truck while in the course and scope of his employment with Central Waste, making Mendoza’s negligence “ imputed to his employer … under the doctrine of respondeat superior.”  The petition further alleged that Watts Trucking negligently entrusted the use of the truck to Central Waste and Mendoza. The petition alleged that Doyle’s injuries were “ not caused by any act or omission of him,”  but instead, were “ caused by the sole negligence of the Defendants.”

 

At some point, Doyle must have filed an amended petition/complaint, because the defendants filed an answer to this pleading, though the amended petition/complaint does not appear in our record. The answer denied any negligence on the part of the defendants and alleged several affirmative defenses, including that Doyle was solely responsible for the accident, in driving at an excessive speed, failing to stop at the stop sign, and failing to yield the right-of-way to the defendants’ truck.

 

Prior to trial, the parties agreed on certain “ uncontroverted facts,”  including that Central Waste was a subsidiary of Watts Trucking, that Mendoza was an employee of Central Waste, and that at the time of the collision, Mendoza was acting within the scope and course of his employment with Central Waste.

 

A bench trial was held on May 23, 2005. At the start of the trial, numerous exhibits were offered and received into evidence, the majority without objection. Doyle offered the following exhibits: photographs from the accident scene; photographs of the intersection; various medical records of Doyle; various medical bills relating to Doyle; a neuropsychological evaluation report of Doyle; a “ preliminary case notes”  report written by Archie Burnham, a consultant who conducted a traffic safety evaluation of the accident site; a report from a “ heavy vehicle specialist” ; a memorandum from one of Doyle’s former employers; “ Vehicle Repair Order”  forms for the garbage truck involved in the accident; “ Driver’s Daily Vehicle Inspection Report”  forms and “ Daily Driver’s Check List/Driver Maintenance Control”  forms for the truck; Mendoza’s timesheets; photographs of Doyle; and Doyle’s income tax returns for the years 1996 through 1999. Doyle also offered into evidence depositions of the following people: Roger Nanke, operations manager at Central Waste; the director of sales and safety at Central Waste; Burnham; Dr. William Dement, professor of psychiatry and behavioral sciences at Stanford University, who testified regarding sleep debt and the operation of a motor vehicle; and Mendoza. These exhibits were received into evidence without objection.

 

Doyle additionally offered into evidence the federal motor carrier safety regulations and various safety reports from the Federal Motor Carrier Safety Administration regarding Central Waste, as well as a “ Safestat”  report for Central Waste. The defendants objected to these exhibits on relevance grounds, and the objection was overruled and the exhibits received, with the court stating, “ If I rely on any of them I’ll make sure it’s in my decision.”  Doyle also offered into evidence records for Central Waste and Watts Trucking from the Nebraska State Patrol and the U.S. Department of Transportation, relating to violations and fines. The defendants objected on the basis of relevance, which objection was overruled, with the court noting the “ same understanding we had”  with the exhibits previously mentioned.

 

In his brief on appeal, Doyle focuses primarily on Mendoza’s long work hours and lack of sleep as such relates to his alleged negligence in operating the garbage truck, together with mechanical problems with the truck, as evidence of the defendants’ negligence in this case. We will discuss some of the more pertinent evidence below. Since the assigned error relates only to negligence, we need not discuss the damages evidence. We note at the outset that Doyle has no memory of the accident.

 

Dement, a sleep specialist, testified by deposition regarding sleep debt and the operation of a motor vehicle. Dement defined “ sleep debt”  as “ the accumulated loss of sleep,”  and he stated that any sleep less than an individual’s daily requirement adds up as a sleep debt and that the effect is cumulative. Dement testified that the greater a person’s sleep debt, the greater the impairment in the person’s reaction time, judgment, perception, and memory, and the more errors a person will make in operating a motor vehicle. Dement stated that most people’s daily sleep need is 7 to 10 hours of sleep.

 

Dement testified that in forming an opinion on Mendoza’s sleep debt, he reviewed the depositions of Mendoza and Burnham, the police incident report, photographs of the accident scene, Mendoza’s timesheets, and a summary of Mendoza’s timesheets prepared by Doyle. Dement stated that in the 6 months before the accident, Mendoza worked over 60 hours almost every week, and Dement stated that this type of work schedule was almost invariably associated with sleep deprivation and fatigue. Dement testified that in his opinion, Mendoza was impaired by sleep deprivation at the time of the collision. Dement stated that significant in forming his opinion and conclusions were the very early hour Mendoza got up in the morning, the fact that Mendoza worked alone and worked long hours, and Mendoza’s driving history, which included some accidents and traffic violations. Another factor Dement considered in formulating his opinion was his understanding of the accident, which was that Doyle’s vehicle made a turn at the intersection and that Mendoza’s truck appeared to go from the left-hand lane partially into the right-hand lane. Dement stated that because the impact was in the right-hand lane, Mendoza could have just stayed in the left-hand lane and passed the Doyle vehicle without hitting it, and that therefore Mendoza must have either braked and skidded or drifted out of his lane to cause the accident. Dement stated that the only way to account for Mendoza’s error in driving into the right-hand lane and failing to avoid the accident was that Mendoza was sleep deprived. Dement stated that further evidence that Mendoza was sleep deprived was the fact that Mendoza had slept all day the day prior to the accident. Dement concluded that in his opinion, if Mendoza had been wide awake and alert at all times, the accident would not have occurred.

 

Mendoza described his work and sleep habits in his deposition. Mendoza testified that he worked 6 days a week. He would typically wake up around 2:30 or 2:45 a.m., brush his teeth, and then arrive at work by around 3 a.m. Mendoza worked during the day, went home and showered, and then typically went to bed at 6 or 7 p.m. Mendoza stated that he did not eat an evening meal with his family during the week and that he normally slept about 9 hours a night.

 

Mendoza reviewed his timesheet for the week of the accident, beginning Monday, December 28, 1998, and ending Saturday, January 2, 1999, the day of the accident. Mendoza agreed that his timesheets were based on a “ decimal system”  and that he worked the following hours that week: Monday, 12.32 hours; Tuesday, 13.20 hours; Wednesday, 13.70 hours; Thursday, 14.62 hours; Friday, off for the holiday; and Saturday, 14.39 hours, for a total of 68.23 hours that week. Mendoza stated that he did not stay up late on New Year’s Eve and that he slept all day Friday. Mendoza testified that on Saturday, the day of the accident, he woke up around 2:45 a.m. and worked from about 3:20 a.m. to 6:30 p.m. Mendoza agreed that he had been working about 10 hours when the accident occurred.

 

Several safety reviews were conducted of Central Waste by the Nebraska State Patrol and the U.S. Department of Transportation. The reports from these safety reviews indicate that Central Waste repeatedly violated certain federal regulations relating to the amount of time its drivers could work. Central Waste was fined for these violations and settled these claims. The documents also indicate that Central Waste vehicles were inspected numerous times and that violations were often found, such as brakes being out of adjustment, problems with tire tread depths, and damaged or discolored windshields.

 

With respect to the particular truck involved in the accident, Mendoza stated in his deposition that he often drove this truck. Mendoza stated that the truck had needed brake adjustments in the past and that, typically, when he had problems with the brakes, he would “ write it up at night”  and the next day the mechanics would fix it. Mendoza stated that about once a week, he wrote that the brakes should be adjusted, because he did not want any accidents to happen. Mendoza could not recall the last time the brakes were repaired or adjusted before the accident. Several documents relating to this particular truck were admitted into evidence, some of which are dated close to the date of the accident. One exhibit includes numerous “ Vehicle Repair Order”  forms relating to the truck, which forms date from January 2, 1998, to June 5, 1999. Each form has a “ Description of Service”  section, a “ Parts Used”  section, and a “ Labor Reporting”  section which details “ Repair Code[s]”  and “ Hours.”  An entry for December 30, 1998, indicates that “ adjust for brakes”  was written into the “ Description of Service”  section, and an employee name and repair code are listed under the “ Labor Reporting”  section. Another exhibit includes numerous “ Daily Driver’s Check List/Driver’s Maintenance Control”  forms for the truck. One of the forms is dated December 30, 1998, and states “ brake adjustment”  in a section entitled “ Describe Problems.”

 

Nanke, operations manager at Central Waste, testified in his deposition regarding Central Waste’s maintenance procedures. Nanke stated that drivers were required to do a pretrip vehicle inspection each day before leaving the facility and a posttrip inspection upon returning to the facility. Before leaving, each driver was to check certain things on his truck, as well as make sure any problems encountered the day before had been fixed by mechanics. Upon returning to the facility, each driver would complete a “ Driver’s Daily Vehicle Inspection Report”  form, noting any problems with his truck. Nanke stated that mechanics would work on the truck at night, and then sign the form, indicating that the truck was ready to use. Nanke stated that if repairs relating to safety or truck functioning were not made to the truck at night, the truck was locked in the shop and could not be driven out. However, if a truck was parked in its regular area, the driver could assume that anything he had flagged the day before had been fixed.

 

Burnham described the results of his traffic safety evaluation in his deposition. Burnham concluded that the principal cause of the collision was Mendoza’s actions and his “ failure to use ordinary care.”  Burnham thought that Mendoza’s speed of 30 to 35 miles per hour was appropriate until Mendoza saw Doyle approaching the stop sign, and that at that point, Mendoza should have anticipated Doyle was not going to stop and Mendoza should have slowed down. Burnham stated that because the 72d Street bridge, which crosses over Interstate 680, was 300 feet from the ramp, Mendoza had 300 feet to travel after he first saw Doyle, whereas Doyle had 100 feet to travel after seeing the truck. Burnham stated that Mendoza did not slow until he got about 60 feet from the exit ramp. Burnham estimated that if Mendoza would have slowed to 15 miles per hour, he would have been able to stop or avoid the collision. Burnham acknowledged that Doyle would have known for at least 500 feet that he was approaching a stop sign.

 

Burnham stated that his understanding of the accident was that the collision occurred some 80 feet past the intersection, south of the stop sign. Burnham thus concluded that Doyle slid through the stop sign, and then guided his vehicle into the southbound, right-hand lane. Mendoza then hit Doyle after Doyle had already turned the corner. Burnham stated that Mendoza slid to the right because he applied his brakes. Burnham thought that Mendoza had not been properly trained by his employers, was working too many hours, and had poorly maintained equipment, including a broken speedometer and perhaps faulty brakes. Burnham stated that one reason the vehicle could have slid to the right was that the brakes caught on one side versus the other.

 

The defendants offered into evidence the following: Mendoza’s employee file; a “ DOT file”  concerning Mendoza; a deposition of one of Doyle’s experts, a “ heavy vehicle specialist” ; and a deposition of Daniel G. Dolan, an eyewitness to the accident. These exhibits were received into evidence without objection. The defendants also offered into evidence an Omaha Police Department “ Investigator’s Motor Vehicle Accident Report”  regarding the accident, which report was objected to on hearsay and relevancy grounds. The objection was sustained on hearsay.

 

Dolan’s deposition indicates that he exited eastbound Interstate 680 at 72d Street and began to drive on the exit ramp about 25 miles per hour. The exit ramp was “ very slick,”  and as Dolan began to brake for the stop sign at the end of the exit ramp, he felt his automatic brakes “ kicking back at [him].”  Dolan stated that he came to a complete stop at the stop sign, with some difficulty, and then turned right and proceeded south on 72d Street. Dolan looked in his vehicle’s side mirror to see if he could change lanes and saw a small pickup “ come flying across the first westernmost lane”  and get hit by the garbage truck. Dolan was about 100 feet away from the collision when it occurred. Dolan stated that the pickup came from the exit ramp and that there was “ [n]o way”  the pickup stopped for the stop sign. Dolan estimated that the pickup was going 15 to 20 miles per hour as it drove through the intersection, and Dolan estimated that it took less than 2 seconds for the pickup to pass the stop sign and collide with the garbage truck. Dolan stated that the road conditions were similar everywhere he had been driving that day, but Dolan did not recall having any trouble stopping until he braked for the stop sign at the end of the exit ramp. Dolan did not recall seeing Doyle’s vehicle or the garbage truck until right before the collision.

 

The defendants called Rich Uryasz, an Omaha police officer who investigated the accident, and Mendoza to testify. Uryasz described the weather conditions that day as cold and snowy with snow-packed streets. Uryasz testified that some information regarding the accident was received from the eyewitness, Dolan. Uryasz testified that a stop sign was in place for motorists exiting Interstate 680 eastbound and driving on the exit ramp toward 72d Street. Uryasz stated that southbound traffic on 72d Street had basic speed limit signs in the area, though Uryasz did not state what the speed limit was. Uryasz testified that the accident occurred within the general area of the intersection and that the most severe impact on the pickup was near the driver’s door, while the impact on the garbage truck occurred on the passenger-side corner bumper. Uryasz stated that at some point after the accident, representatives from Watts Trucking arrived at the scene and Uryasz requested that they demonstrate to him that the brakes on the garbage truck were functioning. Uryasz stated that “ they were able to get the vehicle stopped and demonstrate that the brakes were functioning at that time.”  Doyle was later issued a ticket for failing to yield the right-of-way.

 

On cross-examination, Uryasz testified that at the time of the accident, he did not have experience as a motor vehicle inspector or in checking brakes. Uryasz stated that Mendoza was in the left-hand lane when he drove over the 72d Street bridge. Uryasz also testified regarding Mendoza’s statements during a taped interview which occurred after the accident. Mendoza told Uryasz that he thought the pickup was traveling 10 to 15 miles per hour on the exit ramp, and Mendoza estimated that he was traveling about 35 miles per hour. Mendoza told Uryasz that he started work at 5:30 that morning.

 

Mendoza testified that on the day in question, he “ punched [his] card”  at 3:45 a.m. but was not able to start working until 5:30 a.m. because of the weather. Mendoza stated that at the time of the accident, he had just finished dumping the garbage truck at the Douglas County landfill. Mendoza had driven that particular truck before, and he stated that it was in good operating condition that day, with the brakes and steering working properly. Mendoza stated that the streets had a lot of ice on them and that visibility was low.

 

Mendoza testified that he was driving between 30 and 35 miles per hour as he approached Interstate 680 on 72d Street. When Mendoza reached about the middle of the 72d Street bridge, he saw the pickup on the exit ramp. Mendoza began to slow down and “ was watching to see what the other [driver] was going to do.”  Mendoza saw the pickup go through the stop sign without stopping, and then Mendoza ran into the pickup. Mendoza stated that less than 2 seconds passed between the pickup’s passing the stop sign and the collision. When Mendoza saw the pickup go through the stop sign, he tried to turn to the left to avoid the accident, but “ there was nothing [he] could do.”  Mendoza’s right front bumper hit the pickup near the pickup’s bumper and door on the driver’s side. Mendoza stated that the accident occurred “ more to the left side”  of the intersection. Mendoza stated that he applied the brakes before the collision, but “ tried to control it slowly, because if I were to hit it hard, the wheels would automatically lock up.”  Mendoza stated that the pickup was moving about 10 to 15 miles per hour and that there was not enough time to avoid the collision. Mendoza admitted that the speedometer on the garbage truck was not working the day of the accident and had been broken for about 3 months.

 

In a written order entered June 30, 2005, the district court summarized the evidence and the arguments of the parties. The court found that “ the sole and proximate cause of the collision and [Doyle’s] subsequent injuries and damages was the negligence of [Doyle] in failing to maintain a proper lookout and in failing to maintain reasonable control over his vehicle.”  Accordingly, the court found for the defendants and dismissed Doyle’s amended petition/complaint with prejudice, at Doyle’s cost. Doyle timely appeals.

 

ASSIGNMENT OF ERROR

 

Doyle asserts, combined and restated, that the trial court failed to properly apply legal principles in comparing the parties’ negligence.

 

STANDARD OF REVIEW

 

In a bench trial of an action at law, the factual findings made by the trial court have the effect of a jury verdict and will not be set aside unless they are clearly wrong. Mondelli v. Kendel Homes Corp., 262 Neb. 263, 631 N.W.2d 846 (2001).

 

The question of proximate cause, in the face of conflicting evidence, is ordinarily one for the trier of fact, and the court’s determination will not be set aside unless clearly wrong. Staley v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006); Meyer v. State, 264 Neb. 545, 650 N.W.2d 459 (2002).

 

ANALYSIS

 

Doyle claims that the trial court failed to properly apply legal principles in comparing the parties’ negligence. Doyle alleges that the trial court did not apply the principles set forth in the Restatement (Third) of Torts § 8 (2000), which addresses factors for assigning percentages of responsibility to each person whose legal responsibility has been established. Doyle asserts that the trial court must have failed to apply the Restatement, because the trial court’s finding that Doyle’s action was the sole proximate cause of the collision is “ inconsistent with the uncontr[o]verted evidence.”  Brief for appellant at 16.

 

In a negligence action, a plaintiff must establish a duty of the defendant not to injure the plaintiff, a breach of that duty, proximate causation, and damages. Steele v. Sedlacek, 267 Neb. 1, 673 N.W.2d 1 (2003). Three basic requirements establish proximate cause. First, the negligence must be such that without it, the injury would not have occurred, commonly known as the “ but for”  rule. Second, the injury must be the natural and probable result of the negligence. Third, there can be no efficient intervening cause. Willet v. County of Lancaster, 271 Neb. 570, 713 N.W.2d 483 (2006). The question of proximate cause, in the face of conflicting evidence, is ordinarily one for the trier of fact, and the court’s determination will not be set aside unless clearly wrong. Staley v. City of Omaha, supra; Meyer v. State, supra. Here, the trial court found that the sole proximate cause of the accident was Doyle, which implies that the court found no negligence on the part of the defendants. We cannot say that this finding was clearly wrong.

 

In essence, Doyle argues that he proved that the defendants’ negligence was the proximate cause of his injuries by demonstrating (1) that the defendants had violated federal regulations with respect to driver work hours, (2) that the defendants’ vehicles and Mendoza’s truck in particular were unsafe, and (3) that the cause of the accident was Mendoza’s sleep debt. The evidence did indicate that the defendants had violated federal regulations with respect to their drivers’ work hours. The evidence also indicated that various maintenance problems with the defendants’ vehicles were found during vehicle inspections. However, violation of a statute or regulation ordinarily is not negligence per se, but is only evidence of negligence. Goodenow v. State, 259 Neb. 375, 610 N.W.2d 19 (2000). See, also, McLain v. Ortmeier, 259 Neb. 750, 612 N.W.2d 217 (2000).

 

With respect to the particular truck involved in the accident, it appears that Mendoza completed a “ Daily Driver’s Check List/Driver’s Maintenance Control”  form for the truck on December 30, 1998, and he noted “ brake adjustment”  in the section entitled “ Describe Problems.”  A “ Vehicle Repair Order”  form was also completed for this truck on December 30, and the form states “ adjust for brakes”  in the “ Description of Service”  section and, under “ Labor Reporting,”  lists an employee name and a repair code. The truck was available for Mendoza to drive on the day of the accident, and Mendoza testified that the truck was in good operating condition the day of the accident, with the brakes and steering working properly. Moreover, Uryasz testified that after the accident, representatives from Watts Trucking “ were able to get the vehicle stopped and demonstrate that the brakes were functioning at that time.”  In summary, there is no evidence that the truck was not functioning properly on the day of the accident, other than the speedometer.

 

Regarding Mendoza’s sleep debt, Dement testified that in his opinion, Mendoza was impaired by sleep deprivation at the time of the collision. However, part of Dement’s opinion was based upon what appears to be an understanding of the accident which is not supported by the facts; namely, that Mendoza drifted into the right-hand lane, hitting Doyle’s vehicle. The evidence does indicate that Mendoza worked long hours. However, Mendoza testified that he slept the day prior to the accident and that he usually received 9 hours of sleep a night. There was no evidence that Mendoza was sleepy or inattentive at the time of the accident. There was no evidence that Mendoza was exceeding the speed limit. Mendoza saw Doyle’s pickup prior to the accident, and when it became apparent that Doyle was not going to stop at the stop sign, Mendoza applied his brakes and turned to the left in an attempt to avoid the collision.

 

The district court was not clearly wrong in failing to find that the defendants were negligent in connection with the accident or that any alleged negligence on the defendants’ part proximately caused the accident. Moreover, there was evidence to support the district court’s finding that Doyle’s negligence was the sole proximate cause of the accident, including the testimony of Uryasz, Dolan, and Mendoza. We cannot say that the trial court was clearly wrong in finding that the sole proximate cause of the accident was Doyle.

 

Doyle’s argument that the court erred in failing to apply § 8 of the Restatement fails because that section applies only when both parties’ legal responsibility has been established, whereas in this case, the court found only Doyle to be at fault, a finding which we have above determined was not clearly wrong. Similarly, the comparative negligence statute, Neb.Rev.Stat. § 25-21,185.09 (Reissue 1995), deals with the allocation of negligence when both the plaintiff and defendant are negligent, which makes it inapplicable to this case. This assignment of error is without merit.

 

CONCLUSION

 

The district court did not fail to properly apply legal principles in determining the parties’ negligence. The decision of the district court is affirmed.

 

Affirmed.

Ward v Passport Transport

Mandy WARD, Plaintiff

v.

PASSPORT TRANSPORT, LTD., Defendant.

 

 

July 11, 2007.

 

MEMORANDUM OPINION

CHARLES R. SIMPSON III, United States District Judge.

This matter is before the court upon the cross-motions of the parties for summary judgment. A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 153-61, S.Ct. 1598, 1606-10, 16 L.Ed.2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir.1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties’ differing versions of the dispute at trial. First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir.1962).

 

BACKGROUND

 

The plaintiff, Mandy Ward (“ Ward” ), owned six antique vehicles, including a 1946 Chevy Pick-Up Truck, a 1957 Ford Fairlane, 1957 T-Bird, a 1955 Chevrolet Belair, a 1957 Chevrolet convertible, and a 1955 Chevy Nomad. Ward wanted to sell these vehicles and contracted with the defendant, Passport Transport, Ltd. (“ Passport” ), to ship the cars from Louisville, Kentucky to Scottsdale, Arizona, where the cars were to be auctioned off. Passport, a division of Federal Express, is a common carrier engaged in the business transporting vehicles.

 

After receiving Ward’s order, Passport scheduled shipment with its driver, Lewis Antrill (“ Antrill” ), to pick up Ward’s vehicles in Louisville and transport them to Scottsdale. Antrill inspected the outside of each vehicle and then physically drove each vehicle onto the trailer. From Louisville, Antrill traveled to St. Louis, Missouri, where he stopped for the night. The next morning, while performing his pre-trip inspection, Antrill opened up the right, rear door of his tractor-trailer and noticed that it was solid black inside the trailer. A fire had occurred inside the enclosed trailer.

 

All of Ward’s vehicles were damaged, and she brought this action against Passport to recover for that damage. The parties have now moved for summary judgment. Ward’s motion is limited to the issue of liability, while Passport seeks summary judgment on both liability and limitation of liability.

 

ANALYSIS

 

 

I. Liability

 

Pursuant to the Carmack Amendment, 49 U.S.C. 11707 et seq.:

A carrier, though not an absolute insurer, is liable for damages to goods transported by it unless it can show that the damage was caused by “ (a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods.”  … Accordingly, under federal law in an action to recover from a carrier for damage to a shipment, the shipper establishes his prima facie case when he shows delivery in good condition, arrival in damaged condition, and the amount of damages. Thereupon the burden of proof is upon the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the expect causes relieving the carrier of liability.

 

Mo. Pacific RR Co. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964).

 

It is undisputed that Ward has established her prima facie case. Thus, the burden of proof passes to Passport, who, in order to defeat liability, must demonstrate by a preponderance of the evidence that (1) it was not negligent and (2) the sole cause of the damage to Ward’s vehicles was one of the five exceptions to liability, i.e., act of God, public enemy, act of the shipper, public authority, or inherent vice or nature of the goods. See id; see also Plough, Inc. v. Mason & Dixon Lines, 630 F.2d 468, 470 (6th Cir.1980).

 

“ To establish that it was free from negligence … [Passport] must show that its actions were those of ‘ an ordinarily prudent person exercising ordinary care … under the circumstances.’  “  Man Roland, Inc. v. Kreitz Motor Exp., Inc., 438 F.3d 476, 481 (5th Cir.2006). Custom, including custom of the trade, may help define the standard of care. Id. (citing W. Keeton, et al., Law of Torts § 33 (5th ed 1984). However, we need not determine whether Passport is able to make this showing. Even if Passport is able to prove that it adhered to its duty of care, it cannot establish that the sole cause of the fire was due to the inherent vice or nature of the goods, the exception to liability it asserts applies in this case. Although Passport’s experts are able to opine generally as to where the fire ignited, they are unable to opine as to how the fire ignited. Absent causation, it cannot be shown that the fire started due to the inherent vice or nature of the goods. Accordingly, Passport is liable to Ward for the damage her vehicles sustained while in Passport’s care.

 

II. Limitation of Liability

 

Passport also asserts that any liability it may have is limited pursuant to the bills of lading issued for Ward’s vehicles. The bills of lading purport to limit Passport’s liability to “ the cost of repair, cost to replace, release value or declared value, whichever is less. The Carrier will not be liable for any claims of diminished value or any other value not specifically set forth herein.”  The bills of lading also state that the released value is $100,000.00 per vehicle unless a higher value not exceeding $1,000,000.00 is declared at the time of original shipment tender and is verified as such in the Bill of Lading and/or electronic media and a fee of $0.30 per $100.00 of value declared over $100,000 .00 is paid. Passport argues that because Ward’s authorized agent, David Rose, left blank the section whereby Ward could have obtained greater liability coverage by declaring the value of her property, Ward opted out of such coverage and agreed to the limited liability of Passport.

 

In order to limit its liability, however, a carrier must (1) maintain approved tariff rates with the ICC, (2) give the shipper a fair opportunity to choose between two or more levels of liability, (3) obtain the shipper’s written agreement as to his choice of liability, and (4) issue a receipt or bill of lading prior to moving the shipment. Ward contends that Passport failed to comply with requirements (2) and (3), and thus, cannot limit its liability. We agree with regard to the third factor, that Passport failed to obtain Ward’s written agreement as to her choice of liability.

 

 

As stated in Toledo Ticket Co. v. Roadway Exp., Inc., 133 F.3d 439 (6th Cir.1998), the shipper must agree to limit her liability “ in the same sense that one agrees or assents to enter into a contractual obligation…. Toledo Ticket’s failure to fill in the blanks [and declare a higher value for its property] cannot be held to be an affirmative act of agreement to abide by lower valuation.”  Id. at 443. The same situation exists in the case sub judice. By leaving blank the section whereby she could have obtained greater liability coverage by declaring the value of her vehicles, Ward did not affirmatively agree to abide by Passport’s lower valuation. As such, Passport’s request for summary judgment on this issue will be denied.

 

A separate order in accordance with this opinion will be entered this date.

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