Haile v. Hickory Springs Manufacturing Company et al
Filing
57
OPINION AND ORDER DISMISSING THIRD-PARTY COMPLAINT: Portland Container Repair Corporation's Motion for Summary Judgment 33 is granted. Hickory Springs Manufacturing Company's third-party complaint against Portland Container Repair Corporation is dismissed with prejudice. Signed on 6/9/2014 by Judge Garr M. King. (pg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
Case No. 3:13-cv-00053-KI
MUSIE W. HAILE,
Plaintiff,
v.
OPINION AND ORDER
DISMISSING THIRD-PARTY
COMPLAINT
HICKORY SPRINGS
MANUFACTURING COMPANY, a
North Carolina company;
INTERNATIONAL FOAM SUPPLY,
INC., a California corporation; SEA
MASTER LOGISTICS, INC., a California
corporation; INTERNATIONAL
CONTAINER TERMINAL SERVICES,
INC., a foreign corporation in the
Philippines; SHENZHEN ZHONGFU
TRADING COMPANY, a foreign
corporation in China; JOHN DOE 1;
JOHN DOE 2; JOHN DOE 3; JOHN DOE
4; and JOHN DOE 5,
Defendants.
Page 1 - OPINION AND ORDER DISMISSING THIRD-PARTY COMPLAINT
HICKORY SPRINGS MANUFACTURING
COMPANY, a North Carolina company,
Third-Party Plaintiff,
v.
PORTLAND CONTAINER REPAIR
CORPORATION, an Oregon corporation,
Third-Party Defendant.
Jeffrey W. Hansen
Joseph A. Rohner IV
Smith Freed & Eberhard P.C.
111 SW Fifth Avenue, Suite 4300
Portland, OR 97204
Attorneys for Defendant/Third-Party Plaintiff
Kurt C. Peterson
Kilmer, Voorhees & Laurick, P.C.
Attorneys at Law
732 NW 19th Avenue
Portland, OR 97209-1302
Attorneys for Third-Party Defendant
KING, Judge:
Plaintiff Musie Haile brings a complaint for injuries he sustained while attempting to
deliver (via semi-truck hauler) a container packed with scrap foam to defendant Hickory Springs
Manufacturing Company (“Hickory Springs”). Hickory Springs filed a third-party complaint
against Portland Container Repair Corporation (“Portland Container”), the company for whom
plaintiff was delivering cargo at the time of the injury. Following additional discovery and
Page 2 - OPINION AND ORDER DISMISSING THIRD-PARTY COMPLAINT
briefing, I now have pending before me Portland Container’s Motion for Summary Judgment
against Hickory Springs’ third-party complaint.
BACKGROUND
I.
Allegations
Plaintiff, an independent contractor who delivered goods on behalf of Portland Container,
brings a complaint for injuries he sustained after delivering cargo by truck to Hickory Springs.
After arriving at Hickory Springs’ property, plaintiff opened the container and two pallets of
cargo, weighing approximately 600 pounds each, fell on him. He alleges he was knocked
unconscious, suffering a concussive traumatic brain injury. Plaintiff had brain surgeries for
subdural hematoma, had to have his fractured tibia reconnected with hardware, and was in the
hospital for two months. He alleges economic damages of $348,000 and non-economic damages
of $5 million.
Plaintiff brings a claim for premises liability against Hickory Springs, alleging he was a
business invitee of the company’s. He alleges Hickory Springs had experience receiving
overseas shipments like this and that it knew or should have known such containers posed an
unreasonable risk of harm to delivery drivers. Hickory Springs, plaintiff alleges, owed a duty to
exercise reasonable care to protect plaintiff from the unreasonable risk of danger and defective
conditions arising from its regular receipt of such containers, and that it knew or should have
known the cargo was not properly secured in the container. As a result, Hickory Springs was
negligent for failing to implement or maintain reasonable and protective measures to prevent
injuries to delivery drivers; failing to provide a reasonable warning to delivery drivers of the
defective conditions; failing to instruct International Foam [the seller] to ensure the cargo in the
Page 3 - OPINION AND ORDER DISMISSING THIRD-PARTY COMPLAINT
container was immobilized; and failing to assist plaintiff in light of its knowledge that the cargo
was likely to fall out.
Hickory Springs, in turn, filed a third-party complaint against Portland Container seeking
contribution and indemnity. Hickory Springs alleges that because Portland Container hired
plaintiff to transport and deliver the container to Hickory Springs’ premises, Portland Container
was negligent for failing to instruct and train plaintiff; failing to retain a qualified truck driver;
failing to ensure the products and cargo were properly immobilized; and failing to provide
plaintiff with the proper tools and assistance to open the container.
The negligence claims plaintiff brought against the American company who sold the
cargo to Hickory Springs (International Foam), the shipper (Sea Master), and the company
responsible for removing the container from the ship (International Container Terminal Services)
have been dismissed. Plaintiff has failed to serve the Chinese company who sold the foam to the
American seller (Shenzhen Zhongfu Company) and the John Does responsible for packing the
cargo.
II.
Additional Facts Offered by Portland Container
Plaintiff’s contract with Portland Container explicitly describes their relationship as one
of independent contract, as follows:
INDEPENDENT CONTRACTOR: The relationship of [plaintiff] to [Portland
Container] shall, at all times, be that of an independent contractor. [Plaintiff’s]
employees or leased operators shall not be deemed the employees or agents of
[Portland Container] for any purpose. [Plaintiff] shall have sole responsibility to
determine and direct the manner, method and course of performing transportation
service.
Page 4 - OPINION AND ORDER DISMISSING THIRD-PARTY COMPLAINT
Millican Decl. Ex. 1, at ¶ 3. Portland Container notes that plaintiff’s workers’ compensation
claim was denied because plaintiff was deemed an independent contractor rather than an
employee.
In response to Hickory Springs’ interrogatories, plaintiff reported the events on the day of
his injury. Specifically, he obtained the intermodal container and chassis for the load of foam
from Terminal 6 at the Port of Portland, then drove down Marine Drive without any stops until
he arrived at Hickory Springs. He checked into the receiving office. He had no conversation
with anyone about the delivery of the product. He then drove around the back of the Hickory
Springs’ building. There were no Hickory Springs’ staff around. Plaintiff began backing up to
the cargo door, stopped, got out, and walked toward the container’s doors. He understood
Hickory Springs wanted the container open and available for its employees to unload. He cut the
seal on the container and opened the first container door, and then opened the second container
door. In the process of opening the second container door, plaintiff fell or was knocked to the
ground when two pallets of foam fell out of the container. When sealed loads arrive at a
customer’s property, it is customary for the delivery to include breaking the seal and opening the
load. The right to break the seal is the customer’s, and the manner in which it is broken is a
decision for the customer.
III.
Additional Facts Offered by Hickory Springs
I granted Hickory Springs’ request to stay decision on Portland Container’s motion for
summary judgment to allow Hickory Springs to undertake some additional discovery. It now
offers the following additional facts:
Page 5 - OPINION AND ORDER DISMISSING THIRD-PARTY COMPLAINT
Portland Container is aware of the danger caused by cargo falling out of containers.
Millican Dep. 19:16-19:18. When Portland Container trains its employees it warns them about
the risk of shifting loads and falling cargo. Millican Dep. 23:5-23:14. Portland Container
suggests ways to avoid injury when opening cargo doors in a one page “Tip Sheet” entitled
“Protect yourself from falling objects[.]” Rohner Decl. ¶ 4, Ex. 3.
When Portland Container hired plaintiff, he was associated with another truck driver
named “Teshome.” As a result, Portland Container never asked plaintiff about his experience or
confirmed he had taken any safety training. Plaintiff never took any safety training classes while
working for Portland Container, even though he hauled containers only for Portland Container
and no other company.
The contract between plaintiff and Portland Container also provides, “When on [Portland
Container’s] or [Hickory Springs’] property [plaintiff] shall comply with the safety practices and
procedures established for those premises.” Millican Decl. Ex. 1, at ¶ 6.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine dispute as to any material fact
and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). The
initial burden is on the moving party to point out the absence of any genuine issue of material
fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate
through the production of probative evidence that there remains an issue of fact to be tried.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the
court “must view the evidence on summary judgment in the light most favorable to the
Page 6 - OPINION AND ORDER DISMISSING THIRD-PARTY COMPLAINT
non-moving party and draw all reasonable inferences in favor of that party.” Nicholson v.
Hyannis Air Service, Inc., 580 F.3d 1116, 1122 n.1 (9th Cir. 2009) (citation omitted).
DISCUSSION
Portland Container argues Hickory Springs’ contribution and indemnity claims are not
viable based on the facts of the case and the relationship of the parties. In order for Portland
Container to be liable to Hickory Springs in contribution or indemnity, Hickory Springs must
demonstrate Portland Container’s liability to plaintiff for his injuries. See ORS 31.800
(contribution claim requires joint liability in tort for the same injury); Safeco Ins. Co. v. Russell,
170 Or. App. 636, 639-40, 13 P.3d 519 (2003) (indemnity claim requires both entities owe a
common duty to plaintiff).
Here, as Hickory Springs now seems to recognize, it cannot be liable in tort to plaintiff
because the “tort liability . . . imposed by common law negligence principles” has been “altered
or eliminated by a contract” between plaintiff and Portland Container. Abraham v. T. Henry
Const., Inc., 350 Or. 29, 37, 249 P.3d 534 (2011). Specifically, plaintiff agreed that he “shall
have sole responsibility to determine and direct the manner, method and course of performing
transportation service.” Millican Decl. Ex. 1, at ¶ 3. Further, there is no evidence Portland
Container exerted any control over the way in which plaintiff performed his job. As a result, any
failure by Portland Container to instruct or train plaintiff, properly ensure the security of the
cargo, or provide the proper tools to plaintiff could not have “unreasonably created a foreseeable
risk to a protected interest of the kind of harm that befell the Plaintiff” that would make it liable.
Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987).
Page 7 - OPINION AND ORDER DISMISSING THIRD-PARTY COMPLAINT
Hickory Springs next suggests, in a tortured reading of plaintiff’s agreement with
Portland Container, that Portland Container breached its contractual obligation to make plaintiff
aware of the safety practices and procedures on Hickory Springs’ premises. Aside from the lack
of textual support for imposing such a duty on Portland Container, when the agreement requires
only that plaintiff “comply with all applicable safety practices of Portland Container and its
customers,” it does not resolve the fact that if Hickory Springs is liable to plaintiff it is in
contract and not tort.
As a result, since Hickory Springs and Portland Container do not share a common duty or
joint liability in tort, Hickory Springs’ contribution and indemnity claims based on any failure to
train, failure to secure the cargo, or provide tools to plaintiff must be dismissed. See Safeco Ins.
Co., 170 Or. App. at 640-41 (insurance company’s contractual relationship with insured was
“distinct from the duty of due care” owed by driver).
Hickory Springs argues alternatively that Portland Container failed to retain a qualified
truck driver. To the extent Hickory Springs’ claim is one of direct negligence against Portland
Container, it fails for several reasons. First, as I explained above, the claims it brings for
contribution and indemnity must rely on shared liability to plaintiff. Furthermore, because any
damages Hickory Springs may have suffered are purely economic, Hickory Springs cannot bring
an independent claim of negligence against Portland Container as a matter of law. A “special
relationship,” not present here, is required for such a claim. See Loosli v. City of Salem, 215 Or.
App. 502, 507-509, 170 P.3d 1084 (2007) (identifying special relationships that support a
negligent infliction of economic injury claim).
Page 8 - OPINION AND ORDER DISMISSING THIRD-PARTY COMPLAINT
If Hickory Springs’ theory is that plaintiff can recover against Portland Container for
having employed an unqualified truck driver–plaintiff himself–this claim also fails as a matter of
law. Hickory Springs does not cite any authority for the proposition that a principal may be
liable in negligence to the agent if the principal “was negligent in hiring, instructing, or
supervising [that] agent.” See Vaughn v. First Transit, Inc., 346 Or. 128, 138 n.7, 206 P.3d 181
(2009); see also Budd v. Am. Sav. Loan Ass’n, 89 Or. App. 609, 750 P.2d 13 (1988) (employee
had no negligence claim against employer for failing to train her, even though lack of training
resulted in her termination).
CONCLUSION
For the foregoing reasons, Portland Container Repair Corporation’s Motion for Summary
Judgment [33] is granted. Hickory Springs Manufacturing Company’s third-party complaint
against Portland Container Repair Corporation is dismissed with prejudice.
IT IS SO ORDERED.
DATED this
9th
day of June, 2014.
/s/ Garr M. King
Garr M. King
United States District Judge
Page 9 - OPINION AND ORDER DISMISSING THIRD-PARTY COMPLAINT
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?