Armstrong v. National Shipping Company of Saudi Arabia, et al

Filing 290

MEMORANDUM AND ORDER. The Court GRANTS Motions for Summary Judgment filed by Fischer, Bahri, Shoppas and IronPlanet. Because these parties are dismissed from the lawsuit, the Motions to Strike Plaintiffs Jury Demand filed by Bahri and IronPlanet are DENIED AS MOOT, as are the Motions to Strike the Revised Report of Plaintiffs Testifying Expert filed by IronPlanet and Shoppas. The Court denies as moot Motions to Exclude the Testimony of Plaintiffs Expert, filed by IronPlanet and Shoppa's. Shippers Motion to Strike Plaintiffs Jury Demand is DENIED. Toyotas Motion for Summary Judgment is PARTIALLY DENIED. (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JORDAN ARMSTRONG,
Plaintiff,
VS.
NATIONAL SHIPPING COMPANY OF
SAUDI ARABIA, et al.,
Defendants.

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November 10, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 4:15-CV-868

MEMORANDUM AND ORDER
In this personal injury case, Plaintiff Jordan Armstrong has alleged three causes of
action—negligence under the Longshore and Harbor Workers’ Compensation Act, breach of
implied warranty, and common law negligence—against nine Defendants.
Pending before the Court are Motions for Summary Judgment filed by five of the nine
Defendants—Robert Fischer, d/b/a Wallis Concrete Transport (“Fischer”) (Doc. No. 194),
National Shipping Company of Saudi Arabia (now known as Bahri) (“Bahri”) (Doc. No. 229),
Toyota Motor Credit Corporation (“Toyota”) (Doc. No. 249), Shoppa’s Material Handling
Management, LLC (“Shoppa’s”) (Doc. No. 252), and IronPlanet, Inc. (“IronPlanet”) (Doc. No.
257).
Also pending are Motions to Strike Plaintiff’s Jury Demand filed by Bahri (Doc. No.
242), IronPlanet (Doc. No. 256), and Shippers Stevedoring Company (“Shippers”) (Doc. No.
282), and Motions to Strike the Revised Report of Plaintiff’s Testifying Expert filed by Toyota
(Doc. No. 246), IronPlanet (Doc. No. 248), and Shoppa’s (Doc. No. 253).
Finally, there are two Motions to Exclude the Testimony of Plaintiff’s Expert, filed by
IronPlanet (Doc. No. 251) and Shoppa’s (Doc. No. 281).
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After considering all of the Motions filed by Defendants, the responses thereto, and all
applicable law, the Court determines that the Motions for Summary Judgment filed by Fischer,
Bahri, Shoppa’s and IronPlanet must be granted. Because these parties are dismissed from the
lawsuit, the Motions to Strike Plaintiff’s Jury Demand filed by Bahri and IronPlanet are denied
as moot, as are the Motions to Strike the Revised Report of Plaintiff’s Testifying Expert filed by
IronPlanet and Shoppa’s. The Motions to Exclude the Testimony of Plaintiff’s Expert, filed by
IronPlanet and Shoppa’s are also denied as moot. Shippers’ Motion to Strike Plaintiff’s Jury
Demand is denied. Toyota’s Motion for Summary Judgment is partially denied.
I.

BACKGROUND
a. The Accident
Plaintiff Jordan Armstrong worked as a longshoreman for Ports America Chesapeake in

Baltimore, Maryland. (Doc. No. 260-1 at 2.) On June 10, 2013, Plaintiff was tasked with moving
a forklift that had been stowed on an inclined ramp of the M/V Saudi Tabuk during its voyage
from Houston to Baltimore. (Id.) Plaintiff and the other longshoremen were instructed to restow
the forklift on the vessel’s weather deck pursuant to a stowage plan provided by the vessel
owners. (Id.) It is undisputed that the wheels of the forklift were not chocked1 at the time the
longshoremen approached. (Doc. No. 229 at 3-4.) Instead, six chains held the forklift in place—
four on the uphill side and two on the downhill side. (Id.) Plaintiff testified that his crew
confirmed that the parking brake was set on the forklift before beginning to unlash the chains.
(Id.) While Plaintiff was preparing to remove the chains on the downhill side, his fellow
longshoremen disengaged the uphill chains. (Id.) The forklift rolled down the inclined ramp,

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A chock is “a wedge or block for steadying a body (as a cask) and holding it motionless, for
filling in an unwanted space, or for blocking the movement of a wheel.” Merriam-Webster
Dictionary, http://www.merriam-webster.com/dictionary/chock.
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pinning Plaintiff between the forklift and cargo stowed two or three feet downhill from the
forklift. (Id.) Another longshoreman got into the forklift, turned it on, and backed it up a few feet
to free Plaintiff, but when the longshoreman exited the forklift, it rolled down again. (Doc. No.
275-2 at 3.) By this time, however, Plaintiff had already fallen onto the deck, and the forklift
came to a stop against the downhill cargo. (Id.)
b. The Forklift
The forklift that injured Plaintiff was a 2008 Toyota model 7FDU80. (Doc. No. 249-1 at
1.) After it came “off-lease” in 2013, Toyota engaged a third-party contractor to inspect the unit.
This third-party contractor, AutoVIN, inspected the forklift and concluded, in its report, that the
parking brake was “not operational,” but that the parking brake did have tension. (Doc. No. 2768 at 2.) No other information about the parking brake was included in the report. Toyota then
offered to sell the forklift to its dealers; the inspection report (hereinafter “Toyota Inspection
Report”) was made available to these dealers. (Doc. No. 249 at 4.) The forklift was considered
for purchase by a Toyota dealer, Shoppa’s, for use in a rental fleet. (Doc. No. 252 at 5.)
However, after an inspection, Shoppa’s determined that the cost of needed repairs combined with
the purchase price was too high, and declined to purchase the forklift. (Id. at 6.) Shoppa’s
maintains that the parking brake was working when it was on Shoppa’s lot, but that “it needed
adjustment.” (Id.) The forklift remained on Shoppa’s lot while Toyota pursued other means of
selling the forklift. (Doc. No. 257 at 6.)
Toyota then asked IronPlanet, an auction website with which Toyota had a contract, to
auction the forklift. (Id. at 2.) Toyota did not make the Toyota Inspection Report available to
IronPlanet. (Id. at 6.) Instead, an employee of IronPlanet conducted a “low functionality”
inspection of the forklift on flat ground in a limited space. (Id. at 7.) Though the report

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(hereinafter “IronPlanet Report”) noted that the master cylinder/brake control was “noisy,” the
report also indicated that the parking brake “stopped the machine while rolling.” (Id.) The
IronPlanet Report was made available on the IronPlanet website, and the forklift was ultimately
purchased from the website by Reem Heavy Equipment on May 2, 2013. (Id. at 8.)
Reem Heavy Equipment engaged JBH Worldwide, LLC to arrange for transportation of
the forklift from Shoppa’s lot in Ft. Worth, Texas to Saudi Arabia. (Id. at 9.) Fischer, d/b/a
Wallis Concrete Transport, was selected to transport the forklift from Fort Worth to the Port of
Houston. (Id.) To get the forklift onto his truck trailer, Fischer lowered the front neck of the
trailer to the ground, creating a ramp, and drove the forklift onto his trailer. (Id. at 10.) Fischer
stated that he “didn’t notice anything wrong” with the parking brake, and the forklift “didn’t
roll.” Fischer drove his trailer to the Port of Houston, drove the forklift off his trailer, and parked
it in a designated location. (Id.)
Shippers Stevedoring then loaded the forklift onto the Saudi Tabuk as “roll-on-roll-off”
cargo. (Id.) Typically, a stevedore will drive the forklift onto the inclined ramp and park it. Next,
the “lashing gang” chains the forklift. (Doc. No. 229 at 2.) There is some dispute about whether
Shippers Stevedoring chocked and lashed the forklift or simply lashed it. Although an employee
of Shippers Stevedoring testified that every forklift loaded onto the Saudi Tabuk that day was
lashed and chocked, Plaintiff avers that the forklift arrived in Baltimore unchocked. (Doc. No.
260-1 at 3.)
The vessel, M/V Saudi Tabuk, is owned by Bahri. The Chief Officer of the vessel,
Krzysztof K. Zydowicz, checked the lashings and parking brakes of all wheeled cargo before
departure from the port of Houston. (Doc. No. 229-9 at 2.) Although Mr. Zydowicz testifies that
the lashings on the forklift were tight and the handbrake was set, he did not notice any chocks in

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place under the wheels. (Id.; Doc. No. 275-2 at 3.) Prior to the vessel’s arrival in Baltimore,
Bahri provided Ports America with a stowage plan that called for the shifting of certain roll-onroll-off cargo from the garage to the weather deck. (Doc. No. 229 at 3.) The forklift was one of
these items, and the injury occurred when Plaintiff and the other longshoremen attempted to
unlash the forklift in order to move it to the weather deck.
After the accident, Bahri immediately requested an inspection by American Marine &
Cargo, Inc., a company that conducts marine and cargo surveys. The inspector conducted a brake
test and wrote in the report (“Marine Cargo Report”) that the parking brake “is not functioning,
Brake cables had stretched to max beyond further adjustment.” (Doc. No. 276-2 at 6.) Regarding
the cause of the incident, the report concluded:
Parking brake (which is the only brake when the forklift is not running) failure is
apparent cause of subject incident compounded by improper method of lashing
removal by stevedores. It is apparent that subject unit was shipped with its
parking brake not functioning. Stevedores at Houston apparently did not realize
its brake failure when received since it was on a flat ground. When loaded/secured
on a steep ramp, apparently lashing chains were placed with its brake pedal
applied and therefore stevedore may not have realized any issues with its parking
brake failure. Vessel was not aware of any issues since none reported in Houston
and unit did not move during voyage because it was in lashed condition and
parking brake was in locked position. (Id.)
Before continuing on its journey to Saudi Arabia, a sign was placed on the forklift
indicating that it had no brakes, and a similar entry was made in the bill of lading. The forklift
was loaded onto a flatbed, lashed and chocked. (Doc. No. 275-3 at 9; Doc. No. 275-11 at 10.)
II.

LEGAL STANDARD
A. Summary Judgment Standard
Summary judgment is proper when there is no genuine dispute as to any material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine
issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party.
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Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). The court can consider
any evidence in “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
Court must view all evidence in the light most favorable to the non-moving party and draw all
reasonable inferences in that party’s favor. Crawford, 234 F.3d at 902.
The party moving for summary judgment bears the burden of demonstrating the absence
of a genuine dispute of material fact. Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001).
If the moving party meets this burden, the non-moving party must go beyond the pleadings to
find specific facts showing that a genuine issue of material fact exists for trial. Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Summary judgment is appropriate if a party “fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case.” Celotex, 477 U.S. at 322.
III.

ANALYSIS
A. Longshore and Harbor Workers’ Compensation Act Claims
Plaintiff alleges negligence under the Longshore and Harbor Workers’ Compensation Act

(“LHWCA”), 33 U.S.C. §§ 901-950, against all of the Defendants in this case. Five Defendants
move for summary judgment on this claim. In his responses, Plaintiff concedes that he cannot
make out a negligence claim under the LHWCA against IronPlanet and Shoppa’s, but he
maintains the claim against Fischer, Bahri, and Toyota.
“The LHWCA was created to establish a compensation scheme for injured maritime
workers.” McLaurin v. Noble Drilling (US) Inc., 529 F.3d 285, 289 (5th Cir. 2008). “An injured
worker may bring an action under the LHWCA against his employer for workers’ compensation,
see § 904, and against an owner for its vessel’s negligence, see §905(b).” Id. The Supreme Court

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has held that the LHWCA expressly pre-empts all other claims against the employer and the
vessel owner, but “expressly preserves all claims against third parties.” Norfolk Shipping &
Drydock Corp. v. Garris, 532 U.S. 811, 818 (2001). Specifically, “Section 933 preserves and
codifies a maritime worker’s common law right to pursue a negligence claim against a third
party that is not the employer or a coworker.” McLaurin v. Noble Drilling (US) Inc., 529 F.3d at
292. However, the LHWCA “does not create a cause of action nor establish a third party’s
liability for negligence.” Id.
a. Fischer
Defendant Fischer argues that the LHWCA negligence claim against him should be
dismissed because Fischer is a third party, and the LHWCA does not create a cause of action
against third parties. (Doc. No. 194-2 at 3.) In response, Plaintiff states that Count I of his
complaint, which alleges “LHWCA Negligence (Against All Defendants),” served as an
“indication that Count I was a negligence count being brought pursuant to maritime law,” as
opposed to common law negligence alleged in Count III of the complaint. Noting the “potential
for ambiguity based on the current reading of the active complaint,” Plaintiff requests leave to
amend his complaint to clarify that his LHWCA negligence claim, as against Fischer, is in fact a
maritime negligence claim. Because Plaintiff concedes that negligence under the LHWCA does
not apply to Fischer, that claim is dismissed.
Next, the Court must determine whether to grant Plaintiff’s request to amend his
complaint. Federal Rule of Civil Procedure 15(a)(2) provides that a court should grant leave to
amend “when justice so requires.” Although leave to amend shall be freely given, the existence
of such factors as “undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing

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party by virtue of allowance of the amendment, futility of amendment, etc.” may justify the
denial of leave to amend. Foman v. Davis, 371 U.S. 178, 182 (1962).
Plaintiff filed this lawsuit in 2013, and has been granted leave to amend his complaint
three times. His most recent motion to amend was denied. (Doc. No. 241.) Discovery is
complete, and the parties stand ready for trial pending the outcome of the dispositive motions.
Plaintiff gives no justification for further amendment at this late date, stating only that “justice
requires leave to amend to the extent that this Honorable Court determines that the complaint
remains unclear regarding the jurisdiction by which the various counts have been brought.”
(Doc. No. 203-1 at 8.) But Plaintiff mischaracterizes the problem with his pleading. The
jurisdiction is clear in Count I of his pleading, as the LHWCA is a federal statute that conveys
with it federal question jurisdiction. 28 U.S.C.A. § 1331. The problem is that the LHWCA does
not create a negligence cause of action against third parties. While the LHWCA preserves a
worker’s right to pursue a negligence claim, it “does not create a cause of action nor establish a
third party’s liability for negligence.” McLaurin, 529 F.3d at 292. Plaintiff could have asserted a
maritime negligence claim against Fischer, but he asserted negligence under the LHWCA. (“The
Defendants are ‘person[s] other than an officer or employee of the employer’ as stated in 33
U.S.C. § 933 and are subject to liability under the Act.” Doc. No. 207 ¶ 23, emphasis added.)
Thus, for three years Plaintiff has asserted LHWCA negligence against Defendants in the
case, and for three years Defendants have constructed their defenses around this claim. Plaintiff
has had time and opportunity to clarify his claims and add new claims. To allow Plaintiff to
amend his complaint at this time would unfairly prejudice Defendants. Furthermore, Plaintiff
gives no compelling reason justifying his previous failures to rectify this mistake. Thus, the
Court denies Plaintiff’s request to amend his complaint for a fourth time.

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b. Toyota
In its motion for summary judgment, Toyota states that Plaintiff “asserts claims for
maritime and common law negligence.” (Doc. No. 249 ¶ 1.) While later acknowledging that
“part of Plaintiff’s claims against TMCC [Toyota Motor Credit Corporation] are premised on the
Longshore and Harbor Workers’ Compensation Act,” Toyota also apparently believes that
Plaintiff has asserted maritime negligence against it. (Id. at ¶ 2.) But Plaintiff’s live complaint
belies its assertion. As described above, Count I of Plaintiff’s complaint is titled: “Longshore and
Harbor Worker’s Compensation Act Negligence (Against All Defendants).” At no point in this
count does Plaintiff allege general maritime negligence outside the purview of the LHWCA. The
only other counts in the complaint allege breach of implied warranty and common law
negligence. Because maritime negligence is not asserted in Plaintiff’s complaint, the Court
disregards that portion of Toyota’s motion. However, Toyota also moves for summary judgment
with regard to the LHWCA negligence claim.
Toyota argues that “TMCC is not subject to liability under the LHWCA in view of the
fact pattern of this case: TMCC is not a shipper, ship owner, stevedore, or seaman, as those terms
are defined or used in the LHWCA.” As discussed above, § 905(b) of the LHWCA creates an
exclusive claim for relief in negligence against the vessel owner, and § 933(a) of the LHWCA
preserves a worker’s right to sue third parties under common law negligence. However, Plaintiff
asserts a negligence claim under the LHWCA against Toyota, a third party. Because the
LHWCA does not create a negligence claim against third parties, Plaintiff’s claim is dismissed.
c. Bahri
Plaintiff asserts a LHWCA negligence claim against Bahri, the owner of the vessel
on which Plaintiff was injured. Section 905(b) of the LHWCA provides a claim for relief in

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negligence against the vessel owner. In his complaint, Plaintiff asserts that Bahri owed a turnover
duty to Plaintiff as defined by 33 U.S.C. § 905(b). (Doc. No. 207 ¶ 25.) Defendants breached this
duty by allowing the forklift to be turned over to the longshoreman, including Plaintiff, without
first exercising due care to insure that it was in such a condition that a longshoreman exercising
the ordinary standard of care could carry on cargo operations with reasonable safety.” (Id.)
Plaintiff also claims that Bahri owed him a “general duty of reasonable care and duty to warn.”
(Id. ¶ 27.) These duties were breached, writes Plaintiff, when Bahri failed to use reasonable care
to provide and maintain a safe place to work, failed to promulgate and enforce reasonable rules
and regulations, failed to provide adequate safety instruction and supervision, failed to utilize
available safety materials, such as chocks, failed to notify Plaintiff of the defective emergency
brake, and various other lapses. (Id. ¶ 28.)
A shipowner owes three narrow duties to longshoremen: (1) a turnover duty, (2) a duty to
exercise reasonable care in the areas of the ship under the active control of the vessel, and (3) a
duty to intervene. Scindia Steam Nav. Co., Ltd. v. De Los Santos, 451 U.S. 156, 167 (1981). “The
turnover duty applies to the shipowner’s obligation before or at the commencement of the
stevedore’s activities.” Kirksey v. Tonghai Mar., 535 F.3d 388, 392 (5th Cir. 2008). The duty
creates two responsibilities: “a duty to exercise ordinary care under the circumstances to turn
over the ship and its equipment in such condition that an expert stevedore can carry on
stevedoring operations with reasonable safety,” and “a duty to warn the stevedore of latent or
hidden dangers which are known to the vessel owner or should have been known to it.” Id. The
duty to warn of hidden dangers is narrow, and does not include dangers which are either: (1)
open and obvious or (2) dangers a reasonably competent stevedore should anticipate
encountering. Id. The Fifth Circuit has held that a defect is considered open and obvious if the

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longshoreman knew of the defect. Johnson v. Volunteer Barge & Transp., Inc., No. CV 15-2630,
2016 WL 5115417, at *3 (E.D. La. Sept. 21, 2016). In addition, the Fifth Circuit has extended
the “open and obvious” defense to apply to a claim based on the general duty to exercise
ordinary care in turning over the ship. Kirksey, 535 F.3d at 394.
The Supreme Court held in Scindia Steam that “the shipowner has no general duty by
way of supervision or inspection to exercise reasonable care to discover dangerous conditions
that develop within the confines of the cargo operations that are assigned to the stevedore.” 451
U.S. at 172. This means that “the shipowner is not liable to the longshoremen for injuries caused
by dangers unknown to the owner and about which he had no duty to inform himself.” Id.
In this case, it is clear that two dangerous conditions, apart from the potential negligence
of Plaintiff and his longshoremen gang (for which Bahri cannot be held liable), led to Plaintiff’s
injury: (1) the forklift’s defective parking brake and (2) the lack of chocks on the forklift. Thus,
if Plaintiff can raise a genuine issue of material fact regarding Bahri’s knowledge of and duty to
warn about either of these conditions, Bahri’s motion must be denied.
Bahri contends that it did not know the forklift had a defective parking brake. (Doc. No.
229 at 8-9.) Plaintiff has not presented any evidence that negates this contention. There is no
evidence that the Houston stevedore, Shipper’s, encountered a problem with the forklift. (Id. at
11.) Even if it had, there is no evidence that Shipper’s informed Bahri about the problem.
(Marine Cargo Report, Doc. No. 276-2 at 6, “Vessel was not aware of any issues since none
reported in Houston and unit did not move during voyage because it was in lashed condition and
parking brake was in locked position.”) Furthermore, Bahri had no duty to discover whether the
parking brake functioned. Scindia Steam, 451 U.S. at 172. The Court finds no genuine issue of
material fact regarding Bahri’s knowledge of the defective brake.

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However, Plaintiff also alleges that Bahri breached its duty to exercise ordinary care
when it turned over the vessel carrying a forklift that was not chocked. In fact, Plaintiff contends
that “a member of the vessel’s crew removed the chocks.” (Doc. No. 260-1 at 3.) In support of
this theory, Plaintiff cites to the deposition of Thomas Reyes, an employee of Shipper’s, who
stated that every forklift loaded onto the Saudi Tabuk was chocked. (Id.) If the forklifts were
chocked when they were loaded in Houston, but they arrived in Baltimore without chocks,
Plaintiff concludes that “a member of the vessel’s crew must have removed the chocks during
the vessel’s voyage.” But in his deposition, Thomas Reyes stated that he did not remember the
loading of the forklift in this case. (Doc. No. 261-1 at 13.) His testimony regarding the chocking
of forklifts was based solely on Shipper’s policy for loading wheeled machines onto vessels.
(Doc. No. 229-14 at 2.) Furthermore, Mr. Zydowicz, an employee of Bahri, testified that he did
not notice any chocks in place under the wheels before departure from Houston. (Id.; Doc. No.
275-2 at 3.) Plaintiff presents no further evidence to support the assertion that the vessel’s crew
removed the chocks on the forklift during the voyage. “The non-movant’s burden cannot be
satisfied by conclusory allegations [or] unsubstantiated assertions.” Turner v. Baylor Richardson
Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Here, the record taken as a whole does not create a
genuine issue of fact regarding the vessel’s interference with the chocks.
Even if Plaintiff could present a genuine issue of fact regarding the vessel’s interference
with the chocks, Bahri still would not be liable. As described above, the Fifth Circuit has
extended the “open and obvious” defense to the general duty to exercise ordinary care in turning
over the ship. Kirksey, 535 F.3d at 394. In Kirksey, a longshoreman was injured while unloading
cargo and filed a personal injury claim against the vessel. Id. The district court found that the
vessel’s cargo—coils and steel pipe—had been poorly stowed by the loading stevedore, and this

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dangerous condition had been exacerbated by heavy seas encountered during the voyage. Id. at
390-91. The plaintiff was badly injured when the longshoremen at the receiving port attempted
to unload the poorly stowed cargo. Id. at 391. It was uncontested that the plaintiff’s employer
was fully aware of the hazardous condition of the cargo stow, but the district court still found
that the vessel owner failed to exercise reasonable care to have the vessel in such condition that
an expert and experienced stevedore could safely unload the vessel. Id. at 391-92. The Fifth
Circuit overturned the district court, finding that the considerations leading the Supreme Court to
permit shipowners to assert an “open and obvious” defense to a failure to warn claim in Howlett
“strongly support making the same defense available to the shipowner defending against a claim
based on the general failure to provide a safe ship based on defects in the stow.” Id. at 393-94.
It is uncontested that the wheels of the forklift were unchocked when Plaintiff’s gang
approached the machine, and that Plaintiff was aware of the unchocked condition. Thus, to the
extent that this condition poses a danger, it is one that is “open and obvious.” For an open and
obvious defect, the vessel is “entitled to assume that a competent stevedore will be able to
identify and cope with defects in the stow.” Id. at 394. For these reasons, the Court finds no
genuine issue of material fact regarding Bahri’s breach of its duty to exercise ordinary care in
turning over the vessel.
Plaintiff also alleges that Bahri breached its duty to warn—the second duty encompassed
in a vessel’s turnover duty—when it failed to inform the stevedore of the forklift’s broken
parking brake. (Doc. No. 207 ¶ 27.) The vessel has a duty to warn the stevedore of latent or
hidden defects that are, or should be, known to the vessel. Kirksey, 535 F.3d 388. As explained
above, Plaintiff has failed to present a genuine issue of material fact regarding Bahri’s
knowledge of the forklift’s defective brake. Furthermore, Bahri did not have a duty to discover

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the defective brake. Scindia Steam, 451 U.S. at 172. Because the vessel cannot warn the
stevedore of a defect that is not known, or should not have been known, by the vessel, Plaintiff’s
allegation fails. The Court finds no genuine issue of material fact regarding Bahri’s breach of its
duty to warn. For these reasons, Plaintiff’s LHWCA negligence claim against Bahri is dismissed.
B. Breach of Implied Warranty Claims
In Count II of his complaint, Plaintiff alleges a breach of implied warranty claim against
all Defendants. Five Defendants move for summary judgment on this claim. In his responses,
Plaintiff concedes that he cannot make out a breach of implied warranty claim against IronPlanet
and Shoppa’s, but he maintains the claim against Fischer, Bahri, and Toyota.
a. Fischer
In the complaint, Plaintiff states that Defendants “impliedly warranted to conduct cargo
operations with reasonable safety” and “impliedly warranted the cargo and ship’s equipment was
not dangerous and was free from latent defects that would threaten the safety of a stevedore
exercising the ordinary standard of care.” (Doc. No. 207 ¶¶ 33-34.) Plaintiff does not allege the
source of these implied warranties, but Fischer, in his motion for summary judgment, looks to
Texas law, and Plaintiff does not dispute this assumption in his response. As such, the Court
refers to Texas law for the source of the alleged implied warranties.
“[I]mplied warranties are created by operation of law and are grounded more in tort than
in contract.” La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex.
1984). Texas courts recognize an “implied warranty for services only when the services relate to
the repair or modification of existing tangible goods or property.” Rocky Mountain Helicopters,
Inc. v. Lubbock Cty. Hosp. Dist., 987 S.W.2d 50, 52–53 (Tex. 1998). In Rocky Mountain
Helicopters, the Supreme Court of Texas declined to extend this implied warranty to warrant that

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services incidental to helicopter maintenance would be performed in a good and workmanlike
manner. Id. at 53. The Court explained that an implied warranty that services will be performed
in a good and workmanlike manner “may arise under the common law when public policy
mandates,” but did not find a “demonstrated, compelling need” to do so “when other adequate
remedies are available to the consumer.” Id. at 53.
Although Plaintiff argues that public policy mandates that this Court extend the implied
warranty in this case, the Court disagrees. Plaintiff accurately states that “a compelling need for
an implied warranty exists when there are no other adequate remedies available”, and that
remedies may not be adequate “when, for example, privity or reliance requirements or the
difficulty of assigning responsibility prevent the wronged consumer from obtaining redress.” But
even assuming, arguendo, that a compelling need for an extension of the implied warranty
existed in this case, Plaintiff still could not defeat summary judgment. Plaintiff is not a consumer
of goods or services in this case, yet the implied warranties he invokes are specifically designed
for consumers. See, e.g., Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987)
(emphasis added) (“We hold that an implied warranty to repair or modify existing tangible goods
or property in a good and workmanlike manner is available to consumers suing under the
DTPA”); Rocky Mountain Helicopters, Inc. v. Lubbock Cty. Hosp. Dist., 987 S.W.2d 50, 53
(Tex. 1998) (emphasis added) (“There is no compelling need for an implied warranty when other
adequate remedies are available to the consumer,” and “Remedies may not be adequate when, for
example, privity or reliance requirements or the difficulty of assigning responsibility prevent a
wronged consumer from obtaining redress.”)
Plaintiff does not argue that he is a consumer for the purposes of these implied
warranties, but instead asserts that “Texas law recognizes this remedy as available due to ‘privity

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or reliance requirements.’” (Doc. No. 203-1 at 10-11, citing Rocky Mountain Helicopters, 987
S.W.2d at 53.) According to Plaintiff, because he relied on the Defendant to provide notice that
the forklift was defective, “this remedy remains available to the Plaintiff.” (Id. at 11.) But
Plaintiff misreads Rocky Mountain Helicopters. In the section cited by Plaintiff, the Supreme
Court of Texas explained that a remedy may not be adequate, thus justifying an extension of the
implied warranty for services, if that remedy had privity or reliance requirements that the
consumer could not meet, and that would thus bar a wronged consumer from obtaining redress.
The court was not stating, as Plaintiff contends, that any showing of reliance by an injured
person should lead to an extension of the implied warranty.
Implied warranties for services are created for consumers. Because Plaintiff is not a
consumer, they do not apply to him. The breach of implied warranty claim against Fischer is
therefore dismissed.
b. Bahri & Toyota
Bahri takes aim at Plaintiff’s implied warranty claim with a different argument. In its
motion for summary judgment, Bahri argues that there is no implied warranty for Bahri to breach
because “the LHWCA expressly pre-empts all other claims” as to both the longshoreman’s
employer and the vessel. (Doc. No. 229 at 25.) Toyota adopts and incorporates Bahri’s argument
on this matter. (Doc. No. 249 ¶ 22.) Bahri and Toyota misread the LHWCA. As explained by the
Fifth Circuit in McLaurin v. Noble Drilling, “[i]f a maritime worker recovers against a vessel
under § 905(b), then he may not also sue the vessel in tort.” 529 F.3d at 293. But if the worker
cannot recover under § 905(b) because they cannot state a cognizable claim for vessel
negligence, “the language of § 905(b) does not preempt their state-law claim against [the vessel
owner] as a third-party tortfeasor.” Id. Here, the Court has already determined that Plaintiff

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cannot state a cognizable claim for vessel negligence under § 905(b) of the LHWCA. Therefore,
Plaintiff is free to allege any state-law claims he may have against the vessel owner.
However, Plaintiff’s breach of implied warranty claim against Bahri and Toyota still
fails. Plaintiff cannot point to any implied warranties from shipowners to stevedores recognized
in federal law, and implied warranties in Texas are limited to consumers.
Although Plaintiff does not identify the implied warranty allegedly breached by Bahri as
a warranty of seaworthiness, the Plaintiff’s complaint describes just that: “Defendant impliedly
warranted the cargo and ship’s equipment was not dangerous and was free from latent defects
that would threaten the safety of a stevedore exercising the ordinary standard of care.” (Doc. No.
207 ¶¶ 33-34, cf. Scindia Steam, 451 U.S. at 165 (“Proof of unseaworthiness required no proof of
fault on the part of the shipowner other than an unsafe, injury-causing condition on the vessel.”))
But the warranty of seaworthiness was eliminated in the 1972 Amendments to the LHWCA.
Scindia Steam, 451 U.S. at 165 (“The 1972 Amendments, particularly by adding § 905(b),
radically changed this scheme of things….the longshoreman’s right to recover for
unseaworthiness was abolished.”)
It is unclear what type of implied warranty Plaintiff is invoking against Toyota, but any
state-law implied warranties for services are limited to consumers, as explained above. For these
reasons, Plaintiff’s implied warranty claims against Bahri and Toyota are dismissed.
C. Common Law Negligence Claims
In Count III of his complaint, Plaintiff asserts a common law negligence claim against
Fischer, Shoppa’s, IronPlanet, Toyota, and three other Defendants. Fischer, Shoppa’s, IronPlanet
and Toyota move for summary judgment. As a preliminary matter, the Court must resolve some
confusion regarding the jurisdictional basis for the claim. Defendant Fischer argues that, because

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Plaintiff elected to have his negligence claim heard in maritime, the only negligence claim
Plaintiff can assert against Fischer is maritime negligence. (Doc. No. 194-2 at 5.) Defendant
IronPlanet asserts that federal maritime law governs this count because the substantive law
governing common law remedies must be the general maritime law. (Doc. No. 257-2 at 15-16.)
Defendants Shoppa’s and Toyota, however, acknowledge a distinction between maritime
negligence and common law negligence in their motions for summary judgment. (Doc. Nos. 252
at 9 & 249 at 2.)
“Generally, a plaintiff may elect to bring a maritime in personam action (1) ‘in
admiralty,’ or (2) ‘at law.’” Linton v. Great Lakes Dredge & Dock Co., 964 F.2d 1480, 1487 (5th
Cir. 1992) (citation omitted); see also Bodden v. Osgood, 879 F.2d 184, 186 (5th Cir. 1989) (“A
plaintiff with a claim cognizable in the district court's admiralty/maritime jurisdiction and also
cognizable in another basis of jurisdiction may invoke whichever jurisdiction he desires.”). If the
plaintiff proceeds “at law,” he can sue in federal court “if there exists an independent,
nonadmiralty basis of jurisdiction.” Id. Plaintiff’s Third Amended Complaint does not explicitly
invoke diversity or supplemental jurisdiction, but the Court finds that Plaintiff did not intend to
invoke admiralty jurisdiction for all three counts in his Complaint, and further finds that the
Court has diversity jurisdiction over the common law negligence claim.
Plaintiff’s Complaint begins by stating, “[t]his matter is in part being brought under the
admiralty and maritime jurisdiction of the court pursuant to 28 U.S.C. § 1333. This is an
admiralty and maritime claim within the meaning of Federal Rule of Civil Procedure Rule
9(h)…” (Doc. No. 207 ¶ 2.) Plaintiff goes on to state that “[t]he causes of action asserted in this
Complaint arises [sic] under the General Maritime Law of the United States and the common
law.” (Id. at ¶ 7.) This suggests that Plaintiff distinguished between admiralty jurisdiction and “at

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law” jurisdiction, which he was invoking by titling Count III “Negligence Pursuant to Common
Law.” Linton, 964 F.2d at 1484 (Plaintiff “may also bring suit, at his election, in the ‘common
law’ court--that is, by ordinary civil action in state court, or in federal court without reference to
‘admiralty,’ given diversity of citizenship and the requisite jurisdictional amount.”) Furthermore,
Plaintiff requests a trial by jury, which would not be available to him in an admiralty action, but
is available under other bases of jurisdiction. Bodden, 879 F.2d at 186. For these reasons, the
Court finds that Plaintiff wished to bring his negligence claim “at law.”
However, an alternate basis for federal court jurisdiction must exist, since the negligence
claim is not brought under the Court’s admiralty jurisdiction. Linton, 964 F.2d at 1487. To this
end, Plaintiff identifies himself as a citizen of Maryland, and identifies the citizenship of all
defendants. (Doc. No. 207 at 3-7.) Notably, the only defendant that would destroy complete
diversity, Bahri, is the only defendant not listed in the common law negligence claim. (Id. at 17.)
Furthermore, Plaintiff demands damages well in excess of the $75,000 amount in controversy
minimum. (Id. at 21.) Thus, Plaintiff’s “at law” negligence claim may be maintained in this
Court under diversity jurisdiction. Cf. Smith v. City of Chicago, 992 F. Supp. 1027, 1032 (N.D.
Ill. 1998) (dismissing plaintiff’s state law claim because plaintiff failed to identify the citizenship
of himself and the defendants, and failed to show that the amount in controversy exceeds
$75,000.).
Because Plaintiff’s negligence claim is brought under the Court’s diversity jurisdiction,
the claim can be tried to a jury. Linton, 964 F.2d at 1487. In Shippers’ motion to strike Plaintiff’s
jury demand, Shippers states only that “diversity jurisdiction does not apply.” However,
Plaintiff’s Complaint clearly indicates that Plaintiff is a citizen of Maryland, and Shippers is a
citizen of Texas. (Doc. No. 207 ¶¶ 1, 10.) Because the claim is brought under the common law

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pursuant to the Court’s diversity jurisdiction, Plaintiff is entitled to a jury trial and Shippers’
motion to strike Plaintiff’s jury demand is denied.
Although the basis for federal court jurisdiction is diversity, federal maritime law will
still govern the substantive law applied to the case. Edynak v. Atl. Shipping Inc. Cie. Chambon
Maclovia S.A., 562 F.2d 215, 221 (3d Cir. 1977) (affirming the application of federal maritime
law in negligence claim brought by longshoreman under the court’s diversity jurisdiction.).
Common law principles of negligence guide the analysis of a maritime tort case. Casaceli v.
Martech Int'l, Inc., 774 F.2d 1322, 1328 (5th Cir. 1985). “To state a claim for relief under
maritime law, ‘the plaintiff must demonstrate that there was a duty owed by the defendant to the
plaintiff, breach of that duty, injury sustained by the plaintiff, and a causal connection between
the defendant's conduct and the plaintiff's injury.’” In re Great Lakes Dredge & Dock Co. LLC,
624 F.3d 201, 211 (5th Cir. 2010) (quoting Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376
(5th Cir. 2000)).
The determination of the defendant’s duty is a question of law for the court. Id.
Generally, a defendant owes the plaintiff a duty of ordinary care under the circumstances. Id. To
establish the existence and scope of a duty, the court considers the foreseeability of the harm
suffered by the plaintiff. Id. Harm is foreseeable “if harm of a general sort to persons of a general
class might have been anticipated by a reasonably thoughtful person, as a probable result of the
act or omission.” Consol. Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 68 (5th Cir. 1987).
However, if the causal connection between the negligent act and the resulting harm is too
attenuated, it falls outside the scope of risk created by that act and is unforeseeable as a matter of
law. In re Great Lakes, 624 F.3d at 212.

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a. Fischer
Defendant Fischer transported the forklift from Fort Worth, Texas to La Porte, Texas on
his trailer. (Doc. No. 194-2 at 8.) In transporting the forklift, Fischer states that he noticed
nothing unusual about the forklift, and “cannot say one way or the other whether the parking
brake was broken or whether it was operational.” (Doc. No. 208-1 at 2.) In his affidavit, Fischer
explains that he drove the forklift onto his trailer and “lowered the mast all the way down to
where the forks touched the bottom of my trailer, to better secure the forklift.” Id. He then
engaged the parking brake, stepped out of the machine, and strapped down the forklift. Id. Thus,
Fischer did not engage or disengage the parking brake while the forklift was on an incline.
Fischer’s testimony comports with the experience of Shoppa’s sales representative Omar
Shai, who testified that he drove the forklift from its storage place to “the yard” for the inspector
from IronPlanet, and that the parking brake worked at that time. (Doc. No. 257-5 at 11.) In turn,
the inspector from IronPlanet, Evan Moser, put in his inspection report that the parking brake
stopped the forklift while rolling. (Doc. No. 257-17 at 4.) The experiences of Fischer, Shai, and
Moser align with the Toyota Inspection Report, which noted that while the parking brake was
“Not Operational,” it still had some tension. (Doc. No. 276-8 at 2.) Plaintiff provides no evidence
to disprove the testimony of these three men, nor does Plaintiff controvert the finding in the
Toyota Inspection Report that the parking brake still had some tension.
In his response to Fischer’s motion for summary judgment, Plaintiff argues that the
“defect in the forklift’s brakes were [sic] discovered as early as (two months prior to Defendant’s
transportation of same) March 12, 2013…Consequently, Defendant knew or should have known
upon encountering the forklift and preparing it to be hauled…of the vehicle’s defect.” (Doc. No.
203-1 at 3.) Yet it is undisputed that Fischer was not informed about the Toyota Inspection

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Report that noted the issue with the brake. Furthermore, Fischer’s testimony that he noticed
nothing wrong with the forklift’s parking brake is reasonable, given Fischer’s limited use of the
brake on flat ground and his complete lack of use of the brake on an incline. Plaintiff provides no
reason to doubt Fischer’s testimony.
The facts of this case are similar to those considered in Di Gregorio v. N.V. Stoomvaart v.
Universal Terminal & Stevedoring, 411 F.Supp. 331 (S.D.N.Y. 1975). There, a longshoreman
who was unloading cargo from a vessel was injured when a crate containing antennas collapsed
under him. Id. at 333. The longshoreman brought suit, alleging the unseaworthiness of the vessel
and negligence on the part of third-party defendants. Id. The longshoreman suggested that
liability might attach to the shipper because “a trucker employed by [the shipper] assumed
control of the crates after delivery by [the packager.]” Id. at 336. However, the court found that
“the mere taking of title or control by [the shipper]’s agents does not mean that these agents were
negligent…There was no evidence to indicate that they…knew or should have known of
inadequate battens inside the crates or other defect in the packing.” Id.
Similarly, the fact that Fischer was in possession of the forklift while transporting it to the
vessel does not mean that he was negligent, in part because there is no evidence to indicate that
he knew or should have known that the parking brake was compromised. Because Plaintiff can
present no evidence to contradict Fischer’s testimony, the Court finds that Fischer was unaware
of any problem with the forklift’s parking brake, and as such had no duty to flag the issue. As a
result, Plaintiff’s negligence claim against Fischer is dismissed.
b. Shoppa’s
Shoppa’s moves for summary judgment on the grounds that the harm to Plaintiff was not
foreseeable, and any connection between Shoppa’s conduct and the resulting harm is too

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attenuated. (Doc. No. 252 ¶ 6.) Shoppa’s role with regard to the forklift was twofold. First,
Shoppa’s considered buying the forklift from Toyota, and as a result had the forklift inspected.
Ultimately, Shoppa’s decided not to purchase the forklift, because “the cost of repairs combined
with the cost to purchase the Forklift was too high.” (Id.) Shoppa’s, as a Toyota dealer, was
given access to the Toyota Inspection Report that noted the non-operational parking brake, but
claims that the brake was working while it had the forklift—“it just needed adjustment.” (Id.)
Second, Shoppa’s temporarily stored the forklift on its lot while Toyota found another buyer.
When the inspector from IronPlanet came to inspect the forklift, Omar Shai, a salesperson for
Shoppa’s, drove the forklift from its storage place to “the yard”. (Doc. No. 257-5 at 11.) Omar
Shai testified that the parking brake functioned when he did this. (Id.)
Unlike Fischer, who had no knowledge of any inspections conducted on the forklift,
Shoppa’s had access to the Toyota Inspection Report noting the parking brake as nonoperational. However, Shoppa’s also conducted its own inspection of the forklift, which found
that the brake simply needed adjustment, and one of Shoppa’s employees personally drove, and
successfully parked, the forklift. Thus, there may be a triable question of fact regarding Shoppa’s
knowledge of the forklift’s brake problem. Regardless, the Court cannot find that Shoppa’s had a
duty to Plaintiff, even if a jury were to find that it knew about the brake’s condition.
In Garcia v. Sunbelt Trading, Inc., 2003 WL 179763, the Court of Appeals of Texas, San
Antonio, considered a similar situation. Garcia was a longshoreman injured while unloading
cargo from a vessel. Id. at 1. He brought suit against the buyer of the cargo, Sunbelt (which held
title to the cargo at the time of the incident.) The Court of Appeals affirmed the trial court’s
dismissal of the suit, finding that “Sunbelt was not involved in the manufacturing of the steel
rods or the lifting straps or in the packaging of the bundles, nor was Sunbelt involved in the

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loading and transportation of the bundles.” Id. at *2. As a result, Sunbelt owed no duty to Garcia.
Id.
Similarly, Shoppa’s was not the manufacturer, owner, seller or buyer of the forklift;
Shoppa’s was not involved in any repairs of the forklift, nor was it responsible for transporting or
loading the forklift onto the vessel. Shoppa’s was a potential buyer who, as a Toyota dealer,
stored the forklift on its lot temporarily. This peripheral relationship to the machine does not
suffice to create a duty to Plaintiff. Therefore, Plaintiff’s negligence claim against Shoppa’s is
dismissed.
c. IronPlanet
IronPlanet moves for summary judgment because Plaintiff has not established that
IronPlanet “breached a duty owed to Plaintiff to inspect the forklift or to warn Plaintiff about
forklift defects.” (Doc. No. 257-1 at 2.) IronPlanet is an online auction company that had a
contract with Toyota to sell Toyota’s used machines. The contract provided that IronPlanet
acquired no ownership interest in the units. (Doc. No. 257-2 at 2.) Furthermore, IronPlanet was
not one of Toyota’s dealers, and as such was not given access to the Toyota Inspection Report.
However, IronPlanet does provide a limited inspection of some of the equipment sold on
its website. (Id. at 4.) This inspection is “solely for the purpose of reporting on the visible
condition of the equipment’s major systems and attachments,” and the buyer is informed of the
limited nature of the inspection. (Id. at 4.) IronPlanet employee Evan Moser conducted this
inspection on the forklift in question. He testified that he conducted a “low functionality check in
a limited space,” which entails checking whether “the unit start[s], does it go forward, backward,
does it go through its function that it’s supposed to go through at a low speed with no load in a
limited space on flat ground.” (Doc. No. 257-17 at 4.) The IronPlanet report indicates that the

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parking brake “stopped the machine while rolling.” (Id. at 6.) The IronPlanet Report is not alone
in this finding—as described above, the Toyota Inspection Report noted that the parking brake
had tension (though how much is not specified), and Fischer and Shai also testified that the
parking brake seemed to be functioning when they engaged it on flat ground.
Plaintiff, in his response, disputes the accuracy of IronPlanet’s report, citing to the Toyota
Inspection Report indicating that the parking brake was “Not Operational.” (Doc. No. 275-1 at
15.) Because of the Toyota Incident Report, claims Plaintiff, “IronPlanet knew or, at the very
least, should have known of the forklift’s parking brake deficiency.” However, Plaintiff ignores
all of the evidence described above indicating that the parking brake had tension and was
functioning on flat ground. Plaintiff asks the Court to accept the Toyota Inspection Report’s
representation that the brakes were not operational, while disregarding the notation immediately
below indicating that the brakes had tension, as well as the experience of three different
individuals who used the forklift after the Toyota Inspection Report and before the Plaintiff’s
injury.
The Court does accept, for purposes of these motions for summary judgment, that the
Toyota Inspection Report indicated that the parking brake was not operational, but that it had
some tension. However, IronPlanet did not have access to this report, and relied solely on the
inspection conducted by Evan Moser, who found that the parking brake stopped the forklift on
flat ground. Plaintiff presents no other evidence indicating that IronPlanet knew or should have
known that the parking brake was defective. Therefore, the Court finds that IronPlanet was not
on notice of any problem with the forklift’s parking brake, and had no duty to flag the issue.
Accordingly, Plaintiff’s negligence claim against IronPlanet is dismissed.

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d. Toyota
Finally, Toyota argues that its motion for summary judgment should be granted because
the harm to Plaintiff was not foreseeable and there was no causal connection between Toyota’s
act or omission and the harm to Plaintiff. According to Toyota, “TMCC disclosed the condition
of the forklift to its dealers and wholesalers. The actual buyer who arranged to ship the forklift
via ocean going vessel probably owed someone a duty, but TMCC did not owe a duty to anyone
relative to the forklift after the auction sale.” (Doc. No. 249 ¶ 5.) Toyota misses the point with
this argument.
Although Toyota did disclose the Toyota Inspection Report to its dealers and
wholesalers, as evidenced by its disclosure to Shoppa’s, IronPlanet is not a Toyota dealer or
wholesaler. As a result, the report was not disclosed to IronPlanet, and the buyer of the forklift
saw only the IronPlanet Report indicating that the parking brake stopped the forklift on flat
ground. Thus, of those involved in the sale of the forklift, Toyota is the only entity that had the
benefit of the Toyota Inspection Report. Had Toyota disclosed this report to IronPlanet and/or
the buyer, Toyota might be correct that the buyer would have had the duty to arrange for proper
shipping of the forklift. But Toyota, as the manufacturer and seller of the forklift, failed to
disclose the report indicating a potentially serious latent defect in the condition of the forklift. As
such, the buyer, shippers, and stevedores approached their tasks without this knowledge.
However, Toyota further argues that “it was not foreseeable to TMCC that the auction
buyer would transport the forklift via ship.” (Doc. No. 249 ¶ 11.) In support of this claim, Toyota
cites the affidavit of Rafael Arreola, Toyota’s representative witness. Mr. Arreola states that after
the sale of the forklift on IronPlanet’s website, “Toyota was not informed as to what the buyer
intended to do with the forklift, nor where or how the buyer intended to transport the forklift.”

26

But foreseeability does not require that the exact sequence of events that produced an injury be
foreseeable. Bean v. Wal-Mart Stores, Inc., No. 4:07-CV-3201, 2008 WL 8082761, at *2 (S.D.
Tex. Dec. 8, 2008). “Instead, only the general danger must be foreseeable.” Id. (quoting Walker
v. Harris, 924 S.W.2d 375, 377 (Tex.1996)). In this case, it was certainly foreseeable that
equipment sold by IronPlanet would be transported via ship: the “About Us” section on
IronPlanet’s website states that “[o]ur sellers achieve more profitable sales through low
transaction costs and better price realizations through a global audience of buyers.”
(IronPlanet.com,

http://www.ironplanet.com/about/about_us.jsp?kwtag=footer

(emphasis

added.)) Toyota does not cite to any agreement between itself and IronPlanet limiting the
location of potential buyers, or any other evidence indicating that Toyota was unaware that
IronPlanet sold machinery to individuals around the world. As a result, the Court finds that it was
foreseeable to Toyota that its machinery sold on IronPlanet would be shipped on a vessel.
Construing the evidence in the light most favorable to Plaintiff, a reasonable jury could
find that failing to disclose the Toyota Inspection Report or to flag the forklift in some way
posed a risk. Consequently, Toyota’s motion to dismiss with regard to Plaintiff’s negligence
claim is denied.
IV.

CONCLUSION
For the foregoing reasons, the Court concludes that the Motions for Summary Judgment

filed by Fischer, Bahri, Shoppa’s and IronPlanet must be GRANTED. Because these parties are
dismissed from the lawsuit, the Motions to Strike Plaintiff’s Jury Demand filed by Bahri and
IronPlanet are DENIED AS MOOT, as are the Motions to Strike the Revised Report of
Plaintiff’s Testifying Expert filed by IronPlanet and Shoppa’s. The Motions to Exclude the
Testimony of Plaintiff’s Expert, filed by IronPlanet and Shoppa’s are also DENIED AS MOOT.

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Shippers’ Motion to Strike Plaintiff’s Jury Demand is DENIED. Toyota’s Motion for Summary
Judgment is PARTIALLY DENIED.
IT IS SO ORDERED.
SIGNED on this the 10th day of November, 2016.

_____________________________
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

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