Conger v. Home Depot USA et al

Filing 41

MEMORANDUM DECISION and Order granting 24 Motion for Summary Judgment. Signed by Judge David Barlow on 08/04/2022. (jl)

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
BONNIE LOU CONGER, individually and
on behalf of the heirs of BRIAN CONGER,
deceased, and as presumptive personal
representative of the ESTATE OF BRIAN
CONGER,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING
[24] TARACA PACIFIC’S
MOTION FOR SUMMARY JUDGMENT
Case No. 1:20-cv-43

v.

District Judge David Barlow

TARACA PACIFIC, INC.
Defendant.

This case is before the court on a motion for summary judgment filed by Defendant
Taraca Pacific, Inc. (Taraca Pacific). 1 Plaintiff has filed a response opposing the motion, 2 and
Taraca Pacific has replied. 3 Having reviewed the parties’ briefs and relevant case law, the court
concludes that the motion can be resolved without oral argument. 4 For the reasons that follow,
Taraca Pacific’s motion for summary judgment is GRANTED.
BACKGROUND
This case arises out of the tragic death of Brian Conger (Brian), who passed away after
sustaining serious injuries in an accident while working for Specialized Rail Service (SRS). 5 On
December 20, 2017, one of Brian’s coworkers, Hector Luna, was leaving work when he heard
1

ECF No. 24, filed December 14, 2021.

2

ECF No. 27, filed February 16, 2022.

3

ECF No. 28, filed February 24, 2022.

4

See DUCivR 7-1(g).

5

ECF No. 27 at 4–5. The facts in this section are undisputed unless otherwise noted.

screams for help coming from inside one of SRS’s warehouses. 6 Luna ran toward the screaming
and found Brian lying on the ground, pinned beneath a bundle of plywood. 7 Brian had been
using a forklift to tip and move plywood bundles from a vertical position to a horizontal position,
but why he had exited the forklift, and stood near one of the vertical bundles, is unknown. 8 Luna
used a forklift to lift the plywood bundle pinning Brian just enough to pull Brian out from under
it. 9 Brian was then transported to a hospital, where he subsequently passed away from his
injuries. 10
Following this accident, the Utah Occupational Safety and Health Department (UOSH)
conducted an investigation. 11 Based on this investigation, a UOSH inspector concluded that
Brian had exited his forklift, cut the metal bands running vertically around the bundle, and tried
to pull the bands away, causing the bundle to tip toward and fall on him. 12 However, whether this
is how the accident occurred is disputed. 13 No one actually witnessed how Brian came to be
pinned under the bundle of plywood. 14
The plywood bundle that fell on Brian had been imported from foreign mills through
Taraca Pacific, a lumber products importer and wholesaler based in San Francisco, California. 15
After Taraca Pacific orders plywood in bulk from foreign mills, the mills manufacture the

6

Id. at 16.

7

Id.

8

Id. at 4–5.

9

Id. at 16.

10

Id. at 17.

11

Id.

12

Id. at 17–19.

13

Id.

14

Id. at 5; see also ECF No. 28 at 6–11.

15

ECF No. 27 at 6.

2

plywood sheets, package the sheets into bundles, and load the bundles into shipping containers. 16
It has long been industry standard for the bundles to be stacked in the shipping containers in a
vertical position. 17
After the shipping containers are filled, they are delivered to a cargo ship and then
transported to various ports in the United States. 18 Once the containers arrive in the United
States, Taraca Pacific coordinates with Echo Global Logistics (EGL), a transportation
management company, to deliver them to various storage warehouses throughout the country. 19
These warehouses are owned by other entities, and each handles the process of unloading the
containers and storing the products transported therein until customers are ready for the products
to be delivered. 20
SRS is one of the warehouses that receives plywood imported through Taraca Pacific in
this manner but has no relationship or contract with Taraca Pacific directly. 21 When SRS
receives a container, it unloads the bundles into its warehouse, keeping them in the same vertical
orientation in which they were loaded into the containers. 22 SRS then uses a procedure it
developed to lower the bundles from a vertical to a horizontal position for storage. 23 The bundle
that fell on Brian was from a container of bundles SRS unloaded into its warehouse on December
19, 2017, the day before the accident. 24

16

Id. at 6–7.

17

Id. at 19.

18

Id. at 8.

19

Id.

20

Id.

21

Id. at 9, 19–20.

22

Id. at 10.

23

Id.

24

Id. at 15.

3

On December 10, 2019, Brian’s mother, Bonnie Lou Conger, filed a complaint in Utah’s
Second Judicial District Court against Taraca Pacific, Home Depot U.S.A., Inc. (Home Depot),
and Linyi Heng Sheng Wood Industry Co., Ltd. (Linyi). 25 Conger’s claim against Linyi was
dismissed on October 9, 2020, based on her failure to effectuate service. 26 And Home Depot was
granted summary judgment on Conger’s claims against it on August 2, 2022, pursuant to a
separate motion. 27 Taraca Pacific has also moved for summary judgment, and its motion is fully
briefed and ready for decision. 28
STANDARD
A party is entitled to summary judgment only if it is able to show there is no genuine
dispute as to any material fact and that it is entitled to judgment as a matter of law. 29 Material
facts are ones that “might affect the outcome of the suit under the governing law.” 30 And a
dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” 31 At the summary judgment stage, the court must
“view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing
the [summary judgment] motion.’” 32

25

See ECF No. 2 at 2.

26

See ECF Nos. 11, 14.

27

See ECF Nos. 30, 40.

28

See ECF No. 24.

29

Fed. R. Civ. P. 56(a).

30

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

31

Id.

Scott v. Harris, 550 U.S. 372, 378 (2007) (alteration in original) (quoting United States v. Diebold, Inc., 369 U.S.
654 (1962)).

32

4

DISCUSSION
The sole claim Conger has asserted against Taraca Pacific is negligence. 33 To prove that
Taraca Pacific was negligent under Utah law, Conger must show that (1) Taraca Pacific owed
Brian a duty of care, (2) Taraca Pacific breached that duty, (3) Taraca Pacific’s breach of that
duty was the proximate cause of Brian’s injuries, and (4) Brian in fact suffered injuries or
damages. 34 According to Conger, Taraca Pacific acted negligently by failing to ensure that the
plywood bundles it imported were transported in a safe manner. 35
Taraca Pacific argues that it is entitled to summary judgment on Conger’s negligence
claim for two main reasons. 36 First, Taraca Pacific argues that the undisputed facts show that it
did not owe or breach any duty of care to Brian. 37 Second, Taraca Pacific argues that nothing it
did was the proximate cause of Brian’s injuries and death. 38 Because the court ultimately agrees
with Taraca Pacific that it owed no duty of care to Brian, the court’s analysis begins and ends
with that issue. 39
Generally, an actor owes a duty of care to others when the actor’s conduct creates a risk
of physical harm to them. 40 Here, Conger has identified no conduct by Taraca Pacific that
created a risk of physical harm to Brian. The undisputed facts show that the bundle that fell on

33

See generally ECF No. 4-1.

34

See Hunsaker v. State, 870 P.2d 893, 897 (Utah 1993).

35

ECF No. 4-1 at

36

ECF No. 24 at 12–21.

37

Id. at 12–13.

38

Id. at 13–21.

39
See Mower v. Baird, 422 P.3d 837, 843 (Utah 2018), as corrected (July 11, 2018) (“The threshold question in a
negligence claim is whether the defendant owed a duty to the plaintiff.”); Colosimo v. Gateway Cmty. Church, 424
P.3d 866, 871 (Utah 2018) (“Absent a showing that the defendant owed any duty, the plaintiff’s claim has no merit,
and he or she may not recover.” (quoting Young v. Salt Lake City Sch. Dist., 52 P.3d 1230, 1233 (Utah 2002))).
40
See Ipsen v. Diamond Tree Experts, Inc., 466 P.3d 190, 191–92 (Utah 2020); Restatement (Third) of Torts:
Liability for Physical & Emotional Harm § 7 (Am. Law Inst. 2010).

5

Brian was originally placed in a vertical position by a foreign mill when it was loaded into a
shipping container and remained in that position at all times while being transported. Once the
shipping container arrived at SRS’s warehouse, SRS removed the bundle from the container and
left it in a vertical position. Thus, even if the vertical orientation of the bundle created a risk of
physical harm to Brian, as Conger claims, 41 the undisputed facts show that Taraca Pacific played
no role in stacking, or deciding to stack, the plywood bundle that fell on Brian in that way. 42
Further, the record shows that Taraca Pacific’s involvement with the plywood bundles
was limited to ordering them and coordinating the importation, transportation, and delivery of
the shipping containers holding them. Conger has identified nothing in these actions that posed a
risk of physical harm to Brian. And to the extent Conger claims that Taraca Pacific’s role in the
importation and delivery of those shipping containers created a duty of care as to how the
plywood bundles were positioned in them or unloaded by third parties, Conger has not identified,
nor has the court found, any basis in law to impose such a duty. 43 More specifically, Conger has
identified no basis for imposing a duty of care on an importer with regard to how third parties
with whom the importer has contracted to transport the goods being imported choose to transport
those goods. 44

41

ECF No. 27 at 21.

42

See supra notes 15–24 and accompanying text.

See Graves v. N. E. Servs., Inc., 345 P.3d 619, 624 (Utah 2015) (noting that “[a] person generally has ‘no duty to
control the conduct of third persons’” except when there is a “special relationship” between them as outlined in the
Restatement (Second) of Torts (quoting Higgins v. Salt Lake Cnty., 855 P.2d 231, 236 (Utah 1993))); Restatement
(Second) of Torts § 315 (Am. Law Inst. 1965) (“There is no duty to control the conduct of a third person as to
prevent him from causing physical harm to another unless (a) a special relation exists between the actor and third
person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists
between the actor and the other which gives to the other a right to protection.”); id. §§ 314A, 316–20 (identifying the
most common types of special relationships).
43

See Magana v. Dave Roth Const., 215 P.3d 143, 148 (Utah 2009) (“Utah adheres to the general common law rule
that the employer of an independent contractor is not liable for physical harm caused to another by an act or
omission of the contractor or his servants. This general rule recognizes that one who hires an independent contractor
and does not participate in or control the manner in which the contractors work is performed owes no duty of care

44

6

Instead of attempting to explain why Taraca Pacific owed Brian a duty or care, Conger
turns to the doctrine of res ipsa loquitur. 45 Under that doctrine, the finder of fact may infer a
defendant’s negligence (i.e., that the defendant had a duty of care and breached it) if three
elements are established:
(1) the accident was of a kind which, in the ordinary course of events, would not
have happened had the defendant used due care;
(2) the agency or instrumentality causing the accident was at the time of the
accident under the exclusive management or control of the defendant; and
(3) the plaintiff’s own use or operation of the agency or instrumentality was not
primarily responsible for the accident. 46
In arguing that res ipsa loquitur applies here, Conger asserts it was not any act of Brian
that caused the plywood bundle to fall on him. 47 Instead, according to Conger, it was the
unreasonably dangerous vertical positioning of the bundle, and the eventual failure of the
wooden pallet on which it sat, that caused it to fall on Brian. 48 Conger asserts that Taraca Pacific
controlled or managed these instrumentalities because (1) it “supplied the bundles that were to be
shipped in a vertical position,” and (2) the wooden pallet that failed was put under the bundle by
Taraca Pacific’s agents. 49 Conger further asserts that such an accident would not have occurred
absent some failure by Taraca Pacific to exercise due care with regard to the bundle and pallet. 50

concerning the safety of the manner or method of performance implemented.” (internal quotation marks and
citations omitted)).
45

ECF No. 27 at 22–24.

46

King v. Searle Pharms., Inc., 832 P.2d 858, 861 (Utah 1992).

47

ECF No. 27 at 23–24.

48

Id.

49

Id. at 23.

50

Id. at 23–24.

7

However, even if a reasonable jury could find that the accident was caused by the vertical
orientation of the bundle and the failure of the wooden pallet on which it sat, and not by any act
of Brian, 51 Conger cannot succeed under the doctrine of res ipsa loquitur because she has failed
to show that Taraca Pacific had exclusive management or control of the instrumentalities that are
alleged to have caused the accident. As already discussed, the undisputed facts show that Taraca
Pacific played no role in packaging the bundles, placing them on pallets, positioning them
vertically during transport, or unloading them into SRS’s warehouse.
Additionally, while Conger argues that it was Taraca Pacific’s agents that performed
these actions, she cites no evidence that this was the case. It is undisputed that those who
performed these actions were independent contractors, not agents, and Conger has provided no
evidence that Taraca Pacific participated in or controlled those actions. 52 What’s more, it is clear
from the record that it was Brian’s employer, SRS, that was responsible for unloading and
storing the plywood bundles as soon as the containers in which they were shipped arrived. Thus,
at the time of the accident, it was SRS that controlled or managed the plywood bundle that fell
on Brian. Therefore, based on the undisputed facts, no reasonable jury could find that Taraca
Pacific had exclusive management or control of the instrumentalities that Conger alleges caused
Brian’s injuries and subsequent death.
In summary, because Conger has failed to identify any grounds from which a reasonable
jury could find that Taraca Pacific owed Brian a duty of care, Conger’s negligence claim fails as
a matter of law. Therefore, Taraca Pacific is entitled to summary judgment.

51

Both of these issues are heavily disputed.

52

See Magana, 215 P.3d at 148.

8

ORDER
For the foregoing reasons, Taraca Pacific’s motion for summary judgment 53 is
GRANTED.

Signed August 4, 2022.
BY THE COURT
________________________________________
David Barlow
United States District Judge

53

ECF No. 24.

9