Transportation Law

Ted Agniel, Esquire

In determining whether a load deficit is hidden or open, two factors should be considered: (1) the experience of the carrier, and (2) whether the shipper gave any assurances regarding the security of the load. Aragon v. Walmart Stores East, LP, et. al., United States Court of Appeals, 8th Circuit (November 13, 2013)

Plaintiff Benny Aragon was the driver of a truck (owned by Hunt, his employer) carrying material that had been loaded by IFCO Systems. He was injured when pallets fell on him from a trailer, breaking his leg and ankle. He sued IFCO and also Wal-Mart (where the material had been loaded), claiming that their negligent loading of the pallets caused his injuries.

The Missouri Supreme Court has not addressed whether shippers such as defendants have a duty to secure goods they have loaded so as to avoid injury to the driver. The parties, however, assumed that the Missouri Supreme Court would apply the “Savage Rule” from United States v. Savage Truck Line, Inc., 209 F.2d 442 (4th Circuit 1953) which places the primary duty for safe loading on the carrier. If the shipper assumes responsibility for loading the material, however, it becomes liable for any latent and concealed defects that cannot be reasonably discerned by the driver. If the improper loading is obvious, however, then the carrier (Aragon’s employer in this case) is liable, regardless of the negligence of the shipper.

Assuming, without deciding, that the Missouri Supreme Court would adopt the Savage rule, the court of appeals affirmed the district court’s entry of summary judgment. The court held that two factors should be taken into account to determine whether any defect was hidden or open: (1) the experience of the carrier and (2) whether the shipper gave any assurances regarding the security of the load. In this case, Aragon had been a commercial truck driver for more than thirty years and had substantial experience in securing loads. The court held that “no reasonable jury could have found that the absence of securing devices (on the load) was anything other than open and obvious” to plaintiff. Further, plaintiff never asked the shipper whether the load was secure and he received no assurances from the defendants that the pallets had been loaded safely.

Held: Affirmed.
According to Federal Motor Carrier Safety Regulations, the duty to secure cargo is generally placed on the carrier, not the shipper, because the carrier has the final responsibility for the load. In this case, the Plaintiff had the chance to inspect the cargo beforehand to confirm that it was well secured “as he was required to do under the Safety Regulations.” He accepted the cargo as it was. The judgment of the district court was, therefore, affirmed.

City’s red light camera ordinance held unconstitutional, and therefore void and unenforceable. Edwards, et al. v. City of Ellisville, et al., No. 99389 (Mo. App. E.D., November 5, 2013), Odenwald, J.

The Missouri Court of Appeals, Eastern District, reversed the trial court’s dismissal of plaintiffs’ petition and ruled that a red light camera ordinance in the City of Ellisville was unconstitutional and, therefore, void and unenforceable. The ordinance conflicted with three Missouri statutes: §§ 304.281, 302.225, and 302.302. As such, they violated § 304.120.3, RSMo, which states that any ordinance that “contains provisions contrary to or in conflict with this chapter” will be invalid. The appellate court added that, “absent a change in either Missouri state law, or a revision of municipal ordinances . . ., municipal red light camera regulations will continue to run afoul of § 304.120.3, and will hence be void and unenforceable.”

Ellisville’s ordinance placed strict liability on the owner of any vehicle found to be in violation of the ordinance. This violated § 304.281, RSMo, which did not apply to owners of vehicles, but only to drivers and pedestrians.

The ordinance stated that an infraction “shall not be considered a moving violation . . . .” The appellate court held, however, that the ordinance obviously applied only to moving violations, i.e., running a red light. The ordinance stated that a violation would not be reportable to the Missouri Department of Revenue. However, §§ 302.302 and 302.225 , RSMo, require the assessment of two points to the driver’s license, and municipal courts are required to report to the Director of Revenue all moving violations of municipal ordinances. As a result, “Ellisville permits what state law prohibits – a moving violation without the assessment of points.” The court determined that Ellisville’s ordinance was in conflict with Missouri law and, therefore, was void and unenforceable.

Two of the plaintiffs had paid their fines. The appellate court affirmed the trial court’s denial of their attempt to obtain restitution, citing the voluntary payment doctrine. The court held that their payments did not fall under any exception to that doctrine.

Held: Reversed in part.

(See also summary under Local Government, supra).