Childress v. Goodloe Marine, Inc.

ROGER DALE CHILDRESS, II, Plaintiff v. GOODLOE MARINE, INC., et al., Defendants.

CIVIL NO. JKB-16-2884

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

August 9, 2018

MEMORANDUM

Plaintiff Roger Dale Childress, II, brought this diversity action against Defendants Goodloe Marine, Inc., and its employee Benton Goodloe Jr. ("Boomer"), asserting two counts of negligence in regard to an incident when Plaintiff was harmed by pipes that fell off his flatbed tractor trailer. Defendants have moved for summary judgment on both counts (ECF No. 75), and that motion is fully briefed and ripe, (ECF Nos. 78, 80). No hearing is necessary to resolve the matter. See Local Rule 105.6 (D. Md. 2016). Because Plaintiff was contributorily negligent, and because there is no genuine issue of material fact about that, summary judgment will be granted for Defendants on both counts. Defendants are entitled to judgment as a matter of law.

I. Background

Plaintiff was a truck driver and on Friday, September 5, 2014, he picked up a load of 16" diameter plastic pipe in South Carolina. (Childress Dep. 232:20-233:8, 238:21, Opp'n Ex. A, ECF No. 78-3.) The load consisted of ten bundles of pipe, with three pipes in each bundle. (Id. 239:3-240:1.) Each bundle was banded together with "metal bands and . . . wood slats." (Benton Goodloe, Jr. Dep. No. 2 at 15:6-7 ("Boomer Dep."), Mot. Summ. J. Ex. 10, ECF No. 75- 11.) They were loaded on Plaintiff's flatbed trailer in the following manner: Two bundles were placed side-by-side to form a row. Each row was separated by a thin piece of wood. After two rows were laid down, Plaintiff secured them with straps. Then, after each additional row, Plaintiff would secure that row with straps, for a total of five rows secured by four sets of straps. (Childress Dep. at 243, 245:4-252:2; Boomer Dep. at 32:1-4.)

When Plaintiff picked up the load, he signed a document discussing safety issues related to loading and unloading this type of pipe (the "Safety Document"). (Childress Dep. at 263-64; Safety Document, Opp'n Ex. B, ECF No. 78-4.) The Safety Document stated "WARNING PIPE FALLING OFF THE TRUCK CAN KILL OR INJURE." (Emphasis in original). It admonished the driver to "[r]ead and observe these UNLOADING GUIDELINES." It warned, "NEVER GO TO THE OPPOSITE SIDE OF THE TRAILER WHEN UNLOADING EQUIPMENT IS MOVING NEAR THE TRUCK. Moving equipment could knock the load down on top of you. To avoid your own death or injury, tell the operator to stop moving and wait while you work on the other side of the load." (Second emphasis added). It further warned, "IF A PERSON CANNOT BE SEEN, IMMEDIATELY STOP UNLOADING AND FIND THAT PERSON." (Emphasis in original).¹

Plaintiff delivered the load to Defendant Goodloe Marine in Ocean City, Maryland, on the morning of September 8, 2014. (Childress Dep. at 294:11-298:21.) Boomer, one of Goodloe Marine's employees, was operating a John Deere Model 524K-II Loader with fork attachments—essentially a large fork lift. (Id. at 295-96.) While Boomer unloaded the pipes, the loader was on the passenger's side of the trailer. (Id. at 305:21-306:1.)

The unloading process was as follows: Plaintiff removed the straps for the top layer by loosening them on the driver's side, then walking to the passenger's side and unhooking the straps, and finally by throwing the straps over to the driver's side. (Childress Dep. at 301.) Plaintiff then stood 25 feet away from the end of the trailer, "where [he] could see [Boomer] and the loader." (Id. 302:5-20.) Boomer then removed the top two bundles of pipe, i.e., the top row, starting with the passenger's side bundle. (Id. 302:1-2.) They repeated this process for the top three layers, and unloaded the first six bundles of pipe without incident. Plaintiff then loosened the final straps (holding down the last two rows of pipes).

What happened next is in dispute. According to Plaintiff, he threw two of the three straps covering the final two rows over from the passenger's side to the driver's side, but when he threw the third strap, it did not clear the load and instead landed on top of the pipes. (Childress Dep. 308:3-7.) Plaintiff then walked around the back of the trailer to the driver's side—the side opposite from the loader—to remove the strap that was on top of the load. (Id.) Plaintiff provides no evidence, and does not argue, that he told Boomer or anyone else at the unloading site before walking to the other side of the trailer. As he was standing next to the unsecured pipes on the driver's side of the trailer, he heard Boomer blow his horn and the pipes fell on him. (Id. 308:7-8, 316:1-22.)

According to Defendants, Boomer blew his horn as he was approaching the trailer (according to Defendants, he had been blowing his horn each time he approached the trailer in order to warn Plaintiff (and others)). (See Mot. Summ. J. Mem. Supp. 13, ECF No. 75-1.) He then lifted the two unstrapped bundles on the passenger's side of trailer, reversed the loader, and began to turn. (See Boomer Dep. at 98.) As he did so, he saw the two remaining bundles slide off the driver's side of the trailer. (Id.) He then set the load down, turned off the loader, andwent to investigate, thinking the pipe may have been damaged in the fall. (Id.) As he approached the trailer, he realized pipes had fallen on the Plaintiff. (Id.)

It is undisputed Plaintiff was injured by the pipes that fell on him. He brought this action against Goodloe Marine and Boomer seeking compensation for those injuries. Specifically he brought two claims of negligence: one count against Goodloe Marine for its own negligence as well as its liability for Boomer's negligence under a theory of respondeat superior, and one count against Boomer individually. Before the Court is Defendants' motion for summary judgment.

Before considering the substance of that motion, however, the Court would be remiss in failing to explain to the parties, particularly Defendants, what constitutes an "undisputed fact." Undisputed facts are pieces of information, drawn from the evidence developed so far in the case, that are not disputed, i.e., that neither party contends is untrue. According to Defendants' "Undisputed Statement of Facts," the following are pieces of information both parties agree are true: it was a "cloudy, windy, and misty morning," when Plaintiff dropped off the pipes at Goodloe Marine; "[a]t no time did Plaintiff give any of the paperwork he received from Georg Fischer/Independent Pipe to Boomer"; Plaintiff was "rolling up his straps" when he was injured. (Mot. Summ. J. Mem. Supp. at 1-15.) This is only a sample of various purported facts, characterized by Defendants as "undisputed," that are clearly and explicitly disputed by Plaintiff. (See Childress Dep. 300:6-11 ("Q: [. . . .] What was the . . . weather like when you arrived . . . ? A: Beautiful weather. Clear, sunny."); id. 303:5 ("A: I gave him the unloading instructions."); id. at 308:5-7 ("I went around, back around the trailer to pull the strap, the hook off the top of the load."). Incredibly, according to Defendants it is undisputed that "Mr. Childress wascontributorily negligent." (Mot. Summ. J. Mem. Supp. at 3.) Counsel should be aware: an averment that a fact is "undisputed" is a representation to the Court.²

II. Standard and applicable law

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the opposing party. Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008).

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, because the parties are diverse and the amount in controversy is over $75,000. "In diversity actions, a district court applies the substantive law and choice of law rules of the state in which the court sits." Chartis Prop. Cas. Co. v. Huguely, 243 F. Supp. 3d 615, 622 (D. Md. 2017). This Court sits in Maryland and Plaintiff was harmed in Maryland, and therefore the Court will apply the substantive tort law of Maryland in analyzing Plaintiff's claims. See id; Hauch v. Connor, 453A.2d 1207, 1209 (Md. 1983) (noting that under Maryland law, "the substantive tort law of the state where the wrong occurs governs").

III. Analysis

Defendants make several arguments as to why summary judgment should be granted in their favor. According to Defendants, the undisputed facts show they were not negligent. They argue Plaintiff assumed the risk, and even despoiled evidence (although they do not squarely raise a spoliation argument in their opening brief). Like much of Defendants' briefing, these arguments are ultimately irrelevant. That is because Defendants also contend Plaintiff was contributorily negligent, the Court agrees as a matter of law on the instant record, and, "[i]n Maryland, contributory negligence is a complete bar to recovery." Leakas v. Columbia Country Club, 831 F. Supp. 1231, 1235 (D. Md. 1993) (citing Hooper v. Mougin, 284 A.2d 236, 238 (Md. 1971)).

"Contributory negligence is the failure to observe ordinary care for one's own safety. 'It is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the...