Estate of Zachary D. Staggs by and through his Personal Rep., Denise Coulter v. ADS Logistics Co., LLC

FILED
May 14 2018, 9:21 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
ESTATE OF STAGGS AND Scott B. Cockrum
MACKENZIE TAYLOR Hinshaw & Culbertson LLP
J. Kevin King Schererville, Indiana
Cline, King & King, P.C.
Columbus, Indiana
William R. Ogden
Farrar & Ball, LLP
Houston, Texas
ATTORNEY FOR APPELLANTS JENNIFER
DAUGHERTY AND
ESTATE OF DAUGHERTY
William H. Mullis
William H. Mullis, P.C.
Mitchell, Indiana
ATTORNEYS FOR APPELLANT
ESTATE OF STEELE
Matthew J. Schad
George A. Budd, V
Schad & Schad, P.C.
New Albany, Indiana

IN THE
COURT OF APPEALS OF INDIANA

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 Estate of Zachary D. Staggs by May 14, 2018
and through his Personal Rep., Court of Appeals Case No.
Denise Coulter, and Mackenzie 64A03-1708-CT-1961
Taylor, by and through her Appeal from the Porter Superior
Parent and Guardian, Denise Court
Coulter; The Honorable Roger V. Bradford,
Jennifer L. Daugherty, Judge
Individually and as Personal Trial Court Cause No.
Representative of the Estate of 64D01-1108-CT-7592
Michael G. Daugherty,
Deceased; and
Dennis Byrd, as Special
Administrator of the Estate of
Shannon R. Steele,
Appellants-Plaintiffs,

v.

ADS Logistics Co., LLC,
Appellee-Defendant

Baker, Judge.

[1] In January 2010, a large steel coil that was secured to a flatbed tractor-trailer

became unsecured and struck other motorists traveling on State Road 37. The

accident resulted in serious injuries and multiple deaths.

[2] Following the accident, the following parties filed complaints that were

ultimately consolidated: (1) the Estate of Zachary D. Staggs by and through his

personal representative, Denise Coulter (“Staggs”); (2) Mackenzie Taylor, by

and through her parent and guardian, Denise Coulter (“Taylor”); (3) Jennifer L.

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 Daugherty, individually and as personal representative of the estate of Michael

G. Daugherty (“Daugherty”); and (4) Dennis Byrd, as special administrator of

the estate of Shannon R. Steele (“Steele”) (collectively, the Appellants).

[3] One of the named defendants was ADS Logistics Co., LLC (ADS), which had

warehoused the steel coil. ADS moved for summary judgment, and the trial

court granted its motion, finding as a matter of law that ADS had no duty to the

Appellants. The Appellants appeal, arguing that summary judgment was

improperly granted. Finding no error, we affirm.

Facts
[4] ADS is, in part, a warehouse facility. ADS has a long-standing contractual

relationship with ArcelorMittal USA, LLC (“Mittal”), pursuant to which ADS

warehouses products for Mittal. Relevant to this case is ADS’s agreement to

warehouse a large steel coil weighing just under 40,000 pounds for Mittal.

[5] Mittal agreed to sell or ship the coil to Ohio River Metal Services, Inc., doing

business as Eagle Steel Products, Inc. (“Eagle Steel”). Eagle Steel then hired

Kendall Transportation to haul the steel coil from ADS to Eagle Steel. Israel

Rankin operated a tractor-trailer that he owned under the motor carrier

authority of Kendall Transportation.

[6] On January 11, 2010, Kendall Transportation dispatched Rankin to haul the

steel coil from ADS to Eagle Steel. Eagle Steel paid Kendall Transportation for

this work, and, in turn, Kendall Transportation paid Rankin a percentage of the

load plus a fuel surcharge. Kendall Transportation’s dispatcher and Rankin
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 controlled the means and methods of delivering a load to a customer. Rankin

had been trained how to secure a steel coil through previous employment and

through his work at Kendall Transportation. He provided his own equipment

to secure the coil to his vehicle.

[7] At the ADS warehouse, an ADS crane operator placed the steel coil onto

Rankin’s flatbed trailer. ADS corporate representative Matt Brinkley attested

that, as would normally occur, the crane operator followed Rankin’s

instructions on where and how to place the steel coil on the flatbed. Rankin

attested that he stood on top of his trailer and directed the crane operator where

to place the steel coil. Brinkley also attested that the crane operator would not

have loaded a coil onto a flatbed in a position that was obviously and

apparently unsafe.

[8] After the crane operator moved the steel coil onto the flatbed, Rankin secured

the steel coil to the trailer. Brinkley, Kendall Transportation, Rankin, and

Kendall Transportation’s safety consultant agree that it is the driver’s

responsibility to secure the load onto the driver’s vehicle.

[9] Rankin performed a mental calculation to determine how to secure the coil.

Specifically, he would take the total weight of the coil and divide it in half to

determine the amount he had to account for. In this case, he calculated he had

to secure approximately 21,000 pounds; therefore, he used 3 chains, which he

mistakenly believed would equal a working load limit of 30,000 pounds. He

erroneously thought that each chain had a working load limit of 10,000 pounds,

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 but in fact, each chain had a working load limit of 6,600 pounds. Moreover,

Rankin used 3 binders to secure the coil, but each binder had a working load

limit of only 5,400 pounds, meaning that the total working load limit for the

binders was 16,200 pounds—well below the 21,000 pounds required for the

subject coil.

[10] After securing the steel coil to his flatbed trailer, Rankin began the drive to

Eagle Steel. He made one stop to eat lunch. After lunch, he checked the load

to ensure that it was still secured and then continued on his way. In Mitchell, a

car pulled out in front of him and Rankin was forced to brake a little harder

than normal (the “hard braking incident”). He did not stop to check his load

after the hard braking incident even though he had observed that the incident

“jarred his truck,” that he “felt something in the truck,” and afterwards, that the

load “felt funny.” Appellants’ App. Vol. III p. 72, 74.

[11] A few miles down the road from the hard braking incident, while traveling on

State Road 37 in Orange County, the steel coil became unsecured. At that

time, Taylor, Staggs, and Steele were traveling in Staggs’s pickup truck, and

Daugherty was traveling in a different vehicle, near Rankin’s tractor-trailer.

When the coil became unsecured, it left Rankin’s tractor-trailer and crashed

into the pickup truck and Daugherty’s vehicle, killing Staggs, Steele, and

Daugherty and seriously injuring Taylor.

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[12] In January 2012, Daugherty, Steele, Staggs, and Taylor filed lawsuits stemming

from the accident against multiple defendants, including ADS. 1 These lawsuits

were later consolidated. On December 16, 2016, ADS filed a motion for

summary judgment. Following briefing and a hearing, on July 27, 2017, the

trial court granted summary judgment in favor of ADS, finding as a matter of

law that ADS had no duty to the plaintiffs “regarding securing the load to the

tractor trailer that was involved in this incident.” Appealed Order p. 1. The

Appellants now appeal.

Discussion and Decision
I. Standard of Review
[13] Our standard of review on summary judgment is well settled:

The party moving for summary judgment has the burden of
making a prima facie showing that there is no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
Once these two requirements are met by the moving party, the
burden then shifts to the non-moving party to show the existence
of a genuine issue by setting forth specifically designated
facts. Id. Any doubt as to any facts or inferences to be drawn
therefrom must be resolved in favor of the non-moving
party. Id. Summary judgment should be granted only if the
evidence sanctioned by Indiana Trial Rule 56(C) shows there is
no genuine issue of material fact and that the moving party

1
Also named as defendants in each of the complaints were Rankin, Kendall Transportation, and Reitnouer,
Inc., the designer and manufacturer of the flatbed trailer. It appears from the Chronological Case Summary
that litigation related to these defendants is still ongoing.

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 deserves judgment as a matter of law. Freidline v. Shelby Ins.
Co., 774 N.E.2d 37, 39 (Ind. 2002).

Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).

[14] To prevail on a claim of negligence, a plaintiff must show (1) a duty owed by

the defendant to the plaintiff; (2) a breach of that duty; and (3) compensable

injury proximately caused by that breach. Id. Absent a duty, there can be no

negligence or liability based upon the breach, and whether a duty exists is a

question of law for the court to decide. Id. at 386-87.

II. Duty
[15] The Appellants argue that the trial court erred by finding as a matter of law that

ADS bore no relevant duty to them. Specifically, they argue that ADS assumed

a duty by virtue of its contract with Mittal, that ADS had a duty under common

law, and, alternatively, that there are issues of fact that must be resolved to

determine whether common law imposes a relevant duty on ADS.

A. Contract
[16] A duty of care may arise where one party assumes a duty. Yost v. Wabash

College, 3 N.E.3d 509, 517 (Ind. 2014). One way in which a party may assume

a duty is by contract. Therefore, if a contract “affirmatively evinces intent to

assume a duty of care, actionable negligence may be predicated upon the

contractual duty.” Stumpf v. Hagerman Constr. Corp., 863 N.E.2d 871, 876 (Ind.

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 Ct. App. 2007). A duty imposed by contract, once formed, is non-delegable.

Ryan v. TCI Architects/Eng’rs/Contractors, Inc., 72 N.E.3d 908, 914 (Ind. 2017).

[17] Here, the Appellants argue that the contract between ADS and Mittal (the

entity that paid ADS to warehouse the steel coil) imposes a duty owed by ADS

to the Appellants. Initially, we note that the contract states that it is “the entire

agreement of the parties with respect to the subject matter hereof” and that it

may not be modified except in writing. Appellants’ App. Vol. IV p. 65.

Furthermore, it explicitly provides that

[n]othing in this . . . Contract is intended to confer any rights or
remedies upon any persons other than Mittal and [ADS] and
their respective successors and permitted assigns . . . nor shall
any provision of this . . . Contract give any third person any . . .
claim or cause of action against any party.

Id. at 66. From the outset, therefore, it is readily apparent that this contract was

not intended to bestow any rights upon any third parties or, concomitantly,

create any duty owed by ADS to any third parties.

[18] The Appellants direct our attention to the following sections of the contract in

support of their argument that ADS assumed a duty:

(a) Mittal is committed to safety, health and protection of the
environment. In particular, safety of its personnel, and
those of its suppliers, contractors, and visitors to Mittal’s
Premises is a priority for Mittal. No other priority may
override safety. [ADS] fully endorses these policies and
adopts them as its own, in so far as they relate to the
performance of its obligations under this . . . Contract. [ADS]

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 shall have and shall enforce and strictly comply with a
strong internal safety policy that includes all current
industry standards and any other applicable safety codes or
procedures. . . .

***

(c) While on Mittal’s Premises, [ADS] shall comply with any
safety, health, and environmental measures implemented
by Mittal from time to time in respect of its property and
personnel, including those of contractors, suppliers and
other persons visiting or working on the Mittal’s Premises.

(d) [ADS] shall notify Mittal immediately of any safety, health
or environmental issues . . . which may arise in connection
with the performance of its obligations under this . . . Contract.

Id. at 66 (emphases added). Subsections (a) and (d) are limited to ADS’s

performance of its obligations under the contract, which, again, was simply for

the warehousing of the coil. ADS’s contract with Mittal did not relate to the

transportation of the coil off of ADS’s property. And subsection (c) is limited to

Mittal’s premises, which is not relevant to the case at hand. No contractual

language requires or implies that ADS assumed a duty to secure the

warehoused coil onto another driver’s trailer. Therefore, we simply cannot

conclude that this contract created a duty owed by ADS to the Appellants with

respect to the way in which the steel coil was secured to Rankin’s flatbed trailer.

[19] The Appellants direct our attention to the portion of subsection (a) requiring

ADS to have, enforce, and comply with a strong internal safety policy. Indeed,

ADS has a policy that requires all ADS drivers to comply with specific cargo

securement and protection procedures. Appellants’ App. Vol. VI p. 101-07.
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 That policy, however, is not relevant to the case at hand, as Rankin was not an

ADS driver and ADS’s only role in the process was to ensure that its crane

operator followed Rankin’s instructions regarding the loading of the coil onto

the flatbed trailer. After the loading was complete, so was ADS’s involvement.

We do not find that this policy created a duty owed by ADS to the Appellants

regarding the way in which the coil was secured to the flatbed by Rankin. The

trial court did not err by finding as a matter of law that neither the contract nor

ADS’s driver policy created a duty owed by ADS to the Appellants.

B. Common Law
[20] The Appellants also argue that even if there was no contractual duty, a duty is

imposed on ADS by common law. Whether a duty exists depends upon

balancing the following factors: (1) the relationship between the parties; (2) the

reasonable foreseeability of harm to the person(s) injured; and (3) public policy

concerns. Goodwin, 62 N.E.3d at 387.

1. Relationship
[21] As for the relationship between ADS and the Appellants, there is none. ADS’s

only involvement was to warehouse the steel coil and then load it onto

Rankin’s flatbed per Rankin’s instructions. ADS also had no contractual

relationship with Rankin, Kendall Transportation, or Eagle Steel, nor did it

have any right of control over Rankin’s acts, including the securing of the coil

onto the flatbed. The accident did not occur on ADS’s property, it did not

involve ADS’s employees or vehicles, and it did not involve anyone with whom

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 ADS has a contractual relationship. See Williams v. Cingular Wireless, 809

N.E.2d 473, 476 (Ind. Ct. App. 2004) (wireless company did not owe a duty to

person injured by a driver using a cell phone while driving because company

had no contractual relationship with the plaintiff, accident did not occur on

company’s property or involve its employee or vehicle, and product did not

malfunction and cause the injury). This factor weighs against finding a duty.

2. Foreseeability
[22] Turning next to the foreseeability of harm to the Appellants, our Supreme

Court clarified in Goodwin how this factor should be analyzed:

“the foreseeability component of proximate cause requires an
evaluation of the facts of the actual occurrence, while the
foreseeability component of duty requires a more general analysis
of the broad type of plaintiff and harm involved, without regard
to the facts of the actual occurrence.”

Goodwin, 62 N.E.3d at 389 (quoting Goldsberry v. Grubbs, 672 N.E.2d 475, 479

(Ind. Ct. App. 1996)). Put another way, we must “‘evaluate more generally

whether the category of negligent conduct at issue is sufficiently likely to result

in the kind of harm experienced that liability may appropriately be imposed on

the negligent party.’” Goodwin, 62 N.E.3d at 391 (quoting Strahin v. Cleavenger,

603 S.E.2d 197, 207 (W.Va. 2004)).

[23] Per our Supreme Court’s instructions, as we consider whether the harm suffered

by the Appellants was reasonably foreseeable to ADS, we must ask the broad

questions of what type of plaintiffs are the Appellants and what type of harm

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 occurred. The plaintiffs are motorists and the type of harm that occurred is a

vehicular accident after commercial cargo became unsecured and struck the

motorists.

[24] As a general matter, of course it is foreseeable that large and heavy cargo,

which is secured to a flatbed trailer, could become unsecured on a public

roadway and cause injuries to nearby motorists. But the broad type of

defendant here—a warehousing entity—would have no reason to foresee that

its own conduct, in warehousing the cargo or in loading the cargo onto another

entity’s vehicle, at the instruction of the other entity’s driver, would result in

harm to motorists. Put another way, an entity that has no role whatsoever in

securing the cargo to the flatbed could not foresee that its own actions would

result in that cargo becoming unsecured. This factor weighs against a finding of

duty.

3. Public Policy
[25] Finally, we must consider public policy. This factor focuses on “who is, or

should be, in the best position to prevent [an] injury and how society should

allocate the costs of such injury.” Cox v. Stoughton Trailers, Inc., 837 N.E.2d

1075, 1080 (Ind. Ct. App. 2005).

[26] In this case, Rankin was in possession and control of his flatbed trailer. Rankin

told the ADS crane operator how to load the steel coil onto the flatbed trailer,

and after that point in time, ADS had no more involvement with the coil.

Rankin was solely responsible for securing the steel coil to his vehicle. He

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 provided his own equipment, including chains and binders, to do so. Rankin

then hauled the cargo and was responsible for ensuring that it remained secured

throughout the drive. After the hard braking incident, Rankin was the only

person able to decide whether to stop and ensure the coil was still fully secured.

[27] It is apparent that the party best suited to prevent an injury to motorists with

respect to commercial cargo secured to a flatbed trailer is the entity responsible

for securing, hauling, and checking on the cargo during the drive. Here, that is

Rankin and his employer, Kendall Transportation.2 ADS had such a limited

role in these proceedings that it would have had little to no ability to prevent the

tragic accident that occurred.

[28] Therefore, we find that there is no common law duty owed by ADS to the

Appellants. Moreover, we disagree with the Appellants that there are issues of

fact with respect to duty that must be determined by a factfinder.

[29] Under these circumstances, the trial court did not err by finding as a matter of

law that ADS did not owe a duty to the Appellants. Therefore, summary

judgment was properly granted in favor of ADS.

2
This statement in no way implies a conclusion regarding the liability of either Rankin or Kendall
Transportation. Instead, we merely conclude that as a matter of public policy, they, rather than ADS, were
in the best position to prevent the ultimate harm.

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[30] The judgment of the trial court is affirmed.

Kirsch, J., and Bradford, J., concur.

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