In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3386

LOLA CAMP,

Plaintiff-Appellant,

v.

TNT LOGISTICS CORPORATION and

TRELLEBORG YSH, INCORPORATED,

Defendants-Appellees.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 04 C 1358—Joe Billy McDade, Judge.

ARGUED SEPTEMBER 26, 2008—DECIDED JANUARY 14, 2009

Before RIPPLE, MANION, and SYKES, Circuit Judges.

MANION, Circuit Judge. Lola Camp brought this

diversity action against TNT Logistics Corp. (“TNT”)

and Trelleborg YSH, Inc. (“Trelleborg”), seeking to

recover damages for injuries she sustained as a result

of their alleged negligence in connection with the shipment of a pallet of automobile parts. The district court
2 No. 07-3386

granted summary judgment for the defendants. Camp

appeals. We affirm, although on partially different

grounds than those relied upon by the district court.

I. Background

During the relevant time period, Mitsubishi Motors

North America, Inc. (“Mitsubishi”) manufactured automobiles using an efficient and cost-effective “just-in-time”

inventory system. Under this system, automotive parts

from suppliers were delivered to plants “just in time” to

be used on assembly lines. TNT provided logistics

services to Mitsubishi, coordinating the purchase and

transportation of automobile parts from suppliers as

Mitsubishi’s needs arose. TNT contracted with DeKeyser

Express, Inc. (“DeKeyser”), a motor carrier service provider, to transport the parts. Camp worked for Transport

Leasing Company (“TLC”). TLC leased Camp’s services

as a tractor-trailer driver to DeKeyser.

On January 21, 2003, TNT directed DeKeyser to

transport some parts from several suppliers (one of

which was Trelleborg) to Mitsubishi’s factory in

Normal, Illinois. DeKeyser dispatched Camp to make

the pick-ups and delivery. The next day Camp arrived at

Trelleborg’s facility, which was the final stop on her

route. At Trelleborg’s loading dock, Camp noticed that

the three pallets of parts scheduled for pick-up would fit

inside the trailer only if the third pallet was stacked on

top of one of the other two pallets. Camp was concerned

that the load “would not ride” (i.e., that the unsecured

pallet might shift due to the vacant space next to it and be
No. 07-3386 3

damaged). She told Trelleborg personnel of her concern

and contacted DeKeyser dispatcher Ken Kasprzak and

TNT transport supervisor Alan Marten to advise them

of the problem. Marten contacted Dave Finck, TNT’s onsite liaison at Mitsubishi’s Normal, Illinois factory. After

the conversation with Finck, Marten advised Camp and

Kasprzak that TNT wanted the entire load delivered and

directed Camp to write on the bill that TNT was aware

of the situation and was releasing the shipper (Trelleborg)

and the driver (Camp) from responsibility for any cargo

damage. Camp then wrote the following on the bill of

lading: “Shipper and Driver released of liability for any

product damage as called TNT and told them didn’t think

would ride. Ship anyway per Dave Fink [sic].” After

Trelleborg loaded the three pallets, Camp drove to TNT’s

cross-dock facility located across the street from the

Mitsubishi plant. Before backing up to TNT’s dock, Camp

stopped in the parking lot and opened the right trailer

door; when she did, the unsecured third pallet began to

fall. When she attempted to close the trailer door to

prevent the pallet from falling out, Camp injured her

shoulder and arm.

Camp filed suit against TNT and Trelleborg in Illinois

state court, asserting a common-law negligence claim

against each defendant based upon their alleged acts and

omissions in connection with the transport of the unsecured pallet. The defendants removed the action to the

United States District Court for the Central District of

Illinois by invoking the court’s diversity jurisdiction.

The district court granted summary judgment in favor

of the defendants on Camp’s negligence claims. In doing
4 No. 07-3386

so, the court rejected Camp’s claim that she could hold

TNT liable under two provisions of the Federal Motor

Carrier Safety Regulations (“FMCSR”) and found that

Camp had not presented sufficient authority in support

of her “common law standpoint” argument to survive

TNT’s motion for summary judgment. The district court

also held that Trelleborg was not liable to Camp under

the FMCSR and that Trelleborg owed no duty to her in

light of Illinois’s open and obvious doctrine. Camp appeals.

II. Discussion

Our review of the district court’s grant of summary

judgment is de novo. Grieveson v. Anderson, 538 F.3d 763,

767 (7th Cir. 2008). We affirm only if, after viewing all

facts in the light most favorable to the non-movant (Camp)

and drawing all reasonable inferences in her favor, we

conclude that no genuine issue of material fact exists and

that the defendants are entitled to judgments as a matter

of law. Peirick v. Indiana Univ.-Purdue Univ. Indianapolis

Athletics Dep’t, 510 F.3d 681, 687 (7th Cir. 2007). In addition,

we may affirm on a ground other than that relied upon by

the district court as long as the alternative basis has

adequate support in the record. Bombard v. Fort Wayne

Newspapers, 92 F.3d 560, 562 (7th Cir. 1996).

As a federal court sitting in diversity, we apply state

substantive law and federal procedural law. Harper v.

Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Because

none of the parties raised the choice of law issue, we
No. 07-3386 5

Camp never referred to this section of the Illinois Vehicle 1

Code. However, at oral argument Camp declared that both of

her claims (against each defendant) are based upon state law: a

common-law cause of action and a statutory cause of action

under the safety regulations. We are not aware of (and Camp

has not pointed to) any Illinois statute that creates a cause of

action for a violation of the FMCSR. However, Camp did state

that a violation of the FMCSR is evidence of negligence. We

construe this statement as an assertion that the defendants’

(continued...)

apply the substantive law of Illinois, the forum state. Wood

v. Mid-Valley Inc., 942 F.2d 425, 426 (7th Cir. 1991). Under

Illinois law, “[t]o succeed in an action for negligence, a

plaintiff must prove facts that establish the existence of

a duty, a breach of the duty, and an injury to the plaintiff

which was proximately caused by the breach.” Hills v.

Bridgeview Little League Ass’n, 745 N.E.2d 1166, 1178 (Ill.

2000). Whether a duty of care exists is a question of law

for the court to decide, while breach and proximate

cause are questions of fact for the fact-finder. Iseberg v.

Gross, 879 N.E.2d 278, 284 (Ill. 2007).

A. Statutory Duty

On appeal, Camp first claims that TNT and Trelleborg

are liable for negligence based on two provisions of the

FMCSR, 49 C.F.R. §§ 390.13 and 392.9(a)(1), which are

explained in detail below. Parts 390 and 392 (among

several others) of the FMCSR are adopted by reference into

the Illinois Vehicle Code by 625 ILCS 5/18b-105(b), part of

1
6 No. 07-3386

(...continued) 1

alleged violation of 625 ILCS 5/18b-105(b)—which incorporates

the relevant provisions of the FMCSR—is prima facie evidence

of common-law negligence under Illinois law. Kalata v. AnheuserBusch Cos., 581 N.E.2d 656, 661 (Ill. 1991). Therefore, we proceed

with the understanding that Camp is pursuing a common-law

negligence claim against each defendant based on distinct

theories of duty—statutory and traditional common-law.

the Illinois Motor Carrier Safety Law. People v. Blackorby,

586 N.E.2d 1231, 1237 (Ill. 1992). “In a common law

negligence action, a violation of a statute or ordinance

designed to protect human life or property is prima

facie evidence of negligence; the violation does not constitute negligence per se.” Abbasi ex rel. Abbasi v.

Paraskevoulakos, 718 N.E.2d 181, 185 (Ill. 1999). “To recover

damages based upon a defendant’s alleged statutory

violation, a plaintiff must show that (1) she belongs to the

class of persons that the statute was designed to protect;

(2) her injury is of the type that the statute was designed

to prevent; and (3) the violation proximately caused

her injury.” First Springfield Bank & Trust v. Galman, 720

N.E.2d 1068, 1071 (Ill. 1999). We consider the application

of §§ 390.13 and 392.9(a)(1) to TNT and Trelleborg separately below.

1. TNT

Initially we must determine whether the relevant safety

regulations apply to TNT, for if they do not TNT could not

have violated them. Under 49 C.F.R. § 392.9(a)(1), “[a]
No. 07-3386 7

While not relevant here, a “private motor carrier” is “a person 2

who provides transportation of property or passengers, by

commercial motor vehicle, and is not a for-hire motor carrier.” 49 C.F.R. § 390.5. 

Similarly, 49 U.S.C. § 13102(14) defines “motor carrier” as “a 3

person providing motor vehicle transportation for compensation.” 

A person is “any individual, partnership, association, corpora- 4

tion, business trust, or any other organized group of individuals.” 49 C.F.R. § 390.5.

driver may not operate a commercial motor vehicle and

a motor carrier may not require or permit a driver to

operate a commercial motor vehicle unless 1) the commercial motor vehicle’s cargo is properly distributed and

adequately secured as specified in §§ 393.100 through

393.136 of this subchapter.” According to 49 C.F.R. § 390.5,

a “motor carrier” is “a for-hire motor carrier or a private

motor carrier.” (emphasis added). The same regulation 2

defines a “for-hire motor carrier” as “a person engaged

in the transportation of goods or passengers for compensation.” 49 C.F.R. § 390.5. A “person” includes a corpora- 3

tion like TNT. Id. 4

Camp argues that § 392.9(a)(1) applies to TNT because

TNT had a motor carrier license and was acting as a

motor carrier. More particularly, Camp contends that the

following facts demonstrate that TNT maintained de facto

control over the cargo shipment and thus acted as a

motor carrier: TNT planned the configuration of the load

with its software, determined the supplier stops Camp

made, and mapped the route she took; TNT employee
8 No. 07-3386

A broker is “a person, other than a motor carrier or an 5

employee or agent of a motor carrier, that as a principal or

agent sells, offers for sale, negotiates for, or holds itself out by

solicitation, advertisement, or otherwise as selling, providing,

or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. § 13102(2).

Dave Finck made the decision that all three pallets had to

be transported; and TNT decided that the trailer would

not have the load-bar bracing equipment that helps to

secure the cargo. TNT, on the other hand, maintains that its

mere possession of a motor carrier license is not dispositive

and asserts that it was acting as a broker rather than a 5

motor carrier. In addition, TNT argues that it did not

provide motor carrier services for Mitsubishi and that

DeKeyser was the motor carrier because it was contractually obligated to supply the driver, truck, and equipment.

We agree with TNT that the fact it possessed a motor

carrier license is not determinative of the applicability of

§ 392.9(a)(1); instead, the crucial inquiry is in what

capacity TNT was acting during the transaction. See, e.g.,

Paul Arpin Van Lines, Inc. v. Universal Transp. Servs., Inc., 988

F.2d 288, 292 (1st Cir. 1993); Schramm v. Foster, 341 F. Supp.

2d 536, 549 (D. Md. 2004). Only if TNT was functioning as

“a person engaged in the transportation of goods or

passengers for compensation” does § 392.9(a)(1) apply. 49

C.F.R. § 390.5. “Transportation” is defined as

(A) a motor vehicle, vessel, warehouse, wharf, pier,

dock, yard, property, facility, instrumentality, or

equipment of any kind related to the movement of

passengers or property, or both, regardless of owner-
No. 07-3386 9

ship or an agreement concerning use; and (B) services

related to that movement, including arranging for,

receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing,

unpacking, and interchange of passengers and property.

49 U.S.C. § 13102(23). TNT did not engage in the actual

movement of the automobile parts under the first prong

of the transportation definition. Indeed, the contract

between TNT and DeKeyser provides that DeKeyser was

responsible for supplying the truck, driver, and associated

equipment for the movement of the cargo, and there is

no question that DeKeyser (not TNT) provided the

driver and truck that moved the auto parts.

Camp argues that TNT provided “services related to

th[e] movement” of the cargo under the second prong of

the transportation definition. 49 U.S.C. § 13102(23). We

disagree. Although TNT determined the stops Camp

made and the route she took, rather than being services

pertaining to the movement of the automobile parts

these actions were merely details upon which TNT

insisted to ensure that the delivery of the parts by

DeKeyser would be on time. The same was also true of

TNT’s decision that the third pallet had to be delivered

despite its instability. TNT’s determination that the

trailer would not have load-bar bracing equipment was

also not a service germane to the movement of the cargo

but was instead a condition under which the actual

movement of the goods by DeKeyser was to take place.

That TNT planned the configuration of the load on the
10 No. 07-3386

trailer with its software might, at first glance, seem to be

a service by which TNT “arrang[ed] for” the movement

of the cargo; however, this configuration scheme is more

accurately viewed as a detail pertaining to the positioning

of the cargo on DeKeyser’s trailers upon which TNT

insisted in order to facilitate the smooth operation of

Mitsubishi’s “just-in-time” system. For these reasons,

TNT’s actions did not rise to the level of providing

services related to the movement of the parts and thus

TNT was not acting as a “motor carrier.” Rather, TNT was

a third-party logistics company whose main focus was

the timely and efficient procurement of auto parts for

Mitsubishi. TNT’s role was that of a “broker” who, on

behalf of Mitsubishi, “negotiat[ed] for . . . transportation”

by DeKeyser that would satisfy the demands of the “justin-time” system. 49 U.S.C. § 13102(2). Therefore, 49 C.F.R.

§ 392.9(a)(1) does not apply to TNT and thus it owed no

duty to Camp under this provision. The district court

correctly granted summary judgment for TNT on this

issue.

The district court also held that Camp could not hold

TNT liable under § 390.13 because she would be suing

TNT for aiding and abetting her own violation of the

FMCSR. Under 49 C.F.R. § 390.13, “[n]o person shall aid,

abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.” Camp argues

that TNT violated § 390.13 when it encouraged her to

transport the third pallet in an unsecured state as proscribed by § 392.9(a)(1). Camp is correct that the plain

language of § 390.13 applies to a “person” regardless of its

function, and not just persons acting as drivers and motor

carriers as with § 392.9(a). However, like the district court,
No. 07-3386 11

A shipper is “[a] person who sends or receives property which

6

(continued...)

we conclude that Illinois case law precludes Camp’s

recovery under § 390.13.

Specifically, under Illinois law, a plaintiff cannot

recover from a defendant for the defendant’s aiding and

abetting the plaintiff’s own tortious conduct. The case of

Hudkins v. Egan, 847 N.E.2d 145 (Ill. App. Ct. 2006), established this principle of law. In Hudkins, a driver lost control

of a car and died in the accident. 847 N.E.2d at 147. The

decedent’s administratrix sued one of the decedent’s

friends who was riding in the car for encouraging the

decedent to drive recklessly. Id. The Illinois Appellate

Court held that the decedent as the direct tortfeasor

could not have recovered as a third-party victim from the

friend who encouraged her to drive dangerously (i.e., the

indirect tortfeasor). Id. at 149-50. Camp’s aiding and

abetting claim is controlled by this common-law principle

from Hudkins: Camp, as the person who operated the

tractor-trailer with the unsecured pallet contrary to

§ 392.9(a)(1), cannot recover from TNT as a third-party

victim under § 390.13 for its role in encouraging her

to violate § 392.9(a)(1). Therefore, the district court properly granted TNT summary judgment on this theory as

well.

2. Trelleborg

On appeal, Camp conceded that Trelleborg was acting

as a shipper rather than as a motor carrier and that 6
12 No. 07-3386

(...continued) 6

is transported in interstate or foreign commerce.” 49 C.F.R.

§ 376.2(k).

§ 392.9(a)(1) does not apply to it. However, Camp maintains that she may hold Trelleborg liable under § 390.13

for aiding and abetting her own violations of the FMCSR.

The principle from Hudkins which we discussed above

applies equally to Trelleborg. Accordingly, Camp cannot

recover from Trelleborg for its part in aiding and abetting

her own violations of the FMCSR, and thus the district

court properly granted Trelleborg summary judgment.

B. Common-law Duty

1. TNT

Camp also challenges the district court’s award of

summary judgment for TNT based upon a traditional

common-law duty approach. The court determined that

Camp failed to support this “theory” with any authority

and that her bare statement that “TNT is liable from a

common law standpoint” was not enough to survive

summary judgment. Camp accurately points out that she

did in fact offer some authority (albeit at the very end of

her Response and in the section in which she opposed

Trelleborg’s motion for summary judgment) in support of

her position that TNT owed her a common-law duty of

care and stated that TNT breached that duty. We will

assume without deciding that the authority which

Camp mentioned was sufficient to preserve and advance

her argument that TNT owed her a common-law duty.
No. 07-3386 13

Camp says that TNT mistakenly scheduled the third

pallet, failed to arrange for bracing equipment in the

trailer when it knew there would be an unsecured pallet,

failed to expedite the pallet by another truck, failed to

suggest that the pallet could be broken down into

smaller pieces, and failed to advise her and Trelleborg

that the pallet should be double-stacked on the right side

of the trailer. According to Camp, these facts indicate that

TNT breached the common-law duty of care it owed her.

In Illinois, “[t]he existence of a duty depends on

whether the plaintiff and the defendant stood in such a

relationship to each other that the law will impose upon

the defendant an obligation of reasonable conduct for the

benefit of the plaintiff.” Bajwa v. Metro. Life Ins. Co., 804

N.E.2d 519, 526 (Ill. 2004). “This question turns largely on

public policy considerations, informed by consideration

of four traditional factors: (1) the reasonable foreseeability

of the injury; (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and

(4) the consequences of placing that burden on the defendant.” City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d

1099, 1125 (Ill. 2006). Whether these factors create a

common-law duty is a question of law for the court.

Iseberg, 879 N.E.2d at 284.

After considering these factors, we conclude that TNT

did not owe Camp a duty of care. As evidenced by her

expressions of concern to Trelleborg, DeKeyser, and TNT

personnel, there is no question that Camp was aware of

the risk that the third pallet might shift during the trip.

Moreover, Camp testified at her deposition that she
14 No. 07-3386

Camp argues that the deliberate encounter exception to the 7

open and obvious doctrine (discussed infra n.8) applies to

this case. Under this exception, harm is foreseeable to a possessor of land if he “‘ has reason to expect that the invitee

will proceed to encounter the known or obvious danger

because to a reasonable man in his position the advantages of

doing so would outweigh the apparent risk.’ ” LaFever v. Kemlite

Co., a Div. of Dyro-Tech Indus., Inc., 706 N.E.2d 441, 448 (Ill. 1998)

(quoting RESTATEMENT (SECOND) OF TORTS § 343A, Comment f,

at 220 (1965)). This exception is most often applied in cases

involving economic compulsion. Sollami v. Eaton, 772 N.E.2d 215,

224 (Ill. 2002). As we later emphasize, infra p. 18, we have not

extended Illinois’s open and obvious doctrine to this case.

However, we will assume for the sake of argument that the

principle inherent in the deliberate encounter exception to

that doctrine is relevant to TNT’s foreseeability of Camp’s

injuries.

knew that there was a possibility the unsecured pallet

had shifted in transit, that it might have been leaning

against the trailer doors, and that it might fall out if the

trailer doors were opened. Under these circumstances,

TNT could not have reasonably foreseen that Camp would

open the trailer doors in a way that would cause her harm.

Camp asserts that she was under economic compulsion

from TNT to encounter the danger posed by the pallet and

that therefore her injuries were foreseeable. She points to

7

the following language in the Master Agreement between

TNT and DeKeyser as evidence that TNT had control over

her or her employment status: “When directed by [TNT],

[DeKeyser] shall cause any [DeKeyser] Employee to be
No. 07-3386 15

removed from providing Services hereunder.” Assuming

that Camp qualifies as DeKeyser’s “employee,” all this

quoted passage demonstrates is that TNT could prevent

Camp from providing carrier services to TNT. Camp

ignores the provision from the same section of the

TNT/DeKeyser contract which states: “[TNT] shall have

no authority to, on behalf of [DeKeyser] or otherwise,

discharge, promote, suspend or otherwise discipline

any [DeKeyser] employee providing services for TNT

hereunder.” Thus, TNT could not have taken any employment action against Camp; at most it could have

directed DeKeyser not to lease Camp’s services as a driver

from TLC when providing future services to TNT. This

part of the Master Agreement does not support Camp’s

assertion that she was under economic compulsion

from TNT to encounter the pallet.

Camp also contends that other provisions in the

TNT/DeKeyser agreement show that “additional consequences” could have arisen from her refusal to encounter

the known risk. However, the sections of the agreement

that she cites state that DeKeyser could be liable to TNT

if its error led to a plant shutdown or the need for expedited transportation. Because these passages do not show

that Camp could have been held liable to TNT, she was not

economically compelled by TNT to encounter the unsecured pallet.

As additional proof of her economic compulsion (this

time from DeKeyser) to encounter the risk posed by the

third pallet, Camp stated that at a recent DeKeyser safety

meeting she had been told that she would lose her job
16 No. 07-3386

if any parts were damaged due to improper loading or

her negligence as a driver. We find this fact irrelevant,

for in order for Camp’s economic compulsion from

DeKeyser to have bearing on TNT’s foreseeability of

Camp’s injuries, TNT must have known or had reason to

know of such circumstances. See Buerkett v. Illinois Power

Co., 893 N.E.2d 702, 710 (Ill. App. Ct. 2008) (stating that

“the focus with the deliberate-encounter analysis is on

what the landowner anticipates or should anticipate the

entrant will do” (emphasis added)). Because Camp has not

produced any evidence that TNT knew or should have

known of the recently implemented DeKeyser policy,

the deliberate encounter principle does not apply.

 As it was with the foreseeability factor, Camp’s knowledge is especially relevant to the likelihood of injury

factor. A reasonable person in Camp’s shoes would have

readily appreciated and avoided the danger she knew

was lurking behind the trailer doors. Therefore, from

TNT’s perspective there was at most a slight likelihood

that Camp would be injured in light of her knowledge

about the danger posed by the pallet. 

The latter two factors do not counsel in favor of

finding that TNT owed Camp a duty of care. Although

TNT could have chosen not to ask for the pallet to be

shipped or could have taken other steps to avoid Camp’s

injuries, Camp was in a better position to prevent her

injuries because she could have opened the trailer door

in a way that did not put her at risk of injury or could

have sought DeKeyser’s assistance and direction before

doing so. In addition, Camp had been released from
No. 07-3386 17

Under Illinois law, a component of the foreseeability factor 8

of the common-law duty analysis is the open and obvious

doctrine. Ward v. K Mart Corp., 554 N.E.2d 223, 232 (Ill. 1990).

This doctrine provides that “persons who own, occupy, or

control and maintain land are not ordinarily required to

foresee and protect against injuries from potentially dangerous

conditions that are open and obvious.” Bucheleres v. Chicago Park

Dist., 665 N.E.2d 826, 832 (Ill. 1996). The Supreme Court of

Illinois has also applied this doctrine to preclude a manufac-

(continued...)

liability for damage to the cargo and could have opened

the door, retreated to safety, and let the chips (i.e, the auto

parts) fall where they may. It would be an onerous

burden for TNT to guard against injuries which result

from a person’s voluntary encounter with a known risk.

Moreover, TNT would have to expend significant

resources overseeing the actions of its motor carriers’

drivers were a duty imposed in these circumstances.

Accordingly, for these reasons we conclude that TNT did

not owe a duty of care to Camp under Illinois common

law and that summary judgment was appropriate for TNT.

2. Trelleborg

Camp next asserts that the district court’s grant of

summary judgment to Trelleborg on her common-law duty

theory was improper. The district court held that Camp’s

argument that Trelleborg owed her a common-law duty

foundered because the unstable pallet was an open and

obvious danger. We are not aware of any Illinois court 8
18 No. 07-3386

(...continued) 8

turer’s duty to warn in the product liability context. Sollami,

772 N.E.2d at 219.

that has applied the open and obvious doctrine outside

of the premises or product liability arenas to a situation

where, as here, a plaintiff knowingly encounters a condition located on the personal property of a third-party

that was created by a defendant. It may be plausible to

extend the open and obvious principle to the circumstances of this case. However, we need not decide

whether the district court’s Erie-application (Erie R.R. Co.

v. Tompkins, 304 U.S. 64, 78 (1938)) of the doctrine was

appropriate because we conclude that Trelleborg did not

owe a duty of care to Camp based upon the following

traditional common-law duty analysis.

Camp stated that Trelleborg loaded the third pallet

and made the decision to stack it on top of another pallet

on the driver’s side of the trailer. Camp points to testimony that “Truckloading 101” teaches that double-stacked

freight with an adjacent empty space should always be

placed on the passenger’s side because roadways are

crowned in the center and freight will invariably shift to

the right. Stacking on the left is purportedly an improper

trucking practice. Based on these facts, Camp argues

that Trelleborg deviated from the common-law duty of

care it owed her.

However, like TNT, Trelleborg could not have reasonably foreseen that Camp would choose to encounter

the risk of the third pallet falling out of the truck and
No. 07-3386 19

In support of her position, Camp cites two unpublished 9

opinions: Holmes v. Goodyear Tire & Rubber Co., No. 96 C 345,

1997 WL 106104 (N.D. Ill. Feb. 12, 1997) and Reed v. Ace Doran

Hauling & Rigging Co., No. 95 C 4082, 1997 WL 177840 (N.D. Ill.

Apr. 7, 1997). In Holmes, a truck driver was injured when a tire

struck him as he opened the door to the trailer he had been

hauling. 1997 WL 106104, at *1. The court held that Goodyear

(the loader of the cargo) owed a duty to minimize harm to

whomever opened the sealed load. Id. at *3. Holmes is

inapposite because the plaintiff in that case picked up the

trailer after it had been loaded and sealed and therefore had

no knowledge that the tire posed a risk of falling when he

opened the trailer doors. Id. at *1. Unlike the driver in Holmes,

Camp knew that the unsecured pallet posed a risk of falling

out when she opened the trailer door. 

Reed is also distinguishable. In that case, the vehicle in

which the plaintiff was riding was struck by a steel coil that fell

off of a flatbed truck when the truck driver lost control of the

truck. Reed, 1997 WL 177840, at *1. The district court held that

the loader of the coil owed a common-law duty to the plaintiff

to check the load and to ensure that it was safely secured. Id.

at *4. In contrast to this case, the plaintiff in Reed was neither the

driver of the truck that was improperly loaded nor did he have

prior knowledge of the instability of the coil and its concomitant

risk to his safety.

the injuries she received from trying to close the trailer

door. Camp knew the third pallet was unsecured. Camp

also knew the pallet may have shifted in transit, that it

might have been leaning against the trailer doors, and

that it might fall out if the trailer doors were opened.9
20 No. 07-3386

Camp also argues that the district court abused its discre- 10

tion when it deemed admitted certain facts listed in the defendants’ motions. The court made this decision because Camp

did not comply with Central District of Illinois Local Rule

7.1(d)(2)(b)(2), which instructs that claims of disputed facts

must be supported by specific references to evidentiary documentation. We do not reach this issue because we have pro-

(continued...)

In addition, the likelihood of injury was quite low from

Trelleborg’s vantage point because a reasonable person

with Camp’s knowledge would have appreciated and

avoided the danger posed by the pallet. The other two

factors in the traditional common-law duty analysis do

not militate in favor of finding Trelleborg owed Camp a

duty of care. True, Trelleborg, after offering not to load

the third pallet, could have refused to load it or at least

could have loaded it on the right side of the trailer. (The

record does not reflect whether Camp objected to loading

the pallet on the left side.) However, as stated before,

Camp was in a superior position to prevent her injuries.

It would be a weighty burden for Trelleborg to guard

against injuries to a person who was fully aware of the

danger to which she exposed herself. Trelleborg’s responsibilities as a shipper of cargo would be expanded greatly

at considerable expense were it required to oversee

the conduct of motor carrier drivers (retained by others)

that transport its products. For these reasons, we conclude that Trelleborg did not owe a common-law duty to

Camp and that it was entitled to a judgment as a matter

of law.10
No. 07-3386 21

(...continued) 10

ceeded in this opinion without deeming any facts admitted

by Camp.

1-14-09

III. Conclusion

Based upon the foregoing analysis, we conclude that

TNT did not owe a duty to Camp under § 392.9(a)(1)

because it was not acting as a motor carrier. We also hold

that Illinois law does not permit Camp to hold TNT or

Trelleborg liable under § 390.13 for aiding and abetting

her own violation of § 392.9(a)(1). In addition, we conclude that neither TNT nor Trelleborg owed Camp a

common-law duty of care. Accordingly, the district

court’s grant of summary judgment in favor of the defendants is AFFIRMED.