McMASTER v DTE ENERGY COMPANY

Docket No. 162076. Argued January 12, 2022 (Calendar No. 2). Decided July 1, 2022.

Dean McMaster brought a negligence action in the Oakland Circuit Court against DTE 

Energy Company, Ferrous Processing and Trading Company (Ferrous), and DTE Electric 

Company (DTE), seeking compensation for injuries he sustained when a metal pipe fell out of a 

scrap container and struck him in the leg. DTE, the shipper, contracted with Ferrous to sell scrap 

metal generated by its business. As part of the deal, Ferrous placed its large metal roll-off 

containers at various DTE facilities, and DTE filled the containers with pieces of scrap metal. 

Ferrous, in turn, subcontracted with P&T Leasing Company (P&T), the carrier, to transport the 

containers between DTE and Ferrous. McMaster worked as a truck driver for P&T; he picked up 

containers from DTE and transported them to a Ferrous scrap yard. In October 2014, McMaster 

arrived at a DTE facility to drop off an empty container and pick up one that DTE had loaded. 

McMaster inspected the container and saw a large blue steel pipe, approximately the length of the 

container’s width, lying parallel to and up against the back door of the container. McMaster 

secured the container to his trailer and headed to Ferrous’s facility. At the Ferrous scrap yard, 

McMaster drove to the dumping location as instructed by Ferrous’s inspector. He began the typical 

process of dumping the scrap by getting out of his truck and walking to the back of the trailer that 

held the container. As was customary, McMaster edged open the container door to ensure that no 

materials fell out. When nothing fell out, he proceeded to pull the safety chain to fully open the 

door. After about five minutes, the inspector determined that the scrap should be placed in a 

different area. McMaster then began to walk toward the front of the truck. At that point, the pipe 

fell out of the container, hitting McMaster in the back of his left leg and ultimately resulting in a 

below-the-knee amputation. McMaster brought this action, alleging negligent loading and failure 

to warn of improper loading. To support his theory, McMaster retained trucking industry expert 

Larry Baareman, who testified that the orientation of the blue pipe parallel to and up against the 

container door was hazardous. DTE and Ferrous moved for summary disposition, and the trial 

court, Cheryl A. Matthews, J., granted the motion as to DTE but denied the motion as to Ferrous. 

McMaster settled with Ferrous and appealed with regard to DTE. The Court of Appeals, JANSEN, 

P.J., and METER and STEPHENS, JJ., affirmed in an unpublished per curiam opinion issued 

November 8, 2018 (Docket No. 339271) (McMaster I), reasoning that DTE did not have a duty to 

warn of or protect McMaster from a known danger, relying on the open and obvious danger 

doctrine. McMaster sought leave to appeal in the Supreme Court, and the Supreme Court 

peremptorily vacated Part III of the opinion and remanded the case to the Court of Appeals for

Michigan Supreme Court

Lansing, Michigan

Syllabus Chief Justice:

Bridget M. McCormack

Justices:

Brian K. Zahra

David F. Viviano

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh

Elizabeth M. Welch

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader.

Reporter of Decisions:

Kathryn L. Loomis
consideration of DTE’s legal duty under the law of ordinary negligence. 504 Mich 967 (2019). 

On remand, the Court of Appeals again affirmed the trial court in an unpublished per curiam 

opinion issued July 2, 2020 (Docket No. 339271) (McMaster II), this time reasoning that 

Michigan’s adoption of federal motor carrier safety regulations at MCL 480.11a of the Motor 

Carrier Safety Act (the MCSA), MCL 480.11 et seq., abrogated DTE’s common-law duty to 

McMaster or, in the alternative, that the “shipper’s exception” set forth in United States v Savage 

Truck Line, Inc, 209 F2d 442, 445 (CA 4, 1953), applied to bar McMaster’s claim. McMaster 

again sought leave to appeal in the Supreme Court, and the Supreme Court granted the application. 

507 Mich 958 (2021).

In a unanimous opinion by Justice CAVANAGH, the Supreme Court held:

Michigan’s adoption of the federal motor carrier safety regulations did not abrogate the 

common-law duty of care shippers owe to carriers; however, under Michigan common law and 

consistently with the shipper’s exception, a shipper responsible for loading cargo is not liable in 

negligence for a defect in loading that is apparent to the carrier or its agents, but is instead only

liable if the defect is hidden. Accordingly, summary disposition for DTE was affirmed; there was 

no genuine issue of material fact—DTE was not liable to McMaster because, even assuming that 

DTE was negligent in how it loaded the container, the defect was not hidden given McMaster’s 

admission that he had seen the pipe’s position in the container before he transported it and when 

he cracked the container door open after transport. Further, McMaster’s theory that the pipe’s 

placement on top of concealed materials was a latent defect lacked evidentiary support. 

1. The MCSA adopted into Michigan law the federal motor carrier safety regulations under 

49 CFR 392.9. The MCSA contains no unequivocal statement that the common law has been 

abrogated. The Court of Appeals erroneously concluded that the MCSA occupied the field of 

discernable duties. While the MCSA describes the duties of carriers and drivers in detail, the 

MCSA does not define the duties of shippers as to their responsibility for loading cargo and 

therefore does not occupy the field of duties owed by shippers. The Court of Appeals’ reasoning 

was also inconsistent with the underlying premise that the shipper owes a duty of reasonable care 

at common law. To the extent that the Court of Appeals’ reasoning suggested that duties of 

shippers and carriers to ensure safe transport could not overlap, it failed to consider Michigan’s 

comparative-fault system, in which one party’s failure to use ordinary care may reduce the other 

party’s liability without wholly absolving them of it. Accordingly, the MCSA did not repeal the 

common law, either explicitly or through occupation of the field.

2. The shipper’s exception set forth in Savage, 209 F2d at 445, was formally adopted: 

when the shipper assumes the responsibility of loading, the general rule is that it becomes liable 

for the defects that are latent and concealed and cannot be discerned by ordinary observation by 

the agents of the carrier, but if the improper loading is apparent, the carrier will be liable 

notwithstanding the negligence of the shipper. The Savage rule properly delineates the duties of 

shippers and carriers and is consistent with Michigan’s common law, Michigan’s comparativefault regime, and the MCSA. The rule is also consistent with considerations governing whether a 

legal duty exists, including foreseeability of the harm, degree of certainty of injury, closeness of 

connection between the conduct and injury, moral blame attached to the conduct, the policy of 

preventing future harm, and the burdens and consequences of imposing a duty and the resulting 

liability for breach. Given the responsibilities outlined in the MCSA, the Savage rule properly 
recognizes that a carrier and its drivers are generally in the best position to foresee harm, with 

limited exceptions, such as latent defects. The shipper is in the best position to know of latent 

defects caused while the goods were within its exclusive control. The rule also accords with 

Michigan common law in that a common carrier is the default insurer of damages to goods. 

Further, the rule is consistent with the federal regulations codified in the MCSA and reflects the 

balance of responsibilities in the trucking industry. Adoption of the Savage rule was not a 

wholesale adoption of Savage and its discussion of the concepts of contributory negligence. The 

adopted rule does not allow a shipper to wholly escape liability, as might be possible under a 

contributory-negligence framework. Instead, the shipper’s exception defines when liability will 

attach to the shipper. A shipper may be liable for negligent loading only when it assumes 

responsibility for loading and there is a latent defect. Moreover, even in circumstances under 

which the carrier has some degree of fault, the shipper may still be held liable. In other words, the 

carrier’s negligence does not extinguish liability for the shipper, but the jury could reduce the 

recovery amount when allocating comparative fault. Such a state of events is exactly what is 

contemplated by a comparative-fault system—multiple, potentially overlapping duties, with only 

some breaches giving rise to liability. 

3. DTE was properly granted summary disposition because there existed no genuine issue 

of material fact. To establish a prima facie case of negligence, a plaintiff must prove the existence 

of a legal duty, the defendant’s failure to exercise ordinary care in the performance of that duty, 

and harm proximately caused by the breach of that duty. In this case, DTE owed McMaster a duty 

of reasonable care, and Michigan’s adoption of the federal motor carrier safety regulations at MCL 

480.11a did not abrogate that duty. Further, under the adopted rule, liability for a shipper that is 

responsible for loading may arise only if there is a latent defect. McMaster’s theory of liability 

was that the blue pipe was improperly loaded parallel to the back of the container. But even 

assuming that it was negligent to load the pipe in this manner, the placement of the pipe was not a 

latent defect. McMaster admitted in his deposition that during his safety inspections he saw that 

the large blue pipe was loaded such that it was parallel to and up against the rear door of the 

container. He also testified that the position of the pipe did not cause him any concern at that time. 

Finally, McMaster testified that when he began the unloading process at the Ferrous facility, he 

cracked open the rear door of the container to see whether any material would fall out and again 

observed the blue pipe in the back of the container. Because the placement of the pipe that caused 

the injury was readily observable to McMaster—and, in fact, was observed by McMaster—no 

reasonable jury could conclude that DTE breached its duty to him. McMaster’s additional 

argument—that the fact that the pipe was loaded on top of other concealed materials was a latent 

defect that made the pipe more susceptible to rolling out of the container—was too speculative to 

defeat summary disposition. 

Affirmed on alternate grounds.
FILED July 1, 2022

S T A T E O F M I C H I G A N

SUPREME COURT

DEAN McMASTER,

Plaintiff-Appellant,

v No. 162076

DTE ENERGY COMPANY and FERROUS

PROCESSING AND TRADING 

COMPANY, doing business as FERROUS

PROCESSING & TRADING CO.,

Defendants,

and

DTE ELECTRIC COMPANY,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH 

CAVANAGH, J. 

Michigan Supreme Court

Lansing, Michigan

OPINION Chief Justice:

Bridget M. McCormack

Justices:

Brian K. Zahra

David F. Viviano

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh

Elizabeth M. Welch
2

This case concerns the duties of shippers, common carriers, and drivers in the 

trucking industry. The issue presented is whether and when shippers may be held liable 

for damage to persons and property. The Court of Appeals determined that the commonlaw duty of a shipper was abrogated by Michigan’s passage of MCL 480.11a, which 

adopted the federal motor carrier safety regulations as part of the Motor Carrier Safety Act 

(the MCSA), MCL 480.11 et seq. We disagree and hold that the common-law duty of care 

owed by a shipper to a driver was not abrogated by MCL 480.11a. As an issue of first 

impression, we adopt the “shipper’s exception” or “Savage rule”1 to guide negligence 

questions involving participants in the trucking industry, as this rule is consistent with our 

laws—including Michigan’s comparative-fault paradigm. A shipper responsible for 

loading cargo may be held liable for injury to persons or property only for hidden defects—

those not readily observable by the carrier or its agents. See United States v Savage Truck 

Line, Inc, 209 F2d 442, 445 (CA 4, 1953). Finally, we apply this rule and affirm, on 

alternate grounds, the grant of summary disposition to DTE Electric Company (DTE)

because there exists no genuine issue of material fact that DTE did not breach its duty to 

plaintiff. 

I. FACTS AND PROCEDURAL HISTORY

This is a negligence action seeking compensation for injuries caused when a metal 

pipe fell out of a scrap container, striking plaintiff, Dean McMaster, in the leg. Defendant 

DTE, the shipper, contracted with Ferrous Processing and Trading Company (Ferrous) to 

sell scrap metal generated by its business. As part of the deal, Ferrous placed its large 

 1 United States v Savage Truck Line, Inc, 209 F2d 442, 445 (CA 4, 1953).
3

metal roll-off containers at various DTE facilities, and DTE filled the containers with 

pieces of scrap metal. Ferrous, in turn, subcontracted with P&T Leasing Company (P&T), 

the carrier, to transport the containers, or boxes, between DTE and Ferrous. McMaster 

worked as a truck driver for P&T doing just that—picking up containers from DTE and 

transporting them to a Ferrous scrap yard. 

In October 2014, McMaster arrived at DTE’s Belle River Power Plant to drop off 

an empty container and pick up one that had been loaded by DTE. McMaster inspected 

the container and saw a large blue steel pipe, approximately the length of the box’s width, 

lying parallel to and up against the back door of the container. He observed that the cargo 

consisted of heavy materials below the top of the box and determined that no tarp was 

necessary for the trip. McMaster then used his trailer’s hydraulic system to lift the roll-off 

container onto the trailer, secured the container to the trailer, and headed to Ferrous’s 

Pontiac facility. 

At the Ferrous scrap yard, McMaster had the truck weighed, drove to the inspection 

area, and then drove to the dumping location as instructed by Ferrous’s inspector. He began 

the typical process of dumping the scrap by getting out of his truck and walking to the back 

of the trailer that held the container. As was customary, McMaster kept the hydraulics 

running while he edged open the container door about 12 inches to ensure that no materials 

fell out. When nothing fell out, he proceeded to pull the safety chain to fully open the door. 

McMaster observed that the majority of the load contained I-beams. With the Ferrous 

inspector and another Ferrous employee, McMaster then stood 8 or more feet behind and 

in view of the open container to discuss where to dump its contents. After about five 

minutes, the inspector determined that the scrap should be placed in a different area. 
4

McMaster then began to walk toward the front of the truck to turn off the hydraulics, which 

wouldn’t be needed until the container was moved to the new area for dumping. At that 

point, the pipe fell out of the container, hitting McMaster in the back of his left leg and 

ultimately resulting in a below-the-knee amputation. 

In June 2015, McMaster sued DTE and Ferrous for negligence, alleging negligent 

loading and failure to warn of such improper loading. To support his theory, McMaster 

retained trucking industry expert Larry Baareman, who testified at a discovery deposition 

that DTE loaded the scrap in a dangerous manner. More specifically, Baareman opined 

that the orientation of the blue pipe parallel to and up against the container door was 

hazardous. Further, Baareman testified that the pipe being loaded on top of other material 

that was concealed underneath was a hidden defect that made the pipe more susceptible to 

falling off the truck. Baareman concluded that this positioning could have caused the pipe 

to roll off. 

DTE and Ferrous moved for summary disposition under MCR 2.116(C)(10). The 

trial court granted DTE’s motion, stating: 

After considering the legal arguments made by counsel and in looking 

at the evidence in the light most favorable to the plaintiff, the Court concludes 

that there’s no genuine issue of material fact that exists that would allow 

reasonable minds to differ in concluding that DTE did not breach the duty of 

reasonable care owed to plaintiff. 

Further, the Court concludes that plaintiff has not sustained his burden 

as to causation and there’s no genuine issue of any material fact remaining 

as to the elements of negligence analysis. 

The trial court denied the motion against Ferrous, and the case continued; McMaster 

ultimately settled with Ferrous, who is not a party to this appeal. McMaster appealed the 
5

final order disposing of the case, and the Court of Appeals affirmed. McMaster v DTE 

Energy Co, unpublished per curiam opinion of the Court of Appeals, issued November 8, 

2018 (Docket No. 339271) (McMaster I). The Court of Appeals reasoned that DTE did 

not have a duty to warn of or protect McMaster from a known danger, relying on the open 

and obvious danger doctrine. Id. at 3-4. McMaster appealed in this Court. Because the 

Court of Appeals erroneously applied open-and-obvious principles to an ordinarynegligence case, we peremptorily vacated Part III of the opinion and remanded for 

“application of the law of ordinary negligence and for consideration of the issues raised by 

the parties on the question of the defendant’s legal duty.” McMaster v DTE Electric Co, 

504 Mich 967, 967 (2019).

On remand, the Court of Appeals again affirmed the trial court, this time reasoning 

that Michigan’s passage of MCL 480.11a abrogated DTE’s common-law duty or, in the 

alternative, that the shipper’s exception or Savage rule2 applied to bar McMaster’s claim. 

McMaster v DTE Energy Co, unpublished per curiam opinion of the Court of Appeals, 

issued July 2, 2020 (Docket No. 339271) (McMaster II), pp 5-6. 

McMaster appealed, and our June 2021 order granting leave asked the parties to 

address “(1) whether the enactment of MCL 480.11a abrogated the appellee’s commonlaw duty of ordinary care with respect to loading cargo for transport by a commercial motor 

vehicle operated by the appellant; and (2) whether the appellee owed a duty to the appellant 

under the ‘shipper’s exception.’ See United States v Savage Truck Line, Inc, 209 F2d 442, 

445 (CA 4, 1953).” McMaster v DTE Energy Co, 507 Mich 958, 958 (2021).

 2 Savage, 209 F2d at 445.
6

II. STANDARD OF REVIEW

A motion for summary disposition under MCR 2.116(C)(10) tests the factual 

sufficiency of a claim. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 

NW2d 665 (2019). The court must consider all evidence submitted by the parties in the 

light most favorable to the party opposing summary disposition. Id. Only when the record 

does not leave open an issue upon which reasonable minds might differ may a motion under 

MCR 2.116(C)(10) be granted. Id. On appeal, the trial court’s determination on a motion 

for summary disposition is reviewed de novo. Id. at 159. So too are issues of statutory 

interpretation, including whether the common law has been abrogated by statute. Murphy

v Inman, 509 Mich ___, ___; ___ NW2d ___ (2022) (Docket No. 161454); slip op at 6.

III. ANALYSIS

To establish a prima facie case of negligence, a plaintiff must prove the existence 

of a legal duty, the defendant’s failure to exercise ordinary care in the performance of that 

duty, and harm proximately caused by the breach of that duty. Clark v Dalman, 379 Mich 

251, 260; 150 NW2d 755 (1967). Duty and its breach are the focus of our inquiry in this 

case. 

A. COMMON-LAW ABROGATION

Our first question is whether the MCSA supplanted the common-law duty of care 

owed by a shipper such as DTE to a driver such as McMaster in the loading of cargo for 

transport. We conclude that it did not. 

During its first review of the case, the Court of Appeals determined that McMaster, 

as an employee of a subcontractor, was owed a duty of reasonable care by DTE. 

McMaster I, unpub op at 3 (describing “the duty ‘imposed by law’ ” as “ ‘[t]he general 
7

duty of a contractor to act so as not to unreasonably endanger the well-being of employees 

of either subcontractors or inspectors, or anyone else lawfully on the site of the project’ ”), 

quoting Clark, 379 Mich at 261-262. However, on remand the Court of Appeals 

determined that the common-law duty of reasonable care had been abrogated by the 

Legislature’s adoption of the MCSA. McMaster II, unpub op at 5. McMaster argues that 

the common-law duty of ordinary care coexists with the MCSA and that there was no 

abrogation. DTE argues that there is no common-law duty, but regardless, that any duty 

was abrogated by the MCSA.

As a threshold matter, we agree with McMaster and the Court of Appeals that there 

is a common-law duty of ordinary care in this context. It is well established that “every 

person engaged in the prosecution of any undertaking [owes] an obligation to use due care, 

or to so govern his actions as not to unreasonably endanger the person or property of 

others.” Clark, 379 Mich at 261. “This rule of the common law arises out of the concept 

that every person is under the general duty to so act, or to use that which he controls, as not 

to injure another.” Id. See also Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 

Mich 157, 169-170; 809 NW2d 553 (2011). As the Court of Appeals correctly observed, 

under these facts, with a subcontractor, McMaster, on DTE’s premises with its permission, 

DTE owed McMaster a duty of reasonable care. The question that remains is whether the 

MCSA abrogated this common-law duty. 

As we most recently discussed in Murphy, several principles guide whether this 

Court will deem the common law abrogated by statute:

Having concluded that corporate directors owe their shareholders 

certain fiduciary duties under this state’s common law, this Court, as “the 

principal steward of Michigan’s common law,” [Price v High Pointe Oil Co, 
8

Inc, 493 Mich 238, 258; 828 NW2d 660 (2013) (quotation marks and citation 

omitted),] must determine whether the Legislature abrogated these duties 

when it enacted the [Business Corporation Act, MCL 450.1101 et seq.]. 

“The common law remains in force until ‘changed, amended or repealed.’ ” 

[Velez v Tuma, 492 Mich 1, 11; 821 NW2d 432 (2012), quoting Const 1963, 

art 3, § 7.] The Legislature may alter or abrogate the common law through 

its legislative authority. [Rafaeli, LLC v Oakland Co, 505 Mich 429, 473; 

952 NW2d 434 (2020); Const 1963, art 4, § 1.] Yet the mere existence of a 

statute does not necessarily mean that the Legislature has exercised this 

authority. We presume that the Legislature “know[s] of the existence of the 

common law when it acts.” [Wold Architects & Engineers v Strat, 474 Mich 

223, 234; 713 NW2d 750 (2006).] Therefore, we have stated that “[w]e will 

not lightly presume that the Legislature has abrogated the common law” and 

that “the Legislature should speak in no uncertain terms when it exercises its 

authority to modify the common law.” [Velez, 492 Mich at 11-12 (quotation 

marks and citations omitted).] As with other issues of statutory 

interpretation, the overriding question is whether the Legislature intended to 

abrogate the common law. [Hoerstman Gen Contracting, Inc v Hahn, 474 

Mich 66, 74; 711 NW2d 340 (2006) (“Whether a statutory 

scheme . . . preempts the common law is a question of legislative intent.”).]. 

[Murphy, 509 Mich at ___; slip op at 16-17.]

The MCSA is designed, inter alia, “to promote safety upon highways open to the 

public by regulating the operation of certain vehicles” and “to provide consistent regulation 

of these areas . . . .” 1963 PA 181, title. As is evident from its title, the MCSA addresses

safety in the Michigan trucking industry. In furtherance of those goals, the MCSA adopted 

several provisions of Title 49 of the Code of Federal Regulations. MCL 480.11a. Germane 

to our purposes, the MCSA adopted into Michigan state law the federal motor carrier safety 

regulations under 49 CFR 392.9. MCL 480.11a(1)(b). 49 CFR 392.9 relates to the 

“[i]nspection of cargo, cargo securement devices and systems” and describes 

responsibilities for motor carriers and their drivers with regard to the cargo they transport. 

The statute imposes certain duties on the driver of the cargo to ensure that the cargo is 

properly secured through inspection and reexamination during the course of the trip. Those 
9 

duties may be excused under extenuating circumstances, such as a directive not to inspect 

or impracticability. 49 CFR 392.9 provides, in relevant part:

(a) General. A 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. 

* * * 

(b) Drivers of trucks and truck tractors. Except as provided in

paragraph (b)(4) of this section, the driver of a truck or truck tractor must— 

(1) Assure himself/herself that the provisions of paragraph (a) of this 

section have been complied with before he/she drives that commercial motor 

vehicle; 

(2) Inspect the cargo and the devices used to secure the cargo within 

the first 50 miles after beginning a trip and cause any adjustments to be made 

to the cargo or load securement devices as necessary, including adding more 

securement devices, to ensure that cargo cannot shift on or within, or fall 

from the commercial motor vehicle; and 

(3) Reexamine the commercial motor vehicle’s cargo and its load 

securement devices during the course of transportation and make any 

necessary adjustment to the cargo or load securement devices, including 

adding more securement devices, to ensure that cargo cannot shift on or 

within, or fall from, the commercial motor vehicle. Reexamination and any 

necessary adjustments must be made whenever— 

(i) The driver makes a change of his/her duty status; or 

(ii) The commercial motor vehicle has been driven for 3 hours; or 

(iii) The commercial motor vehicle has been driven for 150 miles, 

whichever occurs first. 

(4) The rules in this paragraph (b) do not apply to the driver of a sealed 

commercial motor vehicle who has been ordered not to open it to inspect its 
10

cargo or to the driver of a commercial motor vehicle that has been loaded in 

a manner that makes inspection of its cargo impracticable.

As an initial matter, it is plain from the statute’s text that the MCSA contains no 

unequivocal statement that the common law has been abrogated. In determining that the 

common law was nonetheless abrogated, the Court of Appeals compared the case to Dawe

v Dr Reuven Bar-Levav & Assoc, PC, 485 Mich 20; 780 NW2d 272 (2010). McMaster II, 

unpub op at 4-5. Dawe concerned whether a statute codifying a psychiatrist’s duty to warn 

or protect third parties abrogated the psychiatrist’s common-law special-relationship duty 

to protect their patients. Dawe, 485 Mich at 25. The lower court in Dawe had found that 

the statute at issue preempted the field on the mental health professional’s duty to warn 

others. Id. But our Court rejected this analysis, holding that the psychiatrist’s commonlaw duty was not completely abrogated because the statute in question only addressed one 

aspect of a psychiatrist’s duties to patients. McMaster II, unpub op at 4. The Court of 

Appeals in this case distinguished Dawe on the basis that, unlike the many duties owed by 

a psychiatrist to their patient, no other tort duties flow from a shipper to a carrier and, 

therefore, the MCSA occupied the field of discernable duties. Id. at 4-5. But the MCSA 

addresses the duties of drivers, not shippers—so it cannot be said that the field of duties 

owed by a shipper has been occupied. The Court of Appeals’ reasoning is also inconsistent 

with the underlying premise that the shipper owes a duty of reasonable care at common 

law.

The panel also made comparisons to Velez, in which we held that the Legislature 

did not intend to abolish the common-law setoff rule in joint and several liability medical 

malpractice cases. Velez, 492 Mich at 12. This Court reasoned in Velez that despite the 
11 

repeal of a statute acknowledging the common law, the legislation in question was silent 

as to the application of the common-law rule, and there was no conflict between the 

common law and legislation. Id. The Court of Appeals determined that unlike in Velez, 

there were no other statutes addressing the manner of loading cargo or setting forth a 

relevant duty. McMaster II, unpub op at 5. Again, this reasoning fails to acknowledge the 

panel’s own premise that a common-law duty existed. It also puts the cart before the 

horse—searching for an intent to maintain the common law when the critical inquiry is 

whether there was an intent to abrogate it. 

To the extent that the Court of Appeals’ reasoning suggests that duties of shippers 

and carriers to ensure safe transport cannot overlap, it fails to consider Michigan’s 

comparative-fault system, in which one party’s failure to use ordinary care may reduce the 

other party’s liability without wholly absolving them of it. See Placek v Sterling Hts, 405 

Mich 638; 275 NW2d 511 (1979); MCL 600.2957. Nothing in the common law or the 

MCSA indicates that the duties of shippers and carriers are a zero-sum game such that if 

one has the duty to ensure safe transport, the other does not. 

DTE argues that the highly detailed and comprehensive course of conduct set forth 

in the MCSA supports a reading of abrogation. See Millross v Plum Hollow Golf Club, 

429 Mich 178, 183; 413 NW2d 17 (1987) (providing that legislative intent to replace the 

common law may be found “where comprehensive legislation prescribes in detail a course 

of conduct to pursue and the parties and things affected, and designates specific limitations 

and exceptions”). In a similar vein, the Court of Appeals suggested that the MCSA 

occupied the field of duties owed by a shipper to a carrier. McMaster II, unpub op at 5. 

However, while the MCSA describes the duties of carriers and drivers in detail, the MCSA 
12

does not define the duties of shippers as to their responsibility for loading cargo. The 

shipper’s role within the universe of the trucking industry is, of course, contemplated by 

the MCSA, which defines a “shipper” such as DTE, 49 CFR 390.5, and prohibits shippers 

from coercing a driver to haul an unsafe load in violation of the regulations, 49 CFR 

386.12(c); 49 CFR 390.6. But the MCSA, which regulates “all employers, employees, and 

commercial motor vehicles that transport property or passengers in interstate commerce,”

49 CFR 390.3(a), does not occupy the entire field of liability questions regarding shippers 

in this industry. It is not fully comprehensive on the question of negligence because it does 

not speak to the shipper’s duties in loading cargo—at all. Legislative silence as to the 

shipper’s duties in this realm is not indicative of abrogation. In sum, the MCSA did not 

repeal the common law, either explicitly or through occupation of the field.

B. CONTOURS OF THE DUTY OWED

Having decided that the shipper’s common-law duty was not abrogated by the 

adoption of the MCSA, we address the contours of the shipper’s common-law duty of care

to the carrier and its drivers. We take this opportunity to formally adopt the “shipper’s 

exception” as described in Savage, 209 F2d at 445: 

When the shipper assumes the responsibility of loading, the general rule is 

that [it] becomes liable for the defects which are latent and concealed and 

cannot be discerned by ordinary observation by the agents of the carrier; but 

if the improper loading is apparent, the carrier will be liable notwithstanding 

the negligence of the shipper.

We find that the Savage rule properly delineates the duties of shippers and carriers and that 

this rule is consistent with our common law, with our comparative-fault regime, and with 

the MCSA. 
13

In Savage, the defendant was a common carrier that had contracted with the federal 

government to transport a truck with a cargo of six airplane engines in cylindrical 

containers. Id. at 443. At some point during the transport, the cylinders shifted, and one 

fell off the truck, killing another motorist. Id. The way that the government’s agents loaded 

the cylinders had caused the cargo to jostle while being transported. Id. at 443-444. On 

appeal, the government argued that despite the finding of negligence on its part in loading 

the truck, it was still entitled to recover damages to the engines from the defendant because 

of the liability owed by a common carrier to a shipper. Id. at 444. 

The United States Court of Appeals for the Fourth Circuit recognized that the 

“common law liability of a common carrier is that of an insurer for loss or damage of goods 

in transit . . . .” Id. at 445. But the carrier’s liability does not reach “losses arising from 

acts of God, acts of the public enemy, the inherent nature of the goods, and acts of the 

shipper.” Id. The court noted that “the duty rests upon the carrier to see that the packing 

of goods received by it for transportation is such as to secure their safety,” and that the duty 

of every common carrier is “to furnish adequate facilities for the transportation of property 

and to establish and enforce just and reasonable regulations and practices relating to the 

manner of packing and delivering goods for transportation[.]” Id. This duty was derived 

from federal regulations, which stated at the time that “the load on every motor vehicle 

transporting property shall be secured in order to prevent unsafe shifting of the load and 

that no motor vehicle shall be driven unless the driver shall have satisfied himself that all 

means of fastening the load are securely in place.” Id. The Fourth Circuit concluded that 

“[t]he primary duty as to the safe loading of property is therefore upon the carrier.” Id. 

The court went on to explain:
14

When the shipper assumes the responsibility of loading, the general rule is 

that he becomes liable for the defects which are latent and concealed and 

cannot be discerned by ordinary observation by the agents of the carrier; but 

if the improper loading is apparent, the carrier will be liable notwithstanding 

the negligence of the shipper. This rule is not only followed in cases arising 

under the federal statutes by decisions of the federal courts but also for the 

most part by the decisions of the state courts. [Id.]

The court observed that both parties were negligent: the government’s agents failed 

to secure the engines properly when loading the cargo, and the carrier’s agents failed to use 

reasonable care in accepting the load as loaded as well as failed to operate the vehicle with 

ordinary care in light of the known deficiencies in loading and securing the cargo. Id. at 

446. The court reasoned, “Obviously it was [the driver’s] duty, having this knowledge, to 

drive with particular attention to the speed of the vehicle but he conducted himself as if 

conditions were normal and the catastrophe ensued.” Id. Thus, under the rule it set out, 

the carrier was not entitled to recover from the government for damages to his truck, but 

the government was entitled to recover from the carrier for the damage to its cargo. Id.

The default rule, then, is that a carrier and its drivers will generally shoulder 

responsibility for issues stemming from the loading of cargo. Only when the shipper 

assumes the responsibility of loading and there are hidden defects may the shipper be held 

responsible—even if the shipper negligently loads the cargo. The “shipper’s exception” 

initially pertained only to the damage of goods during shipment but has been extended to 

the personal-injury context in which employees or contractors of carriers are injured 

because of allegedly negligent loading. See Decker v New England Pub Warehouse, Inc, 

749 A2d 762, 767; 2000 ME 76 (2000). 

The Court of Appeals held, in the alternative to common-law abrogation, that the 

“shipper’s exception” applied. McMaster II, unpub op at 5. The panel reached this 
15 

conclusion in part because it presumed that the Legislature knew about the Savage case, 

which preceded Michigan’s enactment of the MCSA. Id. While we agree that the Savage

rule defines the scope of the duty question, we disagree that the mere existence of federal 

common law from the United States Court of Appeals for the Fourth Circuit bears on the 

question of legislative intent with regard to the continued vitality of Michigan common 

law. We do not impute knowledge of federal common law to the Michigan Legislature. 

Nevertheless, we hold that the Savage rule is consistent with preexisting Michigan law, 

including our comparative-fault system.

The Savage rule accords with our recognition of the liability of common carriers at 

common law. A common carrier is generally liable for damages to goods, with narrow 

exceptions including the “fault of the owner.” Black v Ashley, 80 Mich 90, 96; 44 NW 

1120 (1890). In other words, the common carrier is the default insurer. Id. The 

descriptions of the “fault of the owner” in Black, id., and the “acts of the shipper” in Savage, 

209 F2d at 445, indicate a shared understanding that the default rule contained narrow 

exceptions reflecting who had control of the goods and was in a better position to control 

for risk. The shipper’s exception—limiting the scope of the shipper’s fault to latent 

defects—is a natural extension of this shared understanding. 

The exception is also consistent with considerations governing whether a legal duty 

exists, including “foreseeability of the harm, degree of certainty of injury, closeness of 

connection between the conduct and injury, moral blame attached to the conduct, policy of 

preventing future harm, and . . . the burdens and consequences of imposing a duty and the 

resulting liability for breach.” Brown v Brown, 478 Mich 545, 553; 739 NW2d 313 (2007) 

(cleaned up). Given the responsibilities outlined in the MCSA, the Savage rule properly 
16 

recognizes that a carrier and its drivers are generally in the best position to foresee harm, 

with limited exceptions. One such limited exception is latent defects; the shipper is in the 

best position to know of latent defects caused while the goods were within its exclusive 

control. This refinement of when a duty will give rise to liability reflects the unique 

allocation of responsibility in this specialized setting. See Decker, 749 A2d at 766-767 

(“The Savage rule simply extends the industry’s reasonable understanding to negligence 

suits involving carriers and shippers.”). 

Further, the rule is consistent with the federal regulations codified by Michigan in 

the MCSA. In turn, these regulations reflect the balance of responsibilities in the trucking 

industry. For example, the onus is generally on the carrier’s driver to ensure that the cargo 

is secured and distributed properly and to perform safety checks throughout the trip. 

49 CFR 392.9. The driver may refuse to accept a load from a shipper if they believe that 

the cargo is dangerously loaded. 49 CFR 392.9(b)(1). In addition, the regulations excuse 

a driver from such responsibilities if the driver is unable to inspect the cargo, such as if the 

container is sealed or if the manner of loading makes inspection impracticable. 49 CFR 

392.9(b)(4). These exemptions are wholly consistent with shifting the responsibility for 

latent defects to shippers, because a driver would be unable to detect them. 

McMaster argues that the Savage rule is inconsistent with our comparative-fault 

system.

3

 To be sure, the Savage court applied its holding in the context of a contributory-

 

3 We adopted the doctrine of comparative negligence in Placek, 405 Mich 638, and the 

Legislature later codified the state’s modified comparative-negligence scheme, MCL 

600.2957. After the jury has determined that a party is liable for damages in a tort action, 

the comparative-fault assessment kicks in for the jury to apportion liability on the basis of 

the relative fault of the parties. MCL 600.2957; see also M Civ JI 11.01. In contrast to our 

former contributory-negligence scheme, which we cast aside in Placek, an at-fault party 
17

negligence framework. But our adoption of the Savage rule is not a wholesale adoption of 

Savage and its discussion of the concepts of contributory negligence. The rule that we now 

adopt does not allow a shipper to wholly escape liability, as might be possible under a 

contributory-negligence framework. Instead, the shipper’s exception defines when 

liability will attach to the shipper. A shipper may be liable for negligent loading only when 

there is a latent defect. Moreover, even in circumstances under which the carrier has some 

degree of fault, the shipper may still be held liable. In other words, the carrier’s negligence 

does not extinguish liability for the shipper, but the jury could reduce the recovery amount 

when allocating comparative fault. Such a state of events is exactly what is contemplated 

by a comparative-fault system—multiple, potentially overlapping duties, with only some 

breaches giving rise to liability. Notably, many other states with comparative-fault regimes 

have also adopted the “shipper’s exception.” See, e.g., Decker, 749 A2d 762; Wilkes v

Celadon Group, Inc, 177 NE3d 786 (Ind, 2021); Smart v American Welding & Tank Co, 

Inc, 149 NH 536; 826 A2d 570 (2003). While not binding, these decisions from our sister 

jurisdictions have persuasive value. 

In summary, we adopt the shipper’s exception because it is consistent with our 

common law, the MCSA, and our system of comparative fault. A shipper owes a commonlaw duty to use reasonable care while loading cargo and will be liable for injury to persons 

or property for defects that are not readily discernible by the carrier. The carrier still owes 

a duty to inspect and correct any defects that it can perceive, even if the shipper was the 

 

generally may not escape liability by pointing to the plaintiff’s own negligence unless the 

jury determines that the plaintiff’s percentage of fault surpasses that of the at-fault party. 

MCL 600.2959; M Civ JI 11.01.
18

one who initially caused the defect. When both the shipper and the carrier have acted 

negligently by breaching their respective duties and proximately causing damage, 

Michigan’s comparative-fault scheme requires a jury to apportion fault between them.

IV. APPLICATION

Having outlined the nature and extent of DTE’s duty to McMaster, we next 

determine whether McMaster has raised a genuine issue of material fact sufficient to 

survive a motion for summary disposition. We hold, on the basis of the record presented, 

that there exists no genuine issue of material fact that the accident was caused by a latent 

defect and, therefore, that DTE was properly granted summary disposition. 

McMaster’s theory of liability was that the blue pipe was improperly loaded parallel 

to the back of the container. But even assuming that it was negligent to load the pipe in 

this manner, as we must when viewing the evidence in the light most favorable to 

McMaster, the placement of the pipe was not a latent defect. McMaster admitted in his 

deposition that during his safety inspections he saw that the large blue pipe was loaded 

such that it was parallel to and up against the rear door of the container. McMaster testified 

that he had climbed up a ladder to look inside the container while still at the DTE facility 

and could see that the pipe was “[i]n the very back up against the back door.” He also 

testified that the position of the pipe did not cause him any concern at that time. Finally, 

McMaster testified that when he began the unloading process at the Ferrous facility, he 

cracked open the rear door of the container to see whether any material would fall out and 

again observed the blue pipe in the back of the container. Accordingly, because the 

placement of the pipe which caused the injury was readily observable to McMaster—and, 
19

in fact, was observed by McMaster—no reasonable jury could conclude that DTE breached 

its duty to him. 

In addition, McMaster argues that the fact that the pipe was loaded on top of other 

concealed materials was a latent defect that made the pipe more susceptible to rolling out 

of the container. But this theory is too speculative to defeat summary disposition. When 

asked whether the material under the pipe played a role in the pipe rolling out of the 

container, McMaster’s proposed expert, Larry Baareman, testified, “I can only say it could 

have.” However, to defeat summary disposition, a plaintiff must do more than present 

evidence that the defendant’s conduct possibly caused the injury. Skinner v Square D Co, 

445 Mich 153, 164-165; 516 NW2d 475 (1994) (“Nor is it sufficient to submit a causation 

theory that, while factually supported, is, at best, just as possible as another theory. Rather, 

the plaintiff must present substantial evidence from which a jury may conclude that more 

likely than not, but for the defendant’s conduct, the plaintiff’s injuries would not have 

occurred.”). Given this evidence, there is no genuine issue of material fact either that the 

allegedly defective loading of the blue pipe was latent or that DTE breached the duty it 

owed to McMaster. 

V. CONCLUSION

We hold that the adoption of the federal motor carrier safety regulations at MCL 

480.11a did not abrogate the common-law duty of care owed by shippers to carriers. Under 

Michigan common law, consistently with the “shipper’s exception” discussed in Savage, a 

shipper is not liable in negligence for a defect in loading that is apparent to the carrier or 

its agents, but is instead only liable if the defect is hidden. Savage, 209 F2d at 445. This 
20

duty is consistent with our common law, with our comparative-fault system, and with the 

everyday experiences in the trucking industry as reflected in the MCSA. Applying this 

rule to the facts of this case, McMaster has failed to raise a genuine issue of material fact 

that there was a latent defect that caused his injuries. Therefore, we affirm the Court of 

Appeals’ determination that the trial court’s entry of summary judgment to DTE was 

proper. 

Megan K. Cavanagh

Bridget M. McCormack

Brian K. Zahra

David F. Viviano

Richard H. Bernstein

Elizabeth T. Clement

Elizabeth M. Welch