PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-4363

CHARLES SPENCE,

Appellant,

v.

THE ESAB GROUP, INC.,

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 1:07-cv-00583)

District Judge: Honorable Sylvia H. Rambo

Argued July 15, 2010

Before: FUENTES, VANASKIE and WEIS, Circuit Judges.

(Opinion Filed: October 18, 2010)

William D. George, Esquire (Argued)

Connelly, Baker, Wotring LLP

700 JPMorgan Chase Tower
600 Travis Street

Houston, TX 77002

Counsel for Appellant

Charles S. Marion, Esquire (Argued)

Pepper Hamilton LLP

3000 Two Logan Square

Eighteenth and Arch Streets

Philadelphia, PA 19103

Justin G. Weber, Esquire

Pepper Hamilton LLP

100 Market Street, Suite 200

P.O. Box 1181

Harrisburg, PA 17108

Kenneth M. Argentieri, Esquire

Duane Morris LLP

600 Grant Street, Suite 5010

Pittsburgh, PA 15219

Counsel for Appellee

OPINION OF THE COURT

2
VANASKIE, Circuit Judge.

This appeal calls upon us to determine whether

Pennsylvania law imposes upon a shipper a duty of due care to

safely secure the goods the shipper has loaded in a third-party

carrier’s tractor-trailer. The District Court, concluding that

Pennsylvania law did not impose such a duty, awarded summary

judgment in favor of the shipper, The ESAB Group, Inc.

(“ESAB”), and against the carrier’s injured driver, appellant

Charles Spence. Because we find that, under the circumstances

of this case, Pennsylvania law imposed a duty of care on ESAB,

we will reverse the District Court’s judgment and remand for

further proceedings.

I. Facts

On May 12, 2005, Spence was injured when his tractortrailer overturned as he was rounding a turn in Hanover,

Pennsylvania. The accident occurred shortly after Spence, an

experienced truck driver, picked up a load of cargo from ESAB

to transport to Houston, Texas. The cargo – welding supplies

manufactured by ESAB – was packaged by ESAB into boxes

and cartons, stacked onto pallets, and then stretch wrapped.

Spence was on the trailer while ESAB loaded the pallets by

forklift onto the trailer. Spence secured the cargo with “load

stars” furnished by ESAB. Load stars are small metal cleats that

are placed on the floor of the trailer and secure the pallets that

are loaded onto them.

Spence had transported welding supplies for ESAB –

packaged and loaded the same way as on the day of the accident

– on approximately five occasions. On the first occasion,

Spence complained to ESAB that he did not like that the load

3
was not blocked and braced, referring to a method of securing

cargo which would have required nailing wooden boards to the

trailer’s floor to completely surround the pallets to safeguard

against movement of the cargo during transit. ESAB assured

Spence that it never had a problem with any of its loads.

Believing that ESAB “knew better” than he about securing

ESAB’s product, Spence hauled the load without blocking and

bracing. (A. 124.)

In addition to utilizing the load star securement devices

provided by ESAB, Spence also used a device known as a “load

lock” to secure the ESAB cargo. A load lock is an expandable

pole with rubber on each end that is wedged between the trailer

walls behind the last item in a row of pallets. According to

Spence, the purpose of a load lock is to prevent the load from

shifting backwards towards the rear doors of the trailer.

Spence’s employer provided the load lock that he used to secure

the ESAB cargo.

Although Spence did not encounter any problems during

that first haul of ESAB product, on a subsequent trip, when

Spence arrived at his destination, he opened the door of the

trailer and saw that the pallets had shifted during transit. Spence

does not dispute that only his employer-provided load lock was

used to secure the load on this prior occasion. With the

1

Spence explained that on this particular prior occasion,

1

instead of setting the load stars down while ESAB loaded the

cargo, he chose to lay down in his tractor’s sleeping berth

because he was tired. ESAB requires the individual driver to set

(continued...)

4
exception of that particular load, on all of his prior hauls for

ESAB, Spence had secured the cargo with both load stars and a

load lock. On none of Spence’s hauls for ESAB, including on

the day of the accident, was the cargo blocked and braced.

Spence’s expert testified that it is the industry practice for

shippers, not drivers, to block and brace the cargo.

On the day of the accident, because he did not have a

load lock with him, Spence secured the cargo only with ESAB’s

load stars. After the pallets were loaded onto the trailer, Spence

closed, locked, and sealed his trailer doors and signed the bill of

lading. Spence then got into the cab of his truck and drove the

tractor-trailer away from ESAB’s facility. As Spence rounded

a curve a short distance from the ESAB facility, his

tractor-trailer overturned, causing Spence serious injuries.

Spence claims that the accident occurred because the load

shifted laterally.

II. Procedural History

On March 28, 2007, Spence brought suit against ESAB

in the United States District Court for the Middle District of

Pennsylvania, asserting claims of negligence, negligence per se,

and gross negligence. The claims were based on Spence’s

assertion that the accident was a result of ESAB’s failure to

secure the cargo it loaded onto the trailer, which, Spence

alleged, was a violation of its duty of care to Spence and the

(...continued)

1

the load stars down, and will not put them down in the driver’s

absence.

5
proximate cause of his injuries.

On June 13, 2007, ESAB filed a motion to dismiss the

negligence per se claim, which the District Court granted on

February 15, 2008. On September 25, 2008, ESAB moved for

summary judgment. On October 20, 2008, the District Court

granted Spence’s request for leave to file an amended complaint

and stayed consideration of ESAB’ssummary judgment motion.

On October 27, 2008, Spence filed an amended complaint,

which contained five claims: Negligence, Negligent Failure to

Warn, Breach of Assumed Duty, Fraudulent/Negligent

Misrepresentation, and Gross Negligence.

2

ESAB filed an amended summary judgment motion on

February 13, 2009. ESAB argued that, as the shipper, it owed

no duty to Spence, the driver. ESAB cited federal regulations,

which ESAB argued “squarely” and “exclusively” place the duty

to ensure that cargo is adequately secured on the driver, and not

the shipper. ESAB also cited United States v. Savage Truck

We view the “Assumed Duty” claim as a subpart of

2

Spence’s negligence claim. We also note that there is no

separate cause of action under Pennsylvania law for gross

negligence. See Hunter v. Squirrel Hill Assocs., L.P., 413 F.

Supp. 2d 517, 520 n.2 (E.D. Pa. 2005) (“While Pennsylvania

courts acknowledge differing standards of care, they do not

recognize degrees of negligence as separate causes of action.”);

Floyd v. Brown & Williamson Tobacco Corp., 159 F. Supp. 2d

823, 828 (E.D. Pa. 2001) (dismissing separate claim of gross

negligence because under Pennsylvania law “‘gross negligence’

refers to a standard of care, rather than to a separate claim”).

6
Line, Inc., 209 F.2d 442 (4th Cir. 1953), for the common-law

rule that the shipper who loads cargo is only liable for defects in

loading that are latent and not apparent to the driver. In

opposition to ESAB’s motion for summary judgment, Spence

argued, citing Kunkle v. Continental Transportation Lines, Inc.,

92 A.2d 690 (Pa. 1952), that under Pennsylvania law, the

shipper, ESAB, owed a duty of care to Spence in both loading

and securing the cargo, notwithstanding the fact that Spence

admits that under federal regulations he also had a duty to

properly secure the load.

On October 13, 2009, the District Court granted ESAB’s

motion for summary judgment on all five claims of the

Amended Complaint. As to Spence’s negligence claim, on

which the instant appeal centers, the District Court found that

Pennsylvania law did not impose on ESAB a duty of care under

the circumstances of this case. In this regard, it found

persuasive the Federal Motor Carrier Safety Regulations that

impose upon the carrier the obligation to safely secure cargo to

prevent shifting during transit, citing 49 C.F.R. § 392.9(a) and

(b), as well as 49 C.F.R. § 393.100. As to the Pennsylvania

3

 In pertinent part, 49 C.F.R. § 392.9(a) and (b) provide:

3

(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--

(continued...)

7
Supreme Court’s holding in Kunkle, the District Court found

that it concerned only the shipper’s duty of care in relation to

loading the cargo, and was thus not controlling on the question

of a shipper’s duty to secure the load. The District Court also

questioned Kunkle’s continuing “vitality,” as it was decided

before the promulgation of the federal regulations that make the

carrier responsible for securing the cargo. Beyond finding

Kunkle not to be on point, the District Court concluded that it

(...continued)

3

(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. [T]he 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[.]

Subsection (c) of 49 C.F.R. § 393.100 provides that “[c]argo

must be contained, immobilized or secured . . . to prevent

shifting upon or within the vehicle to such an extent that the

vehicle’s stability or maneuverability is adversely affected.”

8
conflicted with the “prevailing common law duty” announced in

Savage that the primary duty to secure cargo rests with the

carrier, and the shipper’s duty is to avoid latent defects in the

way the cargo is secured. Savage, 209 F.2d at 445. The District

Court reasoned that because Spence knew that the load was not

blocked and braced, he could not show that ESAB had created

a latent hazard. The District Court thus concluded that Spence

had failed to demonstrate that ESAB owed him a common law

duty to ensure that the welding materials were properly secured,

and even if Kunkle imposed a duty that the cargo be properly

loaded, Spence failed to demonstrate that ESAB breached such

a duty. Accordingly, the District Court granted ESAB’s motion

for summary judgment as to Spence’s negligence claims.

4

III. Jurisdiction and Standard of Review

The District Court had diversity jurisdiction

pursuant to 28 U.S.C. § 1332, and we have jurisdiction over the

appeal under 28 U.S.C. § 1291. Our review of a district court’s

grant of summary judgment is plenary, and we must apply the

same standard the district court was required to apply under

Federal Rule of Civil Procedure 56(c). Smith v. Johnson &

Johnson, 593 F.3d 280, 284 (3d Cir. 2010). Thus, we can affirm

The District Court also granted summary judgment in

4

favor of ESAB on the negligent failure to warn and

fraudulent/negligent misrepresentation claims of the Amended

Complaint. Spence has not challenged the summary

adjudication of those claims in this appeal. Accordingly, we

will affirm the District Court’s summary judgment decision as

to those claims.

9
only “if the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as to

any material fact and that the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c)(2). A genuine issue of

material fact exists if there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In

evaluating the evidence, “we must view the facts in the light

most favorable to the nonmoving party and draw all inferences

in that party’s favor.” Norfolk S. Ry. Co. v. Basell USA Inc.,

512 F.3d 86 (3d Cir. 2008) (internal quotation marks omitted).

Furthermore, because the determination of whether a duty of

care exists is a question of law, Kleinknecht v. Gettysburg

College, 989 F.2d 1360, 1366 (3d Cir. 1993), we have plenary

review of the district court’s conclusion that ESAB did not owe

Spence a duty of care. See Berrier v. Simplicity Mfg., Inc., 563

F.3d 38, 62 (3d Cir. 2009).

IV. Discussion

As a federal court sitting in diversity, we are required to

apply the substantive law of the state whose law governs the

action. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The

parties agree that Pennsylvania law governs this dispute.

When ascertaining Pennsylvania law, the decisions of the

Pennsylvania Supreme Court are the authoritative source. State

Farm Mut. Auto Ins. Co. v. Coviello, 233 F.3d 710, 713 (3d Cir.

2000). In the absence of a controlling decision by the

Pennsylvania Supreme Court, we must predict how it would rule

if faced with the issue. Covington v. Cont’l Gen. Tire, Inc., 381

F.3d 216, 218 (3d Cir. 2004). In making such a prediction, “we

10
must look to decisions of state intermediate appellate courts, of

federal courts interpreting that state’s law, and of other state

supreme courts that have addressed the issue,” as well as to

“analogous decisions, considered dicta,scholarly works, and any

other reliable data tending convincingly to show how the highest

court in the state would decide the issue at hand.” Norfolk S.

Ry. Co., 512 F.3d at 92 (internal quotation marks omitted). We

must be mindful that “our duty is to apply state law . . .

irrespective of what we may regard as its merits,” Krauss v.

Greenbarg, 137 F.2d 569, 571 (3d Cir. 1943); we may not

impose our own view of what state law should be, McKenna v.

Pac. Rail Serv., 32 F.3d 820, 825 (3d Cir. 1994), nor “expand

state law in ways not foreshadowed by state precedent.” City of

Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 421 (3d Cir.

2002).

“The primary element in any negligence cause of action

is that the defendant owes a duty of care to the plaintiff.”

Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1168–69 (Pa.

2000). As explained by the Pennsylvania Supreme Court:

The determination of whether a

duty exists in a particular case

involves the weighing of several

discrete factors which include: (1)

the relationship between the

parties; (2) the social utility of the

actor’s conduct; (3) the nature of

the risk imposed and foreseeability

of the harm incurred; (4) the

consequences of imposing a duty

upon the actor; and (5) the overall

11
public interest in the proposed

solution.

Id.

Pennsylvania has adopted a number of provisions of the

Restatement (Second) of Torts to inform the consideration of

these factors. One such provision is § 323. See Gradel v.

Inouye, 421 A.2d 674, 677 (Pa. 1980) (“Section 323(a) of the

Restatement [(Second)] of Torts has been part of the law of

Pennsylvania for many years.”). That section provides:

One who undertakes, gratuitously

or for consideration, to render

services to another which he should

recognize as necessary for the

protection of the other’s person or

things, is subject to liability to the

other for physical harm resulting

from his failure to exercise

reasonable care to perform his

undertaking, if

(a) his failure to exercise such care

increases the risk of such harm, or

(b) the harm is suffered because of

the other’s reliance upon the

undertaking.

Restatement (Second) of Torts § 323 (1965). In Feld v.

Merriam, 485 A.2d 742 (Pa. 1984), the court indicated that

Pennsylvania’s application of § 323 is consistent with the

following comment to that provision:

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[T]his Section applies to any

undertaking to render services to

another which the defendantshould

recognize as necessary for the

protection of the other’s person or

things. It applies whether the harm

to the other or his things results

from the defendant’s negligent

conduct in the manner of his

performance of the undertaking, or

from his failure to exercise

reasonable care to complete it or to

protect the other when he

discontinues it.

Id. at 746 (quoting Restatement (Second) of Torts § 323 cmt. a).

In Feld, the court noted that these comments are particularly

relevant where a party undertakes a task and “possibly fosters a

reliance by [the plaintiff] on his efforts.” Id. at 747.

Spence’s argument in favor of recognition of a duty of

care on the part of the shipper in this case is consistent with

Pennsylvania’s application of § 323. In this regard, Spence does

not argue that the shipper’s obligation to exercise reasonable

care was exclusive. He acknowledges that he had a duty of care

insofar as securing the load against lateral movement was

concerned. Spence contends, however, that ESAB, as the party

who undertook to place the load on his trailer, provided him

with securement devices, and assured him that blocking and

bracing was unnecessary, also owed a duty of care.

Spence relies primarily on a case that is consistent with

13
the principle expressed in § 323, Kunkle v. Continental

Transportation Lines, Inc., 92 A.2d 690 (Pa. 1952). In that case,

Harry R. Kunkle broughtsuit against Continental Transportation

Lines, the shipper for whom Kunkle was transporting cargo

when his trailer crashed on a Pennsylvania highway in 1947.

Kunkle, 92 A.2d at 690–91. The cargo included a 16,000 pound

lithograph machine on the “extreme left” of a trailer on its 6"

side, with its 5' 5" width “extending almost to the top of the

trailer.” Id. at 691. The rest of the cargo loaded on the trailer,

consisting of “bulky, light material,” weighed about 7,500

pounds. Id. The loading was supervised by an employee of the

shipper, while Kunkle sat in the cab of his vehicle, “purposely

refrain[ing] from taking any part in the loading operation

because the loaders were union men and resented interference

on the part of an owner-driver.” Id. Before departing with his

load, Kunkle noticed that the trailer listed somewhat to the left

side, but accepted the assurances of the defendant’s dispatcher

that the load was “all right.” Id. at 691–92. While driving the

trailer with the loaded cargo, Kunkle attempted to pass a

vehicle, and while doing so lost control of the steering, causing

the tractor-trailer to “crash into the inevitable telegraph pole

along the road.” Id. at 690–91. Kunkle brought suit against the

shipper for negligently loading the cargo onto the trailer. Id. at

691. The issue at trial was whether the loading of the trailer or

Kunkle’s driving caused the trailer to lose balance. Id. The jury

agreed with Kunkle, finding that the accident was caused by the

shipper’s negligence in loading, and not Kunkle’s driving. Id.

The jury further found that Kunkle was not contributorily

negligent in failing to inspect the loading operation. Id.

On appeal, the Pennsylvania Supreme Court found that

14
the shipper could be held liable based upon the manner in which

it undertook to place the materials on the trailer, explaining:

The [shipper]’s employee . . . was

aware, or should have been aware,

of the remaining items to be loaded,

and it was his responsibility to see

that no dangerous condition would

be created by what was going

aboard finally.

Those final items were

actually lifted into the trailer by

employees of the [shipper] and they

should have realized that a proper

loading of comparatively light

objects would necessitate a

redistribution of the cargo in order

to effect the proper balance. When

they sealed the door of the trailer

with 16,000 pounds of a total load

of 23,500 pounds concentrated on

the left side of the trailer, they were

subjecting the plaintiff, who was

within the foreseeable orbit of

harm, to great danger.

Id. at 691–92 (emphasis added).

By finding the shipper liable, the court in Kunkle

necessarily recognized that the shipper had a duty to perform its

undertakings in relation to the cargo with due care. Although

Kunkle does not establish a special duty of care rule based on

15
the shipper-carrier relationship, or define a particular standard

of care to which a shipper must conform in loading and securing

cargo, it nonetheless acknowledges that shippers are not exempt

from the general duty the law imposes upon all persons who

undertake to perform a particular service not to expose others to

risks of injury which are reasonably foreseeable. See R.W. v.

Manzek, 888 A.2d 740, 747 (Pa. 2005) (“[A] duty arises only

when one engages in conduct which foreseeably creates an

unreasonable risk of harm to others.”); Kimble v. Mackintosh

Hemphill Co., 59 A.2d 68, 71 (Pa. 1948) (“Although individuals

are not required to guard against every risk they conceive to be

possible, they are under a legal duty to prevent hazards which

they can forecast as possible.”).

Although it was Spence who physically secured the load

with the load stars and closed and locked the truck, ESAB

nonetheless significantly involved itself in the securing of the

load. In other words, ESAB went beyond the task of merely

loading the product on the trailer. It was, after all, ESAB that

supplied load stars as the securement device. Although ESAB

had posted a sign at its loading dock saying that it is the driver’s

responsibility to secure the load, Spence provided evidence that

the industry practice is for shippers to block and brace the cargo

that they load, and that ESAB at one time had supplied material

for blocking and bracing. Spence also provided evidence that

supports an inference that ESAB assured him that transportation

of the product without blocking and bracing was safe. Spence

testified that on his first load for ESAB, he complained about

the way the trailer was loaded:

I told them that I did not like the

way that they loaded the trailer. I

16
didn’t like the small pallets. I

didn’t like it being down the center

of the trailer with no blocking, no

bracing, nothing but the stars. I did

say something about it, and ESAB

assured me that they have never

had a problem with any of their

loads, so I took it that they knew

better than I did and hauled the

load.

(A. 124.)

In sum, there was evidence that ESAB selected the

appropriate securement device, that Spence complained to

ESAB concerning the way the cargo was loaded and secured,

that ESAB in response stated that it never had a problem with

any of its loads, and that Spence relied upon this assurance in

using only load stars to prevent lateral movement of the cargo.

We must, of course, credit this evidence as true in determining

whether summary judgment was warranted. We view this

evidence as sufficient to support a reasonable inference that

ESAB undertook to participate in assuring that the load was

secured properly. Whether it did undertake to assure the

stability of the cargo, and if it did, whether it exercised

reasonable care in performing this undertaking, are questionsfor

the jury to decide.

Imposing a duty of care on the shipper does not absolve

the carrier or its driver of responsibility to assure the stability of

the load during transport. As noted above, Spence

acknowledges that he, too, owed a duty of care with respect to

17
securing the cargo. All we hold, consistent with Kunkle and §

323 of the Restatement (Second) of Torts, is that the shipper

may also owe a duty of care depending upon the role it assumes

in connection with loading and securing its cargo. Other courts

have reached a similar conclusion. See, e.g., Locicero v.

Interpace Corp., 266 N.W.2d 423, 427 (Wis. 1978) (“We hold

that [the state statute] and the federal safety regulations impose

a clear statutory duty on the carrier to secure the load safely, but

they do not relieve those who breach a common law duty of care

from liability for their negligence and their comparative share of

the resulting damages.”); Medeiros v. Whitcraft, 931 F. Supp.

68, 74 (D. Mass. 1996) (duty imposed by regulation on the

driver did not relieve shipper of liability for any independent

negligence found by the jury).

Pennsylvania is a comparative fault jurisdiction. Under

Pennsylvania law, a plaintiff’s negligence bars recovery only

when it is greater than that of the defendant. 42 Pa. C.S.A. §

7102. Because “it is a rare situation where it can be said that the

plaintiff is more than 50% negligent as a matter of law,” Gilbert

v. Consol. Rail Corp., 623 A.2d 873, 876 (Pa. Commw. Ct.

1993), the assessment of the relative responsibility for the

injuries sustained by Spence is properly left to the jury. See

Gilpin v. Langan, 789 F.2d 1034, 1036 (3d Cir. 1986) (“The

determination that a plaintiff's negligence amounted to fifty-one

percent of the causal conduct and thereby barred recovery, rather

than to forty–nine percent, leading only to a reduction of the

award, is peculiarly a matter on which reasonable minds may

differ.”). Consequently, we find that summary judgment on

Spence’s negligence claims was not warranted.

This conclusion is not inconsistent with the Fourth

18
Circuit’s holding in Savage, the case upon which the District

Court placed principal reliance. According to Savage:

The primary duty as to the safe

loading of property is . . . upon the

carrier. 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.

209 F.2d at 445.

Notably, Savage did not hold that the exclusive duty to

secure the cargo against movement during transit rests with the

carrier. Instead, it recognized that the carrier, the party in the

best position to know about the handling characteristics of its

vehicles, has the primary obligation to assure that the cargo is

loaded in a secure manner. Savage acknowledged that a shipper

may have liability when an accident results from movement of

goods during transport if the shipper created a non-apparent

condition that caused the load to shift.

Here, the District Court found that while the latency of a

defect is ordinarily a question of fact, there was no dispute in the

case that it was apparent to Spence that the cargo was not

blocked and braced. The District Court reasoned that because

19
the absence of blocking and bracing was readily apparent, there

was no issue of fact concerning the latency of the alleged defect.

However, the obviousness of the absence of a particular method

of securing a load, does not necessarily compel a conclusion that

the risk created by the missing securement device is patent.

In Franklin Stainless Corp. v. Marlo Transp. Corp., 748

F.2d 865 (4th Cir. 1984), a case applying Savage, a carrier was

engaged to transport coils of stainless steel for a shipper. Id. at

866. The shipper loaded the steel coils onto two tractor-trailers,

but did not take any measures to secure the cargo. Id. The

carrier informed the shipper that he had never hauled steel coils

and inquired whether the load was secure. Id. The shipper

assured the carrier that it had used the standard loading method

and that there would be no trouble with the load. Id. In transit,

one of the trucks collided with another vehicle. Id. In a

personal injury action brought by the victims of the collision, the

jury returned a verdict against the shipper, finding that the

improper loading of the truck was a cause of the accident. Id. at

866–67. The shipper sought indemnity or contribution from the

carrier based on the carrier’s negligence. Id. at 867. The district

court acknowledged that the shipper had been negligent in

loading the coils, but under Savage, it found that the defect in

loading was open and obvious to the carrier, thus absolving the

shipper of liability. Id. The Fourth Circuit disagreed: “[The

shipper’s] loading of the heavy steel coils flat on pallets down

the center of the trucks without strapping and chocking was, of

course, open and obvious to the trucker. It does not follow,

however, that the defect in this manner of loading was open and

obvious.” Id. at 868. In rejecting the district court’s finding that

the defect in loading was open and obvious to the carrier, the

20
Fourth Circuit, in part, relied on the evidence that the shipper

assured the driver that the method of loading was proper, and

that the jury found that the driver reasonably relied on this

assurance. Id. at 868–69. The Fourth Circuit noted that “[t]he

jury’s finding that the trucker reasonably relied on [the

shipper’s] assurance about the safety of the load is tantamount

to a finding that the defect was not open and obvious.” Id. at

869.

Franklin is in harmony with § 323 of the Restatement

(Second) of Torts. In this regard, Franklin recognized that a

shipper’s assurances that cargo has been properly secured may

establish an “undertaking” of services to which a duty of care

attaches. The Fourth Circuit indicated that the evidence must be

such as to establish that the shipper undertook some role in

securing the load, finding that this requirement for liability was

assured through the following jury charge:

Insofar as the negligence of the

defendant [shipper] is concerned,

you are told that while the primary

duty as to the safe loading of goods

being shipped to prevent shifting is

on the carrier . . ., nevertheless, if a

shipper . . ., by its acts or

statements, undertakes or assumes

responsibility for loading as for

example by assuring the carrier that

a certain method of loading is safe

and normal and the carrier or its

employees reasonably rely upon

such assurance, then it is the duty

21
of the shipper . . . to exercise

ordinary care to see that the loading

is done in a safe manner . . . .

Franklin, 748 F.2d at 869 n.3 (emphasis added).

It is thus clear that even under the Savage rule summary

adjudication of the negligence claims was not warranted. That

is, there are issues of material fact as to whether the lack of

blocking and bracing was a latent defect. See Grantham v.

Nucor Corp., No. 2:07-CV-229, 2008 WL 3925211, at *3 (D.

Utah Aug. 20, 2008) (finding genuine issue of material fact

existed as to whether defect in loading was latent where driver

lacked experience hauling products from shipper’s facility and

where shipper’s employee told the driver, in response to driver’s

concerns about the load’s safety, that he had been loading trucks

for quite a while and that he knew what he was doing); Syngenta

Crop Prod., Inc. v. Doyle Brant, Inc., No. 3:06-CV-84-S, 2008

WL 167293, at *3 (W.D. Ky. Jan. 16, 2008) (court could not

conclude as a matter of law that truck driver did not rely on

shipper’s assurances that the load was secure and therefore an

issue of fact existed as to whether the alleged defect in the

shipper’s loading of the trailer was apparent); Ebasco Servs.,

Inc. v. Pac. Intermountain Express Co., 398 F.Supp. 565,

568–69 (S.D.N.Y. 1975) (question of whether the excessive

height of a shipment presented a patent defect was “not one for

resolution by summary judgment,” in part, because evidence that

shipper’s employees represented the load to be of proper height

raised “material issues of fact bearing on the ultimate issue of

allocation of liability between” the shipper and the carrier);

Smart v. Am. Welding & Tank Co., 826 A.2d 570, 575 (N.H.

2003) (“[W]hether a defect in loading is obvious through

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ordinary observation or concealed is a question of fact.”). More

importantly, as suggested by Franklin, liability may be imposed

on the shipper where (a) it provides assurances concerning the

manner of loading and securing the cargo, and (b) the driver’s

reliance upon such assurances is reasonable. As noted above,

there is sufficient evidence on each of these factors to preclude

summary judgment.

IV. Conclusion

Those who undertake the task of loading, securing, and

hauling cargo on tractor-trailers have a duty to exercise due care

to protect property and persons from the risk of harm. The

primary duty to assure that a load does not shift in transit

generally rests with the carrier and its driver. Spence does not

dispute this general rule. But where there is evidence that a

shipper undertook to load and secure the cargo being transported

by a third party carrier, the shipper also bears an obligation to

exercise reasonable care. The Pennsylvania Supreme Court

recognized this principle in Kunkle. Moreover, this principle is

consistent with § 323 of the Restatement (Second) of Torts, a

provision that has long reflected the common law of

Pennsylvania.

In this case, there was evidence that the shipper, ESAB,

undertook not only to load the cargo, but also to supply the

securement devices and to express an assurance that this method

of securing the load was adequate. If, as in Franklin, a jury

finds that ESAB participated in not only loading, but also

securing its welding supplies, then the jury would have to

determine whether ESAB exercised due care. Thus, because it

undertook the task of furnishing securement devices and

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assuring a skeptical driver that such devices were adequate,

ESAB cannot be absolved of liability at the summary judgment

stage. Whether ESAB breached its duty of care and, if so,

whether Spence was negligent as well are matters committed to

resolution by a jury. Accordingly, we will vacate the District

Court’s entry of summary judgment in favor of ESAB on

Spence’s general negligence and breach of an assumed duty

claims, affirm the entry of summary judgment in favor of ESAB

on Spence’s negligent failure to warn and fraudulent/negligent

misrepresentation claims, and remand for further proceedings

consistent with this decision.

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