May 16, 2016
by Terry E. Morgan, DLP & CTL-AST&L & Surface Transportation Board Practitioner and an ALM Listing Expert
A contracted truck driver was injured while making a delivery to a large department store. A large heavy carton which had been loaded on the top of other freight began to fall from the top of the load on the driver. When he attempted to deflect the falling carton away from hitting his head and upper body, he was severely injured. The trailer he was unloading had been loaded by the department store’s employees at their distribution center.
1) The load remaining on the trailer was stacked almost to the roof of the trailer.
a) Any goods stacked on top of the load and forward of the end of the remaining load would not have been visible to the driver. The front portion of the trailer where the shipment that fell was located, would not have been well lighted.
b) The large heavy carton was placed on top of lighter weight goods without securing it in place or providing any warning of this hazard. A distribution center manager, stated that the distribution center’s procedure is to put heavy items on the bottom and light items on the top when loading cargo equipment. Thus, the distribution center did not follow their own procedures in loading the trailer.
c) One of the distribution center managers stated that loaders are to be trained in “proper loading techniques,” which includes loading in a manner that will prevent injuries to people who are loading and unloading. He further stated that they are responsible for safety.
2) The distribution center had a duty to load trucks in such a manner that the load was secure for the rigors of transportation and was safe for unloading.
3) The distribution center had exclusive control over the loading of the cargo and retained or exercised control over the details of the performance of the work. The unstable and unsecured, large heavy carton in the driver’s trailer, would not have been readily apparent to him through ordinary observation. The large heavy carton represented a hazard perched high above the driver’s head, deep within the trailer and camouflaged among the multitude of other packaged products around it.
a) It is well recognized in the trucking and distribution industries that shippers who improperly load cargo where the defects are latent and not apparent upon reasonable inspection may be held liable for injuries and damage caused by their negligence.
b) The driver was not permitted to observe loading of the trailers they were required to haul nor inspect their loads before leaving the distribution facility.
c) Shifting loads and falling cargo are a well recognized hazard in the loading and unloading of cargo carrying vehicles.
d) The driver testified that drivers are not permitted to complain about any defects in loads.
e) These shipments would be described as “Shipper Load and Count” shipments and the bill-of-lading should be marked as “SLC,” confirming they were “Shipper Load and Count.”
f) The carrier is not liable for loss or damage, except in the case of negligence, for shipments noted as being “SLC.”
4) It is my professional opinion when a shipper delivers goods for shipment, it impliedly warrants that the goods are fit for shipment and are properly packed. The driver’s injuries were occasioned solely by act or fault of the department store distribution center’s loaders.
This case was settled prior to trial.
DISCLAIMER: This article is not intended to be legal advice. It is only intended to be information based on the experience of the author and only under the specific circumstances contained herein. Consult with a qualified attorney to determine how the issues outlined above may apply to your specific circumstances.