United States District Court, S.D. Mississippi, Northern Division
February 27, 2015
KENYATTA I. PATTON, and HARTFORD CASUALTY INSURANCE COMPANY, PLAINTIFFS
NISSAN NORTH AMERICA, INC., DEFENDANT
Kenyatta I. Patton, Plaintiff: Aafram Y. Sellers, LEAD
ATTORNEY, SELLERS & ASSOCIATES, PLLC, Jackson, MS; Brice R.
White, LEAD ATTORNEY, THE LAW OFFICE OF BRICE R. WHITE, PLLC,
North Little Rock, AR; Reginald Paul Harrion, LEAD ATTORNEY,
THE HARRION LAW FIRM, PLLC, Jackson, MS.
Hartford Casualty Insurance Company, Plaintiff: Peter L.
Corson, UPSHAW, WILLIAMS, BIGGERS & BECKHAM, LLP, Ridgeland,
Nissan North America, Inc., Defendant: James M. Tyrone, LEAD
ATTORNEY, Caroline K. Ivanov, WATKINS & EAGER, PLLC, Jackson,
MS; Mark D. Jicka, LEAD ATTORNEY, WATKINS & EAGER, Jackson,
P. Jordan III, UNITED STATES DISTRICT JUDGE.
personal-injury action is before the Court on Nissan North
America, Inc.'s (" Nissan" ) Motion for Summary
Judgment , pursuant to Federal Rule of Civil Procedure
56. After considering the parties' submissions and
hearing oral argument, the Court concludes that Plaintiff
Kenyatta I. Patton has failed to establish that Nissan owed
him a duty of care or that Nissan's alleged conduct
proximately caused his injuries. Nissan's Motion for
Summary Judgment  is therefore granted, and this action
is due to be dismissed.
Facts and Procedural History
Kenyatta I. Patton is a former commercial truck driver for
Specialized Transportation Services (" STS" ). On
November 13, 2011, Patton picked up a trailer at Nissan's
Canton, Mississippi plant that Nissan had already loaded.
Though Patton was concerned that Nissan had not properly
loaded and secured the cargo, he drove off without taking any
corrective action. Two turns later, Patton heard a "
pop," looked in his mirrors, and saw the trailer tip
over and pull the tractor and Patton into a ditch. Patton was
allegedly injured in the accident. Patton claims that the
unsecured cargo caused the accident and sues Nissan for
negligence and negligence per se. Compl. [1-1]. Following
discovery, Nissan moved  for summary judgment. The Court
has personal and subject-matter jurisdiction and is prepared
Standard of Review
judgment is warranted under Rule 56(a) of the Federal Rules
of Civil Procedure when evidence reveals no genuine dispute
regarding any material fact and that the moving party is
entitled to judgment as a matter of law. The rule "
mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986).
party moving for summary judgment " bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact." Id. at 323.
The nonmoving party must then " go beyond the
pleadings" and " designate 'specific facts
showing that there is a genuine issue for trial.'"
Id. at 324. In reviewing the evidence, factual
controversies are to be resolved in favor of the nonmovant,
" but only when . . . both parties have submitted
evidence of contradictory facts." Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)
(per curiam). When such contradictory facts exist, the court
may " not make credibility determinations or weigh the
evidence." Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105
(2000). Conclusory allegations, speculation, unsubstantiated
assertions, and legalistic arguments have never constituted
an adequate substitute for specific facts showing a genuine
issue for trial. TIG Ins. Co. v. Sedgwick James of
Wash., 276 F.3d 754, 759 (5th Cir. 2002);
Little, 37 F.3d at 1075; SEC v. Recile, 10
F.3d 1093, 1097 (5th Cir. 1993) (per curiam).
contends that Nissan was negligent in the way it loaded and
secured the cargo. To establish negligence, he must show
duty, breach of duty, causation, and damages. Duckworth
v. Warren, 10 So.3d 433, 440 (Miss. 2009). Nissan
challenges Patton's proof on the duty and causation
Breach of Duty
Nissan owed Patton a duty is a question of law decided by the
Court. See Rein v. Benchmark Constr. Co.,
865 So.2d 1134, 1143 (Miss. 2004) (en banc). And in a
majority of jurisdictions, the duties a shipper owes a
carrier are established by the policy enunciated in
United States v. Savage Truck Line, Inc., where the
Fourth Circuit held that
[t]he primary duty as to 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 442, 445 (4th Cir. 1953); see also
Whiteside v. United States, No. 1:11-CV-154, 2013 WL
2355522, at *6 (E.D. Tex. May 28, 2013) (" [T]he
rationale embodied in the Savage rule is followed by
a majority of jurisdictions." (collecting cases)). The
parties dispute whether Mississippi would likewise adopt this
rule. But as
explained below, the specific facts of this case allow a
decision based on existing Mississippi law that is in ways
similar to Savage. There is no need to make an
Erie guess whether Mississippi would fully adopt the
to Patton, Nissan owed him a duty of reasonable care to
" load and secure" the cargo. But Nissan gives the
issue a finer point, arguing that it cannot be liable for
merely placing the cargo on the trailer because Patton, as
the carrier, had the sole duty to make sure it was properly
distributed and secured. Nissan's distinction between the
duties existing before and after cargo is loaded is well
Federal Motor Carrier Safety Regulations explain in 49 C.F.R.
§ 392.9 that after cargo is loaded, a commercial driver
has a duty to inspect, properly distribute, and secure it:
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--
commercial motor vehicle's cargo is properly
distributed and adequately secured. . . .
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; . . .
(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 cargo or to the driver
of a commercial motor vehicle that has been loaded in a
manner that makes inspection of its cargo impracticable.
same assignment of post-loading duties appears in the Federal
Motor Carrier Safety Administration's (" FMCSA"
) Guidance, published with its regulations. There, the FMCSA
states more directly that the post-loading duties rest with
the carrier--not the shipper:
Question 2: Does the Federal Highway Administration (FHWA)
have authority to enforce the safe loading requirements
against a shipper that is not the motor carrier?
Guidance: No, unless HM [hazardous materials] as defined in
§ 172.101 are involved. It is the responsibility of the
motor carrier and the driver to ensure that any cargo aboard
a vehicle is properly loaded and secured.
Part 392: Driving of Commercial Vehicles, Fed. Motor
Carrier Safety Admin. (last visited Feb. 25, 2015),
to home, the Mississippi Professional Driver's Manual,
published by the Mississippi Department of Public Safety,
likewise notes the carrier's duty to secure cargo. The
manual states, " Whether or not you load and secure the
cargo yourself, you are responsible for: Inspecting your
cargo, . . . [and] [k]nowing your cargo is properly secured .
. . ." Mot.  Ex. 5 at 58. The manual then states
that " [a]s part of your pre-trip inspection, make sure
truck is not overloaded and the cargo is balanced and secured
properly." Id. Finally, the manual also
provides drivers instructions on proper cargo securement.
Id. at 59.
motor carrier industry is heavily regulated, yet all of these
state and federal sources indicate that once cargo is loaded,
a commercial driver has a duty to inspect, properly
distribute, and secure it. None mention concurrent
obligations held by the shipper, and one--the FMCSA's
guidance--provides that these duties are not shared. In
short, there is no statutory basis for Nissan's alleged
duty. See Thomas v. McDonald, 667 So.2d
594, 596-97 (Miss. 1995) (holding that " where there is
a statute, the statute will be the controlling law for the
parties' action or failure to act" ); see
also Utz v. Running & Rolling Trucking, Inc.,
32 So.3d 450, 477 (Miss. 2010) (stating that even though
FMCSA regulations are not statutes, same logic applies).
Likewise, Patton cites no common-law duty in Mississippi for
a shipper to inspect, distribute, and secure cargo that it
pays a carrier to ship. Accordingly, the Court finds no
general duty for a shipper in these regards.
said, duties can arise in other ways. For example, a party
that " undertakes the performance of an act" must
act with reasonable care. Dr. Pepper Bottling Co. of
Miss. v. Bruner, 245 Miss. 276, 148 So.2d 199, 201
(Miss. 1962). Had Nissan secured the cargo in a negligent
way, then that act might have raised a trickier issue. But
there is no record evidence that Nissan attempted to secure
the cargo after placing it in the trailer. Patton testified
that this was the first time he had " ever haul[ed]
something of that nature," and he assumed everything
" was secure like it was supposed to be." Patton
Dep. [45-1] at 8. When asked whether he " notice[d]
anything else about whether it was secured in any way, such
as blocks or tie-downs," Patton responded, " No,
sir, I didn't notice anything of that nature."
Id. Thus, there is no evidence Nissan undertook to
perform the act of securing the cargo. Cf. Dr.
Pepper Bottling Co., 148 So.2d at 201.
can also negligently fail to act ( e.g., by failing
to secure the cargo). And when, as here, a party does not
have a duty to act, such " [a] duty can be assumed
either by contract or by a gratuitous promise that induces
detrimental reliance." Doe v. Hunter Oaks
Apartments, L.P., 105 So.3d 422, 427 (Miss. Ct.App.
2013). Here, Patton points to three documents as evidencing a
contractual duty for Nissan to secure the load: (1) an
addendum to the contract; (2) STS's driver's manual;
and (3) the bill of lading.
Patton refers to section 8.1(a) of the STS/Nissan contract,
which deals with " Trailer Damage" and states:
(a) Carrier shall not be liable as provided under this
agreement, except for loss or damage to cargo occurring while
shipment is under care, custody and control of Carrier.
Carrier and its employees will not participate or be held
responsible for the loading or unloading of cargo tendered by
Shipper. . . . Further, Carrier shall not be responsible for
loss or damage that is determined to be caused by improper
packing, loading, bracing or other act by an employee, agent
or subcontractor of Shipper. Carrier will be responsible for
damage to cargo caused by the negligence or willful
misconduct of the Carrier's employees.
Resp.  Ex. 2 at 13. This addendum to the contract does
not specify the parties' duties. It merely provides that
if Nissan's employees damage STS's trailer while
loading the cargo, then STS is not responsible for that loss.
It does not generally state that Nissan has undertaken a duty
to distribute and secure the cargo, and again, there is no
record evidence that it did so in this case.
Patton turns to the STS Driver's Manual, which states
that " STS does not want employees to load or
unload freight, therefore, we do not market 'Driver
touch' freight to our customers. If you are asked to load
or unload, or assist, you must call your FM
immediately." Resp.  Ex. 4 at 2 (emphasis added).
But this manual does not establish that Nissan contractually
or gratuitously assumed any duties after placing the cargo on
the trailer. The contract itself includes the standard "
entire-agreement clause," id. Ex. 2 at 8, and
does not reference this manual. And even if the manual could
create a contractual duty for Nissan, the passage Patton
quotes speaks to " load[ing]" rather than
distributing and securing cargo. Elsewhere, the same manual
advises that " [d]rivers must be able to safely perform
the following: . . . securing loads in trailer." Mot.
 Ex. 6 at 19. So again, the manual does not create a duty
for Nissan to distribute or secure the cargo it loads onto
Patton points to the following language found in the bill of
lading: " This is to certify that the above named
articles are properly classified, described, packaged, marked
and labeled and are in proper condition for transportation
according to the applicable regulations of the Department of
Transportation." Resp.  Ex. 6 at 1. This language
does not address loading or securing cargo. It instead
addresses transportation of hazardous materials and is a
direct quote from 49 C.F.R. § 172.204(a)(1) dealing with
such cargo. So even if the language did address loading and
securing, it has no application here because the subject bill
of lading is clearly marked " NON-HAZARDOUS," and
the signature block next to the language Patton quotes is
left blank. See id.
Patton's record evidence fails to show Nissan
contractually undertook a relevant duty, the contract itself
states that " each and every shipment tendered to
Carrier by Shipper" shall be subject to " the
provisions of law applicable to motor contract carriage
hereunder." Id. at 2; see also
id. at 3 (" Carrier shall ensure that all
drivers comply with all applicable state and federal laws and
regulations . . . ." ). Thus, through these contract
provisions, the parties have incorporated the requirements of
49 C.F.R. § 392.9(a) and (b), which place the duty on
the driver to ensure that the cargo is properly distributed
and secured. Finally, there is no dispute that the
contracting parties, STS and Nissan, understood these
respective duties. As STS's corporate representative
testified, " while [its] drivers don't load the
trailers, . . . [t]hey are responsible to use load locks or
to make sure that the load . . . is secure." STS Dep.
[37-1] at 4. Patton has not established that Nissan
contractually agreed to do anything other than place the load
on the trailer.
Patton established a gratuitous promise that induces
detrimental reliance. See Doe, 105 So.3d at
" [F]or a party to be held liable for negligent
performance of a gratuitous or voluntary act, the plaintiff
must show detrimental reliance on the performance."
Wagner v. Mattiace Co., 938 So.2d 879, 885 (Miss.
Ct.App. 2006) (citing Rein, 865 So.2d at 1147;
Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d
359, 368-69 (Miss. 1992); Higgins Lumber Co. v.
Rosamond, 217 Miss. 1, 63 So.2d 408, 410 (Miss. 1953)).
Higgins, the Court observed the following:
If a person, by promising or undertaking to do definite acts
of service for another, realizes or should realize that it is
substantially certain that the other will refrain from doing
such acts for himself or securing alternative services then
available, the person so promising or undertaking becomes
subject to liability for harm resulting from his undertaking
and subsequent failure.
63 So.2d at 410 (internal quotation marks omitted) (citing
Reinstatement (First) of Agency § 378 cmt. a. (1933));
see also Coleman v. Louisville Pants Corp.,
691 F.2d 762, 766 (5th Cir. 1982) (" In Mississippi,
then, detrimental reliance by the plaintiff is an essential
element of any action based upon the negligent performance of
a gratuitous act." ).
essentially the theory on which Patton relies--that Nissan
undertook the task of securing the cargo and thereby induced
Patton to rely on its safety. Patton Dep. [45-1] at 8
(stating that he assumed Nissan secured the load). But Patton
fails to establish that Nissan gratuitously undertook that
duty. And even if he could prove that point, Patton could not
have detrimentally relied upon it because he had a state and
federal regulatory duty to ensure the cargo was properly
distributed and secured, and that duty was memorialized in
the applicable contract. See Resp.  Ex. 2 at 2,
3 (incorporating applicable regulations); see also
49 C.F.R. § 392.9(a), (b). Patton has not established
that Nissan had or undertook any duties with respect to
ensuring that the cargo was properly distributed or secured.
even assuming Nissan had some duty with respect to the way it
placed the cargo in the trailer, Patton has not shown
proximate cause. " Proximate cause is a concept which is
more accurately defined by reference to the distinct concepts
of which it is comprised, which are: (1) cause in fact; and
(2) foreseeability." Fenelon v. Jackson Metrocenter
Mall Ltd., No. 2011-CA-00683-COA, 172 So.3d 760, 2012 WL
5915311, at * 4 (Miss. Ct.App. Nov. 27, 2012) (en banc)
(internal quotation marks omitted).
there is no evidence Nissan undertook anything other than
placing the cargo in the trailer. And there is no credible
record evidence that the cargo's placement (as opposed to
securement) was the cause in fact of the accident. When asked
to explain the accident, Patton testified that the cargo
" tilt[ed] over and hit . . . the trailer . . . and
that's what made the trailer turn over." Patton Dep.
[45-1] at 9. Of course Patton could not see the cargo inside
the trailer, and there is no expert or other competent
evidence explaining what happened.
convincingly argues that Patton offers nothing but
speculation to support his contention that the cargo moved
before the roll. While this broader causation theory raises a
close call under Rule 56, even assuming the cargo did move
first, the record contains no credible evidence that the way
Nissan placed the cargo in the trailer, as opposed to the
alleged failure to secure it, factually caused the accident.
At best, Patton testified that the cargo " didn't
look right to [him]," Patton Dep. [37-2] at 16, but as
Patton himself argues elsewhere, he had never before
hauled that type of load. Resp.  at 8 (citing Patton Dep.
[45-1] at 7-8). Patton has not created a question of fact on
Negligence Per Se
asserts that summary judgment is appropriate as to
Patton's negligence per se claims because the cited
statutes and regulations place no duty on the shipper to
safely secure cargo. Patton conceded the point, and his
negligence per se claims are dismissed with prejudice.
Court has considered the parties' arguments. Those not
specifically addressed would not have changed the outcome.
For the foregoing reasons, the Court finds that Nissan's
Motion for Summary Judgment  should be granted, and
Patton's claims are dismissed with prejudice.
Nissan's remaining Motion in Limine  is denied as
moot. And because Hartford Casualty Insurance Company's
claims are derivative of Patton's, its Intervenor
Complaint  is also dismissed with prejudice.
separate final judgment will be entered in this case in
accordance with Federal Rule of Civil Procedure 58.
reasons given in the Order entered in this action on this
date, the Court hereby enters a judgment, pursuant to Rule 58
of the Federal Rules of Civil Procedure, dismissing all
claims against Defendant with prejudice.
IT IS HEREBY ORDERED AND ADJUDGED that this case is
ORDERED AND ADJUDGED.
Subsequent to the motion, Hartford
Casualty Insurance Company intervened  in this
action. Its claims for reimbursement of workers'
compensation benefits are derivative of Patton's claims
and thus are dismissed for the same reasons.
Patton also argues that Savage
conflicts with Mississippi's comparative-negligence
statute. While Mississippi is a comparative-negligence state,
see Miss. Code Ann. § 11-7-15, it is
axiomatic that fault cannot be compared unless both parties
are at fault. And to prove fault, Patton must start by
legally establishing Nissan's duty. So the question
remains whether Nissan had a legal duty.
This and other passages indicate that
Patton was unaware of his duties under state and federal
The federal regulations that STS and Nissan
incorporated into their contract include the exception
found in 49 C.F.R. § 392.9(b)(4) that relieves the
driver of the duty to inspect and secure when he or she
receives sealed cargo and is instructed not to inspect, or
when the vehicle is " loaded in a manner that makes
inspection of its cargo impracticable." Neither of these
exceptions apply here, so the duty remained on STS and
Nissan also argues lack of proximate cause,
claiming that Patton's failure to follow the regulations
was not foreseeable and therefore constituted an intervening
cause. On some level, Nissan has a point. It seems untenable
as a general matter of proximate cause that a contracting
party should foresee that its counterpart's employee
would breach the contract, violate applicable regulations,
and otherwise fail to perform the duties that the parties
contracted for and understood. That said, Nissan presents
this as an issue of intervening cause. Def.'s Mem. 
at 14. And " the term 'intervening cause' is
generally meant to refer to the unforeseeable acts of
third parties, not the plaintiff."
Walmart Stores, Inc. v. Johnson, 807 So.2d 382, 388
(Miss. 2001) (en banc) (citing Restatement (Second) of Torts
§ 448 (1977)). Accordingly, the Court will not further
explore the issue.