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HomeMy WebLinkAbout2005-3034 Civil TIMOTHY NEECE, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GENERAL MILLS, INC., DEFENDANT V. EXEL LOGISTICS, INC., n/kla EXEL, INC., AND SWIFT TRANSPORTATION CO., INC., ADDITIONAL DEFENDANTS 05-3034 CIVIL TERM IN RE: MOTIONS OF DEFENDANT GENERAL MILLS. INC.. AND ADDITIONAL DEFENDANT SWIFT TRANSPORTATION CO.. INC.. FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND EBERT. J. OPINION AND ORDER OF COURT Bayley, J., March 2, 2007:-- Plaintiff, Timothy Neece, filed a complaint against defendant, General Mills, Inc. General Mills joined Exel Logistics, Inc., n/kla Exel, Inc., and Swift Transportation Co., Inc., as additional defendants. Plaintiff is a tractor trailer driver. His suit for damages involves an incident that occurred on October 8,2002. While employed by and acting in the course of the business of additional defendant Swift Transportation, plaintiff drove a tractor with a trailer containing products of General Mills from a warehouse in Mechanicsburg, Cumberland County, Pennsylvania, owned and operated by additional defendant Exel Logistics. He delivered those products to a retail outlet in New Jersey where he claims he was struck and injured by a loose, unsecured box of product when he opened the trailer door. In his complaint against General Mills plaintiff alleges its 05-3034 CIVIL TERM negligence by: (a) failing to regard his rights, safety and position; (b) failing to properly load the merchandise in the trailer; (c) failing to inspect the merchandise to ensure it was properly loaded; (d) failing to warn him that the merchandise was not properly loaded; (e) failing to place a loading strap on the merchandise; and (f) failing to take measures to prevent the merchandise from becoming loose. Swift Transportation Co., Inc., was joined by General Mills on the following claim: Carrier [Swift] agrees to indemnify, save harmless and defend Shipper [General Mills] from and against any and all claims for loss, damage or injury, and from and against any suits, actions, and legal proceedings brought against Shipper for or on account of any loss or damage to the tangible property of third parties, including but not limited to employees of Carrier, employees and agents of Shipper, caused by, or growing out of, any intentional or negligent act or omission of Carrier or its employees, in performing the services provided for under this Agreement. (Emphasis added.) General Mills and Swift Transportation filed motions for summary judgment which were briefed and argued on January 24, 2007. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment. A court: . .. must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145,615 A.2d 303,304 (1992). In order to withstand a motion for summary judgment, a non-moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93,101-102,674 A.2d 1038,1042 (1996). General Mills maintains that Exel Logistics operates the Mechanicsburg warehouse as -2- 05-3034 CIVIL TERM an independent contractor, and there is no evidence in the record from which a jury could find that General Mills was negligent in causing the alleged injury to plaintiff. The established law of Pennsylvania, subject to exceptions not applicable to the present case, provides that an employer of an independent contractor is not liable for physical harm caused to another by acts or omissions of the contractor or his servants. Hader v. Coplay Cement Mfg. Co., 410 Pa. 139 (1963); Otiz v. Ra-EI Development Corp., 365 Pa. Super. 48 (1987). There is evidence in the record that Exel Logistic owns and operates the warehouse in Mechanicsburg. On October 8, 2002, that warehouse stored products solely for General Mills Operations, Inc., a wholly owned subsidiary of General Mills, Inc. Those entities had a written Warehousing Agreement that sets forth that Exel provides "full receiving, storage, handling and shipping services" including "off loading of products from trucks. . . the storage of such products and the loading of products on trucks for shipment. . . ." The Agreement designates Exel as an independent contractor, and provides that all of the employees engaged to work under the Agreement are considered employees of Exel and not employees of General Mills. Robert Morris, the general manager of Exel, testified in a deposition that he oversees Exel's business with General Mills including Exel's loading operations for General Mills products. Exel trains its employees on how to load trailers. General Mills does not supervise any of that training. While General Mills has an on-site manager, it does not exercise any control over Exel employees. The employee that loaded the trailer that was transported by plaintiff on October -3- 05-3034 CIVIL TERM 8, 2002, was forklift operator, Jerry Bottoms. Bottoms testified in a deposition that he was trained to load trailers by an employee of Exel. On October 8, he obtained a pick sheet which he used to pick product and load the trailer. His testimony below is that evidence which plaintiff maintains in its brief could support a finding by the jury "that General Mills did have some responsibility as to the loading of a trailer involved in this accident." Q Who controls the way the trucks are loaded back in October of 2002? A It was pretty much left up to the loader depending on the pick sheet that I showed you. Q Who determines how many products are going to go into a trailer? Who makes that determination? A The company that orders the product. In that case Costco, they'll call into the General Mills rep at the time, they'll place the order, it's put in SAP and then we download it into the WMS system. Q Does General Mills have any say over the way their products are being loaded in the trailer? . . . A They do to a point. Q They do? A To a point, but not necessarily to the extent to where there's somebody out there saying anything. (Emphasis added.) He was later asked the following questions and gave the following answers: Q When you say that General Mills had some say to a point on how it is loaded, it is just with respect to loading what was ordered and loading carefully that the product is not damaged? A Yes, and if there were any special instructions that they were informed of from the customer's themselves. Q And are you aware of any special instructions from Costco on this October 8th, 2002? A No. (Emphasis added.) We agree with General Mills that Bottoms' testimony that General Mills advises -4- 05-3034 CIVIL TERM Exel what products to deliver via a pick sheet, and generally seeks to have Exelload carefully so that product is not damaged, could not support a verdict by the jury that General Mills has any liability for any negligence of Bottoms in the way he placed product into plaintiff's trailer that alleged caused injury to plaintiff. The only evidence in the record is that Exel is responsible for any negligent conduct of Bottoms in loading the trailer. For the foregoing reasons, we will grant the motion of General Mills for summary judgment. We will also grant the motion for summary judgment by Swift Transportation because there can be no liability of General Mills for which Swift Transportation could be liable under its indemnity agreement to General Mills. ORDER OF COURT AND NOW, this day of March, 2007, IT IS ORDERED: (1) The motion of defendant General Mills, Inc., for summary judgment, IS GRANTED. (2) The motion of additional defendant Swift Transportation Co., Inc., for summary judgment, IS GRANTED. By the Court, Edgar B. Bayley, J. -5- 05-3034 CIVIL TERM Bobbie Ann Thornburg, Esquire For Plaintiff Alyssa L. Rebensdorf, Esquire For Defendant General Mills, Inc. Robert Corbin, Esquire For Additional Defendant Swift Transportation Co., Inc. Gary N. Stewart, Esquire For Additional Defendant Exel Logistic, Inc. n/kla Exel, Inc. :sal -6- TIMOTHY NEECE, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GENERAL MILLS, INC., DEFENDANT V. EXEL LOGISTICS, INC., n/kla EXEL, INC., AND SWIFT TRANSPORTATION CO., INC., ADDITIONAL DEFENDANTS 05-3034 CIVIL TERM IN RE: MOTIONS OF DEFENDANT GENERAL MILLS. INC.. AND ADDITIONAL DEFENDANT SWIFT TRANSPORTATION CO.. INC.. FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND EBERT. J. ORDER OF COURT AND NOW, this day of March, 2007, IT IS ORDERED: (1) The motion of defendant General Mills, Inc., for summary judgment, IS GRANTED. (2) The motion of additional defendant Swift Transportation Co., Inc., for summary judgment, IS GRANTED. By the Court, Edgar B. Bayley, J. 05-3034 CIVIL TERM Bobbie Ann Thornburg, Esquire For Plaintiff Alyssa L. Rebensdorf, Esquire For Defendant General Mills, Inc. Robert Corbin, Esquire For Additional Defendant Swift Transportation Co., Inc. Gary N. Stewart, Esquire For Additional Defendant Exel Logistic, Inc. n/kla Exel, Inc. :sal -2-