Bailey, J.
Paul Michael Wilkes (“Wilkes”) appeals the grant of summary judgment in favor of Celadon Trucking Services, Inc., Celadon Logistics Services, Inc. and Celadon Group, Inc. (collectively, “Celadon”) and Cummins, Inc., Cummins Corporation, and Cummins John Doe Entities (collectively, “Cummins”) (at times, collectively referred to as “Defendants” or “Appellees”), upon Wilkes’s negligence claims.
We affirm in part, reverse in part, and remand for further proceedings.
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Cummins is a manufacturer of engine parts, with a principal place of business in Columbus, Indiana. Cummins contracted with Celadon Dedicated Services to transport, by semi-truck and trailer, empty reusable containers in which Cummins housed engine parts (“returnables”). Cummins would stack the returnables at its Columbus premises and Celadon employees would retrieve them. …
On January 29, 2014, Wilkes, an over-the-road truck driver for Knight Transport (“Knight”), was dispatched to the Celadon yard to pick up a trailer filled with returnables for transport to OIC. A Celadon load coordinator directed Wilkes as to where to drop his empty trailer and where to find the loaded trailer for transport.
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Duty Owed to Wilkes by Celadon
According to Wilkes, Celadon owed him a duty of care in light of the following: Celadon controlled the loading; Wilkes was directed by a Celadon employee to retrieve a “ready to go” trailer; Wilkes (although an experienced driver) was unfamiliar with the characteristics of the cargo; Celadon’s un-trained loader stacked greasy and unsecured trays to the top of the box trailer; and the weight and compactness of the ceiling-high stacks made a thorough inspection impractical or impossible.
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Wilkes concedes, as he must, that he had a duty to act reasonably for his own safety, consistent both with common law and federal regulations. But the dispositive inquiry remains — whether another party also has a duty of care to Wilkes. …
Appellees assert that they established the lack of duty because (1) Indiana has adopted the Savage rule, see United States v. Savage Truck Line, Inc., 209 F.2d 442 (1953) (apportioning a “primary duty” of safe loading to a motor carrier), and (2) Wilkes had an opportunity to inspect the cargo and could not claim the existence of a latent defect. In Savage, a truck driver for common carrier Savage was transporting a cargo of six airplanes encased in cylinders when one or more of the cylinders shifted and caused the vehicle to cross the double center line. A cylinder fell from the Savage truck and struck another truck, killing the driver instantly. See id. at 443. The cylinders had been loaded by agents of the United States; they had been fastened to the floor of the truck but not sufficiently to withstand the strain of transport.
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The policy behind the Savage rule is well founded. The everyday practice and understanding in the trucking industry, as aptly reflected in the federal regulations on the subject, reflect that carriers logically should have the final responsibility for the loads they haul. No shipper … can force a driver to accept a load that the driver believes is unsafe. By the same token, a driver must take responsibility for the safety of his or her cargo by inspecting and securing the load. The Savage rule does not absolve shippers from all responsibility as they bear the onus when cargo has been loaded improperly and that defect is latent. The Savage rule simply extends the industry’s reasonable understanding to negligence suits involving carriers and shippers.
… Most courts now accept the rationale of Savage and require carriers to take responsibility for the loads they carry, even if those loads have been improperly loaded by others.
The reasoning in Savage comports with the established duty of care notion that an injury must be foreseeable before a duty attaches. Here, the carrier has the opportunity to intercept any problem through inspection. In fact, the carrier’s driver is under the obligation to conduct such a safety inspection pursuant to federal law. Carriers, through their drivers, must ensure the safety of their own loads, even when cargo is loaded by shippers. The Savage rule that imposes liability on carriers for the loading done by shippers, even when negligent, has been accepted by the majority of modern courts and by federal regulators. After considering both industry practice and traditional duty of care jurisprudence, we accept its reasoning as well. [The shipping company] may only be liable if [the plaintiff’s] tractor trailer was loaded negligently and that negligence was undiscoverable through a reasonable safety inspection.
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Our Indiana Supreme Court has not adopted the Savage rule and we do not speculate whether the Court would find it incompatible with our comparative fault scheme. See Indiana Code Section § 34-51-2-6. But had the Savage rule been adopted, we would not find it dispositive of the heavy burden Appellees bore in the instant summary judgment proceedings. To negate the element of duty in Wilkes’s negligence claim, it was not enough that Appellees show a duty, even a “primary” or regulation-imposed duty on the part of another. Rather, Appellees must affirmatively show the absence of their duty. Even under Savage, a duty will be imposed where a shipper was negligent “and that negligence was undiscoverable through a reasonable safety inspection.” Decker, 749 A.2d at 767. To prevail, Celadon would have had to show that a fact-finder could reach only a single conclusion, that is, no latent defect (one not evident upon reasonable inspection) existed.
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Celadon did not demonstrate that, as a matter of law, it owed no duty to Wilkes. Nor did Celadon demonstrate the absence of a genuine issue of material fact as to the remaining elements of breach of duty or proximate cause. The grant of summary judgment to Celadon must be reversed.
Duty Owed by Cummins to Wilkes
Wilkes contends that Cummins owed him a duty because it owned the cargo and gave stacked, greasy trays to Celadon for transport. Cummins’s designated summary judgment materials show that it placed the returnables in the exclusive control of Celadon. Thereafter, Cummins did not supervise or inspect the loading. Cummins made no representation to Wilkes that the trailer was safely loaded. Because Cummins did not have a relationship with Wilkes or any control over the instrumentality that allegedly caused him harm, Cummins did not owe Wilkes a duty of care. The trial court properly granted summary judgment to Cummins.
Conclusion
The grant of summary judgment to Cummins is affirmed. The grant of summary judgment to Celadon is reversed. We remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
Riley, J., and Pyle, J., concur.