                                        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 tractor-
trailer 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.1 With the


       1
        Spence explained that on this particular prior occasion,
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


       1
        (...continued)
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’s summary 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


       2
          We view the “Assumed Duty” claim as a subpart of
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. 3 As to the Pennsylvania



       3
           In pertinent part, 49 C.F.R. § 392.9(a) and (b) provide:
                (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


       3
           (...continued)
                         (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


       4
         The District Court also granted summary judgment in
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:

                              12
              [T]his Section applies to any
              undertaking to render services to
              another which the defendant should
              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 brought suit 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 questions for
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 w ill 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

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              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

                               22
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

                               23
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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