                                                                         FILED
                                                                     Apr 12 2019, 9:27 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEES
Caroline B. Briggs                                          Kevin C. Tyra
Lafayette, Indiana                                          THE TYRA LAW FIRM
                                                            Indianapolis, Indiana
W. Winston Briggs
Atlanta, Georgia
Terry D. Jackson
Atlanta, Georgia



                                             IN THE
    COURT OF APPEALS OF INDIANA

Paul Michael Wilkes,                                        April 12, 2019
Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                            18A-CT-2011
        v.                                                  Appeal from the Marion Superior
                                                            Court
Celadon Group, Inc., et al.,                                The Honorable David J. Dreyer,
Appellees-Defendants.                                       Judge
                                                            Trial Court Cause No.
                                                            49D10-1601-CT-3170



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019                           Page 1 of 17
                                              Case Summary
[1]   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.1 We affirm in part, reverse in part, and remand for further

      proceedings.



                                                       Issues
[2]   Wilkes presents two consolidated issues for review:2


                 I.      Whether the trial court erroneously granted summary
                         judgment to Celadon upon determining that Celadon
                         owed Wilkes no duty of care; and


                 II.     Whether the trial court erroneously granted summary
                         judgment to Cummins upon determining that Cummins
                         owed Wilkes no duty of care.




      1
          He does not challenge the grant of summary judgment upon his negligent hiring claims.
      2
       Appellees have submitted a joint brief with joint arguments on absence of duty. For the most part, we
      address the arguments as one; however, we will separately address some contentions or designated facts as
      applicable to one appellee but not another.

      Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019                              Page 2 of 17
                             Facts and Procedural History
[3]   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. They were loaded by forklift and removed for future transport by

      Celadon or, at times, another motor freight carrier. The returnables, empty and

      lubricated with industrial solvents, were routinely shipped from Celadon’s

      Columbus, Indiana facility to OIC Contract Services (“OIC”) in Rocky Mount,

      North Carolina. At OIC, returnables were pressure-washed before being

      transported back to Cummins.


[4]   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.


[5]   The trailer, owned by Knight, had been loaded by Rick Wilson (“Wilson”), an

      employee of Celadon Trucking Services, Inc., a wholly-owned subsidiary of

      Celadon Group, Inc. Cummins did not supervise or direct the loading of the

      trailer. When deposed, Wilson could not recall the specifics of loading the




      Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019      Page 3 of 17
      trailer in question, but described the methodology that was “the most common

      way to load these returnable trays” as “tapering the load,” and elaborated:


              [It is] down-stacking towards the tail of the trailer. It’s just a
              commonsense maneuver to keep the load stationary, keep the
              load from falling out, for the most part. …Typically the last stack
              [as compared to the middle and front of the trailer] is about half
              the size of the tallest stack. Sometimes we tier it [in] three stacks.
              In other words, you have a tall stack, one that’s three-quarters of
              a stack and one typically about half that stack. It secures the load
              well.


      (App. Vol. XII, pgs. 192-93.) Although Wilkes’s freight may have been

      tapered, it was not bound, strapped, or shrink-wrapped.


[6]   When Wilkes was directed to and approached the loaded trailer, the doors were

      open. He looked inside and saw stacks of trays rising almost to the top of the

      trailer. He observed nothing “outstanding,” closed and locked the doors, and

      affixed a Knight seal on the trailer. (App. Vol. XIV, pg. 151.) Each of Knight’s

      “dry trailers” has a vertical space for attaching straps; Wilkes did not add any

      strapping.


[7]   En route, Wilkes did not feel the load shift to a degree that caused him concern.

      After arriving with the cargo at OIC, Wilkes parked his trailer as directed and

      began opening the trailer doors. He first raised a handle, which came up

      without incident. The first door was opened without Wilkes detecting undue

      pressure. However, as Wilkes began to slowly open the second door, he heard

      a noise “at the top of the door,” saw a flash, and was struck by cascading trays.


      Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019           Page 4 of 17
       Id. at 134. Wilkes sustained serious injuries, including a broken neck and brain

       trauma.


[8]    On January 26, 2016, Wilkes filed a complaint against Cummins, Celadon, and

       various other defendants (who were subsequently dismissed by consent order).

       Therein, Wilkes alleged that Wilson, a Celadon employee, negligently loaded

       the subject trailer, the cargo shifted in transport, it came loose from its pallets,

       fell out of the truck, and cascaded onto Wilkes, severely injuring him. Wilkes

       further alleged that Wilson had been negligently hired, trained, and supervised.


[9]    Cummins and Celadon moved for summary judgment, denying that either

       owed a duty of care to Wilkes. The trial court conducted a hearing on February

       12 and June 25, 2018. On July 24, 2018, the trial court entered summary

       judgment in favor of both defendants, concluding that neither owed a duty of

       care to Wilkes. Wilkes now appeals.



                                   Discussion and Decision
                                          Standard of Review
[10]   Summary judgment is appropriate only “if the designated evidentiary matter

       shows that there is no genuine issue as to any material fact and that the moving

       party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). We

       review de novo whether the trial court properly granted summary judgment.

       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).




       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019           Page 5 of 17
[11]   Further, “Indiana’s distinctive summary judgment standard imposes a heavy

       factual burden on the movant to demonstrate the absence of any genuine issue

       of material fact on at least one element of the claim.” Siner v. Kindred Hosp. Ltd.

       P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016). Summary judgment is inappropriate

       if the movant fails to carry this burden. Manley v. Sherer, 992 N.E.2d 670, 673

       (Ind. 2013). If the movant succeeds, the burden shifts to the non-movant to

       designate contrary evidence demonstrating the existence of a genuine issue of

       material fact. Id. In reviewing the grant or denial of summary judgment, we

       look only to the designated evidence, T.R. 56(H), and construe all factual

       inferences in favor of the party who did not seek summary judgment. Manley,

       992 N.E.2d at 673. Where, however, the dispute is one of law rather than fact,

       we apply a de novo standard of review to the designated materials. Kesling v.

       Kesling, 83 N.E.3d 111, 116 (Ind. Ct. App. 2017).


[12]   “To prevail on a theory of negligence, a plaintiff must prove: (1) that the

       defendant owed plaintiff a duty; (2) that it breached the duty; and (3) that

       plaintiff’s injury was proximately caused by the breach.” Winfrey v. NLMP, Inc.,

       963 N.E.2d 609, 612 (Ind. Ct. App. 2012). Summary judgment is rarely

       appropriate in negligence cases. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.

       2004). “This is because negligence cases are particularly fact sensitive and are

       governed by a standard of the objective reasonable person – one best applied by

       a jury after hearing all of the evidence.” Id. “However, a defendant may obtain

       summary judgment in a negligence action when the undisputed facts negate at




       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019        Page 6 of 17
       least one element of the plaintiff’s claim.” Pelak v. Indiana Indus. Servs., Inc., 831

       N.E.2d 765, 769 (Ind. Ct. App. 2005), trans. denied.3


                              Duty Owed to Wilkes by Celadon
[13]   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;4 Celadon’s un-trained5 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.


[14]   Appellees deny that they owed Wilkes a duty of care and focus upon Wilkes’s

       duty of care for his own safety. They argue that the Federal Motor Carrier




       3
         Findings of fact and conclusions of law are not required to support a summary judgment order; however,
       such may aid our review by providing the reasons for the trial court’s decision. Kesling, 83 N.E.3d at 116.
       Here, the trial court adopted the proposed findings and conclusions of the Defendants. A continuing theme,
       renewed upon appeal, is that Wilkes failed to satisfy his burden of proof. According to Appellees, Wilkes
       lacks proof of specific acts of negligence, he failed to point to evidence that would be adequate to support a
       jury verdict, he failed to identify genuine issues of material fact, and cannot prevail at trial. However,
       summary judgment should not be used as an abbreviated trial, even where the proof is difficult, or the court
       may believe that the non-movant will be unsuccessful at trial. BGC Entertainment, Inc. v. Buchanan, 41 N.E.3d
       692, 697 (Ind. Ct. App. 2015). According to Appellees, “Wilkes claims he was entitled to a trial on his
       negligence claims.” Appellees Brief at 20. But this does not accurately reflect the issue before the trial court
       or this Court. Rather, the issue is whether Appellees were entitled to summary judgment and demonstrated
       their entitlement.

       4
        He testified in deposition that he first believed the cargo to be metal parts but was later advised by an
       attorney that it was heavy plastic trays.
       5
        Wilson testified in his deposition that he had “no formal training about distributing loads.” (App. Vol. IV,
       pg. 103.)

       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019                                   Page 7 of 17
       Safety Regulations (“FMCSRs”) applicable to motor carriers6 squarely impose a

       non-delegable duty of inspection upon Wilkes. They direct our attention to 49

       C.F.R. § 392.9(a), providing in relevant part:


               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 (1) the commercial motor
               vehicle’s cargo is properly distributed and adequately secured[.]


[15]   49 C.F.R. § 392.9(b)(1) requires that a driver “assure himself that the provisions

       of paragraph (a) have been complied with,” and 49 C.F.R. § 392.9(b)(2)-(3)

       require periodic cargo inspection. Nevertheless, subsection (b)(4) provides:


               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.


[16]   Appellees observe that these regulations impose no duty on shippers. They

       further observe that “regulations like the FMCSRs can establish the standard of

       care in state court proceedings.” Appellees Brief at 37.


[17]   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




       6
        A “motor carrier” is “a person providing motor vehicle transportation for compensation.” 49 U.S.C. §
       13102(14).

       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019                            Page 8 of 17
       Wilkes. Appellees support their contention that they had no duty to Wilkes

       with a multi-faceted argument: Wilkes had an opportunity to inspect before he

       drove away; he failed to fulfill his primary responsibility; and Wilkes produced

       a deficient summary judgment record. In particular, the Appellees claim that

       Wilkes’s designations in opposition to summary judgment were inadequate in

       that: “he designated no evidence that any Appellee assumed responsibility to

       secure Wilkes’s cargo, no evidence that the load had been defectively placed in

       the trailer; no evidence that an experienced truck driver like Wilkes would have

       failed to appreciate any alleged defect, no evidence that anyone assured Wilkes

       that the load had been properly secured for him, and no evidence that Wilkes

       did not have an opportunity to inspect the load (which he, in fact, did).”

       Appellees’ Brief at 25.


[18]   Looking to the designated record in a light most favorable to Wilkes, the non-

       movant, and bearing in mind that no duty of coming forward with additional

       designated evidence could rightly be imposed upon Wilkes unless and until

       Appellees satisfied their prima facie burden, Manley, 992 N.E.2d at 673, we

       must determine whether Appellees are entitled to judgment as a matter of law.

       Indiana’s Supreme Court has identified three factors frequently balanced in

       deciding whether a defendant owed a duty to a plaintiff to conform his conduct

       to a certain standard: (1) the relationship between the parties; (2) the reasonable

       foreseeability of harm to the person injured; and (3) public policy concerns. Doe

       #1 v. Ind. Dep’t of Child Serv., 81 N.E.3d 199, 206-7 (Ind. 2017). Whether a




       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019        Page 9 of 17
       defendant owes a duty of care to a plaintiff is a question for the court to decide.

       N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003).


[19]   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.


[20]   In the consolidated trial of ensuing lawsuits, the trial judge held that agents of

       the United States had been negligent in failing to fasten the cylinders securely

       and Savage had been negligent in accepting the cargo for transportation and

       operating the truck with knowledge of the unsafe condition. Id. at 444. The

       cross appeals raised the matter of “respective liabilities of the United States and

       of Savage for the damages occasioned by each to the property of the other,”

       which “turn[ed] on the rights and liabilities inherent in the carrier-shipper

       relationship between them in the interstate transaction upon which they were

       engaged.” Id. at 444-45.



       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019        Page 10 of 17
[21]   With reference to federal regulations, the Savage Court observed that common

       carriers are required to issue a bill of lading for property received for

       transportation in interstate commerce and are liable to the holder for damages

       to the property caused by the carrier and “[t]he exceptions to the rule of

       absolute liability are those which relate to losses arising from acts of God, acts

       of the public enemy, the inherent nature of the goods, and acts of the shipper.”

       Id. at 445. The Court acknowledged that a carrier has a common law duty to

       “see that the packing of goods received by it for transportation is such as to

       secure their safety,” and, moreover, federal regulations imposed upon motor

       carriers a duty of safe packing practices and securement and “no motor vehicle

       shall be drive[n] unless the driver shall have satisfied himself that all means of

       fastening the load are securely in place.” Id. The Court then enunciated what

       has become known as the Savage Rule:


               The primary duty as to the safe loading of property is therefore
               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.


       Id. The appellate court found evidentiary support for the trial court’s finding of

       negligence on the part of Savage, noting that agents of Savage had inspected the

       load, the driver concluded from his observation that the load was not properly

       fastened to the truck when he took charge of it, and he nevertheless drove as if

       conditions were normal, whereupon “the catastrophe ensued.” Id. at 446.

       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019          Page 11 of 17
[22]   The Savage rule arose from analysis of the FMCSRs, which supplement

       common law negligence principles. The common law Savage rule has been

       applied to govern rights and liabilities among carriers and shippers but is not

       applied to negate a defendant’s duty owed to innocent third parties. Bujnoch v.

       Nat. Oilwell Varco, L.P., 542 S.W.3d 2, 8 (Tex. Ct. App. 2017).


[23]   The Maine Supreme Court, in affirming a grant of summary judgment to the

       defendant upon an injured driver’s claim of negligence against a shipping

       company that loaded a semi-trailer, explained its rationale for adoption of the

       rule:


               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.


               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.



       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019         Page 12 of 17
               … 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.


       Decker v. New England Public Warehouse, Inc., 749 A.2d 762, 765-67 (Me. 2000)

       (citations omitted). Two factors have been considered in determining whether a

       defect in a load is latent or open and obvious: the experience of the carrier and

       the presence or absence of assurances by the shipper as to the security of the

       load. Vargo-Schaper v. Weyerhaeuser Co., 619 F.3d 845, 849 (8th Cir. 2010).


[24]   The Savage rule has been considered not inconsistent with a comparative fault

       scheme. See Spence v. ESAB Group, Inc., 623 F.3d 212, 220 (3rd Cir. 2010)

       (although Savage uses the terminology “primary” to refer to a carrier’s duty to

       secure cargo, this is not deemed an “exclusive” duty and “a shipper may have


       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019          Page 13 of 17
       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”). See

       also Franklin Stainless Steel Corp. v. Marlo Transp. Corp., 748 F.2d 865, 870-71 (4th

       Cir. 1984) (holding that contribution between a defendant carrier and a

       defendant shipper was appropriate and recognizing that Savage contemplated

       contribution). That said, fault cannot be compared unless both parties are at

       fault and proving fault starts with establishing a duty.


[25]   Our Indiana Supreme Court has not adopted the Savage rule7 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-




       7
        We observe that the Seventh Circuit cited with approval the Savage rule in a shipper-carrier liability case
       arising from events in Illinois. Armour Research Found of Ill. Inst. of Tech. v. Chicago, R.I. & P.R. Co., 297 F.2d
       176 (7th Cir. 1961).
       Here, the trial court relied upon an unpublished Indiana decision recognizing adoption of the rule in Indiana
       to determine that the rule has application to the facts of this case. However, Indiana Appellate Rule 65(D)
       provides that memorandum decisions do not have precedential value.

       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019                                     Page 14 of 17
       finder could reach only a single conclusion, that is, no latent defect (one not

       evident upon reasonable inspection) existed.


[26]   Celadon did not deny that its employee loaded a trailer with heavy, unsecured,

       stacked materials that were slick due to the presence of industrial lubricants. It

       neither confirmed nor denied that a tapering procedure had been utilized. The

       trailer was presented to Wilkes without either a specific warning or a specific

       representation of its safety. The door was open, and he was able to look inside.

       But a fact-finder might conclude that pulling apart the heavy stacks to

       determine their viscosity or an absence of proper tapering or restraints was

       impractical, as Wilkes claims. The opportunity for observation at the end of a

       trailer already completely stacked and overdue for delivery is not necessarily

       conducive to a full inspection and Wilkes may be found to have conducted

       what was a reasonable examination under the circumstances. For purposes of

       summary judgment, we accept Wilkes’s version of events. That is, although he

       was an experienced driver, Wilkes was not familiar with the type of freight he

       was about to haul; he was unaware of a persistent problem (that is, an OIC

       employee testified in deposition that the returnables fell out “half the time,”

       App. Vol. III, pg. 114), Wilkes’s employer, Knight, was contacted to assist

       Celadon with its delivery obligations as would sometimes happen when

       Celadon was overburdened; Knight then dispatched Wilkes to pick up freight

       when the remaining time for anticipated delivery was already short; Wilkes was

       not present at loading as he might have been had Knight employees loaded the

       trailer; and he was afforded a cursory visual inspection at the point of and


       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019        Page 15 of 17
       expected time of departure. We cannot say, as a matter of law, that this

       sequence of events facilitated the realistic opportunity for inspection

       contemplated by the FMCSRs or common law principles. We will not employ

       either regulations or common law to extinguish all duty on the part of Celadon,

       who summoned Knight to act in assisting Celadon with its duties as a carrier

       for Cummins, and who exclusively loaded the freight.


[27]   Finally, Appellees suggested that, even if a duty rested with one of them,

       Wilkes had to show how the cargo should have been handled under a standard

       of care in the industry, such as utilizing blocking and bracing. We acknowledge

       that, in Spence, a driver withstood a motion for summary judgment after

       offering testimony from an expert that the load should have been blocked and

       braced. This is not to say that a non-movant for summary judgment in Indiana

       is required to present such expert testimony at the summary judgment stage.

       Under Indiana’s “distinctive” summary judgment standard and the “heavy

       burden” imposed, Siner, 51 N.E.3d at 1187, Appellees did not show that they

       complied with the standard of care in the industry. Further, the Spence Court

       observed “a shipper may also owe a duty of care depending upon the role it

       assumes in connection with loading and securing its cargo.” 623 F.3d at 219.


[28]   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.



       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019        Page 16 of 17
                           Duty Owed by Cummins to Wilkes
[29]   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
[30]   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.


[31]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-2011 | April 12, 2019   Page 17 of 17
