                                                                               FILED
                                                                          May 14 2018, 9:21 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
ESTATE OF STAGGS AND                                      Scott B. Cockrum
MACKENZIE TAYLOR                                          Hinshaw & Culbertson LLP
J. Kevin King                                             Schererville, Indiana
Cline, King & King, P.C.
Columbus, Indiana
William R. Ogden
Farrar & Ball, LLP
Houston, Texas
ATTORNEY FOR APPELLANTS JENNIFER
DAUGHERTY AND
ESTATE OF DAUGHERTY
William H. Mullis
William H. Mullis, P.C.
Mitchell, Indiana
ATTORNEYS FOR APPELLANT
ESTATE OF STEELE
Matthew J. Schad
George A. Budd, V
Schad & Schad, P.C.
New Albany, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018                    Page 1 of 14
      Estate of Zachary D. Staggs by                            May 14, 2018
      and through his Personal Rep.,                            Court of Appeals Case No.
      Denise Coulter, and Mackenzie                             64A03-1708-CT-1961
      Taylor, by and through her                                Appeal from the Porter Superior
      Parent and Guardian, Denise                               Court
      Coulter;                                                  The Honorable Roger V. Bradford,
      Jennifer L. Daugherty,                                    Judge
      Individually and as Personal                              Trial Court Cause No.
      Representative of the Estate of                           64D01-1108-CT-7592
      Michael G. Daugherty,
      Deceased; and
      Dennis Byrd, as Special
      Administrator of the Estate of
      Shannon R. Steele,
      Appellants-Plaintiffs,

              v.

      ADS Logistics Co., LLC,
      Appellee-Defendant



      Baker, Judge.


[1]   In January 2010, a large steel coil that was secured to a flatbed tractor-trailer

      became unsecured and struck other motorists traveling on State Road 37. The

      accident resulted in serious injuries and multiple deaths.


[2]   Following the accident, the following parties filed complaints that were

      ultimately consolidated: (1) the Estate of Zachary D. Staggs by and through his

      personal representative, Denise Coulter (“Staggs”); (2) Mackenzie Taylor, by

      and through her parent and guardian, Denise Coulter (“Taylor”); (3) Jennifer L.

      Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018               Page 2 of 14
      Daugherty, individually and as personal representative of the estate of Michael

      G. Daugherty (“Daugherty”); and (4) Dennis Byrd, as special administrator of

      the estate of Shannon R. Steele (“Steele”) (collectively, the Appellants).


[3]   One of the named defendants was ADS Logistics Co., LLC (ADS), which had

      warehoused the steel coil. ADS moved for summary judgment, and the trial

      court granted its motion, finding as a matter of law that ADS had no duty to the

      Appellants. The Appellants appeal, arguing that summary judgment was

      improperly granted. Finding no error, we affirm.


                                                      Facts
[4]   ADS is, in part, a warehouse facility. ADS has a long-standing contractual

      relationship with ArcelorMittal USA, LLC (“Mittal”), pursuant to which ADS

      warehouses products for Mittal. Relevant to this case is ADS’s agreement to

      warehouse a large steel coil weighing just under 40,000 pounds for Mittal.


[5]   Mittal agreed to sell or ship the coil to Ohio River Metal Services, Inc., doing

      business as Eagle Steel Products, Inc. (“Eagle Steel”). Eagle Steel then hired

      Kendall Transportation to haul the steel coil from ADS to Eagle Steel. Israel

      Rankin operated a tractor-trailer that he owned under the motor carrier

      authority of Kendall Transportation.


[6]   On January 11, 2010, Kendall Transportation dispatched Rankin to haul the

      steel coil from ADS to Eagle Steel. Eagle Steel paid Kendall Transportation for

      this work, and, in turn, Kendall Transportation paid Rankin a percentage of the

      load plus a fuel surcharge. Kendall Transportation’s dispatcher and Rankin
      Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018   Page 3 of 14
      controlled the means and methods of delivering a load to a customer. Rankin

      had been trained how to secure a steel coil through previous employment and

      through his work at Kendall Transportation. He provided his own equipment

      to secure the coil to his vehicle.


[7]   At the ADS warehouse, an ADS crane operator placed the steel coil onto

      Rankin’s flatbed trailer. ADS corporate representative Matt Brinkley attested

      that, as would normally occur, the crane operator followed Rankin’s

      instructions on where and how to place the steel coil on the flatbed. Rankin

      attested that he stood on top of his trailer and directed the crane operator where

      to place the steel coil. Brinkley also attested that the crane operator would not

      have loaded a coil onto a flatbed in a position that was obviously and

      apparently unsafe.


[8]   After the crane operator moved the steel coil onto the flatbed, Rankin secured

      the steel coil to the trailer. Brinkley, Kendall Transportation, Rankin, and

      Kendall Transportation’s safety consultant agree that it is the driver’s

      responsibility to secure the load onto the driver’s vehicle.


[9]   Rankin performed a mental calculation to determine how to secure the coil.

      Specifically, he would take the total weight of the coil and divide it in half to

      determine the amount he had to account for. In this case, he calculated he had

      to secure approximately 21,000 pounds; therefore, he used 3 chains, which he

      mistakenly believed would equal a working load limit of 30,000 pounds. He

      erroneously thought that each chain had a working load limit of 10,000 pounds,


      Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018    Page 4 of 14
       but in fact, each chain had a working load limit of 6,600 pounds. Moreover,

       Rankin used 3 binders to secure the coil, but each binder had a working load

       limit of only 5,400 pounds, meaning that the total working load limit for the

       binders was 16,200 pounds—well below the 21,000 pounds required for the

       subject coil.


[10]   After securing the steel coil to his flatbed trailer, Rankin began the drive to

       Eagle Steel. He made one stop to eat lunch. After lunch, he checked the load

       to ensure that it was still secured and then continued on his way. In Mitchell, a

       car pulled out in front of him and Rankin was forced to brake a little harder

       than normal (the “hard braking incident”). He did not stop to check his load

       after the hard braking incident even though he had observed that the incident

       “jarred his truck,” that he “felt something in the truck,” and afterwards, that the

       load “felt funny.” Appellants’ App. Vol. III p. 72, 74.


[11]   A few miles down the road from the hard braking incident, while traveling on

       State Road 37 in Orange County, the steel coil became unsecured. At that

       time, Taylor, Staggs, and Steele were traveling in Staggs’s pickup truck, and

       Daugherty was traveling in a different vehicle, near Rankin’s tractor-trailer.

       When the coil became unsecured, it left Rankin’s tractor-trailer and crashed

       into the pickup truck and Daugherty’s vehicle, killing Staggs, Steele, and

       Daugherty and seriously injuring Taylor.




       Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018    Page 5 of 14
[12]   In January 2012, Daugherty, Steele, Staggs, and Taylor filed lawsuits stemming

       from the accident against multiple defendants, including ADS. 1 These lawsuits

       were later consolidated. On December 16, 2016, ADS filed a motion for

       summary judgment. Following briefing and a hearing, on July 27, 2017, the

       trial court granted summary judgment in favor of ADS, finding as a matter of

       law that ADS had no duty to the plaintiffs “regarding securing the load to the

       tractor trailer that was involved in this incident.” Appealed Order p. 1. The

       Appellants now appeal.


                                     Discussion and Decision
                                       I. Standard of Review
[13]   Our standard of review on summary judgment is well settled:


               The party moving for summary judgment has the burden of
               making a prima facie showing that there is no genuine issue of
               material fact and that the moving party is entitled to judgment as
               a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
               Once these two requirements are met by the moving party, the
               burden then shifts to the non-moving party to show the existence
               of a genuine issue by setting forth specifically designated
               facts. Id. Any doubt as to any facts or inferences to be drawn
               therefrom must be resolved in favor of the non-moving
               party. Id. Summary judgment should be granted only if the
               evidence sanctioned by Indiana Trial Rule 56(C) shows there is
               no genuine issue of material fact and that the moving party



       1
         Also named as defendants in each of the complaints were Rankin, Kendall Transportation, and Reitnouer,
       Inc., the designer and manufacturer of the flatbed trailer. It appears from the Chronological Case Summary
       that litigation related to these defendants is still ongoing.

       Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018                        Page 6 of 14
               deserves judgment as a matter of law. Freidline v. Shelby Ins.
               Co., 774 N.E.2d 37, 39 (Ind. 2002).


       Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).


[14]   To prevail on a claim of negligence, a plaintiff must show (1) a duty owed by

       the defendant to the plaintiff; (2) a breach of that duty; and (3) compensable

       injury proximately caused by that breach. Id. Absent a duty, there can be no

       negligence or liability based upon the breach, and whether a duty exists is a

       question of law for the court to decide. Id. at 386-87.


                                                   II. Duty
[15]   The Appellants argue that the trial court erred by finding as a matter of law that

       ADS bore no relevant duty to them. Specifically, they argue that ADS assumed

       a duty by virtue of its contract with Mittal, that ADS had a duty under common

       law, and, alternatively, that there are issues of fact that must be resolved to

       determine whether common law imposes a relevant duty on ADS.


                                                A. Contract
[16]   A duty of care may arise where one party assumes a duty. Yost v. Wabash

       College, 3 N.E.3d 509, 517 (Ind. 2014). One way in which a party may assume

       a duty is by contract. Therefore, if a contract “affirmatively evinces intent to

       assume a duty of care, actionable negligence may be predicated upon the

       contractual duty.” Stumpf v. Hagerman Constr. Corp., 863 N.E.2d 871, 876 (Ind.




       Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018    Page 7 of 14
       Ct. App. 2007). A duty imposed by contract, once formed, is non-delegable.

       Ryan v. TCI Architects/Eng’rs/Contractors, Inc., 72 N.E.3d 908, 914 (Ind. 2017).


[17]   Here, the Appellants argue that the contract between ADS and Mittal (the

       entity that paid ADS to warehouse the steel coil) imposes a duty owed by ADS

       to the Appellants. Initially, we note that the contract states that it is “the entire

       agreement of the parties with respect to the subject matter hereof” and that it

       may not be modified except in writing. Appellants’ App. Vol. IV p. 65.

       Furthermore, it explicitly provides that


               [n]othing in this . . . Contract is intended to confer any rights or
               remedies upon any persons other than Mittal and [ADS] and
               their respective successors and permitted assigns . . . nor shall
               any provision of this . . . Contract give any third person any . . .
               claim or cause of action against any party.


       Id. at 66. From the outset, therefore, it is readily apparent that this contract was

       not intended to bestow any rights upon any third parties or, concomitantly,

       create any duty owed by ADS to any third parties.


[18]   The Appellants direct our attention to the following sections of the contract in

       support of their argument that ADS assumed a duty:


               (a)      Mittal is committed to safety, health and protection of the
                        environment. In particular, safety of its personnel, and
                        those of its suppliers, contractors, and visitors to Mittal’s
                        Premises is a priority for Mittal. No other priority may
                        override safety. [ADS] fully endorses these policies and
                        adopts them as its own, in so far as they relate to the
                        performance of its obligations under this . . . Contract. [ADS]

       Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018            Page 8 of 14
                        shall have and shall enforce and strictly comply with a
                        strong internal safety policy that includes all current
                        industry standards and any other applicable safety codes or
                        procedures. . . .

                                                        ***

               (c)      While on Mittal’s Premises, [ADS] shall comply with any
                        safety, health, and environmental measures implemented
                        by Mittal from time to time in respect of its property and
                        personnel, including those of contractors, suppliers and
                        other persons visiting or working on the Mittal’s Premises.

               (d)      [ADS] shall notify Mittal immediately of any safety, health
                        or environmental issues . . . which may arise in connection
                        with the performance of its obligations under this . . . Contract.


       Id. at 66 (emphases added). Subsections (a) and (d) are limited to ADS’s

       performance of its obligations under the contract, which, again, was simply for

       the warehousing of the coil. ADS’s contract with Mittal did not relate to the

       transportation of the coil off of ADS’s property. And subsection (c) is limited to

       Mittal’s premises, which is not relevant to the case at hand. No contractual

       language requires or implies that ADS assumed a duty to secure the

       warehoused coil onto another driver’s trailer. Therefore, we simply cannot

       conclude that this contract created a duty owed by ADS to the Appellants with

       respect to the way in which the steel coil was secured to Rankin’s flatbed trailer.


[19]   The Appellants direct our attention to the portion of subsection (a) requiring

       ADS to have, enforce, and comply with a strong internal safety policy. Indeed,

       ADS has a policy that requires all ADS drivers to comply with specific cargo

       securement and protection procedures. Appellants’ App. Vol. VI p. 101-07.
       Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018          Page 9 of 14
       That policy, however, is not relevant to the case at hand, as Rankin was not an

       ADS driver and ADS’s only role in the process was to ensure that its crane

       operator followed Rankin’s instructions regarding the loading of the coil onto

       the flatbed trailer. After the loading was complete, so was ADS’s involvement.

       We do not find that this policy created a duty owed by ADS to the Appellants

       regarding the way in which the coil was secured to the flatbed by Rankin. The

       trial court did not err by finding as a matter of law that neither the contract nor

       ADS’s driver policy created a duty owed by ADS to the Appellants.


                                           B. Common Law
[20]   The Appellants also argue that even if there was no contractual duty, a duty is

       imposed on ADS by common law. Whether a duty exists depends upon

       balancing the following factors: (1) the relationship between the parties; (2) the

       reasonable foreseeability of harm to the person(s) injured; and (3) public policy

       concerns. Goodwin, 62 N.E.3d at 387.


                                             1. Relationship
[21]   As for the relationship between ADS and the Appellants, there is none. ADS’s

       only involvement was to warehouse the steel coil and then load it onto

       Rankin’s flatbed per Rankin’s instructions. ADS also had no contractual

       relationship with Rankin, Kendall Transportation, or Eagle Steel, nor did it

       have any right of control over Rankin’s acts, including the securing of the coil

       onto the flatbed. The accident did not occur on ADS’s property, it did not

       involve ADS’s employees or vehicles, and it did not involve anyone with whom

       Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018   Page 10 of 14
       ADS has a contractual relationship. See Williams v. Cingular Wireless, 809

       N.E.2d 473, 476 (Ind. Ct. App. 2004) (wireless company did not owe a duty to

       person injured by a driver using a cell phone while driving because company

       had no contractual relationship with the plaintiff, accident did not occur on

       company’s property or involve its employee or vehicle, and product did not

       malfunction and cause the injury). This factor weighs against finding a duty.


                                            2. Foreseeability
[22]   Turning next to the foreseeability of harm to the Appellants, our Supreme

       Court clarified in Goodwin how this factor should be analyzed:


               “the foreseeability component of proximate cause requires an
               evaluation of the facts of the actual occurrence, while the
               foreseeability component of duty requires a more general analysis
               of the broad type of plaintiff and harm involved, without regard
               to the facts of the actual occurrence.”


       Goodwin, 62 N.E.3d at 389 (quoting Goldsberry v. Grubbs, 672 N.E.2d 475, 479

       (Ind. Ct. App. 1996)). Put another way, we must “‘evaluate more generally

       whether the category of negligent conduct at issue is sufficiently likely to result

       in the kind of harm experienced that liability may appropriately be imposed on

       the negligent party.’” Goodwin, 62 N.E.3d at 391 (quoting Strahin v. Cleavenger,

       603 S.E.2d 197, 207 (W.Va. 2004)).


[23]   Per our Supreme Court’s instructions, as we consider whether the harm suffered

       by the Appellants was reasonably foreseeable to ADS, we must ask the broad

       questions of what type of plaintiffs are the Appellants and what type of harm

       Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018   Page 11 of 14
       occurred. The plaintiffs are motorists and the type of harm that occurred is a

       vehicular accident after commercial cargo became unsecured and struck the

       motorists.


[24]   As a general matter, of course it is foreseeable that large and heavy cargo,

       which is secured to a flatbed trailer, could become unsecured on a public

       roadway and cause injuries to nearby motorists. But the broad type of

       defendant here—a warehousing entity—would have no reason to foresee that

       its own conduct, in warehousing the cargo or in loading the cargo onto another

       entity’s vehicle, at the instruction of the other entity’s driver, would result in

       harm to motorists. Put another way, an entity that has no role whatsoever in

       securing the cargo to the flatbed could not foresee that its own actions would

       result in that cargo becoming unsecured. This factor weighs against a finding of

       duty.


                                             3. Public Policy
[25]   Finally, we must consider public policy. This factor focuses on “who is, or

       should be, in the best position to prevent [an] injury and how society should

       allocate the costs of such injury.” Cox v. Stoughton Trailers, Inc., 837 N.E.2d

       1075, 1080 (Ind. Ct. App. 2005).


[26]   In this case, Rankin was in possession and control of his flatbed trailer. Rankin

       told the ADS crane operator how to load the steel coil onto the flatbed trailer,

       and after that point in time, ADS had no more involvement with the coil.

       Rankin was solely responsible for securing the steel coil to his vehicle. He

       Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018    Page 12 of 14
       provided his own equipment, including chains and binders, to do so. Rankin

       then hauled the cargo and was responsible for ensuring that it remained secured

       throughout the drive. After the hard braking incident, Rankin was the only

       person able to decide whether to stop and ensure the coil was still fully secured.


[27]   It is apparent that the party best suited to prevent an injury to motorists with

       respect to commercial cargo secured to a flatbed trailer is the entity responsible

       for securing, hauling, and checking on the cargo during the drive. Here, that is

       Rankin and his employer, Kendall Transportation.2 ADS had such a limited

       role in these proceedings that it would have had little to no ability to prevent the

       tragic accident that occurred.


[28]   Therefore, we find that there is no common law duty owed by ADS to the

       Appellants. Moreover, we disagree with the Appellants that there are issues of

       fact with respect to duty that must be determined by a factfinder.


[29]   Under these circumstances, the trial court did not err by finding as a matter of

       law that ADS did not owe a duty to the Appellants. Therefore, summary

       judgment was properly granted in favor of ADS.




       2
         This statement in no way implies a conclusion regarding the liability of either Rankin or Kendall
       Transportation. Instead, we merely conclude that as a matter of public policy, they, rather than ADS, were
       in the best position to prevent the ultimate harm.

       Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018                        Page 13 of 14
[30]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 64A03-1708-CT-1961 | May 14, 2018   Page 14 of 14
