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Vargo-Schaper v. Weyerhaeuser Co.

August 9, 2010

BETTY VARGO-SCHAPER, INDIVIDUALLY AND, AS TRUSTEE FOR THE HEIRS OF MITCHELL E. SCHAPER, DECEASED PLAINTIFF - APPELLANT,
v.
WEYERHAEUSER COMPANY, DEFENDANT AND THIRD PARTY PLAINTIFF - APPELLEE,
v.
FIL-MOR EXPRESS, INC., THIRD PARTY DEFENDANT.



Appeal from the United States District Court for the District of Minnesota.

The opinion of the court was delivered by: Bye, Circuit Judge.

Submitted: May 13, 2010

Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

Betty Vargo-Schaper appeals the district court's*fn1 grant of summary judgment in favor of Weyerhaeuser Company ("Weyerhaeuser"), on Vargo-Schaper's negligence claim. Vargo-Schaper contends there was sufficient evidence of negligence to submit the case to a jury. We affirm the district court's grant of summary judgment in favor of Weyerhaeuser.

I.

Mitchell Schaper was a truck driver for Fil-Mor Express, Inc. (Fil-Mor), a commercial carrier which provided services to Weyerhaeuser by transporting Weyerhaeuser's cardboard-boxes from its manufacturing facility in White Bear Lake, Minnesota. On February 22, 2007, Schaper arrived at Weyerhaeuser's facility to pick up a load of cardboard-box bundles. A cardboard-box bundle is a large square unit consisting of flattened cardboard-boxes for transportation purposes. Fifty-two total bundles were loaded onto Schaper's trailer.

Weyerhaeuser employees loaded the boxes onto Schaper's trailer, placing the bundles on pallets two high, two wide. The bundles of boxes were not secured to the pallets. Typically, after a Weyerhaeuser employee loads a trailer, a Fil-Mor employee, or "spotter," pulls the trailer away from the loading dock and inspects the load. After inspection, the Fil-Mor spotter closes the trailer doors. Richard Thompson, the spotter for Fil-Mor on duty on February 22, 2007, indicated while it was his job to check the load for stability, it was also the driver's responsibility to inspect the load.

Schaper then transported the load to All-Temp, a warehouse facility, located eleven miles from Weyerhaeuser's facility. Generally, drivers arriving at All-Temp back their trailers towards the loading dock, stopping to open the trailer doors approximately twenty feet from the unloading area. Todd Strandmark, a warehouse worker at All-Temp, had witnessed Schaper make deliveries to All-Temp for a number of years. On the day of the incident, Strandmark observed a bundle laying on the ground, approximately three to four feet from the doors of Schaper's trailer, after Schaper parked his truck to open the doors. This bundle, when loaded into the trailer, would have been approximately ten to eleven feet off the ground, contained six hundred boxes and weighed approximately 372 pounds. According to Strandmark, the bundle that fell was "actually a fairly flat sided bundle," and the bundles remaining in the trailer were "tight and uniform."

Initially, Strandmark believed Schaper left his truck to report the fallen bundle to All-Temp personnel. However, after failing to find Schaper inside All-Temp, Strandmark discovered Schaper unconscious in the cab of his truck. Schaper died on March 15, 2007, from the injuries sustained on February 22, 2007. Vargo-Schaper claims Schaper was struck by the falling bundle when he opened his trailer doors at All-Temp which lead ultimately to his death.

Ryan Steen, the site manager at the Weyerhaeuser facility, testified a crown can form at the top of the bundled cardboard-boxes after they are banded together. As a result, the banded bundle would not form an exact cube, and shifting or tipping could occur as a result in transit. Weyerhaeuser employees were instructed to load trucks to minimize the likelihood of shifting or tipping of the load. Steen looked at the bundle which fell after the accident and believed the bundle to be flat and stable. Gregory Klein, who worked on occasion as a spotter for Fil-Mor, testified he would inspect the load to ensure the right product was loaded and to see how it was organized. Although he would not physically shake the contents of the trailer, he indicated "you could see if things look stable" or if the load was too close to the door so as to be a safety concern.

Vargo-Schaper filed a lawsuit against Weyerhaeuser for negligence in the accident which lead to the death of her husband. Vargo-Schaper contended Schaper died because of Weyerhaeuser's negligent loading of the trailer which Schaper drove. Weyerhaeuser removed the case to federal court based on diversity of citizenship.

The district court granted summary judgment for Weyerhaeuser because VargoSchaper did not present evidence of a latent loading defect which would have made Weyerhaeuser liable for the death of Schaper and because the doctrine of res ipsa loquitur did not apply in this case. Vargo-Schaper appeals, contending the issue of whether there were loading defects is a question of fact for a jury to decide and the doctrine of res ipsa loquitur applies in this case.

II.

This court reviews the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. Lake v. Yellow Transp., Inc., 596 F.3d 871, 873 (8th Cir. 2010). Summary judgment is proper if the record shows "there is no genuine issue as to any material fact and that ...


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