Improper LoadingJanuary 1, 1900
Improper loading of a tractor-trailer can increase the likelihood that it will jackknife or overturn. Drivers must be certain that the load is adequately secured before beginning to drive and must inspect the cargo and the devices used to secure the cargo within the first fifty miles. The driver must reexamine the cargo after having driven for three hours or 150 miles (whichever comes first). 49 C.F.R. § 392.9(b)(1)–(3).
Oftentimes the shipper is responsible for loading the truck. In such a situation, the plaintiff’s attorney should investigate the possibility of a claim against both the motor carrier and the shipper.
When the shipper becomes involved in the loading process, it risks liability for its negligence in either providing improper instructions to the carrier on the proper way to secure the load, by loading the cargo itself in a haphazard manner, by taking on the responsibility of securing the load itself and then when questioned by an inexperienced truck driver as to its propriety giving assurances that it was done correctly, by negligently securing the load, or by having loaded the truck itself in such a manner that the defects in its loading are latent and not obvious to the carrier upon a reasonable inspection.
2 Nissenberg, The Law of Commercial Trucking, at 571.
If an accident was caused by shifting or falling cargo, you and your experts should check the FMCSR for the “general” cargo securement requirements, 49 C.F.R. § 393 subpt. I, as well as the specific regulations for the particular cargo on board. These regulations go into excruciating detail on the proper methods for loading and securing particular items:
Logs. 49 C.F.R. § 393.116.
Lumber. 49 C.F.R. § 393.118.
Metal Coils. 49 C.F.R. § 393.120.
Paper Rolls. 49 C.F.R. § 393.122.
Concrete Pipe. 49 C.F.R. § 393.124.
Intermodal Containers. 49 C.F.R. § 393.126.
Automobiles, Light Trucks and Vans. 49 C.F.R. § 393.128.
Heavy Vehicles, Equipment, and Machinery. 49 C.F.R. § 393.130.
Flattened or Crushed Vehicles. 49 C.F.R. § 393.132.
Large Boulders. 49 C.F.R. § 393.136.
“Liability for negligent driving and the improper maintenance of trucks, trailers and other equipment [falls] squarely on the shoulders of truck owners and drivers. But, when a defect in the vehicle or in a component part thereof causes an accident, liability under [strict products liability law] is that of the manufacturer, seller, or other person in the distributive chain responsible for placing the product in the stream of commerce.” 2 Nissenberg, The Law of Commercial Trucking, at 587.
Massachusetts does not recognize strict liability in a products case. The plaintiff must allege breach of warranty under Section 2-318 of the Uniform Commercial Code. However, the courts have held that breach of warranty should be as fully comprehensive as the strict liability theory. See Mason v. Gen. Motors Corp., 397 Mass. 183, 189 (1986).
In every serious truck accident case, you and your experts need to determine if the case may involve a products liability claim. In a trucking case in Massachusetts, a product liability claim can involve negligent design, negligent manufacture, negligent inspection, negligent testing, negligent failure to warn, and/or breach of warranty claims. In most other jurisdictions, products liability claims are strict liability claims.
If your case involves a defective tire, your expert should carefully review the driver’s daily inspection reports to determine if there is any evidence of any tire defects or any reports of underinflated tires. A tire manufacturer has a duty to warn about the dangers of operating vehicles on underinflated tires. See Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 349 (1978).
A manufacturer has a duty to warn about the dangers of operating vehicles on underinflated tires, mixing radial and non radial tires, mixing different size components of a multi-piece truck rim, and putting old tubes in new truck tires. A claim that the accident was caused by a defective bead of a tire, causing it to deflate, can be sustained where there is evidence that a less dangerous design existed, but not where there was no evidence that any defect existed or was present at the time the vehicle left defendant’s control. A claim that tires were inadequate for a truck was not sustained where the plaintiff’s expert testified that he would have installed heavier tires to reduce the possibility of sliding on a slippery road, but the accident probably would have occurred even if the truck had been provided with one of the defendant’s heavier tires.
Mottla’s Proof of Cases in Massachusetts § 32:150 (Thomson/West 3d ed. 2009).