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Summary judgment in favor of a shipper for third-party carrier tractor trailer driver's injuries vacated and remanded
Spence v. ESAB Group, Inc., 09-4363, concerned a challenge to the district court's grant of summary judgment in favor of the defendant, in an injured tractor trailer driver's suit against a shipper, claiming that an accident was the result of the shipper's failure to secure the cargo it loaded onto the trailer, which he claimed was a violation of its duty of care to him and the proximate cause of his injuries.
In vacating and remanding the district court's grant of the shipper's motion for summary judgment on plaintiff's general negligence and breach of an assumed duty claims, the court held that there was evidence that the shipper undertook not only to load that cargo, but also to supply securement devices and to express an assurance that this method of securing the load was adequate, and if a jury finds that the shipper participated in not only loading, but also securing its welding supplies, then the jury would have to determine whether the shipper exercised due care. However, the court affirmed the district court's entry of summary judgment in favor of the shipper on the negligent failure to warn and fraudulent/negligent misrepresentation claims.