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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEYS FOR APPELLANT: DAVID W. CRAIG SCOTT A. FAULTLESS Craig Kelley & Faultless Indianapolis, Indiana ATTORNEYS FOR APPELLEE: THOMAS C. HAYS LEWIS L. WOOTON Lewis Wagner, LLP Indianapolis, Indiana

FILED
Apr 30 2012, 9:33 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
NANCY REGULA, as Administrator of the Estate of Daniel G. Young, Deceased, Appellant-Plaintiff, vs. HPG CORPORATION, doing business as Cohen Brothers Metals Company and Integrity Metals, Appellee-Defendant. ) ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 89A01-1109-CT-402

APPEAL FROM THE WAYNE SUPERIOR COURT The Honorable Gregory A. Horn, Special Judge Cause No. 89D01-0803-CT-5 April 30, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Nancy Regula, as the administrator of Daniel G. Young's estate, appeals the grant of summary judgment in favor of HPG Corporation. We affirm. FACTS AND PROCEDURAL HISTORY On May 26, 2006, Young drove a semi-tractor and fifty-three foot cargo trailer to Integrity Metals, a company owned by HPG. Integrity employees loaded twenty-seven bales of scrap metal weighing a total of 39,177 pounds onto Young's trailer. Young was present during the time the trailer was loaded. Approximately ten miles from Integrity, Young crashed the semi-tractor and the trailer loaded with metal on a curve known as "Stant's Curve." Young died as a result of the accident. On March 11, 2008, Regula, as the administrator of Young's estate, filed an action against HPG alleging negligence. On May 16, HPG filed its answer to the complaint, and on August 27, 2009, HPG filed an amended answer. On August 16, 2010, HPG filed a motion for summary judgment, claiming it did not owe a duty to Young or, in the alternative, did not breach a duty to Young, and claiming no action it took was the proximate cause of Young's death. Regula filed her objection and brief in opposition to HPG's motion for summary judgment on April 27, 2011. The trial court held a hearing on June 1, and on August 8 it granted HPG's motion for summary judgment. DISCUSSION AND DECISION Summary judgment is appropriate 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 2

judgment as a matter of law." Indiana Trial Rule 56(C). The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Huntington v. Riggs, 862 N.E.2d 1263, 1266 (Ind. Ct. App. 2007), trans. denied. If the moving party meets these two requirements, the burden shifts to the non-movant to set forth specifically-designated facts demonstrating there is a genuine issue of material fact for trial. Id. "A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue." Id. "On appeal, we are bound by the same standard as the trial court, and we consider only those matters which were designated at the summary judgment stage." Id. We will liberally construe the non-movant's designated evidence to ensure he is not improperly denied his day in court. Ind. Dept. of Rev. v. Caylor-Nickel Clinic, 587 N.E.2d 1311, 1313 (Ind. 1992). In granting HPG's motion for summary judgment, the trial court relied in part on Standard Oil Co. v. Soderling, 112 Ind. App. 437, 42 N.E.2d 373 (1942), in which Soderling, the driver of the truck transporting the cargo, was injured when an employee of Standard Oil attempted to unload an air compressor. A jury awarded Soderling damages for his injuries, and Standard Oil appealed, arguing it owed no duty to Soderling to provide a person to help unload the air compressor, and thus the injury Soderling sustained was not the fault of Standard Oil. We held, based on long-standing precedent, Soderling had a duty to load and 3

unload the freight he was responsible for transporting, and thus he was not entitled to damages. Standard Oil Co., 112 Ind. App. at 446, 42 N.E.2d at 377. However, as the trial court in the instant case noted, the facts here differ from those of Standard Oil because Young was not injured in the process of loading or unloading the scrap metal, and no Indiana case addresses a similar fact pattern. Faced with an issue of first impression in Indiana, the trial court adopted the Savage Rule, which states: 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. U.S. v. Savage Truck Line, Inc., 209 F.2d 442, 445 (4th Cir. 1953). A latent defect is one not discoverable through reasonable inspection. Deckard v. Ratliff, 553 N.E.2d 523, 524 (Ind. Ct. App. 1990). The trial court found: Regula acknowledges in her Brief in Opposition that Integrity Metals only had a duty to remedy latent defects in the load Young was carrying. It is Regula's burden, then, to come forward with evidence of a latent loading defect. . . . However, no such evidence is produced. Regula contends that because Young had never been to Integrity Metals prior to the date of the tragic accident that Young was entitled to rely upon Integrity's representatives to load the trailer in a proper and safe manner for transit. The only evidence properly designated is that Young would look occasionally and observe the Trailer being loaded. If that is true, then Young would have observed that the bales of scrap metal were stacked on top of each other and were not bound together nor bound to their pallets. They were placed inside the Trailer in a manner that allowed free movement without any blocking or bracing. The "defect" if one exists, is open, obvious, and therefore, "patent" not "latent." 4

(App. at 19) (emphasis in original). Based on that finding, the trial court granted HPG's motion for summary judgment. Regula argues the trial court abused its discretion because whether the alleged loading defect was latent or patent was a question for the jury. 1 We disagree. The Maine Supreme Court, in interpreting the Savage rule, held: 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, such as NEPW, can force a driver to accept a load that the driver believes is unsafe. See 49 C.F.R.

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