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IN THE COURT OF APPEALS OF IOWA No. 1-549 / 10-1459 Filed December 21, 2011 KENNETH R. SMITH and SUE A. SMITH, Plaintiffs-Appellants, vs. HD SUPPLY WATER WORKS, INC., Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

Kenneth and Sue Smith appeal from the district court ruling granting summary judgment on their claim the defendant was negligent. AND REMANDED. REVERSED

Jerry L. Schnurr III and James E. Fitzgerald, Fort Dodge, for appellants. Jason C. Palmer and Thomas M. Boes of Bradshaw Law Firm, Des Moines, for appellee.

Considered by Eisenhauer, P.J., and Potterfield and Tabor, JJ.

2 TABOR, J. The question in this appeal is whether a half-century-old federal commonlaw rule assigning liability to carriers to secure their cargo before driving their tractor-trailers entitled HD Supply Waterworks Ltd.--whose employee loaded a large pipe onto Kenneth Smith's flatbed at its warehouse facility--to summary judgment in the negligence suit brought by the injured truck driver and his wife. Plaintiffs Kenneth and Sue Smith contend a material question of fact exists whether HD Supply owed him a duty of reasonable care and whether it breached that duty. They also contend the district court erred in declining to apply the doctrine of res ipsa loquitur. Because the rule established in United States v. Savage Truck Line, 209 F.2d 442 (4th Cir. 1953), runs counter to the modern tort principles adopted by our supreme court and the comparative fault provisions enacted by our legislature, we conclude the district court erred in its reliance on that precedent to find as a matter of law that HD Supply breached no duty of care. I. Background Facts and Proceedings. On November 28, 2007, truck driver Kenneth Smith delivered a load of fiberglass pipes to HD Supply's facility in Grimes, Iowa. The twenty-foot-long, 690-pound pipes came in bundles of nine and HD Supply had ordered eight pipes. HD Supply was the first of two stops Smith had scheduled for that day. When Smith arrived at HD Supply, one of its employees, Jeff Cotten, used a forklift to unload one of two bundles of pipes from Smith's truck. Cotten

stacked eight of the pipes in the storage yard and then placed a single pipe back on the flatbed trailer of Smith's truck. Cotten did not block or wedge the pipe into

3 position before delivering a bill of lading to Smith and heading into the HD Supply building. Smith recalled Cotten saying: "It's cold out here. I'm going inside." Smith began to strap down the single pipe left from the bundle of nine so he could continue to the second delivery location. He connected one end of the strap to the hooks on the trailer and threw three or four straps over the pipe to ratchet them down on the other side of the trailer. Smith then crawled

underneath the trailer to reach the other side instead of walking around the truck. While beneath the truck, Smith heard a noise. When he emerged on the other side of the truck, Smith saw the pipe rolling toward him. He tried to stop it with his arms, but it rolled off the bed and landed on his torso, pushing him to the ground and crushing his legs. Smith testified at a deposition that in his experience as a truck driver the forklift operator would make the load stable so that it did not roll and then his job was to strap it down "without worry of it coming off on me." In his deposition, Jeff Cotten testified that HD Supply had wedging blocks "lying around" the yard when the accident occurred. On November 26, 2008, Smith and his wife, Sue, filed a petition alleging HD Supply and others were negligent in failing to properly secure and stabilize the pipe and in failing to warn him it had not been secured or stabilized. Sue Smith claimed loss of consortium. They also claimed the theory of res ipsa loquitur applied to the accident. HD Supply denied the Smiths' claims and, on March 4, 2010, moved for summary judgment, alleging it did not owe Kenneth Smith a duty of care. On August 4, 2010, the district court entered summary judgment in favor of HD

4 Supply, dismissing the Smiths' claims. The court held HD Supply did not owe Smith a duty after placing the pipe onto the trailer because the defect in failing to wedge or chock the pipe was not latent or concealed, but could be readily observed by Smith. The court further rejected the Smiths' theory of res ipsa loquitur. The Smiths appeal, asking us to reverse and remand for a trial. II. Scope and Standard of Review. We review summary judgment

rulings for the correction of errors at law. Sweeney v. City of Bettendorf, 762 N.W.2d 873, 877 (Iowa 2009). Summary judgment is appropriate where there is no genuine issue of material fact in dispute. Id. If reasonable minds can differ on how a material factual issue should be resolved, summary judgment should not be granted. Id. We review the grant or denial of a motion for summary judgment in the light most favorable to the non-moving party, in this case the Smiths. See

Keokuk Junction Ry. Co. v. IES Indus., Inc., 618 N.W.2d 352, 355 (Iowa 2000). We also indulge every legitimate inference that the evidence will bear to determine whether a question of fact exists. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000). An inference is legitimate if it is "rational, reasonable, and otherwise permissible under the governing substantive law." McIlravy v. North River Ins. Co., 653 N.W.2d 323, 328 (Iowa 2002). An inference is not legitimate if it is based on speculation or conjecture. Id. If reasonable minds may differ on the resolution of an issue, a genuine issue of material fact exists. Id. III. Duty of Care and Breach. We first consider whether HD Supply owed Kenneth Smith a duty of care and whether that duty was breached.

5 Following the analysis in Savage Truck Line, 209 F.2d at 445, the district court found HD Supply could not be held liable for the unsecured pipe. In Savage Truck Line, the Fourth Circuit Court of Appeals considered whether a common motor carrier was required to indemnify the United States when agents of the United States loaded airplane engines encased in cylindrical containers onto the truck, but did not fasten them sufficiently. 209 F.2d at 443

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