California Court of Appeals, Fourth District, Second Division
[CERTIFIED FOR PARTIAL PUBLICATION][*]
APPEAL from the Superior Court of San Bernardino County No. SCVSS131877 John M. Pacheco, Judge. Affirmed.
Law Offices of Fletcher, White & Adair and Paul S. White for Cross-complainant and Appellant.
Snyder Law, Barry Clifford Snyder and Adrian T. Lambie for Cross-defendant and Respondent.
This action arises from a propane tank falling on a truck driver, Steven K. King (King), while an AmeriGas Propane, L.P. (AmeriGas) employee, David Jones (Jones), was unloading empty propane tanks from King’s flatbed trailer at an AmeriGas facility. Landstar Ranger, Inc. (Landstar), a motor carrier, had hired King and his company, King Transportation, LLC, to transport the load of propane tanks. King and his wife, Grace King, (the Kings) brought a personal injury action against shipper, AmeriGas, and carrier, Landstar, for damages for injuries arising from a propane tank falling on King. AmeriGas settled with the Kings and cross-complained against Landstar for equitable indemnification and contribution. Following a bench trial on AmeriGas’s cross-complaint, the trial court found Landstar not liable for equitable indemnification. The court concluded AmeriGas did not sustain any recoverable loss or damages and Landstar was not liable for violating any Federal Motor Carrier Safety Regulations (FMCSRs).
AmeriGas appeals from the judgment entered in favor of cross-defendant Landstar, following a bench trial on AmeriGas’s cross-complaint for equitable indemnity. AmeriGas contends the trial court erred in finding Landstar did not owe a legal duty to King and did not suffer a recoverable loss. AmeriGas asserts that the trial court considered affirmative defenses which the trial court had previously stricken from Landstar’s answer to AmeriGas’s cross-complaint, and erred in not issuing a tentative decision before requesting proposed statements of decision and in failing to rule on material issues raised by AmeriGas’s cross-complaint. AmeriGas further argues the trial court’s alternative findings of nonliability are incomplete, ambiguous, and not supported by substantial evidence.
We conclude substantial evidence supports the trial court’s judgment in favor of Landstar, on AmeriGas’s indemnity cross-complaint. There was
ample evidence supporting the court’s findings that King was a highly experienced truck driver, qualified to transport AmeriGas’s propane tanks. Therefore Landstar was not negligent based on violations of the FMCSRs requiring carriers to ensure their drivers are adequately trained and/or experienced in securing their loads, and adhere to proper securement methods and procedures. Even if Landstar violated the FMCSRs, any such violations did not proximately cause or contribute to King’s injuries because the load of propane tanks was secure and stable during transit and upon arrival at AmeriGas’s Fontana yard. We also reject AmeriGas’s objections relating to the trial court’s statement of decision. Any procedural errors were harmless, and the statement of decision was sufficiently thorough and clear in addressing the material disputed issues in this case. The judgment is affirmed.
The following summary of facts is taken from King’s videotaped deposition testimony, which was introduced as evidence at trial, and from trial testimony.
King began driving farm agricultural harvest vehicles on his family’s farm in Idaho when he was 11 or 12 years old. He drove a two-ton farm vehicle, which was the equivalent of a “ten wheel or tandem drive straight truck, ” used to haul bulk potatoes from the field to storage on the farm or to a local warehouse. By age 16, he was operating harvesting equipment. He also continued driving trucks and loading, unloading, and stacking loads. He loaded and tied down stacks of bales of alfalfa and straw onto a flatbed truck. He learned how to tie down loads from older workers. He worked 14 to 16 hours a day, seven days a week on the farm, driving farm vehicles, loading and tying down product onto trucks.
King continued to drive a truck for his father and neighbors until he and his wife began operating a farm in 1971. He operated his farm for 20 years. During that time he did a lot of truck driving. He drove “ten wheel straight trucks, ” which had a long flatbed trailer. He hauled produce and was responsible for securing loads on the flatbed trailer. During 20 years of operating his farm, he hauled thousands of loads tied down on a flatbed trailer, including farm equipment, such as tractors.
Because of the downturn in the economy, in 1992, King obtained a commercial driver’s license to drive trucks on state roads, in order to supplement his farming income. Before that, he drove a semi-tractor/trailer locally for a neighbor, Nathan Good. In order to get his commercial license,
King had to take a written test and driver’s test using a truck. The written test included questions on loading flatbeds, tank loads, and bulk loads.
After King got his license, King hauled loads primarily on a flatbed trailer. His loads included bulk commodities, farm equipment, such as tractors, disks, cultivating equipment, pipes, such as irrigation pipe and aluminum delivery pipe, farming sprinklers, and other items, which included items that would roll. He had hauled diesel tanks, which were primarily secured with chains. The tanks were four feet in diameter and 15 feet long. They were cylindrical and would roll if not tied down. He did not stack the tanks because stacking was not necessary since there was enough room on the flatbed trailer to lay the tanks side by side in a single layer.
About 1994, King bought a tractor and trailer. King also continued using Good’s flatbed trailer. King hauled just about anything that could be hauled on a trailer, including oversized loads, hazardous loads, vehicles, farm equipment, and fuel and diesel tanks. King stated that there was no way someone could go to school and learn to tie down everything he had hauled because each day he hauled something different, in every shape and size. When he worked for Landstar, he primarily used a 48-foot step deck, which is “a flatbed trailer with a lower portion on the back three-fourths.” Many of his loads were over eight feet high. When King was working as an independent contractor for Landstar, he hauled Amtrak loads of railroad axle wheel sets.
With regard to the accident, King testified he had previously hauled the type of large tanks involved in the subject accident but had not hauled as many at once in the configuration of his load hauled at the time of the accident. With regard to the load involved in the accident, AmeriGas’s employees had loaded the tanks on his truck. King put the dunnage between the tanks and tied down the tanks with straps. The tanks were empty 280-gallon tanks, weighing seven to eight hundred pounds apiece. The only way to handle the tanks was with a boom truck. Placement of the dunnage for loading was “not rocket science, ” in King’s estimation. Loading the propane tanks was very similar to loading many other things King had transported.
King worked as a commercial truck driver up until the subject accident. King had never been in an accident while driving a truck and did not recall any part of his loads falling off his trailer during transport. King never
received any citations or tickets for not properly securing his loads, although on one occasion, while driving for Landstar, he received a warning for hauling a load of giant augers, in which one of the augers was half an inch over the edge of the trailer.
After talking to the owner of Landstar, Bill Denton, and his wife, Charmaine Denton, King submitted an application to work for Landstar as a truck owner-operator. At the time, King and his wife were members of a limited liability company, King Transportation LLC, and owned two tractors. One of the tractors he leased to Landstar, which was a condition of working for Landstar. King also took a written test of his knowledge and ability to secure and tie down loads. The purpose of the test was to determine if an independent contractor or owner-operator applicant had sufficient knowledge of load securement and tie down procedures. If an applicant did not have sufficient knowledge, the applicant was required to take a tie down class taught by Landstar. King passed the test and therefore did not have to take the class. King also took and passed tests for a HAZMAT endorsement to transport hazardous materials, and for endorsements to transport tanks. King signed an owner-operator agreement finalizing the relationship between King Transportation LLC and Landstar. King participated in a two-day orientation for Landstar drivers.
When King arrived at AmeriGas’s Northern California yard in Camino, AmeriGas employees loaded 30 propane tanks on King’s flatbed trailer using a boom. The tanks had four attached feet and were placed in two layers. The feet of the bottom layer of tanks rested on the trailer deck. The feet of the second layer of tanks rested on the dunnage laid across the top of the bottom tank layer. The tanks could not roll because they were sitting on their feet. Additional dunnage extending beyond the feet of the upper layer of tanks would not have made the tanks any more stable or made any difference in securing the tanks because the tanks were resting on their feet. The two layers of tanks each had five rows of three tanks across. King secured the tanks by placing nylon straps over each section of tanks, with two straps over the bottom layer and two straps over the top layer. The AmeriGas foreman or yard manager, Chuck Vanderhoef, observed King secure the load and signed the bill of lading, indicating he was satisfied with the load. King believed the tanks were loaded properly, were transported securely, and were intact upon arrival at the Fontana yard. Upon arrival, the tanks remained tightly secured, in their originally loaded position.
King transported the load to Fontana, arriving the following morning on April 14, 2005. A boom truck was not available to off-load the tanks. It was at another location 30 to 40 minutes from the Fontana yard. King asked AmeriGas employee, David Jones, how he intended to unload the tanks.
Instead of retrieving the boom, Jones used a Spyder forklift, which Jones said was not normally used to unload tanks. Jones said he did not know how it would work but would try using it. It was not King’s responsibility to unload the tanks. King told Jones to do whatever he had to do to unload AmeriGas’s tanks, because King wanted to leave.
When Jones began unloading the tanks, King had completed transporting the tanks to AmeriGas’s Fontana facility. King removed one of the two straps for each of the five sections, leaving one strap on each section. King intended not to release the second straps until the particular section was being unloaded. When King suggested this, Jones told him, “‘No. Take them all off or we won’t start unloading because we’re going to unload layers.’” Jones was going to unload the entire top layer first. King did as he was told and removed all of the straps, since Jones was in charge and King was unable to unload the tanks himself.
After King removed all of the straps, King stood next to the front, left side of the trailer. Jones was on the same side, next to the left, rear corner of the trailer, operating the lift machine which was being used to lift and remove the tanks. King saw the machine abruptly lift up the left rear end of his flatbed trailer six to eight inches. This shook the trailer. The operator readjusted the machine and reapproached the trailer and repeated contact with the trailer. King did not remember anything after that.
King testified that the load was his responsibility while transporting it on the road and AmeriGas’s responsibility after the load entered AmeriGas’s yard and King set the brake on his truck. It was King’s responsibility to remove the straps securing the tanks when safe to do so. The receiver of the load was responsible for safely off-loading the transported product because the receiver had the necessary equipment for off-loading. King believed he had sufficient knowledge and experience to load, secure, and unload the propane tanks properly. Jones did not properly off-load the tanks. He should have used a boom truck instead of a Spyder forklift. Off-loading was not King’s responsibility.
King believed he followed all applicable FMCSRs when he was at the AmeriGas yard in Northern California, and was not aware of any FMCSRs applicable to unloading cargo. The FMCSRs did not apply when he was no longer on a public throughway and was on private property.
During the trial, Charles Vanderhoef, operation plant supervisor at the Camino AmeriGas facility, testified an AmeriGas worker loaded the propane tanks onto King’s flatbed truck with a boom truck. The truck driver, King, was responsible for securing the load and therefore strapped the tanks down. King
used his own dunnage, instead of AmeriGas’s dunnage. King told Vanderhoef he had never hauled the propane tanks before. King said he had normally hauled barbeque propane cylinders, which are on pallets.
Vanderhoef noticed one of the dunnage beams under the upper layer, front row of tanks, was shorter than the others, leaving three or four inches of the beam extending from the end of the beam to the tank. Vanderhoef assumed King knew to block the tanks with chocks when he unloaded the tanks. Vanderhoef claimed the tanks were never loaded with the tank feet on the dunnage because the feet can slip off the dunnage. Vanderhoef was certain AmeriGas loaded the tanks on King’s truck with the tank bellies on the dunnage, not the feet. Chocks were used when the tanks were loaded on King’s truck and then removed after each tank was secured with straps. When the tanks are unloaded, typically drivers leave one strap on each row and use chocks on the tanks not being removed.
Vanderhoef testified King followed all of Vanderhoef’s instructions regarding loading the tanks. After the tanks were loaded and secured, Vanderhoef signed off on the shipping papers. Vanderhoef believed King’s truck had been properly loaded and did not foresee any security or safety risks posed by the load. He did not believe that the shorter dunnage beam would be a problem or pose a threat when unloading the tanks.
AmeriGas’s regional safety manager, David Artero, testified that AmeriGas hired motor carriers to transport AmeriGas’s 250-gallon propane tanks on flatbed trailers. The tanks are approximately 31 inches in diameter and about seven feet long. They weigh about 475 pounds. Artero hired Landstar to ship the load of tanks King transported in April 2005. At that time, AmeriGas’s safety manual did not address loading and unloading tanks from a flatbed trailer. The training AmeriGas employees received for loading and unloading tanks consisted of “hands-on training, ” in which more experienced ...