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Malovanyi v. North American Pipe Corp.

United States District Court, W.D. Wisconsin

July 12, 2017

RUSLAN MALOVANYI, Plaintiff,
v.
NORTH AMERICAN PIPE CORPORATION, Defendant and Third-Party Plaintiff,
v.
MOONLIGHT TRANSFER INC. and BLUE AND YELLOW TRANSPORTATION, INC., Third-Party Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiff Ruslan Malovanyi is a truck driver who was picking up a load of plastic pipe from defendant North American Pipe Corporation (NAPCO). Malovanyi was injured when a bundle of pipe fell from his truck while he was securing the load, which had been placed on his truck by a NAPCO employee. Malovanyi contends that the NAPCO employee had improperly placed the bundle, and he brings claims against NAPCO for negligence, negligence per se, and gross negligence. Dkt. 23. NAPCO brings claims against third-party defendants, Moonlight Transfer Inc., which brokered the delivery and hired Blue and Yellow Transportation, Inc., to pick up and deliver the pipe.

         NAPCO moves for summary judgment on Malovanyi's claims. Dkt. 39. And both Malovanyi and NAPCO have filed motions concerning Malovanyi's late-disclosed liability expert. The court will grant NAPCO's motion to strike Malovanyi's expert, and it will grant NAPCO's motion for summary judgment. The court will apply the Savage rule, under which Malovanyi, not NAPCO, was responsible for securing the load. In light of the court's decision on Malovanyi's claims, NAPCO's claims against the third-party defendants are apparently moot, although the court will give NAPCO the opportunity to inform the court whether those claims should be dismissed.

         UNDISPUTED FACTS

         Except where noted, the following facts are undisputed.

         NAPCO manufactures plastic pipe. In late 2014, NAPCO arranged to transport a load of pipe from its Janesville, Wisconsin facility to two destinations outside of Wisconsin. NAPCO contacted Moonlight to transport the load, and Moonlight assigned the load to Blue and Yellow. Blue and Yellow assigned one of its independent contractors to do the job: Malovanyi.

         Malovanyi was an inexperienced driver. Malovanyi had received his commercial driver's license on July 30, 2014. But when Malovanyi applied to work for Blue and Yellow, he stated, falsely, that he had worked as a commercial driver since July 2012. Malovanyi claims this was merely a mistake; NAPCO characterizes the misrepresentation as more nefarious. Regardless, as of the date of the accident, December 1, 2014, Malovanyi had been driving a commercial vehicle for only four months.

         Malovanyi arrived at the Janesville facility to pick up the pipe. NAPCO's employee, Larry Lewis, directed Malovanyi to several locations in the yard, and Lewis loaded pipe with a fork lift onto Malovanyi's trailer at each stop. Each time Lewis placed pipe on the trailer, Malovanyi strapped it down before moving to the next location. NAPCO personnel were not responsible for securing the load.

         In total, Lewis loaded four stacks of pipe, two forward stacks (one on the driver's side, one on the passenger's side), and two rearward stacks (again, one on the driver's side, one on the passenger's side). Lewis told Malovanyi to secure the load after he placed each stack of pipe; but nothing in the record indicates that Lewis-or any other NAPCO employee-told Malovanyi how to approach or secure the load.

         Malovanyi knew the proper procedure for securing a load of pipe, which required throwing straps over a base layer of pipe-sometimes called the belly layer-before throwing straps over the top of the stack. Once all straps are in place, Malovanyi knew to tighten the top straps before tightening the bottom ones. The steps are as follows:

1. Throw four straps (two over the forward part of the load, two over the rear) over the bottom layer before stacking the next layer on top. Do not tighten the bottom straps.
2. Load the top layer to complete loading.
3. Throw four straps over the top of the load (again, two over the forward part of the load, two over the rear) from the passenger's side of the trailer.
4. Walk to the driver's side of the trailer.
5. Tighten the top straps first, to secure the load from the top.
6. Tighten the bottom straps over the bottom layer.

         Malovanyi knew that he needed to tighten the top straps first, “[t]o make sure that the upper portion of the pipes would not fall.” Dkt. 77, ¶ 19 (quoting Dkt. 43 (Malovanyi Dep. 96:23-24)).

         But Malovanyi did not follow these steps on December 1: Malovanyi tightened the bottom straps before Lewis loaded the top layer.[1] The passenger's side bottom layer was taller than the driver's side stack, so the taut bottom straps were at an angle, sloping down toward the driver's side. By Malovanyi's account, Lewis continued to load the trailer; he set a bundle on top of the taut bottom straps. As Lewis moved his forklift away from the trailer, the bundle was left sitting at an angle atop the straps. (NAPCO disputes that this is what happened, contending that it would not be possible to set the pipe bundle down atop the sloped straps. But NAPCO accepts Malovanyi's version of events for purposes of summary judgment.) Then Lewis left the area.

         When Malovanyi approached the driver's side of the trailer, the angled bundle slid off the trailer, striking Malovanyi. Malovanyi claims that he did not see that the top bundle was sitting at an angle. Malovanyi did not ask Lewis or any other NAPCO personnel to reload the trailer or adjust the load before he approached it.

         Pictures of the scene immediately after the accident confirm that no top straps had been thrown over the load and that ...


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