United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
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.
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.
where noted, the following facts are undisputed.
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:
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
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.
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.
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
6. Tighten the bottom straps over the bottom layer.
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)).
Malovanyi did not follow these steps on December 1: Malovanyi
tightened the bottom straps before Lewis loaded the top
layer. 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.
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.
of the scene immediately after the accident confirm that no
top straps had been thrown over the load and that ...