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Types of Cargo Securement Claims in Trucking Accidents
By Attorney Michael L. Goldberg
Partner, Fried Goldberg, LLC
There are essentially three types of cargo securement claims. First, the truck driver can be injured when cargo either falls on him or shifts inside the trailer causing the tractor-trailer to fall over. Second, cargo can fall from a tractor-trailer in transit causing injury to other motorists. Third, cargo can fall on top of a warehouse worker or forklift driver who is trying to unload the trailer. In order to understand a cargo securement claim, you need to understand the truck driver’s role in making sure that the cargo is adequately secured.
The Truck Driver’s Responsibility for Cargo Securement
The truck driver is required to inspect the cargo and make sure it is secured adequately under the federal regulations. 49 C.F.R. § 392.9. If the cargo can be visualized on the trailer and a determination made as to the adequacy of the securement process, the truck driver will be negligent as a matter of law in failing to recognize the danger. Sometimes, cargo is loaded into a sealed trailer, and the truck driver cannot remove the seal and look at the cargo.
In this situation, there is no opportunity for the truck driver to inspect the cargo, and he cannot be held responsible for anything related to failing to secure it properly. In addition, the shipper sometimes loads the cargo in a way that makes any deficiencies in the loading process impossible for the truck driver to inspect, and the driver cannot be faulted for failing to correct a deficiency that he cannot see. In all other instances, the truck driver is at least partially responsible for failing to inspect the manner in which the load is secured and failing to correct any problems.
When Truck Drivers Are Injured by Falling or Shifting Cargo
When the truck driver is injured by falling or shifting cargo, his comparative negligence is going to be a central issue in determining if and how much that he can recover against the shipper for negligent loading of the trailer. It is critical to understand why the cargo fell and if the truck driver could have seen the problem with an inspection.
The shipper or other entity that loaded the trailer has at least partial responsibility for negligent loading if the cargo was not adequately secured, and but the truck driver’s comparative negligence for failing to conduct an adequate inspection may reduce or bar his recovery depending on the law in the particular state where the injury occurred. The first question that you need to understand is whether or not the truck driver did his job properly in evaluating the case.
Proving Fault in Cargo Securement Claims
Truck drivers often claim that a cargo shift caused their trailer to roll over. Most of the time, the cause of a rollover incident is the truck driver taking a curve at an excessive speed. If the cargo was not secured properly, the trailer should have fallen over anytime the vehicle went around a curve. If the truck driver had driven for a long period of time and around several curves without incident, the problem is more likely the truck driver taking the curve at too high a rate of speed rather than a problem with the cargo.
In order to prove this claim, you must show through photographic evidence or otherwise how the cargo was loaded, show that the cargo was improperly secured, demonstrate that the truck driver could not have seen the problem with an inspection, and then prove that the rollover was caused by the cargo moving within the trailer. It is very difficult to prove this case, and you will need to have someone document the scene shortly after the accident occurs to have any chance of recovery.
Liability in Truck Cargo Falling on Motorists
In a situation where cargo falls from a truck in transit, injuring a motorist, there are numerous potential defendants. The truck driver clearly has a statutory duty to make sure the cargo on his trailer is secured properly and that it does not fall from his vehicle. The truck driver and the trucking company have potential liability for failing to inspect the shipment.
As previously discussed, the only caveat to this rule is if the trailer was sealed or loaded in such a manner that the truck driver had no opportunity to inspect the load. In addition to the truck driver and trucking company, the shipper or other entity that loaded the trailer also has responsibility for the incident.
While the truck driver’s negligence could bar his claim against the shipper, it will not adversely affect the claim of a motorist who had no role in the shipping process against the shipper. Depending on the value of the claim, you should look at both the trucking company and the shipper as viable defendants for falling cargo claim.
Warehouse Worker Injuries from Improperly Secured Cargo
The last scenario involves improperly secured cargo falling on a warehouse worker or forklift driver. If cargo is not adequately secured, it can fall on the person who is opening the trailer doors. There is a device that is placed on the doors to keep them from opening all the way to give a person the chance to see if cargo is going to fall if the door is opened completely.
Many companies require the use of this device for warehouse workers. However, the device slows down the unloading process and is rarely used by them. The failure to use this device does present an issue of comparative negligence on the part of the worker and has to be explained. While it is easy to prove that the cargo was not adequately secured as properly secured cargo does not fall on people, the real issue is the comparative negligence of the worker in failing to avoid the potential problem.
Your focus should be on showing why the worker could not have avoided the incident or showing why the system was setup in a manner where the worker did not have time to use the protective devices that could have helped protect against the injury.
