Opinion
3:20-cv-00059-SHL
2021-07-29
Michael SLATON, Plaintiff, v. CLIMAX MOLYBDENUM COMPANY, Defendant.
R. Ronald Pogge, Hopkins & Huebner PC, Des Moines, IA, Kevin D. Lane, Pro Hac Vice, Paul G. Lane, Pro Hac Vice, Dowd & Dowd PC, St. Louis, MO, for Plaintiff. Joseph C. Orlet, Brandan P. Mueller, Pro Hac Vice, Kathryn L. Modeer, Pro Hac Vice, Kristen W. Durant, Pro Hac Vice, Husch Blackwell LLP, St. Louis, MO, for Defendant.
R. Ronald Pogge, Hopkins & Huebner PC, Des Moines, IA, Kevin D. Lane, Pro Hac Vice, Paul G. Lane, Pro Hac Vice, Dowd & Dowd PC, St. Louis, MO, for Plaintiff.
Joseph C. Orlet, Brandan P. Mueller, Pro Hac Vice, Kathryn L. Modeer, Pro Hac Vice, Kristen W. Durant, Pro Hac Vice, Husch Blackwell LLP, St. Louis, MO, for Defendant.
Order on Defendant's Motion for Summary Judgment
STEPHEN H. LOCHER, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This is a diversity case arising out of injuries suffered in a single-vehicle accident by Plaintiff Michael Slaton ("Slaton"), a professional truck driver, while carrying a load of molybdenum oxide for Defendant Climax Molybdenum Company ("Climax"). Slaton sued Climax on theories of of negligence (Count I) and negligence per se (Count II) for allegedly causing the accident by securing the load improperly.
On June 4, 2021, Climax moved for summary judgment on both Counts. Slaton resisted. The core of the dispute is whether Climax, a shipper, owes a common law duty to Slaton under Iowa law to ensure load security despite federal regulations imposing primary responsibility for load security on the carrier. For reasons explained in full below, the Court GRANTS IN PART and DENIES IN PART Climax's Motion for Summary Judgment. II. FACTS
Where facts are genuinely in dispute, the Court has resolved the dispute, solely for purposes of ruling on the motion for summary judgment, in the light most favorable to Slaton, the non-moving party.
A. The Accident.
Slaton has driven as a commercial truck driver for close to 18 years. (ECF 53-1, ¶ 1.) He was employed by Leon Cannon Trucking ("Cannon") from 2016 through August 2018. (Id., ¶ 2.) Cannon hauled freight for Climax. (Id., ¶ 3.)
On July 23, 2018, Slaton arrived at Climax's facility in Fort Madison, Iowa, to pick up a load (the "Load") for transport to Port Allen, Louisiana. (Id., ¶ 5.) The Load consisted of 11 bags of molybdenum oxide, each of which weighed 3,900 pounds. (Id., ¶ 7.) Climax placed the Load down the middle of Slaton's tractor trailer. (Id., ¶ 8.) Climax determined that the center loading process would be used and told Slaton to bring two straps and leave them in the back of the trailer. (ECF 56-1, ¶¶ 5,6.) A picture of the Load was taken after it was loaded and at least one load strap is visible. (ECF 53-1, ¶ 11.) Climax has loaded hundreds of loads of molybdenum oxide down the middle of tractor trailers for transport. (ECF 53-1, ¶ 9.)
Climax's policies and procedures precluded drivers like Slaton from observing or participating in the loading process. (ECF 56-1, ¶ 7.) Slaton was directed to a waiting area without a line of sight to the loading dock and told when the Load was ready. (Id., ¶ 8.) Slaton relied on Climax to properly load the trailer. (Id., ¶ 10.) Slaton had driven approximately a dozen or more similar loads of molybdenum from Climax's facility prior to the load he picked up on July 23, 2018, all without incident. (Id., ¶ 11.)
Climax denies this fact and contends that "[i]f [Slaton] had requested, he could have viewed the cargo being loaded into his tractor trailer at any point, as many times as he preferred." (ECF 56-1, ¶ 7.) Slaton, however, cites to his testimony and Climax's Safe Job Procedure, which contains provisions indicating the driver must remain in the waiting area until the loading process is complete. (E.g., ECF 53-3, p. 156 ("Advise truck driver to set parking brakes and remain inside warehouse by shipping office until advised that loading is complete."); id., p. 157 ("Driver must remain in driving waiting area until authorized to leave.").) Viewed in the light most favorable to him, Slaton's citations are sufficient to require the Court to conclude, for purposes of this motion, that he was precluded from observing or participating in the loading process.
Slaton did not ask to view the Load while it was being loaded. (ECF 53-1, ¶ 14.) He was informed the Load was in his tractor trailer after it was loaded. (Id., ¶ 15.) The doors to his trailer were not closed or sealed after Climax finished loading the molybdenum oxide bags. (Id., ¶¶ 16, 17.) Slaton performed enough of an inspection of the Load to be able to see the securement devices (i.e., straps) that were in place and conclude the Load was adequately secure for transport. (Id., ¶¶ 28, 36; ECF 48-3, pp. 31-32; ECF 56-1, ¶ 34.) He did not, however, get inside his trailer to inspect the Load. (ECF 53-1, ¶ 29.) Slaton was unaware that a ladder or mobile station was available to allow easier inspection of the Load. (ECF 53-1, ¶ 33.) Slaton relied on Climax to properly load the trailer, including determining how bags should be loaded and what restraints should be applied. (ECF 56-1, ¶ 32.) He believed Climax employees were trained on these matters. (Id., ¶ 33.) Even if he had entered the trailer, he would not have asked that the Load be rearranged or secured differently because he did not believe the loading pattern to be unsafe. (Id., ¶ 38.) After the loading process was finished, Slaton drove his trailer to a weigh station to be weighed. (ECF 53-1, ¶ 18.) He then left Climax's facility and went to a guard shack, where he received a bill of lading and packing slip. (Id., ¶¶ 19-22.) The bill of lading reads, in part: "This signature by the Driver affirms Driver's acceptance of the load as secured prior to departure of this shipment and provides verification that this load has been personally inspected by the Driver and found to be properly loaded, distributed, secured, braced and otherwise properly prepared for safe and road worthy transit." (Id., ¶ 23.) Slaton denies he read the "small print" on the document or had the knowledge or ability to evaluate the Load's safety. (Id.)
After signing the bill of lading, Slaton departed Climax's facility and began driving toward Port Allen, Louisiana. (Id., ¶ 39.) While driving south on US Highway 61 in Marion County, Missouri, Slaton's tractor trailer began to roll while he went around a curve. (Id., ¶¶ 43-44.) He was ejected from the cab and sustained injuries. (Id., ¶ 45.) Slaton's expert opines that the accident was caused by the Load shifting during transport, which he attributes to a failure on Climax's part to properly load the trailer. (ECF 56-1, ¶ 41.)
B. Climax's Experience Prior to July 2018 With Loads Shifting in Transit.
Climax was aware that bags of molybdenum oxide had been damaged in transit on at least three occasions prior to July 2018, including an incident in March 2016 when a load shifted during transit and bags fell off the pallets on which they were placed. (ECF 56-1, ¶¶ 12-13.) In addition, in December 2017, a tractor trailer loaded at Climax's facility overturned while in route to its destination. (Id., ¶¶ 16-17.) Climax's initial evaluation indicated the loading pattern was a contributing factor. (Id.) Climax alleges, however, that subsequent analysis yielded the conclusion that the center loading process did not cause this accident or the other incidents of load shifting. (Id., ¶¶ 13-17.) All the same, Climax admits a "change in loading pattern was being discussed" at Climax prior to July 2018. (Id., 19.)
By February 5, 2018, an outside expert, Down-River Allegheny, advised Climax that a split loading pattern should be implemented. (Id., ¶ 20.) Split loading refers to placing two rows of three bags across the width of the front of the trailer with five bags grouped together in the rear of the trailer. (Id., ¶ 21.) Down-River Allegheny also advised Climax to use other restraints including placing pallets on friction pads to prevent sliding and using dunnage to fill gaps between bags to fix cargo shifting. (Id., ¶ 22.)
Climax did not advise Slaton or Cannon of the incidents of cargo shifting or the recommendations it received from Down-River Allegheny. (Id., ¶ 26.) Climax contends, however, that it had "no reason" to inform Slaton or Cannon of these incidents or recommendations because no one had been injured and Climax concluded other factors such as excessive speed were primarily to blame. (Id., ¶ 26.) Climax implemented Down-River Allegheny's recommendations after Slaton's accident. (Id., ¶ 27.)
III. LEGAL STANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "In ruling on a summary judgment motion, the district court must consider the evidence in the light most favorable to the nonmoving party and give him the benefit of all reasonable inferences in the record." Morris v. City of Chillicothe , 512 F.3d 1013, 1018 (8th Cir. 2008). "The party opposing summary judgment cannot rest solely on the pleadings, but instead must set forth specific facts showing there is a genuine issue of material fact for trial." Id. (quoting Morgan v. A.G. Edwards & Sons, Inc. , 486 F.3d 1034, 1039 (8th Cir. 2007) ). "Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment." Morris , 512 F.3d at 1018.
"Substantive law in the relevant area dictates which facts are material, as ‘[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’ " Sherr v. HealthEast Care Sys. , 999 F.3d 589, 597 (8th Cir. 2021) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "A court at this stage does not weigh the evidence, make credibility determinations, or attempt to discern the truth of any factual issue." Sherr , 999 F.3d at 597.
The parties agree that Iowa law applies. "[I]n diversity cases, federal courts must follow state law as announced by the highest court in the state." Caldwell v. TACC Corp. , 423 F.3d 784, 788 (8th Cir. 2005) (internal punctuation omitted). "When a state's highest court has not decided an issue, it is up to [the] court to predict how the state's highest court would resolve that issue." Cont'l Cas. Co. v. Advance Terrazzo & Tile Co. , 462 F.3d 1002, 1007 (8th Cir. 2006). Decisions of intermediate state appellate courts, although not binding on federal courts sitting in diversity, are persuasive authority that must be followed when they are the best evidence of what the state law is. Id.
IV. LEGAL ANALYSIS
A. Climax Owed a Common Law Duty to Slaton Under Iowa Law.
The parties dispute whether this case is governed by principles set forth in United States v. Savage Truck Line, Inc. , 209 F.2d 442 (4th Cir. 1953), for determining when a shipper like Climax owes a duty to a driver like Slaton. In Savage , the Fourth Circuit held:
The primary duty as to the safe loading of property is therefore upon the carrier. When the shipper assumes the responsibility of loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper.
Id. at 445. Applying Savage , the Eighth Circuit has concluded, in two relatively recent cases, that courts properly granted summary judgment for the shipper when the alleged defect in loading was obvious, the driver had the opportunity to perform an inspection, and the shipper provided no assurances as to safety. See Aragon v. Wal-Mart Stores East, LP , 735 F.3d 807, 810-11 (8th Cir. 2013) (interpreting Missouri law); Vargo-Schaper v. Weyerhaeuser Co. , 619 F.3d 845, 849-50 (8th Cir. 2010) (interpreting Minnesota law). Climax relies on these cases, and Federal Motor Carrier Safety Regulations generally, to argue the same result is appropriate here.
Slaton correctly points out, however, that neither Aragon nor Vargo-Schaper arose under Iowa law. Relying on Thompson v. Kaczinski , 774 N.W.2d 829, 834 (Iowa 2009), and Smith v. HD Supply Water Works, Inc. , 810 N.W.2d 25 (Table), 2011 WL 6655356 (Iowa Ct. App. Dec. 21, 2011), Slaton argues the Iowa Supreme Court would not follow Savage and instead would allow the jury to decide the relative fault of a shipper and driver in circumstances like those present here. See Smith , 2011 WL 6655356, at *1 ("[T]he rule established in [ Savage ] runs counter to the modern tort principles adopted by our supreme court and the comparative fault provisions enacted by our legislature.").
"Although federal courts are not bound to follow the decisions of intermediate state courts when interpreting state law, state appellate court decisions are highly persuasive." First Tenn. Bank Nat. Ass'n v. Pathfinder Exploration, LLC , 754 F.3d 489, 490-91 (8th Cir. 2014) (quoting Baxter Int'l, Inc. v. Morris , 976 F.2d 1189, 1196 (8th Cir. 1992) ). "Intermediate state court decisions should not be disregarded unless we are convinced by other persuasive data that the highest state court would decide the issue otherwise." United Fire & Cas. Ins. Co. v. Garvey , 328 F.3d 411, 413 (8th Cir. 2003) (quoting, in part, Comm'r v. Estate of Bosch , 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967) ) (cleaned up).
Climax has not convinced the Court that it may disregard Smith. Instead, at most, Climax has merely convinced the Court that the outcome in Smith is not necessarily inconsistent with Savage. This may be important when it comes to instructing the jury on the relative duties and responsibilities of Climax and Slaton, but it is not enough to allow the Court to disregard the unequivocal statement in Smith that "the rule established in [ Savage ] runs counter to the modern tort principles adopted by our supreme court and the comparative fault provisions enacted by our legislature." 2011 WL 6655356, at *1. Under Iowa law, the comparative fault of Slaton vis-à-vis Climax must be decided by a jury, not the Court.
For example, the Court does not interpret Smith as freeing Slaton from his own duty to inspect the load and ensure it was safe for transport. In Spence v. ESAB Grp., Inc. , 623 F.3d 212, 219 (3d Cir. 2010) – which was cited favorably by Smith – the Third Circuit explained that "[i]mposing a duty of care on the shipper does not absolve the carrier or its driver of responsibility to assure the stability of the load during transport."
This conclusion is consistent with analogous Iowa Supreme Court precedent. See Raines v. Safeco Ins. Co. of Am. , 637 F.3d 872, 875 (8th Cir. 2011) (in absence of controlling authority, federal courts sitting in diversity may consider analogous decisions from state's highest court). In contrast to Savage – which absolves a shipper of any duty for load security if the defect should have been "apparent" to the driver – the Iowa Supreme Court has repeatedly held that whether a plaintiff is aware of an open and obvious danger is relevant to comparative fault but does not negate the alleged tortfeasor's duty. See Ludman v. Davenport Assumption High Sch. , 895 N.W.2d 902, 914 (Iowa 2017) (baseball player's awareness of risk of foul ball did not defeat school's duty to design dugout in safe manner); Wieseler v. Sisters of Mercy Health Corp. , 540 N.W.2d 445, 452 (Iowa 1995) (plaintiff's awareness of icy surface did not negate property owner's duty to maintain property). Smith is consistent with this precedent; Savage is not. See Ludman , 895 N.W.2d at 913 ("[T]he fact that a dangerous condition is open and obvious bears on the assessment of whether reasonable care was employed, but it does not pretermit the land possessor's liability. This treatment of land possessors is consistent with that of other actors who create risks.") (quoting Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 51 cmt. k , at 251-52). Similarly, the Iowa Supreme Court has repeatedly and consistently held that the existence of a legal duty depends, in substantial part, on the level of control exercised by the alleged tortfeasor over the events causing injury. See Lukken v. Fleischer , 962 N.W.2d 71, 77 (Iowa 2021) ("[C]ontrol remains an important consideration in whether a duty exists and liability normally follows control."); Huck v. Wyeth, Inc. , 850 N.W.2d 353, 378 (Iowa 2014) ("Liability generally follows control in our tort law."); McCormick v. Nikkel & Assocs. , 819 N.W.2d 368, 372 (Iowa 2012) ("The general rule and exceptions ... reveal a common principle: liability is premised upon control.") (quoting Van Essen v. McCormick Enters. Co. , 599 N.W.2d 716, 720 n.3 (Iowa 1999) (cleaned up)). For example, when a landlord creates an unsafe condition while in control of real property, it can be liable for harm that occurs later when a tenant has taken possession. See Allison ex rel. Fox v. Page , 545 N.W.2d 281, 283 (Iowa 1996) ("[T]he landlord remains liable for any conditions before or at the time the property is leased.").
Here, Slaton has presented evidence that Climax exercised tremendous control over the loading process. It is undisputed, for example, that Climax unilaterally selected the method of load securement and carried out the physical act of loading the trailer. Moreover, Climax directed Slaton – without, it appears, asking for his input – to bring two straps for Climax to use to secure the load and leave them in the trailer. The Court also accepts as true, for purposes of this motion, that Slaton was precluded from having any involvement in the loading process; was required to remain in a waiting area without line of sight to the loading dock; and was not given easy access to a ladder or any other equipment that would have allowed him to closely inspect the load prior to transport.
The Court finds it particularly relevant that Climax was actively reviewing its method of load securement in the months leading up to Slaton's accident, even to the point of engaging an expert to provide recommendations. There is nothing in the record to suggest Cannon or Slaton was invited to join this review process. This investment of resources illustrates Climax's substantial control over load securement. Moreover, the Court must accept as true that Climax had knowledge of a prior rollover accident and other incidents of load shifting that were at least arguably caused by the method of load securement Climax was using. These facts, viewed in the light most favorable to Slaton, and considered in conjunction with Smith and other analogous precedent identified above, leave the Court confident the Iowa Supreme Court would find Climax to have owed a common law duty to Slaton at the time of the accident.
McCormick , 819 N.W.2d at 374-375, is particularly instructive. It held that an independent contractor that had finished its work and ceded control of property back to the owner did not owe an ongoing duty to the owner's employees to warn of potentially dangerous conditions created through no fault of the contractor. The Iowa Supreme Court explained, however, that the duty analysis would have turned out differently if the plaintiff alleged an injury resulting from the independent contractor's negligent work. Id. at 375 ("A key distinction between [cases finding a duty], on the one hand, and this case, on the other, is that there was nothing wrong with the contractor's (Nikkel's) work."). "When a party performs defective work, the negligence occurs at the time of performance, and the party that performed the work is normally in the best position to have prevented the accident." Id. This precedent reinforces Smith ’s holding that a duty exists when, as here, the shipper exercises substantial control over the loading process and the defect in load security allegedly arose during that period of control. See also, e.g., Bujnoch v. Nat'l Oilwell Varco, L.P. , 542 S.W.3d 2, 10 (Tex. Ct. App. 2017) (concluding shipper, having undertaken to load cargo, was required to use reasonable care); Lobdell v. Masterbrand Cabinets, Inc. , 2008 WL 2224094, at *2, 9 (E.D. Mich. 2008) (finding duty to exist based on level of control exercised by shipper over the loading process).
The bill of lading signed by Slaton does not change this conclusion. In the bill of lading, Slaton affirmed his "acceptance of the load as secured prior to departure of this shipment" and "verifi[ed] that this load has been personally inspected by [Slaton] and found to be properly loaded, distributed, secured, braced, and otherwise properly prepared for safe and road worthy transit." (App. 72.) The bill of lading is, to be sure, relevant to Slaton's performance of his own duty to "assure the stability of the load during transport." Spence , 623 F.3d at 219. His duty is not, however, so absolute as to wipe out Climax's potential liability for allegedly breaching its duty in a situation where it exercised tremendous control over the loading process. See id. ("All we hold ... is that the shipper may also owe a duty of care depending on the role it assumes in connection with loading and securing its cargo.").
For essentially the same reason, the Court rejects Climax's position that the contract between Climax and Slaton's employer, Cannon, absolves Climax of its duty to Slaton. The contract arguably reiterates Slaton's duty to ensure load security, but it does not exterminate Climax's own duty on the same issue. Moreover, and in any event, Climax does not cite any Iowa cases holding that a contract between an alleged tortfeasor and the injured party's employer can serve as a waiver or release of any duty otherwise owed by the tortfeasor to the injured party. To the contrary, one of the cases cited by Climax quotes an Iowa Supreme Court opinion "reject[ing] the ingenious and startling theory that a person can, by contract with a third party, lay down his own rules as to when he will be liable to those whom his negligence injures." Aetna Cas. and Sur. Co. v. Leo A. Daly Co. , 870 F.Supp. 925, 937 (S.D. Iowa 1994) (quoting Evans v. Howard R. Green Co. , 231 N.W.2d 907, 912 (Iowa 1975) ).
Finally, and similarly, the Court rejects Climax's position that a duty cannot exist given Slaton's level of experience and the absence of any overt assurances from Climax to Slaton about load security. While these factors were significant to the Eighth Circuit in Aragon (Missouri law) and Vargo-Schaper (Minnesota law), Climax has not cited any Iowa cases in which the Iowa Supreme Court found the existence of a duty to turn on the plaintiff's level of experience or whether the defendant provided overt assurances as to safety. Instead, the Court must follow Smith and analogous precedent by concluding, under Iowa law, that Climax owed a common law duty to Slaton on the facts presented here.
B. Summary Judgment Is Appropriate on Slaton's Claim for Negligence Per Se.
Although Slaton has presented sufficient evidence to establish a duty under Iowa law for purposes of Count I of his Complaint, which alleges common law negligence, the same is not true for Count II, which alleges negligence per se.
"If a statute or regulation such as an OSHA standard provides a rule of conduct specifically designed for the safety and protection of a certain class of persons, and a person within that class receives injuries as a proximate result of a violation of the statute or regulation, the injuries would be actionable as negligence per se." Wiersgalla v. Garrett , 486 N.W.2d 290, 292 (Iowa 1992) (quoting, in part, Koll v. Manatt's Transp. Co. , 253 N.W.2d 265, 270 (Iowa 1977) ) (cleaned up). Here, Slaton argues Climax failed to comply with Federal Motor Carrier Safety Regulations ("FMCSR") set forth in 49 C.F.R. §§ 393.100(c), 393.102, and 393.106.
The problem with Slaton's position is that the FMCSR imposes obligations on carriers and drivers, not shippers. For example, 49 C.F.R. § 393.1(b)(1) states that "[e]very motor carrier and its employees must be knowledgeable of and comply with the requirements and specifications of this part" (emphasis added). Shippers are not mentioned. See Locicero v. Interpace Corp. , 83 Wis.2d 876, 884, 266 N.W.2d 423, 427 (1978) ("[M]otor carrier safety regulations impose a clear duty on the carrier to secure the load safely ...") (emphasis added). It follows that a shipper like Climax does not owe a statutory duty to a driver like Slaton that would be cognizable in a negligence per se claim. See Reed v. Ace Doran Hauling & Rigging Co. , No. 95 C 4082, 1997 WL 177840, at *3-4 (N.D. Ill. Apr. 7, 1997) (concluding shipper owed common law duty to driver but not statutory duty under FMCSR regulations); Holmes v. Goodyear Tire & Rubber Co. , 1997 WL 106104, at *3 (N.D. Ill. Feb. 12, 1997) (same).
Stated differently, the Court does not believe the Iowa Supreme Court would recognize a claim for negligence per se based on an alleged tortfeasor's failure to comply with safety regulations that, on their face, do not govern that party. See Porter v. Iowa Power & Light Co. , 217 N.W.2d 221, 237 (Iowa 1974) ("[W]hether violation of a statute or ordinance fixing a standard of care is negligence per se ... is to be decided in light of the purpose and intent of the pertinent statute or ordinance."); Casey v. Valley Sav. Bank , 231 Iowa 19, 300 N.W.733, 737 (1941) (interpreting the lack of a specific reference to the landlord-tenant relationship in a housing law to mean the Legislature was not attempting to impose liability on landlord); cf. Rosenau v. City of Estherville , 199 N.W.2d 125, 128 (Iowa 1972) (stating it would be an "anomaly" to allow a party that had violated a statute governing its own conduct to use the same statute as a basis for arguing negligence per se against the opposing party). The Court concluded above that Climax owed Slaton a common law duty of care when it exercised extensive control over the loading process. This does not mean it assumed a statutory duty under federal regulations governing other actors. Summary judgment is therefore appropriate on Count II of Slaton's Complaint alleging negligence per se.
To be clear, the Court is not concluding FMCSR standards are irrelevant to Count I of Slaton's Complaint. As the Iowa Supreme Court explained in Wiersgalla , 486 N.W.2d at 293, a party's violation of a statutory or regulatory standard can be evidence of negligence even when negligence per se is not a viable theory.
C. Slaton Has Presented Sufficient Evidence on Causation.
Returning to Count I, Climax's final argument is that Slaton has not presented sufficient evidence of causation to withstand summary judgment. The exact parameters of Climax's argument are somewhat unclear, as its Brief in Support of Its Motion for Summary Judgment (ECF 48-1, pp. 20-22) analyzed expert evidence to argue the Load could not possibly have shifted during transport but its Reply Brief focused solely on the argument that Slaton alone had a duty to ensure load security (ECF 56, pp. 5-6). Either way, the Court concludes summary judgment is improper on Count I.
"It is well-settled that questions of negligence or proximate cause are ordinarily for the jury, and only in exceptional cases should they be decided as a matter of law." Thompson , 774 N.W.2d at 832 (internal punctuation omitted); accord Crow v. Simpson , 871 N.W.2d 98, 105 (Iowa 2015). Climax has submitted plausible arguments and evidence that may lead a jury to conclude the accident was not caused by load shifting. Slaton, however, has submitted plausible arguments and evidence to the contrary, including, inter alia , an expert opinion that the accident could not have occurred without load-shifting unless Slaton's truck was traveling at least 96 miles per hour. Assuming, for present purposes, this expert opinion is admissible, it creates a conflict that must be resolved by the jury given Slaton's testimony he was traveling considerably below 96 miles per hour and the fact his tractor was set at the factory to have a maximum speed of 72 miles per hour. See Seastrom v. Farm Bureau Life Ins. Co. , 601 N.W.2d 339, 346 (Iowa 1999) ("When evidence is in conflict, we entrust the weighing of testimony and decisions about the credibility of witnesses to the jury.") (internal punctuation omitted). It follows that summary judgment is inappropriate on Count I.
V. CONCLUSION
The Court DENIES Climax's Motion for Summary Judgment as to Count I of Slaton's Complaint and GRANTS Climax's Motion for Summary Judgment as to Count II of Slaton's Complaint.
IT IS SO ORDERED.