# Ross v. Knauf Insulation, Inc.

> District Court, M.D. Alabama · December 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10757267

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** December 9, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10757267

## How later opinions describe it (automated extraction)

- holding that a general common law duty to keep others safe “has never been endorsed in a decision of this Court that qualifies as precedent”
- discussing control as a factor in determining negligence
- discussing that the level of control over premises and the method of work is instructive of whether negligence occurred

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

JOHN ROSS, )
)
Plaintiff, )
)
v. ) CASE NO. 3:23-cv-284-RAH
) [WO]
KNAUF INSULATION, INC., et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
INTRODUCTION
John Ross, a commercial truck driver, was injured while opening the door to
his trailer when some of the trailer’s contents (insulation) fell on him. The insulation
was loaded onto Ross’ trailer by employees of Defendant Knauf Insulation, Inc.
Ross later sued, bringing claims of negligence and wantonness. Pending before the
Court is Knauf’s Motion for Summary Judgment, which largely challenges the
existence of a duty owed to Ross. Knauf’s motion is fully briefed and ripe for
decision. The motion will be denied in part and granted in part.
BACKGROUND
Knauf manufactures and sells insulation. (Doc. 55-2 at 22–23.) Knauf hires
motor carriers, one of which is Heartland Express, Inc., to transport its product to
Knauf’s customers. (Doc. 55-2 at 43–45; Doc. 55-3 at 17–19, Ex. 1.)
In May 2016, Knauf and Heartland entered into a transportation agreement
that designated Knauf as the shipper and Heartland as the motor carrier. (Id.) Under
the agreement, Heartland would hire drivers and provide them with a tractor and
trailer to transport Knauf’s insulation. (Id.)
Of importance here, Heartland has specific policies and instructions regarding
its transportation services and how its drivers interact with shippers such as Knauf.
For example, Heartland’s policies and driver manual prohibit drivers from breaking
a sealed trailer without authorization. (Doc. 57-2 at 3; Doc. 55-3 at 50.) If
authorization is not given, generally a seal can be broken only when the load arrives
at its delivery destination and instructions are given to the driver to break the seal.
(Doc. 57-2 at 3; Doc. 55-3 at 50–52.)
Ross was a driver for Heartland. On June 10, 2021, Heartland dispatched
Ross to transport a load of insulation from Knauf’s facility in Lanett, Alabama to
Cameron Ashley Building Products in Cordele, Georgia. (Doc. 55-1 at 223, 225–
26, 228.) Ross was instructed to bring with him two load-securement straps to the
Lanett facility. (Id. at 225, 228.)
When Ross arrived at the Lanett facility, he proceeded to the front office and
provided a Knauf employee with his information and his load-securement straps.
(Id. at 224–25.) Ross, however, was told that his straps were not needed because
Knauf had its own straps. (Id.) Ross then waited while Knauf loaded the trailer.
(Id.) Ross did not watch the loading process because Knauf prohibited drivers from
being in the loading area. (Doc. 57-1 at 40.)
The trailer was loaded with 210 individual bags of insulation. (Doc. 55-2 at
187.) The insulation bags were packed for delivery into 42 master bags, each
weighing between 150 and 300 pounds. (Doc. 55-1 at 263; Doc. 57-1 at 69.)
The loading was performed solely by Knauf employees. (Doc. 57-1 at 40.)
Once finished, Ross was notified that he could pick up the trailer. (Doc. 55-1 at
225.) Because the trailer was sealed, he did not inspect the trailer or its contents to
see if it was properly loaded or secured. (Doc. 55-5 at ¶¶ 3, 6.) Ross also did not
ask to break the seal to inspect the inside of the trailer. (Doc. 57-1 at 40; Doc. 55-5
at ¶¶ 3, 6.)
Ross then drove the load to the delivery destination in Georgia. (Doc. 55-5 at
¶ 3; Doc. 55-1 at 234–35.) There, he was instructed to break the seal and open the
trailer. (Doc. 55-1 at 234–35, 240–47; Doc. 55-5 at ¶ 3.) First, Ross opened the
right (passenger-side) trailer door and successfully secured it to the side of the trailer.
(Id.) He looked inside the trailer and noticed that the cargo on both sides was not
perfectly flush, but it otherwise appeared stable. (Id.) Ross next began to open the
left (driver-side) trailer door. (Id.) While opening that door, a gust of wind pushed
the door from Ross’ control, where it swung open. (Id.) At that moment, Ross was
struck on the back of the head by a 300-lb. master bag of insulation. (Id.) Three
more 300-lb. master bags then fell from the trailer, striking Ross in the back and
lower legs, and causing him to fall to the ground. (Id.) Ross claims to have sustained
injuries to his ankle, neck, and back because of the falling cargo. (Id.)
LEGAL STANDARD
Summary judgment is appropriate where the materials in the record show
there is no genuine dispute as to any material fact and that the moving party is
entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). “[A] party
seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). To meet its responsibility, the moving party must “identify[] those
portions of the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits . . . which it believes demonstrate the absence of a
genuine issue of material fact.” Id. (quotation marks omitted). This Court must view
the evidence and the inferences from that evidence in the light most favorable to the
nonmovant. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010);
Bingham, Ltd. v. United States, 724 F.2d 921, 924 (11th Cir. 1984).
If the movant meets its burden, the burden shifts to the nonmoving party to
establish—with evidence beyond the pleadings—that a genuine dispute material to
each of its claims for relief exists. Celotex, 477 U.S. at 324; Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To prevent summary
judgment, a factual dispute must be both material and genuine. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986). A fact is “material” if it has the potential
of “affect[ing] the outcome” of the case. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d
1295, 1303 (11th Cir. 2016) (quoting Liberty Lobby, 477 U.S. at 248). And to raise
a “genuine” dispute of material fact sufficient to preclude summary judgment, “the
nonmoving party must point to enough evidence that ‘a reasonable juror could return
a verdict’” in his favor. Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018)
(internal quotation marks omitted) (quoting Furcron, 843 F.3d at 1303).
The nonmoving party is required “to go beyond the pleadings” and to present
competent evidence designating “specific facts showing that there is a genuine issue
for trial.” Celotex, 477 U.S. at 324. The “mere existence of a scintilla of evidence
in support of the [non-moving party’s] position” cannot defeat a motion for summary
judgment. Liberty Lobby, 477 U.S. at 252.
JURISDICTION AND VENUE
Subject matter jurisdiction is conferred by 28 U.S.C. § 1332. The parties do
not contest personal jurisdiction or venue, and there are adequate allegations to
support both. See 28 U.S.C. § 1391.
DISCUSSION
The central issue here is the existence of a duty under Georgia law.1 Knauf
argues that it owed no duty to Ross to secure the load in the trailer while Ross claims
that Knauf was negligent and wanton in not properly securing the load.

1 The parties agree that Georgia law applies because the accident causing the injury occurred in
Georgia.
Knauf advances two reasons why it owed no duty to secure the load. First,
there was no contractual, regulatory, or statutory duty to secure the load, and second,
Georgia does not recognize a general common law duty to keep others safe. Because
Ross concedes that Knauf did not owe a regulatory or statutory duty to secure the
load, (see doc. 57 at 1), and does not address the contractual duty issue, the Court
will address only whether Knauf owed a common law duty under Georgia law and
whether Knauf’s conduct amounts to wantonness.
Knauf Owed A Duty Under These Facts
To state a cause of action for negligence in Georgia, there must be (1) a legal
duty to conform to a standard of conduct raised by the law for the protection of others
against unreasonable risks of harm; (2) a breach of this standard; (3) a legally
attributable causal connection between the conduct and the resulting injury; and (4)
some loss or damage flowing to the plaintiff’s legally protected interest as a result
of the alleged breach of the legal duty. City of Douglasville v. Queen, 514 S.E.2d
195, 197 (Ga. 1999) (citing Bradley Ctr., Inc. v. Wessner, 296 S.E.2d 693, 695 (Ga.
1982)). Ross argues a duty exists because of Georgia’s adoption of the Restatement
(Second) of Torts § 324A as applied under the facts here.
“The existence of a legal duty is a question of law for the court.” Rasnick v.
Krishna Hosp., Inc., 713 S.E.2d 835, 837 (Ga. 2011) (citing City of Rome v. Jordan,
426 S.E.2d 861, 862 (Ga. 1993)). As to duty in the negligence context, Georgia does
not recognize a general common law duty to keep others safe from unreasonable
harm. Dep’t of Lab. v. McConnell, 828 S.E.2d 352, 358 (Ga. 2019) (holding that a
general common law duty to keep others safe “has never been endorsed in a decision
of this Court that qualifies as precedent”). Even so, Georgia does recognize the
Restatement (Second) of Torts § 324A. See Ga. CVS Pharmacy, LLC v. Carmichael,
890 S.E.2d 209, 232–34 (Ga. 2023) (recognizing “Section 324A ‘as an accurate
statement of Georgia’s common law’”). Section 324A provides as follows:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to liability to the
third person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if . . . (c) the harm is suffered
because of reliance of the other or the third person upon the
undertaking.

“Section 324 A [sic] imposes liability only where a party has in fact undertaken to
render services. It does not impose liability based upon the failure to render services
which should have been undertaken.” Finley v. Lehman, 463 S.E.2d 709, 710 (Ga.
1995) (citation omitted).
Because of the subject matter of this case, Knauf argues against application of
the Savage rule, an allocation of responsibility between shippers and carriers for
improper loading that has been embraced by several jurisdictions although not
explicitly in Georgia. The Savage rule provides:
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. This rule
is not only followed in cases arising under the federal statutes by
decisions of the federal courts but also for the most part by the decisions
of the state courts.

United States v. Savage Truck Line, Inc., 209 F.2d 442, 445 (4th Cir. 1953).
Knauf contends that the Savage rule does not apply here. Ross argues that it
should apply even though Georgia courts have not specifically spoken to it. There
is no need to make an Erie guess on whether Georgia would fully adopt the Savage
rule because the specific facts here, when viewed in a light favorable to Ross,
sufficiently establish the existence of a duty under the Restatement (Second) of Torts
§ 324A in ways similar to Savage.
Ross has presented evidence showing that Knauf exercised exclusive control
over the loading and securing process. Knauf loaded the trailer and therefore made
the decisions on how to load the trailer and whether and how to secure the load if
the load was secured at all. Knauf declined to use Ross’ load straps, thereby inferring
that it was using its own straps and would be securing the load. Further, pursuant to
Knauf’s policies at the Lanett facility, Ross could not observe the loading and
securing process, as he was required to remain outside the loading area. Nor was he
given an opportunity to inspect the load prior to the trailer being sealed by Knauf.
All told, these facts also show that it was reasonable for Ross to rely upon Knauf to
secure the load. And given that Ross was not permitted to observe the trailer being
loaded and was given a sealed trailer, any problems with how the trailer was loaded
or secured were concealed (and therefore latent) and not capable of ordinary
observation by Ross without taking the affirmative step of breaking the seal and
entering the trailer.
Despite these facts, Knauf argues that it did not assume a duty to secure the
load because of the following language in its contract with Heartland:
If [Knauf] loads and seals the lading in or on the trailer . . . . [Heartland]
may break the seal on a trailer if, upon [Heartland’s] determination or
that of its operator or other representative, it becomes reasonably
necessary to do so to inspect, reposition, or protect the lading or
[Heartland’s] equipment or to comply with federal, state, municipal, or
provincial laws, rules and regulations.

(Doc. 55-3 at 38, § 8.)
But that language does not sweep to the broad conclusion that Knauf attempts
to make. First, that language makes it clear that Knauf may load and seal the trailer.
And second, nothing in that language affirmatively and absolutely transfers the duty
to secure the load to Heartland or the driver. It simply recognizes that Heartland
may break the seal if reasonably necessary to do so. That Heartland may have a
right to break the seal and inspect, reposition and protect the cargo, if reasonably
necessary to do so, does not absolve Knauf of any negligence in its own actions,
especially in the absence of any evidence that Heartland, and Ross in particular,
actually broke the seal, and inspected, repositioned, and/or protected the cargo. And
further, evidence has not been presented showing that it was reasonably necessary
by Heartland or Ross to break the seal.
Additionally, Knauf argues that the Federal Motor Carrier Safety Regulations
(“FMCSR”) exclusively impose the duty to secure cargo onto motor carriers and
drivers, thus absolving Knauf of any duty or liability for its own actions. While the
FMCSR does impose a duty on motor carriers and drivers, nothing in the regulations
suggest that it eliminates any common law duties that may arise when a shipper loads
and secures a trailer. See 49 CFR § 392.9; see, e.g., Cook v. Publix Supermarkets,
Inc., No. 19-CV-01087, 2021 WL 2497943, at *3 (N.D. Ala. Apr. 27, 2021)
(“[FMCSR] doesn’t impose an exclusive duty on anyone. . . . [N]othing in the
regulation’s text suggests such a duty supersedes or preempts other actors’ duties.”
(emphasis and citation omitted)).
Under Georgia law, control over a task and property can create a duty. See
generally, Martin v. Six Flags Over Ga. II, L.P., 801 S.E.2d 24, 34 (Ga. 2017)
(discussing that the level of control over premises and the method of work is
instructive of whether negligence occurred); Cham v. ECI Mgmt. Corp., 856 S.E.2d
267, 272 (Ga. 2021) (discussing that control over the property and task is key to
determining negligence); Tim’s Crane & Rigging, Inc. v. Gibson, 604 S.E.2d 763,
765 (Ga. 2004) (discussing control as a factor in determining negligence). And here,
the facts evidence control by Knauf, whether gratuitously or for consideration, in
loading the trailer and securing its cargo. In doing so, it undertook the common law
duty contemplated by Section 324A. See Carmichael, 890 S.E.2d at 232–34. Knauf
certainly could have loaded the trailer and then told Ross to use his straps to secure
the contents and then seal the trailer. But it did not.2
One additional point on the existence of a duty here. Ross has presented
evidence showing that, in the years preceding Ross’ accident, Knauf was aware of
its load securement issues and was actively reviewing its method of load securement,
even to the point of issuing a “Safety Alert” to its customers. (See generally doc.
57-3 (detailing Knauf’s internal review and discussions on falling freight).) Nothing
in the record suggests that Heartland was given a copy of the Safety Alert.
Viewing the evidence in a light favorable to Ross, Knauf has not shown its
entitlement to summary judgment on the issue of duty. Accordingly, Knauf’s motion
on this basis will be denied.
Ross’ Wantonness/Punitive Damages Claim
Knauf also moves for summary judgment on Ross’ affirmative claim for
wantonness, claiming that Georgia law does not recognize wantonness as an
affirmative claim (like Alabama does) nor do the facts, viewed favorably to Ross,
show a jury issue as to wanton conduct.
Under Georgia law, wantonness may be considered by a jury in evaluating
whether punitive damages are warranted. See Ga. Code § 51-12-5.1(b) (“Punitive
damages may be awarded only in such tort actions in which it is proven by clear and
convincing evidence that the defendant’s actions showed willful misconduct, malice,
fraud, wantonness, oppression, or that entire want of care which would raise the
presumption of conscious indifference to consequences.”). “Wanton conduct . . .
does not involve an actual intent to harm or inflict injury but is nevertheless
described as highly culpable conduct that is equivalent in spirit to actual intent to do
harm or inflict injury.” Ford Motor Co. v. Cosper, 893 S.E.2d 106, 116 (Ga. 2023)

2 Knauf also raises various arguments about Ross’ own conduct. These are more appropriate for
presentation to the jury under its comparative negligence defense.
(internal quotation marks omitted) (quoting Chrysler Corp. v. Batten, 450 S.E.2d
208, 212 (Ga. 1994)).
Knauf is entitled to summary judgment on Ross’ wantonness claim because
there is insufficient evidence showing highly culpable conduct that is equivalent in
Spirit to actual intent to do harm or inflict injury. Ross points to the Safety Alert and
Knauf’s internal audit documents (see doc. 57-3) as evidence sufficient to establish
a genuine dispute on wanton conduct. That by itself does not sufficiently show that
Knauf’s failure to secure the cargo in Ross’ trailer was so reckless or indifferent that
it was equivalent in spirit to actual intent. While the evidence supports that there 1s
a genuine dispute as to negligence, negligence alone, even gross negligence, cannot
support punitive damages without a showing of culpable conduct. Colonial Pipeline
Co. v. Brown, 365 S.E.2d 827, 830 (Ga. 1988) (“Punitive damages cannot be
imposed without a finding of some form of culpable conduct. Negligence, even
gross negligence, 1s inadequate to support a punitive damage award.’’). Thus, Knauf
is entitled to summary judgment on this claim, regardless of whether it is considered
a standalone claim for wantonness or a claim for punitive damages.
CONCLUSION
Knauf has not shown its entitlement to summary judgment with respect to the
claim of negligence, but it has shown its entitlement to summary judgment on the
wantonness claim. Accordingly, it is hereby ORDERED that Knauf’s Motion for
Summary Judgment (doc. 54) is due to be DENIED IN PART and GRANTED IN
PART. This matter will proceed to trial solely on Ross’ claim of negligence against
Knauf.
DONE on this the 9th day of December 2024.

R. AUSTIN 4 Lin JR.
UNITED STATES DISTRICT JUDGE
10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10757267. Public record. Not legal advice.