The opinion
IN THE UNITED STATES DISTRICT COURT July 22, 2025
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
MARCO ANTONIO RODRIGUEZ, §
§
Plaintiff, §
v. § CIVIL ACTION NO. H-23-cv-3944
§
FREZ-N-STOR, INC., et al., §
§
Defendant. §
MEMORANDUM AND OPINION
This case arises from a tragic accident. Marco Antonio Rodriguez worked for a company
that assigned him the work of unloading pallets of frozen chicken parts from a rail car. During the
unloading, the pallets tipped over and fell on him, severely injuring his spinal cord and causing
paralysis. He and his wife (together, “Rodriguez”) have sued Americold Logistics, LLC, the
owner of the cold storage warehouse where the accident occurred, alleging that Americold was
negligent in failing to ensure that the frozen chicken pallets had not shifted in transit before the
unloading began. Rodriguez also sued Frez-N-Stor, the company responsible for moving the
frozen chicken parts from Arkansas to Houston, alleging improper packaging that made the pallets
unstable and allowed them to fall over during unloading.
Americold and Frez-N-Stor have each moved for summary judgment. (Docket Entry Nos.
76, 81). Based on the motions, the responses, the record, and the applicable law, the court grants
Americold’s motion for summary judgment, (Docket Entry No. 76), and denies Frez-N-Stor’s
motion for summary judgment, (Docket Entry No. 81). The reasons for these rulings are described
below.
I. Background
On March 20, 2023, Marco Rodriguez was working for Luxor Staffing in Houston, Texas
and assigned to work at the Americold warehouse. He was directed to unload boxes of frozen
chicken parts from a railcar at the cold storage warehouse. (Docket Entry No. 4.5 ⁋⁋ 4.1-4.2). The
boxes were stacked on pallets in a refrigerated railcar and had been shipped from Arkansas to
Houston. (Id. ⁋ 4.2). Each pallet weighed hundreds of pounds. (Id.).
Rodriguez and the other workers had to unload each pallet individually. (Id. ⁋ 4.4).
Rodriguez and his coworkers unloaded several pallets without incident. (Id. ¶ 4.5). Rodriguez
then re-entered the railcar to unload more pallets. (Id.). At that point, pallets containing hundreds
of pounds of frozen chicken tipped over and fell on Rodriguez, burying him under a pile of wood
and frozen meat. (Id.). Rodriguez’s spinal cord was severely damaged. (Id.). Rodriguez is a
quadriplegic as a result of the accident. (Id.).
Frez-N-Stor was responsible for moving the frozen chicken parts from Arkansas to
Houston. (Id. ⁋ 4.1). Americold owned and operated the cold storage warehouse in La Porte,
Texas, where the accident occurred. (Id. ⁋ 4.2). When he was injured, Rodriguez was employed
by Luxor Staffing, which had assigned him to work at Americold’s facility. (Id. ⁋ 4.4).
In this lawsuit, Rodriguez alleges that Americold was negligent in failing to ensure that the
pallets of frozen chicken had not shifted in transit before sending workers to unload them. (Id. ⁋
6.1). Rodriguez alleges that Frez-N-Stor was negligent in: (1) failing to properly load and secure
the pallets of frozen chicken; (2) failing to use proper air bags and dunnage—an old word meaning
loose wood or other materials to keep cargo in position, usually in a ship—to secure the pallets of
frozen chicken; (3) failing to realize that the pallets were not reasonably safe for transport via rail;
(4) failing to properly package the pallets; (5) failing to properly package, secure, and brace the
pallets to prevent them from shifting and moving during transit; (6) failing to properly test the
packaging, dunnage, and airbag equipment used to secure the pallets of frozen chicken before the
rail transit; (7) failing to ensure that the railcar was appropriate to transport multiple pallets of
frozen chicken; and (8) failing to comply with industry standards and regulations on the proper
procedures for properly and safely loading, securing, and transporting pallets of frozen chicken.
(Id. ⁋ 5.1). Both Americold and Frez-N-Stor have moved for summary judgment.
II. The Legal Standard
“Summary judgment is appropriate where ‘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.’”
Springboards to Educ., Inc. v. Pharr-San Juan-Alamo Indep. Sch. Dist., 33 F.4th 747, 749 (5th
Cir. 2022) (quoting FED. R. CIV. P. 56(a)). “A fact is material if it ‘might affect the outcome of
the suit.’” Thomas v. Tregre, 913 F.3d 458, 462 (5th Cir. 2019), as revised (Jan. 25, 2019) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A factual dispute is genuine ‘if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Id.
(quoting Anderson, 477 U.S. at 248). When considering a motion for summary judgment, the
court “must consider all facts and evidence in the light most favorable to the nonmoving party”
and “must draw all reasonable inferences in favor of the nonmoving party.” Ion v. Chevron USA,
Inc., 731 F.3d 379, 389 (5th Cir. 2013).
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion” and pointing to record evidence demonstrating that there is no genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. CIV.
P. 56(c). “When ‘the non-movant bears the burden of proof at trial,’ a party moving for summary
judgment ‘may merely point to the absence of evidence and thereby shift to the non-movant the
burden of demonstrating by competent summary judgment proof that there is a dispute of material
fact warranting trial.’” MDK Sociedad De Responsabilidad Limitada v. Proplant Inc., 25 F.4th
360, 368 (5th Cir. 2022) (alteration adopted) (quoting Nola Spice Designs, L.L.C. v. Haydel
Enterprises, Inc., 783 F.3d 527, 536 (5th Cir. 2015)).
“Once the moving party has initially shown that there is an absence of evidence to support
the non-moving party’s cause, the non-movant must come forward with specific facts showing a
genuine factual issue for trial.” Houston v. Tex. Dep’t of Agric., 17 F.4th 576, 581 (5th Cir. 2021)
(quotation marks and quoting reference omitted). “[A] party cannot defeat summary judgment
with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Jones v.
Gulf Coast Rest. Grp., Inc., 8 F.4th 363, 368 (5th Cir. 2021) (quotation marks and quoting
reference omitted). Rather, the nonmovant “must identify specific evidence in the record and
articulate the precise manner in which that evidence supports [its] claim.” Shah v. VHS San
Antonio Partners, L.L.C., 985 F.3d 450, 453 (5th Cir. 2021) (alteration adopted) (quotation marks
and quoting reference omitted).
The movant is entitled to judgment as a matter of law when “the nonmoving party has
failed to make a sufficient showing on an essential element of [its] case with respect to which [it]
has the burden of proof.” Celotex Corp., 477 U.S. at 323. But “[i]f ‘reasonable minds could differ’
on ‘the import of the evidence,’ a court must deny the motion.” Sanchez v. Young Cnty., 956 F.3d
785, 791 (5th Cir. 2020) (quoting Anderson, 477 U.S. at 250–51).
III. Analysis
A. Americold’s Motion for Summary Judgment
Americold previously moved for summary judgment, arguing that it was statutorily
immune under the Texas Workers’ Compensation Act from Rodriguez’s negligence claim. It
contended that Luxor Staffing had included Americold as an “additional insured” on Luxor’s
worker’s compensation insurance policy, which included an exclusive remedy provision. (Docket
Entry No. 63). Section 408.001(a) of the Texas Labor Code provides that “[r]ecovery of workers’
compensation benefits is the exclusive remedy of an employee covered by workers’ compensation
insurance coverage . . . for . . . a work-related injury sustained by the employee.” Americold is
entitled to summary judgment under Section 408.001(a) if shows that, as a matter of law, it was:
(1) Rodriguez’s employer within the meaning of the Texas Worker’s Compensation Act, and (2)
covered by a worker’s compensation insurance policy. Western Steel Co. v. Altenburg, 206
S.W.3d 121, 123 (2006).
The court denied Americold’s first motion for summary judgment, finding that it had not
presented evidence showing that Americold had worker’s compensation insurance. (Docket Entry
No. 73). The central issue was whether Luxor had added Americold as an additional insured on
the Luxor worker’s compensation policy. Americold had presented an affidavit from Joyce
Dominguez, Vice President of Implementation & Compliance for Luxor, and the Staffing Services
Agreement between Luxor and Americold. Neither document clearly showed that Americold was
an additional insured on the Luxor worker’s compensation policy. The Staffing Services
Agreement stated that Luxor and Americold agreed that Luxor would add Americold to its policy,
but did not show that Luxor had done so. The Dominguez affidavit stated only that Americold
paid Luxor a markup for the cost of that insurance, not that Luxor had made Americold an
additional insured. (Docket Entry No. 76-4 at 2).
Americold now moves for summary judgment a second time, presenting two additional
documents as evidence: (1) an “alternate employer endorsement” and (2) a certificate of liability
insurance. (Docket Entry No. 76). Americold argues that this evidence, together with the Staffing
Services Agreement and a second affidavit from Joyce Dominguez, clearly shows that Americold
was added to the Luxor workers’ compensation policy and can invoke the exclusive remedy
defense. (Id.).
The Staffing Services Agreement included a requirement that Luxor maintain worker’s
compensation insurance with at least one million dollars in coverage. The Agreement required
Luxor to endorse its worker’s compensation policy to name Americold as an additional insured.
Americold argues that the alternate employer endorsement, which included a certificate naming
Americold as the certificate holder, shows that Americold was an additional insured. (Docket
Entry No. 76-3).
Americold cites Robles v. Mount Franklin Food, L.L.C., 591 S.W.3d 158, 167 (Tex.
App.—El Paso 2019, pet. denied) and Martinez v. Valassis Sales & Mktg. Servs., Inc., 2020 WL
7010045, at *3 (S.D. Tex. Oct. 8, 2020), to argue that an alternative employer endorsement to a
staffing company’s worker’s compensation policy is sufficient to show that a temporary employer,
like Americold, is an additional insured under that policy. (Docket Entry No. 76 at 9-10).
Rodriguez opposes Americold’s second motion for summary judgment on several grounds.
First, he argues that Americold’s motion is an untimely Rule 59(e) motion, which requires
Americold to show that the evidence it now presents—the alternative employer endorsement and
the revised affidavit from Joyce Dominguez—could not have been discovered earlier by proper
diligence. Rodriguez argues that Americold has not made this showing. (Docket Entry No. 78 at
4). Second, Rodriguez argues that Americold did not present him with the additional evidence
Americold has submitted to support its second summary judgment motion, despite multiple
requests for relevant insurance policies. Rodriguez contends that Americold’s “failure to provide
the entire insurance contract which would purport to cover Americold via the Texas Worker’s
Compensation program would be enormously detrimental to [Rodriguez’s] ability to recover the
full amount of damages [he] believe[s] [he is] entitled to, and is thus not a harmless error.” (Id. at
10). And because “[n]early the entirety of Americold’s second Joyce Dominguez [affidavit] refers
to such evidence … its use should be precluded as well.” (Id.).
Third, Rodriguez argues that even if Americold’s additional summary judgment evidence
is considered, it is insufficient to establish that Americold was covered under Luxor’s worker’s
compensation policy. (Id. at 11). Rodriguez points to the alternate employer endorsement
statement that “we will reimburse the alternate employer for the benefits required by the worker’s
compensation law if we are not permitted to pay the benefits directly to the persons entitled to
them.” (Docket Entry No. 76-2). Rodriguez notes that the Certificate of Liability Insurance names
Luxor Staffing Inc. as the insured and states that the Certificate “confers no rights upon the
certificate holder.” (Docket Entry No. 78 at 12; Docket Entry No. 76-3). Rodriguez also points
to the fact that the Worker’s Compensation Field on the Certificate of Liability Insurance was
marked and states that the alternate employer endorsement for worker’s compensation coverage
“applies where required by contract.” (Id.). Finally, Rodriguez notes that two difference insurers
issued the alternate employer endorsement and the certificate of liability insurance. Rodriguez
argues that without proof of the terms of the actual insurance policy issued to Luxor, the evidence
shows only that “Luxor had alternate employer designations for some potential entities, without
ever saying Americold was one of those entities.” (Id. at 13).
The court previously granted Americold leave to file a second summary judgment motion
after it had tried to obtain the relevant insurance agreements from Luxor but was unable to do so
before filing its first motion. (Docket Entry No. 91). The court declines to strike the additional
evidence presented in the second motion for summary judgment or to deny the motion on the basis
that it is untimely under Rule 59(e). The question is whether Americold has shown that, based on
the undisputed facts, it was covered as an additional insured under Luxor’s policy as a matter of
law.
The court starts with the cases that Americold cites. In Martinez, 2020 WL 7010045, at
*3, a temporary employer whose workers were hired through a staffing services agreement was
covered by a worker’s compensation policy. The temporary employer presented the following
evidence of coverage: (1) the staffing company’s insurance policy contained an alternate employer
endorsement applying the policy to “those alternate employers as specifically required by
contract”; (2) the staffing services agreement required the staffing company to “provide alternate
employer status to [the temporary employer] under its worker’s compensation policy”; and (3) a
knowledgeable employee of the temporary employer testified that the temporary employer paid
the staffing company a markup for, among other things, the premium for the alternate employer
endorsement. Id. The temporary employer in Martinez provided the same type of summary
judgment evidence presented in this case.
Rodriguez does not attempt to distinguish Martinez. Instead, he argues that this court
incorrectly relied on another case, Tractor Supply Co. of Texas, L.P. v. McGowan, 2016 WL
1722873 (Tex. App.—Waco Apr. 28, 2016, pet. denied), in granting summary judgment to the
temporary employer in Martinez. In Tractor Supply, a Texas intermediate appellate court found
that a staffing agency’s worker’s compensation policy covered the plaintiff’s temporary employer
because the policy included an alternate employer endorsement. Id. at *3. Although the policy
did not name the temporary employer as an alternate employer, the policy referred to the alternate
employer insurance as “blanket” and the insurer was provided with a list of the insured’s client
companies, which included the temporary employer. Id. The court found that the temporary
employer had shown that it was covered by the worker’s compensation policy for the plaintiff’s
injury. Id.
Rodriguez argues that Tractor Supply is distinguishable because: (1) the court in Tractor
Supply could examine the insurance policy, while in this case, the policy itself is not part of the
summary judgment record; and (2) the staffing company in Tractor Supply gave the worker’s
compensation insurance company a list of client companies, while in this case, the documents
Americold and Luxor submitted do not list Americold as an alternate employer. (Docket Entry
No. 78 at 13). In the other case Americold cites, Robles, 591 S.W.3d at 167, the court held that a
temporary employer could invoke the exclusive remedy provision to defend against claims by one
of its temporary employees on the basis that the temporary employer was an insured under the
“alternate employer endorsement” in the staffing company’s worker’s compensation policy. Id. at
167 n.5. Rodriguez does not meaningfully address this case.
The summary judgment evidence that Americold has presented shows, as a matter of law,
that Americold was covered under Luxor’s worker’s compensation insurance policy through the
alternate endorsement. The staffing services agreement states that “[t]he Workers’ Compensation
policy must . . . include ‘Alternate Employer’ converge [sic].” (Docket Entry No. 76-1 at 7). The
alternate employer endorsement states that it applies to “any alternate employer of [Luxor’s]
employees.” (Docket Entry No. 76-2 at 2). When Rodriguez was injured, he was a Luxor
employee and Americold was the alternate employer.
The certificate of liability insurance states “that the policies of insurance listed below have
been issued to the insured named above for the policy period indicated.” (Docket Entry No. 76-3
at 2). The worker’s compensation and employers’ liability policy are listed. (Id.). The policy
coverage is up to $1,000,000 for “each accident.” (Id.). Americold presents an affidavit from
Joyce Dominguez, Vice President of Implementation & Compliance for Luxor, stating that “Luxor
complied with the Agreement by extending Worker’s Compensation coverage to Americold
through an Alternate Employer Endorsement (Exhibit ‘B’). The Alternative Employer
Endorsement applies to the Luxor policy with an effective date of June 30, 2022, to June 30, 2023.
The endorsement covers any ‘alternate employer’ of Luxor’s employees.” (Docket Entry No. 76-
4 at 2).
The record shows that when Rodriguez was injured at the Americold facility in 2023,
Americold was covered by Luxor’s worker’s compensation insurance policy under the alternate
employer endorsement. The negligence claim against Americold is therefore dismissed, with
prejudice because amendment would be futile.
B. Frez-N-Stor’s Motion for Summary Judgment
Frez-N-Stor argues that Rodriguez’s negligence claims against it fail because he has
presented insufficient evidence on the essential elements of his claims. (Docket Entry No. 81).
The elements of a common-law negligence claim are: (1) a legal duty; (2) a breach of that duty;
and (3) damages proximately resulting from the breach. Elephant Ins. Co., LLC v. Kenyon, 644
S.W.3d 137, 144 (Tex. 2022).
The evidence shows that in early March 2023, Frez-N-Stor packed 72 pallets of boxed
frozen chicken products for rail shipment by the Union Pacific Railroad from Arkansas to the
Americold facility in Houston. (Docket Entry No. 81 at 7). On March 17, 2023, Frez-N-Stor’s
employees pulled the frozen chicken boxes from freezers, placed the boxes on wooden pallets,
applied stretch wrap to secure the boxes to the pallets, and then used a forklift to load the pallets
into the railcar. (Id.). Frez-N-Stor employees used airbags and slip sheets to protect the pallets
from movement or damage during transit. (Id.). Frez-N-Stor employees then photographed the
loaded railcar, closed and sealed the doors, and let Union Pacific know that the railcar was ready
for transport to Texas. (Id.).
Frez-N-Stor concedes that when the railcar arrived at Americold’s facility in Houston, the
contents had shifted. (Id. at 8). Frez-N-Stor argues that when the railcar doors were opened in
Houston, none of the pallets or contents fell out of the car and there was no evident damage to the
pallets. (Id.). Marco Rodriguez, another Luxor employee, J. Todd Neyhart, and other Americold
workers were assigned to unload the railcar. (Id. at 9). This was Rodriguez’s first time unloading
a railcar in the five weeks since Luxor had assigned him to work at Americold. (Id.). Frez-N-Stor
argues that before the accident, Rodriguez had neither experience nor training on safely unloading
railcars. (Id.).
The evidence shows that Neyhart and Rodriguez began to unload the railcar using a forklift.
(Id.). After they unloaded the first few pallets of chicken, they went inside the railcar to unload
the remaining pallets by hand because the boxes were leaning off of the pallets. (Id. at 10). As
they did so, several pallets tipped over and fell on Rodriguez. (Id.)
Rodriguez disputes that Frez-N-Stor correctly loaded the pallets in the railcar before it left
Arkansas for Texas. (Docket Entry No. 96). Rodriguez argues that “[w]hen cargo is loaded
properly, workers can remove it from a railcar with a forklift . . . . But because the chicken cases
were leaning off the pallet, the workers had no choice but to remove the product by hand.” (Id. at
9). Rodriguez argues that the evidence shows that Frez-N-Stor did not load the pallets in
compliance with the Association of American Railroads standards, causing them to fall when
unloading began. (Id. at 10).
a. Duty
“The threshold inquiry in a negligence case is duty,” which “encompasses several
questions of law: the existence, scope, and elements of a duty.” Elephant Ins. Co., 644 S.W.3d at
144. “In determining whether the defendant was under a duty, the court will consider several
interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the
social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury,
and the consequences of placing the burden on the defendant.” Greater Houston Transp. Co. v.
Phillips, 801 S.W.2d 523, 525 (Tex. 1990) (citation omitted) (citing Otis Eng’g Corp. v. Clark,
668 S.W.2d 307, 309 (Tex. 1983)).
Frez-N-Stor argues that it owed no duty to Rodriguez and the other workers unloading the
railcar to: (1) warn those workers that the pallets of frozen chicken products might shift and pose
a risk to the workers during unloading; or (2) to ensure that proper safety measures had been taken
to prepare the pallets for safe unloading. (Docket Entry No. 81 at 14). Frez-N-Stor argues that
the only issues are whether Frez-N-Stor breached its duties to Americold employees to load the
pallets on the railcar in a way that: (1) would not create any hidden or latent risks to the workers
unloading them; and (2) would allow the workers to safely unload them. (Id. at 15).
Frez-N-Stor argues that “[t]he first duty imposed by law upon shippers of goods is that
upon arrival of the goods, there are no hidden or latent defects in the loading.” (Id.). Frez-N-Stor
cites Wright v. B.F. Huntley Furniture Co., 299 F.2d 904 (4th Cir. 1962), to support its argument
that because Rodriguez and Neyhart admit that they saw that the pallets had shifted but kept
unloading them, the manner in which they were loaded was not a hidden or latent defect. (Docket
Entry No. 81 at 16). Frez-N-Stor cites Texas cases and the Second Restatement of Torts1 in
arguing that the duty it owed Rodriguez was to make any unreasonably dangerous conditions safe
or to warn him of that danger. (Docket Entry No. 81 at 17). Frez-N-Stor argues that when
Rodriguez saw that the load had shifted, he could and should have taken steps to avoid harm,
including refusing to continue unloading or to re-enter the railcar. (Id. at 17-18). Frez-N-Stor
contends that because any loading defects were apparent before or very soon after unloading
began, Frez-N-Stor did not breach its duty of ensuring that the way the railcar was loaded presented
no hidden or latent defect. (Id. at 19).
Frez-N-Stor also argues that it did not breach its duty to load the railcar so that the workers
unloading it would be able to do so safely if they exercised proper care. (Id.). Frez-N-Stor cites
deposition testimony from Jerry Harrelson, Americold’s operation manager, stating that the
workers who unloaded the frozen pallets of chicken parts could have safely done so by using a
“controlled fall” or a forklift cage or basket.2 (Docket Entry No. 81 at 20; Docket Entry No. 81-3
at 200:4-17).
Rodriguez responds by pointing to evidence that he contends shows that Frez-N-Stor failed
to properly prepare the load for rail transit by: (1) failing to properly wrap the entire cargo in stretch
wrap because the stretch wrap did not encompass the wooden pallets on which the boxes of frozen
chicken were stacked; and (2) failing to use enough airbags, dunnage, and filler to create a tight,
compact load, which allowed the cargo to lean and become unstable. (Docket Entry No. 96 at 11-
1 See RESTATEMENT (SECOND) OF TORTS § 343, cmt. B (1965) (“[An invitee] is entitled to expect such care
not only in the original construction of the premises, and any activities of the possessor or his employees which may
affect their condition, but also in inspection to discover their actual condition and any latent defects, followed by such
repair, safeguards, or warning as may be reasonably necessary for his protection under the circumstances.”).
2 Harrelson described a “controlled fall” method of unloading the boxes as one where “[y]ou cut the plastic, and then
you allow the product to freefall onto the floor.” (Docket Entry No. 81-3 at 185:2-4). He also described the forklift
cage and basket method as putting cages or baskets on forklifts “for it to . . . raise associates up to hand-stack stuff
down into the cage.” (Id. at 200:4-17).
13). Rodriguez argues that these failures caused the load to shift significantly during transit,
allowing the boxes of frozen chicken parts to lean off the edges of the pallets and tip over when
unloading began. (Id. at 13-14). Rodriguez cites to photos of the load, deposition testimony from
Frez-N-Stor’s corporate representative and from a supervisor, and the American Association of
Railroads standards on properly securing cargo for rail transport. (Id.). Rodriguez also points to
evidence showing that neither of the Frez-N-Stor employees responsible for training the workers
loading the railcars or those workers were offered formal training in how to load and secure cargo
properly and were not familiar with the American Association of Railroads standards for doing so.
(Id. at 14). Rodriguez argues that Frez-N-Stor breached its duty to Rodriguez (as a worker tasked
to unload the pallets) by failing to take reasonable care in loading the pallets into the railcar so that
they could be safely unloaded after the rail transit. (Id. at 20).
Rodriguez argues that testimony from Michael Dickmeyer, General Director of Freight for
Union Pacific and a member of the American Association of Railroads, shows that the standards
promulgated by the Association provide the applicable standard of care for loading and securing
cargo for rail transport. (Id. at 25 (citing Docket Entry No. 96-21)). As noted above, Rodriguez
argues that Frez-N-Stor failed to follow the Association standards by failing to properly use stretch
wrap to fully wrap the pallets, and by failing to use airbags, dunnage, and other filler material to
ensure that the load was secure and to eliminate void spaces where shifting could occur. (Id. at
21-22). Rodriguez also argues that there are factual disputes material to determining whether Frez-
N-Stor employees were trained on the American Association of Railroads standards—or trained
at all—before loading railcars with cargo that could shift in transit in ways that made it hazardous
to unload. (Id. at 22).
Rodriguez cites United Rentals North America, Inc. v. Evans, 668 S.W.3d 627, 639 (Tex.
2023), to argue that a company loading cargo has a duty to third parties to do so safely. (Docket
Entry No. 96 at 15). Rodriguez argues that the Fourth Circuit caselaw Frez-N-Stor cites, including
Wright v. B.F. Huntley Furniture Company, holding that the duty of a shipper is to warn of latent
or concealed defects only, is inapplicable because Texas courts have refused to apply the rule in
those cases to bar an injured third party from bringing a claim against a negligent shipper or carrier.
(Docket Entry No. 96 at 16). In United Rentals, the Texas Supreme Court affirmed the holding
that a shipper may have a duty to third persons to ensure that cargo is loaded safely. (Docket Entry
No. 96 at 15). Rodriguez argues that even if the Wright v. B.F. Huntley Furniture Company rule
did apply, Frez-N-Stor, as the shipper, owed a duty to Rodriguez to safely pack the pallets. Citing
White v. Dietrich Metal Framing, 2007 WL 7049797, at *6 (E.D. Tex. July 5, 2007), Rodriguez
argues that “if a shipper assumes the responsibility for loading its property onto a motor vehicle,
it has the duty to exercise reasonable care in properly securing the load.” (Docket Entry No. 96 at
16).
Rodriguez argues that there are factual disputes material to determining whether the
defective loading was obvious to an ordinary observer entering the railcar. Rodriguez testified
that he did not recall noticing that the pallets were leaning when he entered the railcar. (Id. at 18;
Docket Entry No. 96-7 at 101:7-11). He also testified that if he had seen that the pallets had shifted,
he would not have unloaded them. (Docket Entry No. 96 at 18; Docket Entry No. 96-7 at 104:18-
20). There are factual disputes material to determining whether the defects in how the pallets were
loaded were patent or not. These factual disputes are among those precluding summary judgment
on whether Frez-N-Stor breached a duty to Rodriguez in the way its workers loaded the pallets,
even under the Fourth Circuit rule that Frez-N-Stor cites.
The case law discussing the duty a shipper of goods owes to a third-party responsible for
unloading those goods at the destination is sparse, at best. Rodriguez cites United Rentals, 668
S.W.3d, as involving analogous facts. In that case, a motorist was killed when a large piece of
equipment carried on a United Rentals flatbed trailer struck an overpass and the falling equipment
parts crushed the motorist’s vehicle. The Texas Supreme Court noted that because the shipper,
United Rentals, often moved its heavy equipment on highways, it knew the dangers and had ample
opportunity to ensure that its equipment was safely loaded for shipment. Id. at 639. The court
held that United Rentals owed a duty to motorists to refrain from “negligently creating a dangerous
situation on the highway.” Id. (internal quotations omitted).
Rodriguez argues that United Rentals stands for the proposition that “anyone who
participates in the loading of cargo has a duty to ‘refrain from negligently creating a dangerous
situation’” for third parties. (Docket Entry No. 96 at 6; United Rentals, 668 S.W.3d at 639).
Rodriguez argues that after United Rentals, shippers owe this duty to third parties, such as workers
tasked with loading shipments. The United Rentals court repeatedly emphasized that the shipper’s
duty in that case was heightened because it was obviously transporting oversized cargo on public
roadways traveled by motorists who would have no way of knowing whether the cargo was safely
loaded. In this case, by contrast, the parties dispute whether there were visible or hidden defects
in the way the pallets of frozen chicken parts were packed before transit that made it dangerous to
unload them when they arrived at the destination.
Rodriguez cites White v. Dietrich Metal Framing, 2007 WL 7049797. In that case, White,
an employee of a trucking company, sued a manufacturing company, Dietrich Metal, after White
was seriously injured while driving a tractor-trailer loaded with Dietrich steel products. Id. at *3.
White was present when Dietrich employees loaded the steel products into the trailer, and he
complained about overloading. Id. Despite his concern, White proceeded to drive as instructed.
Id. The truck and trailer tipped over during the trip. Id. Dietrich moved for summary judgment,
arguing that it owed no duty to White that it breached because the allegedly improper loading was
obvious and apparent to White, rather than “latent” or “concealed.” Id. White argued that
summary judgment was inappropriate because there was a genuine factual dispute material to
determining whether the loading defect was obvious or not. Id.
Much of the district court’s reasoning in Dietrich was specific to the duties between
shippers and carriers, which are not at issue here. However, the court considered the Fourth Circuit
rule that Frez-N-Stor cites, concluding that “[a]lthough a carrier is primarily responsible for the
security and safety of the cargo, a shipper such as Dietrich may, nevertheless, be held liable for
negligent loading if the defect is latent or concealed, ‘so that a reasonable inspection of the load
by the carrier will not uncover the shipper’s negligence.’” Id. at *8 (citing Decker v. New England
Pub. Warehouse, Inc., 749 A.2d 762, 787 (Me. 2000)). Under this rule, Frez-N-Stor would not be
liable for negligently loading the railcar if “the load’s condition or securement, or lack thereof,
was patent and obvious,” but may be liable if the load’s dangerous condition or “securement” was
not readily observable. See Dixon v. Leopoldo Garza Logistics, Inc., 2020 WL 4689217, at *4
(S.D. Tex. June 26, 2020).
The record reflects a genuine factual dispute material to determining whether the danger
the pallets presented on unloading was latent and hidden, or whether it was patent and obvious.
Frez-N-Stor presents three photos, one showing the pallets packed with boxes of chicken parts
after they were loaded into the railcar in Arkansas, one showing the pallets after they had arrived
at the Americold facility in Houston, and one showing the pallets after Rodriguez and Neyhart had
partially unloaded them. (Docket Entry No. 81 at 9-11). The photos do not clearly show that the
pallets were stacked or loaded in a way that presented a serious and obvious risk of harm to
someone unloading them. Rodriguez testified in his deposition that while he does not recall
whether the boxes of chicken pallets were leaning when he began to unload them, “[i]f the boxes
were leaning and I think it was unsafe, I wouldn’t have gone in there.” (See Docket Entry No. 96-
7 at 101:7-11, 102:11-15; Docket Entry No. 96-7 at 101:7-11, 102:11-15; 105:12-15).
On the other hand, Neyhart, who was with Rodriguez when they began to unload the railcar,
testified that he took photos when he entered the railcar “for [his] own safety purposes” and to
“show the upper people later on that that’s not safe.” (Docket Entry No. 81-4 at 39:12-14).
Neyhart also testified that Rodriguez asked Neyhart how he would know if any of the pallets were
starting to tip over before they started to unload the pallets. (Id. at 163:3-6).
In White, the plaintiff recalled questioning the safety of the load and characterizing it as
“loaded too high” and “overloaded.” White, 2007 WL 7049797 at *24. There is no record
evidence of Rodriguez clearly stating that he knew that the cargo was stacked in a dangerous way
before it fell on him.
Frez-N-Stor argues that because Rodriguez had not unloaded a railcar before, he could not
tell whether the pallets presented a risk to the workers unloading them. Courts consider relevant
experience in determining whether an observer such as Rodriguez can recognize whether a defect
is latent or patent. See Dixon, 2020 WL 4689217 at *4; White 2007 WL 7049797 at *7. In the
context of claims by carriers against shippers, the Eighth Circuit has described relevant experience
as the “primary factor” in determining whether the carrier should be held to know that a defect was
latent or patent. See Vargo-Schaper v. Weyerhaeuser Co., 619 F.3d 845, 849 (8th Cir. 2010). To
the extent that factor is relevant, it tends to show that Rodriguez, lacking prior experience in
unloading similar pallets, would not see any unreasonably dangerous condition in the way the
pallets were stacked before they fell.
On this record, there are factual disputes material to determining whether the risk of the
pallets tipping over and falling during unloading was one that Rodriguez saw or should have seen
and taken steps to avoid. These disputes are among those precluding summary judgment in favor
of Frez-N-Stor.
b. Causation
Frez-N-Stor also argues that Rodriguez has not shown that it was negligent in ways that
proximately caused Rodriguez’s injury. (Docket Entry No. 81 at 21). Under Texas law,
“[n]egligence requires a showing of proximate cause . . . . ” Union Pump Co. v. Allbritton, 898
S.W.2d 773, 775 (Tex. 1995), abrogated on other grounds by Ford Motor Co. v. Ledesma, 242
S.W.3d 32 (Tex. 2007).
Frez-N-Stor argues that the report of Stephen Legge, one of Rodriguez’s experts, offers
“no analysis to support [his] claims that Frez-N-Stor’s loading operations were the cause in fact of
[Rodriguez’s] injuries.” (Docket Entry No. 81 at 21). Frez-N-Stor argues that Legge’s report
concludes that Frez-N-Stor did not load the railcar in compliance with American Association of
Railroads standards, and that the failure to do so was a “determinant’ factor in the incident. (Id.
(citing Ex. 6 at 10)). Frez-N-Stor contends that Legge’s conclusions are insufficient to show that
this alleged failure to comply with the standards caused the accident, or how compliance with the
standards would have prevented it. (Id.).
Frez-N-Stor presents deposition testimony from Michael Dickmeyer, General Director of
Freight for Union Pacific and a member of the American Association of Railroads, stating that
100% compliance with either Union Pacific’s recommendations or the American Association of
Railroad’s standards cannot prevent a load from shifting in transit. (Id. at 22). Frez-N-Stor points
to this testimony to argue that while Rodriguez may have shown that Frez-N-Stor’s alleged
negligence in loading the cargo created a condition that made the accident possible, Rodriguez has
not shown that Frez-N-Stor’s negligence caused the accident. (Id.). Frez-N-Stor cites Bell v.
Campbell, 434 S.W.2d 117 (Tex. 1968), to argue that when a defendant’s initial negligent act was
not the active cause of the plaintiff’s injuries, but merely created the condition allowing a second
act of negligence by another party to occur, the resulting harm that results is too attenuated from
the defendant’s conduct to be the cause-in-fact of the plaintiff’s injuries. (Docket Entry No. 81 at
23).
Rodriguez argues that the record evidence supports finding that Frez-N-Stor’s failure to
safely load the railcar caused his injuries. (Docket Entry No. 96 at 22). Frez-N-Stor does not
dispute that Rodriguez’s injuries were a foreseeable result of improper loading of the pallets
containing heavy loads of frozen chicken products. (Id. at 23). Rodriguez points to testimony
from fact witnesses, including an Americold supervisor, stating that properly using stretch wrap,
dunnage, airbags, and filler is needed to keep cargo stable. (Id. at 24-25). Rodriguez argues that
even though Frez-N-Stor argues that other defendants—or Rodriguez himself—contributed to
cause the accident, that does not entitle Frez-N-Stor to summary judgment because there can be
more than one proximate cause of an accident and injury. (Id. at 26).
“Proximate cause consists of both cause in fact and foreseeability.” Allbritton, 898 S.W.2d
at 775. Frez-N-Stor does not argue that Rodriguez’s injuries were unforeseeable. “To be a cause-
in-fact of the accident, a potential tortfeasor’s acts or omissions must have been substantial factors
in causing the accident.” All Freight Sys. v. James, 115 F. Appx. 182, 184-85 (5th Cir. 2004).
“Specifically, the acts or omissions must be factors without which the accident would not have
occurred.” Id. at 185. Although “Texas courts routinely hold that proximate causation is a fact
question within the jury’s province,” Berry Prop. Mgmt. v. Bliskey, 850 S.W.2d 644, 656 (Tex.
App.—Corpus Christi 1993, writ dism’d by agr.), proximate cause is a question of law “if the
circumstances are such that . . . reasonable minds could not arrive at different conclusions.” Mo.
Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 104-05 (Tex. 1977).
Rodriguez has raised factual disputes material to determining whether Frez-N-Stor’s
actions were a substantial factor in causing the accident and injuries. The parties do not dispute
that Frez-N-Stor failed to follow the American Association of Railroads standards in securing the
load for rail transport, including by failing to use the appropriate amount of stretchwrap, dunnage,
airbags, and filler to stabilize the cargo. Frez-N-Stor’s expert, Dickmeyer, testified that the load
may have shifted in transit even if Frez-N-Stor had complied with the American Association of
Railroads standards in securing the pallets. Rodriguez’s expert, Legge, testified that if Frez-N-
Stor had complied with the standards, the pallets would not have shifted during rail transport so
much as to become unstable and tip over when unloading began. The conflicting expert opinions
on whether Frez-N-Stor’s failure to comply with applicable safe loading standards caused the
cargo to shift to the extent that it was unreasonably dangerous to workers unloading it preclude
summary judgment on causation.
Frez-N-Stor also argues that Rodriguez’s negligence in continuing to unload the railcar by
hand after he had apparently realized that doing so was risky was the cause-in-fact of his injuries.
Under Texas law, a plaintiff’s contributory or comparative negligence bars recovery if he or she is
50 percent responsible. If the plaintiff is less than 50 percent responsible, that diminishes but does
not preclude recovery. Perez v. United States, 830 F.2d 54, 57 (5th Cir. 1987). It is not clear on
this record what amount of fault—if any—Rodriguez should bear, as opposed to the defendants.
There are factual disputes as to when, and to what extent, Rodriguez perceived that unloading the
pallets by hand was unreasonably dangerous. Summary judgment on the apportionment of fault is
not appropriate on this record.
IV. The Motions to Exclude Expert Testimony
Rodriguez has moved to exclude the testimony of two of Frez-N-Stor’s experts, Joseph
Michels and Christopher Bonanti. (Docket Entry Nos. 103, 105). Frez-N-Stor designated Michels
to testify about general safety standards in the shipping industry and specific safety procedures at
the Americold facility. Frez-N-Stor designated Bonanti to testify about general loading and
unloading operations and to present an analysis of the shifting of the load of chicken parts.
Rodriguez argues that Michels’ testimony on Americold’s workplace safety procedures is
irrelevant and unhelpful to the jury, and that Bonanti relies on unreliable and unverifiable sources
to testify that problems during the rail transport—including irregularities in the train’s speed—
rather than any Frez-N-Stor act or omission, caused the load of pallets to shift and become unstable.
Rodriguez requests a hearing on both motions to exclude.
Resolving the motions for summary judgment does not depend on whether the court may
properly consider these expert opinions. The court will hear the motions to exclude at the final
pretrial conference. At least seven days before that conference, each party intending to submit
evidence on the motions to exclude must submit a witness list and an exhibit list and must provide
copies of the exhibits to the other side and to the court.
V. Conclusion
Americold’s motion for summary judgment, (Docket Entry No. 76), is granted. Frez-N-Stor’s
motion for summary judgment, (Docket Entry No. 81), is denied. The motions to exclude expert
testimony, (Docket Entry Nos. 103, 105), remain under advisement.
SIGNED on July 22, 2025, at Houston, Texas.
LW CrTeo
Lee H. Rosenthal
Senior United States District Judge
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