Trucker May Not Sue Company for Injuries Incurred Opening Truck, Seventh Circuit Rules – Swearingen v. Momentive Specialty Chemicals

By December 15, 2011Trucking Accidents

As a southern Illinois semi truck accident attorney, I was interested to read about a case of a trucker claiming to be injured by a company’s negligence. Most of my cases involve negligence that harms innocent drivers and passengers who just happen to be in the way of an out-of-control truck. However, the same negligence that causes truck accidents can put truckers themselves, who are the trucking company’s own employees or contractors, in harm’s way. In Swearingen v. Momentive Specialty Chemicals, truck driver Paul Swearingen of Illinois suffered permanent injuries after falling from the top of the truck, where he was trying to follow directions to unload the cargo. He alleged that Momentive negligently failed to provide a proper harness and failed to warn him about hazards waiting at the top, but the Seventh Circuit disagreed.
Swearingen delivered a truck full of chemicals to Momentive in March of 2010, and employees there asked him to open the dome lid on the top of his truck. He testified that when he climbed the ladder on the side of the truck, he noticed low-hanging fire-extinguisher pipes near the top of the truck, but “had been in these kind of situations before” and knew that even if he complained, he was “going to have to do it in the end anyway.” He wished for a safety harness but did not have one, and Momentive employees did not offer any or stay around to assist or supervise. As Swearingen attempted to open the lid, he hit his head on the pipes, fell and suffered what he said were serious permanent injuries. He sued in July of 2010, but Momentive moved for summary judgment. The district court found for Momentive, ruling that the hazards Swearingen encountered were open and obvious and that the deliberate-encounter exception did not apply.
In Swearingen’s appeal to the Seventh Circuit, he argued that there was a genuine issue of material fact in the case as to whether the deliberate-encounter exception applies. The open and obvious doctrine says defendants are not liable for hazards that are open and obvious; the deliberate-encounter exception says the defendant can be liable if it can reasonably foresee that the plaintiff will deliberately encounter the hazard at issue, and should warn or provide him with mitigation like a safety harness. The district court had found no evidence suggesting that Momentive knew Swearingen would climb on top of the truck, and the Seventh Circuit agreed. Swearingen’s employer had trained him to open the truck from the ladder and maintain three points of contact with the truck at all times. He said he violated this rule because the lid was secured too tightly to open from the ladder, but the Seventh said Momentive had no reason to foresee this or indeed, that any driver would climb on top of his truck. Thus, the court agreed that the deliberate-encounter exception did not apply and upheld the summary judgment ruling.
This case is disappointing for Missouri tractor-trailer accident lawyers like me because it continues a trend toward low regulation of the trucking industry. Like all businesses, trucking companies are in business to make a profit. When no one is watching closely, this can mean cutting corners on safety in order to speed things up and protect profits, especially since payment often depends on the delivery date. For truck drivers, the result can be an unsafe work environment and unsafe trucks that are missing out on basic maintenance. For the people who share the roads with truckers, this means a deadly risk they cannot control or even anticipate. As a St. Louis tanker truck accident attorney, I routinely look at the safety choices of the trucking company in the cases I handle.


If your family has been affected by the bad safety decisions of a truck driver or trucking company, you should call Carey, Danis & Lowe today to discuss how we can help. For a free consultation, send us an email or call toll-free at 1-877-678-3400.
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