Metropolitan News-Enterprise


Tuesday, December 29, 2015


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C.A. Rejects Delivery Driver’s Complaint Over Heavy Package

Customer Not Liable for Injury Because Plaintiff Assumed Risk, Panel Rules




A United Parcel Service delivery driver cannot hold a customer liable for injuries he allegedly suffered as a result of lifting a package he claims was mislabeled, substantially understating its weight, the Third District Court of Appeal ruled yesterday.

The justices held that the primary assumption-of-risk doctrine applied, and that the customer, William Jessup University, did not increase the risk of injury to William Moore by failing to state the true weight of the box or by failing to mark the  box with highlighted tape.

The risk inherent in lifting heavy packages was part of Moore’s job, Justice Louis Mauro reasoned, and public policy precludes imposing a duty “to prevent an injury to a plaintiff arising from the very condition or hazard the defendant retained the plaintiff to confront.”

Moore was injured in January 2010. At the time, he had worked for UPS for 20 years, the previous 15 as a delivery driver.

He explained that he found 24 boxes of similar size and shape stacked in the UPS pickup area of the university’s mailroom, saw that they were all labeled 48 pounds, and began lifting them onto his hand truck. Four boxes were lifted without incident, he said, but when he lifted the fifth, he felt pain in his wrist, shoulder and neck.

Based on experience, he estimated that the first four boxes weighed around 48 pounds each, but that the fifth weighed between 70 and 80 pounds.

He received workers’ compensation benefits and was found to have a cumulative disability rating of five percent. He also sued he university, which moved for summary judgment.

Grounds for Summary Judgment

The school sought summary judgment on the grounds it did not owe him a duty to protect him from injuries resulting from lifting heavy boxes, and that it did not increase the inherent risk of such injury that Moore had assumed.

In support, the university presented evidence that UPS trains its drivers to test the weight of each package before lifting it, and that if the package weights more than 70 pounds, it should be rolled, rather than lifted, onto a hand truck and then from the hand truck onto the delivery truck. Employees may seek assistance from other UPS employees before lifting such heavy packages.

The evidence also showed that the company instructs customers to attach special warning labels to such packages, but that customers don’t always obey the instruction.

Moore admitted that he relied solely on the labels in determining it was safe to lift the packages on the occasion of the injury, even though inaccurate labeling of packages as to weight was, in his experience, something that occurred at least once per week.

Trial Court Ruling

Placer Superior Court Judge Michael A. Jacques granted the motion, concluding that a customer has not duty to protect a delivery driver from an injury of this type, and that Moore assumed the risk of injury under the primary assumption-of-risk doctrine.

Mauro, writing for the Court of Appeal, said the trial judge correctly applied the doctrine, making it unnecessary to apply a multifactor Rowland v. Christian (1968) 69 Cal.2d 108 analysis to resolve the duty question.

He cited the firefighter’s rule as an example “of the primary assumption of risk doctrine applied in the employment context.” The rule holds that a person who starts a fire owes no duty of care to the firefighter who responds, because it is the firefighter’s job to confront the risk.

Courts have similarly held that a police officer injured while responding to a crime may not sue the criminal for negligence, that a tow truck driver had no claim against the owner of a vehicle stopped on the shoulder of a highway, and that a professional in-house caregiver could not sue for injuries sustained in dealing with an unruly Alzheimer’s patient.

‘Veterinarian’s Rule’

There is also, Mauro noted, a “veterinarian’s rule” that prevents a veterinarian, or member of a veterinarian’s staff, suing the owner of a dog if the dog bites the person during treatment. And the state Supreme Court has extended the rule to commercial kennel workers, the justice pointed out.

In Moore’s case, the justice said, it is clear as a matter of law that one of the risks inherent in his occupation is that of being injured while moving or lifting heavy objects. Based on the evidence, he said, it is the duty of UPS’s trained drivers, not its customers, to take the necessary steps to reduce or eliminate the risk.  

He distinguished Lipson v. Superior Court (1982) 31 Cal.3d 362, which held that the firefighter’s rule did not bar the claim of a firefighter who was injured in responding to a risk that had been misstated by the defendant.

“Here, UPS delivery drivers had a reason not to rely on customer weight representations in determining how to move or lift packages,” Mauro explained. “UPS prudently trained its employees to test the weight of a package before lifting it.”

Moore, he elaborated, was in a far better position to protect himself than the university was to protect him. He had experience, he was in control of how the boxes would be moved, and he had the option of calling the company for assistance, the jurist said.

The case is Moore v. William Jessup University, 15 S.O.S. 6196.


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