North Carolina Lawyers Weekly
Silverman v. United States (Lawyers Weekly No. 11-03-0101, 25 pp.) (William L. Osteen Jr., J.) M.D.N.C.
Holding: Even if the Post Office loaded the plaintiff-truck driver’s trailer unevenly, plaintiff’s speeding – 10 mph over the posted speed limit of 55 mph and 30 mph over the recommended speed of 35 mph on the exit ramp – was the proximate cause of his accident.
Judgment for defendant.
Facts
Plaintiff’s employer is a highway contractor that transports mail for the U.S. Postal Service.
On Feb. 4, 2007, plaintiff drove his tractor to the Greensboro Bulk Mail Center. He hooked it to the trailer assigned to him. The trailer had been loaded and sealed without his participation or supervision, and he was not allowed to inspect the load.
When plaintiff drove onto the exit ramp from US-220 South to I-85 South, first the trailer, then the tractor rolled over.
Plaintiff testified that he was driving at about 45 mph, but an eyewitness who was following plaintiff estimated plaintiff’s speed at 65 mph. An expert witness calculated plaintiff’s speed as 67 mph.
Analysis
Defendant had knowledge of plaintiff’s claim less than two years after the accident; nevertheless, defendant is unable to find its record of the trip number, time of departure, how much was on the trailer, the number of straps used to secure the load, and who inspected the load restraint and sealed the trailer. Defendant indicates the record was likely destroyed pursuant to the USPS’s two-year document retention policy.
The court finds that USPS intentionally destroyed the record concerning plaintiff’s load. The court will infer that the contents of the record would have demonstrated that USPS breached its duty of ordinary care in loading plaintiff’s trailer. However, the court will not extend that inference so far as to conclusively establish that USPS’s breach was the proximate cause of plaintiff’s injuries.
Plaintiff’s only evidence that USPS’s negligent loading of the trailer proximately caused the accident is his assertion that, immediately prior to the rollover, he heard mail carts crashing against the sides of the trailer, suggesting that a load shift caused the accident. While this court does not doubt that plaintiff’s testimony was offered in good faith, this court is not persuaded that a load shift resulting from USPS’s negligent loading caused the rollover.
Plaintiff did not offer any testimony that he had ever successfully taken the exit from US 220 South to I-85 South with a fully loaded trailer at 65 mph, nor did plaintiff assert that he has any unique experience identifying the causes or sounds of rollover accidents. The court will not adopt plaintiff’s conclusion that a load shift caused his accident.
Engineer David McCandless was qualified as an expert in mechanical engineering and accident reconstruction. He opined that, at a speed of 65 mph, plaintiff’s tractor-trailer would have rolled over regardless of the loading conditions.
Based on McCandless’ testimony and plaintiff’s lack of evidence to the contrary, the court concludes that plaintiff’s speed, and not USPS’s negligent loading of the trailer, was the proximate cause of plaintiff’s accident.
Even assuming plaintiff had demonstrated that USPS’s negligence was a proximate cause of the accident, plaintiff’s negligence claim is barred by his own contributory negligence.
Plaintiff was traveling 65 mph as he exited US 220 South onto I-85 South. His speed was in excess of both the posted speed limit of 55 mph and the advisory speed of 35 mph. Speeding in excess of the posted speed limit is negligence per se under N.C. law.
Even if plaintiff’s speed did not constitute negligence per se, the court would conclude that, under the circumstances, traveling 10 mph faster than the posted speed limit and 30 mph faster than the advisory speed for the exit ramp constitutes a breach of plaintiff’s duty to exercise due care.
Defendant has demonstrated that plaintiff was contributorily negligent. Therefore, plaintiff’s negligence claim against USPS is barred under N.C. law.
Even though the loading of the trailer was under USPS’s exclusive control, the trailer itself was under plaintiff’s control at the time of the accident. Therefore, the doctrine of res ipsa loquitur does not apply.
Judgment for defendant.
