Filed 9/14/26
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
STATE OF CALIFORNIA ex rel.
DEPARTMENT OF A174303
TRANSPORTATION,
Plaintiff and Appellant, (Alameda County
Super. Ct. No. 23CV032255)
v.
HERC RENTALS, INC.,
Defendant and Respondent.
Plaintiff and appellant the State of California, by and through the
Department of Transportation (State), appeals from the trial court’s order
granting summary judgment in favor of defendant and respondent Herc
Rentals, Inc. (Herc). Herc, the shipper, loaded an undocked boom lift onto a
truck for transport by defendant California Interstate Express, Ltd. (CIE),
the carrier, and its driver, defendant Abel Camacho, to a buyer. While
Camacho was driving on the highway, the top of the lift struck an
overcrossing bridge, causing structural damage to it. Herc argued that it
owed no duty to check the height of the lift during loading, because statutes
and case law placed the primary duty to safely load cargo on the carrier. The
trial court agreed and granted summary judgment for Herc. We now reverse.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of part E of the
Discussion.
1
In doing so, we find that: (1) the rule articulated in United States v. Savage
Truck Line, Inc. (4th Cir. 1953) 209 F.2d 442 (Savage) does not bar the
State’s negligence claims under California’s comparative fault law; (2) neither
federal regulations nor the Vehicle Code state otherwise; and (3) an exception
to the general duty of care under Civil Code section 1714 1 for shippers like
Herc is not supported by the factors identified in Rowland v. Christian (1968)
69 Cal.2d 108, 113 (Rowland).
I. BACKGROUND
A. Facts
On the morning of June 1, 2020, Camacho arrived at Herc’s yard to
pick up a JLG 800A Boom Articulated 80FT Lift (Boom Lift) for transport to
a buyer. 2 Camacho was driving a truck owned by CIE, his employer at the
time. The truck consisted of a tractor with a flatbed trailer attached to it.
After Camacho drove into Herc’s yard, someone from Herc’s front office
instructed him to park next to the docks to wait for the Boom Lift. Camacho
did so and waited for about two hours before two Herc employees brought the
lift and loaded it onto the truck. The lift was undocked, meaning that its arm
was still extended. Once the Herc employees finished loading the lift onto his
truck, Camacho used straps and chains to secure the lift onto the trailer.
Camacho knew that he, as the driver, was responsible for measuring
the height and width of any load he was hauling. Despite this, he did not
measure the height of the Boom Lift because he did not have a measuring
tape that day. Instead, he stood “a few meters away . . . looking at the [Herc]
1 All further statutory references are to the Civil Code unless otherwise
specified.
2 As shown in the photo submitted by Herc in support of summary
judgment below, the Boom Lift is a large vehicle with an extendable arm
which allows access to higher or hard-to-reach areas.
2
employees loading the [B]oom [L]ift” and “thought that the height was okay”
because the lift “was almost level[ ] with the pipes of [his] tractor.” 3 He did
not ask the employees to help check the height of the lift, and the employees
did not say anything to him regarding it. After securing the lift, Camacho
signed some paperwork and left with the lift.
Soon after, Camacho, while on the highway, had to drive under a
bridge. The top of the Boom Lift struck the bridge, causing structural
damage. The bridge was 15 feet, 1 inch above the road surface while the
undocked lift sat on the trailer 15 feet, 6 inches above the road surface.
Camacho pulled over to the shoulder, and the police arrived. Herc was
notified and sent three employees to the scene of the accident. One of the
employees lowered the lift to its docked height of 13 feet. After the police
investigated and cleared Camacho, Camacho continued his journey with the
lift.
B. Procedural History
On May 1, 2023, the State sued CIE and Camacho for negligence and
damage to highway (Sts. & Hwy. Code, § 730). CIE and Camacho filed a
cross-complaint against Herc for implied and equitable indemnity, equitable
apportionment of fault, and contribution. A few months later, the State
amended its complaint to substitute Herc for Doe 1. Herc filed a cross-
complaint against CIE and Camacho for equitable indemnity, partial or
comparative indemnity, and declaratory relief.
Herc moved for summary judgment as to both the State’s complaint
and CIE’s and Camacho’s cross-complaint. Herc argued that pursuant to
3 During his deposition, Camacho also stated that he was “100 to 200
meters away” when he determined that the height of the Boom Lift was okay
for transport. Finally, Camacho was diagnosed with glaucoma in 1989 and is
blind in his left eye.
3
Federal Motor Carrier Safety Regulations (FMCSR) and Vehicle Code section
35250, the duty to secure cargo and to ensure that the height of that cargo is
appropriate for transport falls on the carrier (i.e., CIE and Camacho). The
State opposed, contending that Herc owed a general duty of care under
section 1714 and that no statute categorically eliminated a shipper’s duty of
care to the public. The State further argued that although the Fourth Circuit
in Savage, supra, 209 F.2d 442 held that a carrier is principally liable for
improperly loaded cargo in indemnification cases between a carrier and
shipper, California has never applied the Savage rule to negate a shipper’s
duty of care to an injured third party. Lastly, the State highlighted that
under California law, all defendants were jointly and severally liable for the
damage to the bridge. CIE and Camacho separately opposed the motion.
On June 20, 2025, the trial court granted summary judgment for Herc
on both the State’s complaint and CIE’s and Camacho’s cross-complaint. The
court held that both “statutory principles and case law [(i.e., Savage)] seem to
squarely place . . . liability on the carrier” and that “[a]ny basis for duty
appears to start and stop with CIE and Camacho.” It further noted that “CIE
and Camacho were responsible for height inspections and [that] the lift’s
height was in no way concealed upon loading.” The court did not discuss
Herc’s duty of care under section 1714. The following month, the court
granted CIE’s and Camacho’s unopposed motion for determination of good
faith settlement. The State timely appealed the summary judgment order. 4
4 Although the State appealed the order granting Herc’s motion for
summary judgment, we exercise our discretion and treat that order “as the
appealable, final judgment” as the trial court “clearly intended the [order] to
constitute its final decision on the merits” and “[n]o party argues otherwise.”
(Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 904.)
4
II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate “if all the papers submitted show
that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c).) A defendant seeking summary judgment “bears the burden of
persuasion that there is no triable issue of material fact and that he is
entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.)
We review a grant of summary judgment de novo, which means we
“decide independently whether the facts not subject to triable dispute
warrant judgment for the moving party as a matter of law.” (Intel Corp. v.
Hamidi (2003) 30 Cal.4th 1342, 1348.) In deciding whether a material issue
of fact exists for trial, we “consider all of the evidence set forth in the papers,
except the evidence to which objections have been made and sustained by the
[trial] court, and all inferences reasonably deducible from the evidence.”
(Code Civ. Proc., § 437c, subd. (c).) Further, “ ‘[i]f summary judgment was
properly granted on any ground, we must affirm regardless of whether the
court’s reasoning was correct.’ ” (County of Solano v. Handlery (2007) 155
Cal.App.4th 566, 572 (Handlery).)
B. Law on Negligence
“To state a cause of action for negligence, a plaintiff must establish the
defendant owed a legal duty of care.” (Brown v. USA Taekwondo (2021) 11
Cal.5th 204, 209.) In general, “all persons have a duty to take reasonable
care in their activities to avoid causing injury, though particular policy
considerations may weigh in favor of limiting that duty in certain
circumstances.” (Ibid., italics added.) This fundamental principle is codified
5
in section 1714, which states in pertinent part that “[e]veryone is responsible
. . . for an injury occasioned to another by his or her want of ordinary care or
skill in the management of his or her property or person.” (Id., subd. (a);
Rowland, supra, 69 Cal.2d at p. 112.)
Exceptions to this general duty of care are limited. As our high court
explained almost 60 years ago, “in the absence of statutory provision
declaring an exception to the fundamental principle enunciated by section
1714 . . . , no such exception should be made unless clearly supported by
public policy.” (Rowland, supra, 69 Cal.2d at p. 112.) This “involves the
balancing of a number of considerations,” including “the foreseeability of
harm to the plaintiff, the degree of certainty that the plaintiff suffered injury,
the closeness of the connection between the defendant’s conduct and the
injury suffered, the moral blame attached to the defendant’s conduct, the
policy of preventing future harm, the extent of the burden to the defendant
and consequences to the community of imposing a duty to exercise care with
resulting liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved.” (Id. at pp. 112–113.) The first three factors
concern foreseeability while the remaining four factors focus on public policy.
(Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1085 (Vasilenko).)
An exception to the general duty of care under section 1714 is
warranted only if those seven factors justify “a categorical no-duty rule.”
(Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772.) This is because
“[a]n approach that instead focused the duty inquiry on case-specific facts
would tend to ‘eliminate the role of the jury in negligence cases, transforming
the question of whether a defendant breached the duty of care under the facts
of a particular case into a legal issue to be decided by the [trial] court.’ ” (Id.
at p. 773.)
6
C. The Savage Rule
Relying on Savage, supra, 209 F.2d 442, Herc argues that it had no
duty to inspect the height of the Boom Lift because the carrier, i.e., CIE and
Camacho, was responsible for securing and inspecting cargo before transport.
We disagree. The Savage rule, which absolves the shipper of liability even if
it was negligent, appears to be incompatible with the principles of
comparative fault adopted by our high court in American Motorcycle Assn. v.
Superior Court (1978) 20 Cal.3d 578 (American Motorcycle). In any event, the
rule has only been applied to claims between a shipper and carrier and does
not bar third party claims like the State’s claims against Herc.
The Savage rule was first articulated in 1953 by the Fourth Circuit
Court of Appeals in Savage, supra, 209 F.2d 442. There, the shipper had
negligently loaded airplane engines, encased in cylinders, onto a truck. (Id.
at pp. 443–444.) During transport, one of the cylinders fell off the truck and
hit a passing vehicle, instantly killing its driver. (Ibid.) The district court
found the shipper negligent “in failing to fasten the cylinders securely” and
the carrier negligent “in accepting the cargo for transportation and in
operating the truck with knowledge of this condition.” (Id. at p. 444.) On
appeal, the shipper argued that it was entitled to recover from the carrier
“the damages to the engines” and “indemnity for its liability to the primary
plaintiffs.” (Ibid.) The carrier filed a cross-appeal, contending that it was
entitled to recover from the shipper “the damages to its truck.” (Ibid.)
In resolving the claims between the shipper and carrier, the Fourth
Circuit noted that its decision “turns on the rights and liabilities inherent in
the carrier-shipper relationship between them.” (Savage, supra, 209 F.2d at
p. 445.) It concluded, based on various federal and state court decisions, that
“[t]he primary duty as to the safe loading of property is . . . upon the carrier.
7
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.” (Ibid.) Applying this rule, the Fourth Circuit
held that the shipper, even if negligent (id. at p. 445), was entitled to recover
from the carrier the damages to its engines (id. at p. 446), as well as
indemnity for its liability to the plaintiffs (id. at p. 448).
According to Herc, California courts have adopted this rule. But no
California state court has applied the Savage rule since our high court
abolished the all-or-nothing contributory negligence doctrine in favor of
comparative fault. 5 (American Motorcycle, supra, 20 Cal.3d at p. 582.) As the
high court held in American Motorcycle, “equity and fairness call for an
apportionment of loss between the wrongdoers in proportion to their relative
culpability, rather than the imposition of the entire loss upon one or the other
tortfeasor[s].” (Id. at p. 595.) Under this new scheme, the jury is permitted
“to apportion liability in accordance with the tortfeasors’ comparative fault.”
(Id. at p. 608.) This aligns with the public policy behind section 1714 that
“everyone is responsible for an injury caused to another by his want of
ordinary care or skill in the management of his property.” (Rowland, supra,
69 Cal.2d at p. 119, italics added.)
The Savage rule, which places all liability on the carrier when a loading
5 Herc does cite one post-American Motorcycle case in California that
applies the Savage rule. But that case, Haddock v. Westrock CP, LLC
(E.D.Cal., Dec. 16, 2021, No. 1:19-cv-01390-SKO) 2021 WL 5964835, is a
federal case. Haddock also did not address the shipper’s liability to a third
party and rejected summary judgment because “[w]hether the . . . defect was
patent or latent [was] a factual issue for the jury to resolve.” (Id. at p. *3.)
8
defect is apparent, “notwithstanding the negligence of the carrier,” appears to
conflict with American Motorcycle and California’s comparative fault law.
(Savage, supra, 209 F.2d at p. 445, italics added.) And even if there is no
conflict in the context of claims between the shipper and carrier, there is a
conflict in the context of claims between the shipper and a third party that
has no opportunity to remedy the negligence. Indeed, no California case has
ever applied the Savage rule to such claims. 6 Consequently, the rule cannot
be used to categorically shield a shipper from liability to a third party even
though the shipper’s negligence contributed to or resulted in harm to that
third party. (Ibid.) The trial court therefore erred in applying the Savage
rule in concluding that Herc did not owe the State, rather than CIE, any duty
to provide or load the Boom Lift with reasonable care.
Our conclusion is consistent with the conclusion reached by other
jurisdictions that have adopted comparative fault. In Jenkins v. Immedia,
Inc. (D.Colo. 2019) 389 F.Supp.3d 925, for example, the district court,
applying Minnesota law, observed that “the Savage rule [is] intertwined with
doctrines of last clear chance, contributory negligence, and indemnity—all-or-
nothing liability approaches that have been rejected by . . . the Minnesota
6 The two California cases applying the Savage rule before American
Motorcycle did not involve claims by a third party against the shipper. In
Albers v. Greyhound Corp. (1970) 4 Cal.App.3d 463, this court quoted the
Savage rule and held that the rule’s “principles should govern the liability for
goods inadequately packaged which are received by the carrier.” (Id. at p.
478.) In BBD Transportation Co. v. Buller (1975) 49 Cal.App.3d 124, the
Court of Appeal relied on Albers and the Savage rule to hold that the carrier
was liable to the shipper for damage caused by an overloaded trailer because
“[t]here was sufficient evidence from which to conclude that any overloading
. . . was apparent to the driver.” (Id. at pp. 132–133.) The Court of Appeal
therefore found that the carrier “could still be properly found liable,
notwithstanding any negligence by [the shipper’s] agents in overloading the
trailer.” (Id. at p. 133.)
9
Supreme Court.” (Id. at p. 933.) The court then highlighted that “the Savage
rule is not compatible with Minnesota’s comparative fault scheme by which it
abolished the doctrine of last clear chance—the same doctrine that the
Savage court relied upon in applying the Savage rule to conclude that the
carrier was principally at fault.” (Id. at p. 934; see Savage, supra, 209 F.2d at
p. 447 [the carrier was not only obligated to carry the goods safely but “had
the last clear chan[c]e to avoid the catastrophe”].)
Even jurisdictions that have retained the Savage rule have limited its
application to claims between a shipper and carrier and have refused to apply
the rule to claims between a shipper and third party. In Decker v. New
England Public Warehouse, Inc. (Me. 2000) 749 A.2d 762, the Maine Supreme
Court noted that there is an understanding in the trucking industry “that
carriers logically should have the final responsibility for the loads they haul.”
(Id. at p. 766.) It continued that the Savage rule “simply extends the
industry’s reasonable understanding to negligence suits involving carriers
and shippers.” (Id. at pp. 766–767, italics added.) It emphasized, however,
that pedestrians and other third parties “injured in an accident caused by a
shipper’s negligent loading of cargo would still be able to sue that shipper for
compensation” and that “[s]hippers could not rely on Savage to bar claims
from those not involved in the industry and who had no opportunity to
remedy any negligence.” (Id. at p. 767, fn. 3.)
Likewise, in Bujnoch v. National Oilwell Varco, L.P. (Tex.App. 2017)
542 S.W.3d 2, the Texas Court of Appeals held that the Savage rule did
negate any duty owed by a shipper to a third party. (Id. at p. 8.) It reasoned
that although the rule “govern[s] the rights and liabilities among carriers and
shippers . . . this case involves personal injury to an innocent third party with
no connection to the trucking industry—someone who had no opportunity to
10
remedy any negligence.” (Ibid.) The court went on that the shipper, “having
undertaken the duty to load the [cargo], was required to use reasonable care
in doing so to prevent an unreasonable risk of harm to other motorists who
would be affected if the load was inadequately secured.” (Id. at p. 10.)
Thus, the Savage rule, at a minimum, does not apply where, as here, a
third party, rather than the carrier, is bringing a negligence claim against
the shipper. Because we conclude that the rule does not apply to the State’s
negligence claims against Herc, we need not address whether the height of
the undocked Boom Lift constituted a latent or patent defect.
D. The FMSCR and the Vehicle Code
Similar to its reliance on the Savage rule, Herc contends that the
FMCSR and Vehicle Code section 35250 establish that only the carrier, and
not the shipper, owe a duty to inspect and secure cargo for transport. We
disagree.
As relevant here, the FMCSR provides that a “driver may not operate a
commercial motor vehicle” unless the “vehicle’s cargo is properly distributed
and adequately secured.” (49 C.F.R. § 392.9(a)(1).) It continues that drivers
must assure themselves that the cargo has been properly distributed and
adequately secured before driving. (Id., § 392.9(b)(1).) Meanwhile, Vehicle
Code section 35250 provides in pertinent part that “[n]o vehicle or load shall
exceed a height of 14 feet measured from the surface upon which the vehicle
stands” and that “[a]ny vehicle or load which exceeds . . . 13 feet, 6 inches,
shall only be operated on those highways where deemed to be safe by the
owner of the vehicle.”
As Herc correctly points out, these statutes and regulations impose a
duty of care on carriers like CIE. But they do not mention shippers, much
less state an exception to section 1714 for shippers. Although “[s]tatutory
11
standards of conduct are commonly invoked by plaintiffs . . . to establish a
breach of duty by the defendant” (Ramirez v. Plough, Inc. (1993) 6 Cal.4th
539, 547), Herc cites and we found no authorities holding that the breach of a
statute by one defendant somehow establishes that a codefendant who is not
covered by that statute owed no duty of care altogether. This is not
surprising. The standard defined by a statute “ ‘is normally a minimum
standard’ ” and compliance with that statute is not necessarily “a defense to
tort liability.” (Id. at p. 548.) Thus, the fact that Herc violated no statutes or
regulations does not absolve Herc of liability under section 1714. And we do
not see how the violation of a statute or regulation by a codefendant changes
this.
E. The Rowland Factors
Although we find that the Savage rule does not apply here and that the
FMSCR and Vehicle Code do not insulate Herc from tort liability, those
findings do not answer the question whether Herc could, in fact, be found
negligent because it owed a duty of care to the State. The State asserts, and
Herc does not dispute, that there is no statutory exception to the general duty
of care imposed on Herc under section 1714. Therefore, Herc is only entitled
to summary judgment if it owed no duty of care to the State under the
Rowland factors. Although the trial court did not analyze those factors, both
parties have briefed them on appeal and we may affirm on any ground.
(Handlery, supra, 155 Cal.App.4th at p. 572.) We will therefore consider
whether the Rowland factors support a categorical no-duty rule for shippers.
Herc does not dispute that the first two Rowland factors—
“foreseeability of harm to the plaintiff [and] the degree of certainty that the
plaintiff suffered injury”—support the existence of a duty. (Rowland, supra,
69 Cal.2d at p. 113.) Thus, we only discuss the remaining five factors below
12
and conclude that they too do not support a categorical no-duty rule for
shippers like Herc.
1. Connection Between Herc’s Conduct and Injury Suffered
Herc contends that the third and more relevant Rowland foreseeability
factor—“the closeness of the connection between the defendant’s conduct and
the injury suffered”—supports a finding of no duty of care. (Rowland, supra,
69 Cal.2d at p. 113.) We are unpersuaded. This factor “is ‘strongly related to
the question of foreseeability itself’ ” but “also accounts for third party or
other intervening conduct.” (Vasilenko, supra, 3 Cal.5th at p. 1086.)
However, a third party’s intervening conduct “does not ‘ “diminish the
closeness of the connection between [the defendant’s] conduct and [the]
plaintiff’s injury” ’ ” if that “intervening conduct is foreseeable or derivative of
the defendant’s.” (Ibid.)
Herc argues that once it loaded the Boom Lift onto the truck, it was
entitled to rely on CIE’s and Camacho’s expertise to “ensure that the [lift]
was safe for transportation on public roads.” Herc cites no legal authority to
support its argument. And we do not see how its reliance on CIE’s and
Camacho’s expertise somehow diminishes the connection between its decision
to provide and load the lift in an undocked state for transport and the harm
caused when the top of that lift struck the bridge. Indeed, Herc, rather than
CIE or Camacho, presumably knew the safest position of the lift—i.e., docked
or undocked—for transport.
Herc further contends that CIE’s and Camacho’s intervening conduct
was not derivative of Herc’s conduct because Herc’s only “maneuver[ed] the
lift onto the trailer” without verifying whether it was safe for transport. But
Herc omits any analysis as to whether the intervening conduct—i.e., the
failure to check the height of the undocked lift and ask Herc to lower it—was
13
foreseeable. If it was, then the connection between Herc’s conduct and the
damage to the State’s bridge is not diminished for purposes of this factor.
Pedeferri v. Seidner Enterprises (2013) 216 Cal.App.4th 359 (Pedeferri)
is instructive on this point. In that case, a vendor failed to adequately secure
dirt bikes after loading them onto a truck, causing the bikes to move around
during transport. (Id. at p. 363.) The driver, who had high levels of
marijuana (Tetrahydrocannabinol) in his blood at the time, was distracted by
the moving bikes and crashed into a car that was parked on the shoulder,
killing the occupant inside. (Ibid.) In finding that the driver’s consumption
of marijuana did not break the “chain of foreseeability,” the Court of Appeal
concluded that “the harm to persons on the roadside is a foreseeable result of
a vendor’s negligence in loading or securing cargo into the vehicle, even if the
vehicle’s driver is also negligent.” (Id. at pp. 367–368.) The same is true
here. It was foreseeable that providing an undocked Boom Lift to Camacho
and loading that undocked lift onto his truck could result in damage to a
structure during transport on the roadway because of the lift’s unnecessarily
elevated height, notwithstanding the negligence of CIE and Camacho.
Therefore, this factor does not support a categorical no-duty rule for shippers.
2. Moral Blame Attached to Herc’s Conduct
Herc contends that the next Rowland factor—“the moral blame
attached to the defendant’s conduct”—“also weighs against placing a duty on
shippers to secure and inspect the load.” (Rowland, supra, 69 Cal.2d at p.
113.) We disagree. This factor supports a duty of care “in instances where
the plaintiffs are particularly powerless or unsophisticated compared to the
defendants or where the defendants exercised greater control over the risks
at issue.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1151, italics
added.) Accordingly, the relevant inquiry is whether Herc had greater
14
control over the risks than the State and not, as Herc argues, CIE and
Camacho. (See Pedeferri, supra, 216 Cal.App.4th at p. 368 [moral blame
focuses on “the vendor’s duty . . . [and] the vendor’s culpability” while the
shipper’s “relative blameworthiness is pertinent to the separate issue of
causation”].) Here, the State had no control over the height of the Boom Lift
during transport, and Herc undoubtedly exercised greater control over the
risks because it could have provided the lift to Camacho in a docked state. In
any event, some moral blame arguably attaches to Herc, even when compared
with Camacho and CIE, because Herc had greater control over the undocked
state of the lift and presumably had greater knowledge of the best or most
common position of the lift for transport.
3. Policy of Preventing Future Harm
The fifth Rowland factor—the policy of preventing future harm—“is
ordinarily served by allocating costs to those responsible for the injury and
thus best suited to prevent it.” (Vasilenko, supra, 3 Cal.5th at p. 1087, italics
added.) Herc contends that, between “a professional motor carrier and a
shipper, the carrier is best suited to prevent an injury to third parties . . .
caused by an inadequately secured or over-height load.” But Herc’s
argument assumes that only one defendant may be responsible for an injury.
As Vasilenko makes clear, more than one defendant may be “best suited to
prevent” the injury. (Ibid.) Whether Herc or CIE or Camacho were in a
better position to prevent the injury is a question for the jury. (See American
Motorcycle, supra, 20 Cal.3d at p. 608 [the jury is permitted “to apportion
liability in accordance with the tortfeasors’ comparative fault”].)
Herc counters that in considering future harm, “a court must also
account for the possibility that imposing a duty will deter the defendant from
performing a socially desirable function.” (See Vasilenko, supra, 3 Cal.5th at
15
pp. 1089–1090.) According to Herc, imposing a duty of care on shippers in
this case may discourage them from loading their goods for transport. But
Herc acknowledges that it had “superior expertise in operating boom lifts.”
As a result, Herc presumably knows the position of the Boom Lift (docked or
undocked) that best ensures safe transport by truck. Herc also presumably
knows whether a lift is typically transported by truck in a docked position.
Thus, finding that a shipper like Herc has a duty to exercise some form of
reasonable care in providing or loading its goods for transport would not
deter any “socially desirable” conduct. (Ibid.) As the State points out,
imposition of such a duty would not impose a duty on Herc to duplicate the
duty of the carrier to inspect and secure the lift.
Again, Pedeferri, supra, 216 Cal.App.4th 359, is instructive. In that
case, the vendor made a similar argument that imposing a duty to load and
secure cargo would “discourage vendors from voluntarily agreeing to load and
secure their customers’ purchases.” (Id. at p. 368.) The Court of Appeal
disagreed, concluding that “[a]lthough vendors are potentially liable only if
they voluntarily undertake to load and secure cargo [citation], we are not
persuaded vendors will refuse to help their customers load and secure their
recent purchases just because the vendors are required to do so carefully.”
(Ibid.) We agree and find that shippers would not be deterred by the
imposition of some duty to provide or load their cargo with reasonable care.
16
4. Extent of Burden to Defendant and Consequences to the
Community of Imposing a Duty to Exercise Care With
Resulting Liability for the Breach of that Duty
Herc contends that imposing a duplicative duty on shippers to secure
and inspect cargo “would impose significant burdens” because “[s]hippers
would have to gain expertise in the various aspects of securing and inspecting
cargo and transporting it on public roads.” But as we explained above, the
State is not alleging that Herc failed to exercise reasonable care in securing
or inspecting the Boom Lift before transport. Rather, the State is alleging
that Herc failed to exercise reasonable care in providing or loading the lift for
transport. Because Herc, as the shipper, has “greater expertise . . . in
handling [and maneuvering] its own cargo,” the burden of providing or
loading that cargo with reasonable care is not substantially burdensome.
(See Pedeferri, supra, 216 Cal.App.4th at p. 368 [“as between customers and
vendors, it is more efficient for vendors to be the repository of expertise in
loading and securing cargo”].) Accordingly, this factor does not support a
categorical no-duty rule for shippers.
5. Availability, Cost, and Prevalence of Insurance for the Risk
Involved
As to the final Rowland factor, Herc argues that federal and state law
require motor carriers to have insurance that covers bodily injury or property
damage to third parties like the State. According to Herc, the fact that motor
carriers are required by law “to insure against the risk shows that . . .
insurance for the carrier is more prevalent.” Herc, however, concedes that “it
is possible that a shipper will also have insurance that covers this risk . . . .”
More significantly, Herc presents no evidence that insurance is less available
or prevalent for shippers than carriers. Thus, this factor does not support a
17
categorical no-duty rule. (Pedeferri, supra, 216 Cal.App.4th at p. 368 [vendor
“has not presented any reason to believe that vendors’ insurance policies are
unavailable to cover liability for negligence in any loading and securing of
cargo they voluntarily undertake”].)
6. Conclusion
Because all seven Rowland factors weigh against finding that a shipper
owes no duty of care to a third party injured by its cargo, we reverse the
grant of summary judgment for Herc. In doing so, however, we decline the
State’s invitation to determine the appropriate standard of care and leave
this determination to the trial court on remand. (Garcia v. Hejmadi (1997)
58 Cal.App.4th 674, 691.)
III. DISPOSITION
We reverse the judgment based on the trial court’s order granting
Herc’s motion for summary judgment.
CHOU, J.
WE CONCUR.
SIMONS, Acting P. J.
BURNS, J.
18
A174303/ State of CA ex rel. DOT v. Herc Rentals
Trial Court: Superior Court of the County of Alameda
Trial Judge: Jamilah A. Jefferson
Counsel:
Erin E. Holbrook, Chief Counsel, Gerald Michael
Harrington, Deputy Chief Counsel, Mark D. Guenzi,
Assistant Chief Counsel, Robert G. Litts, Deputy Attorney
for Plaintiff and Appellant.
Law offices of Richard W. Davis and Richard W. Davis;
Quarles & Brady, Stacy A. Alexejun and Michael J. Ashton
for Defendant and Respondent.
19