Reyes v. The Dow Chemical Company ( 2021 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA BRIAN REYES CIVIL ACTION VERSUS NO. 19-13734 THE DOW CHEMICAL COMPANY, ET AL SECTION "B"(3) ORDER AND REASONS Before the Court are defendant Frontier Logistics, LP’s (“Frontier”) Motion to Dismiss for Failure to State a Claim (Rec. Doc. 52), plaintiff Brian Reyes’s (“Reyes”) opposition (Rec. Doc. 55), and Frontier’s reply (Rec. Doc. 58). For the reasons below, IT IS ORDERED that the motion (Rec. Doc. 52) is DENIED. Frontier claims the allegations are insufficient due to a failure to identify its breach of a duty in the process of loading, packaging, and securing the cargo pursuant to defendant Dow Chemical Company’s (“Dow”) plans and specifications for such. Rec. Doc. 52-1 at 6-8. It assumes no factual allegation shows that a cargo shift caused the resulting accident or that such a shift occurred due to Frontier’s improper loading processes. Id. We disagree. While not the most artfully drafted pleading, the amended complaint is filled with allegations that Dow “and/or” Frontier improperly loaded, packaged, and secured the cargo that eventually shifted, causing a tire to blow and tip the truck over. See Rec. Doc. 49. If discovery fails to show admissible proof of improper loading, etc. as the causative factor of the accident, summary judgment may be in order unless plaintiff is able to plead res ispa loquitor. See Lyles v. Medtronic Sofamor Danek, USA, Inc., 871 F.3d 305, 312 (5th Cir. 2017)(citing Lawson v. Mitsubishi Motor Sales of Am., Inc., 938 So.2d 35, 49 (La. 2006)). The allegations show that Mr. Reyes was transporting cargo that was loaded, packaged, and secured by Frontier; that the cargo shifted because it was improperly loaded, packaged, and secured; and that the shift caused his tire to blow and his vehicle to tip over, injuring him. As such, Mr. Reyes has stated a valid negligence claim, negating a premature summary disposition. New Orleans, Louisiana this 21st day of April, 2021 ___________________________________ SENIOR UNITED STATES DISTRICT JUDGE