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killed by the metal -comments

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  • Jurydoctor@aol.com
    Here are some comments on Marla vs Thomas et al. case. What are your thoughts or feelings about what some of the folks think? Can anything change your mind?
    Message 1 of 1 , Mar 6, 2008
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      Here are some comments on Marla vs Thomas et al. case. What are your
      thoughts or feelings about what some of the folks think? Can anything change your
      mind?
      Thanks again for all your input.

      Amy


      Emerald is liable under vicarious liability; Thomas is liable because if the
      iron was properly cinched own, it would not fall off--res ipsa locatuur.
      Because the sheet metal fel off the flatbed, it was obviously not properly
      secured. By taking on the iron load, Thomas implied that he was transferring the
      load safely; it was not. The second driver has no liability. Nothing
      extenuates.
      _________________

      The responsibility for transporting the load securely rests on the
      carrier. The carrier has the right to refuse the load if it is not
      secure.

      Further, the scrap metal would not stay on the pallet unless banded,
      it is common practice for such loads to be banded, and the bands would
      most assuredly break if a pallet dropped from a truck doing 50mph+ on
      a highway.





      __________________________



      First, the scrap pieces would certainly have fallen off the pallets during
      the lifting and movement by the forklift had they not been secured to the
      pallet itself. Small metal bands, usually 1/2-inch to 1-inch in width, are
      generally used for this purpose. The bands are a dark grey gunmetal color so they
      are hard to see in poor photos.

      Someone from Thomas should be able to claim personal responsibility for
      banding the pallets.

      One question I have, without having seen the photos of the load, was whether
      the scrap metal was banded in one direction or in two directions on the
      pallet. That is, was the load banded "sideway" only or "front-to-back" only, or
      was is banded both side-to-side and front-to-back, such that/ the bands
      crossed over each other for a more secure load? And, how many bands went in each
      diection around the pallet?

      You are saying the banding of the scrap metal to the pallet is "unitzing"
      the pallet, but you may want to be sure of this terminology. The alternative
      I'm thinking of is when multiple pallets are loaded onto a flatbed...with the
      loads banded to each pallet individually...and then the individual pallets are
      ganged together with additional straps or chains. I've heard that procedure
      called "unitizing" in previous cases.

      Anyway, as the forklift operator maneuvered the pallets onto the trucks,
      another Thomas employee should be able to claim responsibility for either
      "ganging" the pallets together or not, if this is really what they mean by
      "unitizing" them on the flatbed.

      My guess is they were never ganged together.

      Once the Thomas forklift operator (and possibly the Thomas employee who
      unitized the load, if that was in fact really done) were finished, the Emerald
      driver took responsibility for the load.

      Pallets are usually secured with webbing-type straps that unreel from one
      side of the flatbed, go over the top of the load, and are secured on the other
      side of the flatbed. They are ratcheted down to a tight fit across the load.

      Because the webbing straps are only a side-to-side mechanism, they do a
      great job at preventing sideways or "lateral" load shifts. However, they do a
      lesser job at fore-and-aft or "longitudinal" load shifts.

      Many trucking companies guard against fore-and-aft slippage by additionally
      placing a tie-down tarp or cargo net across the load, securing it on all
      sides, and/or using cross-braced chains along the flatbed surface to fully
      immobilze the pallets from slipping in any direction on the bed surface.

      Since you mentioned that an entire pallet fell off the flatbed... as opposed
      to loose scrap metal falling off a pallet and then being ejected off the
      flatbed... my guess is that this pallet of scrap metal was banded properly and
      maintained its integrity as a unit. The entire unit shifted rearward for
      reasons unknown at this time, and eventually fell off the back of the flatbed.
      Wind resistance may be a chief cause of this if the load was high.

      Thomas would have no liability. It's 100% Emerald's failure. The truck
      driver failed to secure that pallet, for whatever reason.
      _____________________

      I asked my husband who is a forklift driver and very knowledgeable about
      loading into trailers. His opinion is that both the parties are
      responsible.
      The company who sold the scrap metal should have properly loaded that
      trailer,
      there are stringent procedures to follow and if they are not loads will
      shift and fall. No unifying straps were visible in the photographs. Second
      the
      driver should have not only properly strapped down the load, but also
      checked
      the load to be sure it was properly loaded since he was going to be driving
      this load and assuming the safety of the transport. So the seller and the
      transport company are equally responsible


      ___________________
      I see what you are saying but unless Thomas contracted to secure the
      load it is not their responsibility. That is the responsibility of
      the driver & the company he/she works for.


      --- In
      wrote:
      >
      > I agree with the expert. Let them divide liability.
      > <<Marla's expert contends that the means and
      > method to secure the cargo was insufficient and that both Emerald
      Transfer
      > and
      > Thomas are to blame.>>
      >













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