This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Robert Bohman,


Trimodal, Inc.,
third-party plaintiff,


Concord, Inc., third-party defendant,


Australia-New Zealand Direct Line, third-party
defendant and cross-claimant,


Filed March 13, 2001


Hanson, Judge


Hennepin County District Court

File No. PI 99-015144


Walter E. Sawicki, Sawicki Neese & Phelps, P.A., 1811 Weir Drive, Suite 275, Woodbury, MN 55125;


Wilbur W. Fluegel, Fluegel Law Office, 701 Fourth Avenue South, Suite 1260, Minneapolis, MN 55415 (for appellant)


Patrick D. Reilly, Erstad & Riemer, P.A., 3800 West 80th Street, Suite 1000, Minneapolis, MN 55431 (for respondent Trimodal, Inc.)


Daniel A. Haws, Stacy E. Cudd, Murnane Conlin White & Brandt, P.A., 444 Cedar Street, Suite 1800, St. Paul, MN 55101 (for respondent Concord, Inc.)


Thomas H. Boyd, Winthrop & Weinstine, P.A., 30 East Seventh Street, Suite 3200, St. Paul, MN 55101; Sam D. Delich, Flynn Delich & Wise, One California Street, Suite 350, San Francisco, CA 94111 (for respondent ANZDL)


            Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Hanson, Judge.






Appellant truck owner-operator contracted with respondent freight-hauling service to haul cargo.  Appellant received inaccurate information as to the height of the cargo and failed to measure the height of the total load after the cargo was loaded.  The actual height exceeded that allowed on the route that appellant selected and his truck struck a railroad overpass.  He sued the freight-hauling service for damages, and third-party claims were made against the respondent customer, which ordered the delivery and provided an inaccurate height for the cargo, and respondent manufacturer, which loaded the cargo.  The district court granted summary judgment in favor of all respondents and denied appellant's motion to amend the complaint to assert direct claims against the third-party defendants, ruling that respondents did not owe a duty of care to appellant, who was solely responsible for determining the total height of the load.  We affirm.



            Appellant Robert Bohman is an independent owner-operator of a semi-tractor trailer.  Bohman entered into a contract with respondent, Trimodal, Inc., a freight-hauling service.  The contract provided that Bohman would make interstate deliveries for Trimodal’s clients.  The contract placed several responsibilities on Bohman, including the responsibility to (1) operate his vehicle “in accord with all applicable regulations;” (2) determine the routes to be used; and (3) obtain all necessary permits, including those made necessary by excessive heights.  Bohman was also informed of Trimodal’s practice to reject orders that result in oversized loads and its policy to require the driver to notify Trimodal when any load is oversized. 

Respondent Concord is a manufacturer of air-seeding equipment.  Concord contacted Fritz & Co.,[1] a freight forwarder, to arrange shipment of a rank air drill.  Fritz & Co. contacted respondent Australia-New Zealand Direct Line (ANZDL), a foreign flag steamship operator, to arrange shipment of the air-seeding equipment.  ANZDL contacted Trimodal to arrange for truck transportation of the cargo from Fargo, North Dakota, to a railhead in Minneapolis, Minnesota, for railroad transportation to an ocean terminal.  ANZDL transmitted a dispatch sheet to Trimodal listing the anticipated height of the cargo, before loading, as both “9 feet 3 inches” and “112 inches” (9 feet 4 inches).  The dispatch sheet requested the shipment with a standard chassis.

Trimodal contracted with Bohman for the transportation.  Trimodal did not verify the cargo height noted on the dispatch sheet.  Trimodal provided the container and determined which chassis to use.  The container and the chassis were appropriate for cargo measuring 112 inches (9 feet 4 inches) in height.  The actual height of the cargo, however, was 118 inches (9 feet 8 inches).

Bohman brought the container to the Concord facility.  Concord employees loaded the cargo in the container.  After the loading was complete, a Concord employee measured the height of the completed load at approximately 15 feet.  For the purpose of its summary judgment motion, Concord stipulated that its employee did not inform Bohman of this measurement.  Bohman did not measure the load.  He merely “eyeballed” the height of the load as it compared to the height of the tractor and concluded, apparently, that it was not oversized.  Trimodal and ANZDL did not have any representative present when the cargo was loaded.

            Bohman did not notify Trimodal of the height of the load and began his trip, selecting the route to be driven.  Although Minnesota traffic regulations require a special permit for loads higher than 13 feet 6 inches, Bohman did not obtain such a permit.  Bohman’s semi-tractor rolled over when the top of the load struck a Burlington Northern Railroad bridge.   The bridge was 14 feet 2 inches high.  Bohman could have selected an alternate route that would have accommodated the oversized load.

            Bohman sued Trimodal for negligently failing to verify the cargo height shown on the dispatch sheet. Trimodal named as third-party defendants ANZDL, for providing an inaccurate dimension for the cargo, and Concord for its role in loading the cargo.  ANDZL brought a cross-claim against Concord and Trimodal.  Trimodal, Concord, and ANZDL brought motions for summary judgment, arguing that Bohman had the exclusive duty to verify the height of the load.  Bohman moved to amend his complaint to sue ANZDL and Concord directly.  The district court granted respondents’ motions for summary judgment and denied Bohman’s motion to amend his complaint.  Bohman appeals from the resulting judgment of dismissal.  



Bohman first argues that the district court erred in determining as a matter of law that Trimodal had no duty to provide Bohman with an accurate height of the cargo, thus  granting summary judgment in favor of Trimodal.  On appeal from summary judgment, this court must determine if there are any genuine issues of material fact and whether the district court erred in its application of the law.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).   This court reviews the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

            The essential elements of a negligence claim are:  (1) the existence of a duty of care;  (2) a breach of that duty;  (3) an injury was sustained; and (4) breach of the duty was the proximate cause of the injury.   Schmanski v. Church of St. Casimir, 243 Minn. 289, 292, 67 N.W.2d 644, 646 (1954).  If there is no evidence in the record that gives rise to a genuine issue of material fact as to any one of these elements, summary judgment is appropriate.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).

Generally, the existence of a duty is a question of law for the reviewing court to decide de novo.  Canada by Landy v. McCarthy, 567 N.W.2d 496, 504 (Minn. 1997); Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).  In so doing, we look to any contractual relationship, the applicable statutes, the common law, or the conduct of the parties for the requisite duty.  In this case, we agree with the district court that no duty was owed by Trimodal to Bohman.

Under the terms of the contract between Bohman and Trimodal, it is clear that Bohman had the sole duty to check the height of the load.  Three provisions in the contract provide that Bohman retained control over the determination of the means and methods of the performance of his contract obligations, and therefore retained the sole duty to verify the height of the load after it was loaded: 

(1)  Paragraph 6 of the contract provides:

[Bohman] or its subcontractors shall determine the means and methods of the performance of all transportation services undertaken by [Bohman] under the terms of this Contract.


(2)  The special terms section of the contract provides: 

It is agreed by the parties hereto that [Trimodal] has no right to and will not control the manner nor prescribe the method of doing that portion of the operation which is contracted for in this Contract by [Bohman].  [Bohman] shall determine and direct its operations in all respects * * * .


 (3)  The term “operate” includes:


[p]aying all operating expenses, including all expenses of * * * fines which are a result of the acts or omission of [Bohman] for parking, moving, or weight violations, licenses, permits * * *.


The Minnesota Traffic Regulation Act also imposes a duty on Bohman to measure the height of the load.  See Minn. Stat. §§ 169.01-.99 (2000).  The Act prescribes the dimensions of the vehicles that may use public highways and requires a special permit when such limitations are exceeded.  Minn. Stat. § 169.86, subd. 1.  The obligation to obtain a special permit, to haul loads that exceed 13 feet 6 inches, is placed on the driver.  Minn. Stat. § 169.81, subd. 1(a)-(d).  The statute  also provides that the driver of the vehicle shall be liable for any violations.  See, e.g., Minn. Stat. §§ 169.88 (liability for damages) and .89, subd. 1 (liability for penalties incurred as a result of statutory violation).  Under these provisions, the driver has a non-delegable duty of care to measure the height of the load. 

Finally, the course of dealing between Trimodal and Bohman makes clear that Bohman retained the exclusive duty to ensure that the load was not overheight.  It is Trimodal’s policy to reject oversized loads.  It was Trimodal’s practice to depend on its drivers to verify the height after loading.  If the driver discovers that loaded cargo exceeds height regulations, the driver is expected to call Trimodal’s dispatcher.

Bohman presented evidence that it is industry practice to rely on the data from the dispatch sheet in determining whether a load is too high.  This evidence does not establish a duty as to Trimodal.  While industry custom and practice may generally be relevant to the standard of care, it cannot be used to establish the existence of a duty.   Servicemaster of St. Cloud v. Gab Business Services, Inc., 544 N.W.2d 302, 307 (Minn. 1996); Gabrielson v. Warnemunde, 443 N.W.2d 540, 545 (Minn. 1989).  Moreover, the contract between the parties, the relevant statutes and regulations, and the practices of Trimodal that were known to Bohman would necessarily override any contrary general industry custom and practice.



Bohman also challenges the district court’s denial of his motion to amend his complaint to assert direct claims against third-party defendants Concord and ANDZL.  The district court should freely grant leave for a party to amend its pleadings, except where amendment would prejudice the other party.  Fabio, 504 N.W.2d at 761.  However, an amendment to the complaint is properly denied if the proposed claim cannot be maintained.  Hunt v. University of Minnesota, 465 N.W.2d 88, 95 (Minn. App. 1991). 

The district court found that Bohman had no factual basis upon which to argue that either Concord or ANZDL had a duty to measure the height of the load.  We agree.  The only basis on which Bohman argues that Concord and ANZDL owed him a duty is the theory that they were engaged in a mutual activity.  Bohman argues that the “mutual-duty-of-care” rule should apply to this case because the parties depended on each other to supply correct information.  The mutual-duty-of-care rule is as follows:

Where several persons are engaged in the same work, in which the negligent or unskillful performance of his part by one may cause danger to the others, and in which each must necessarily depend for his safety upon the good faith, skill, and prudence of each of the others in doing his part of the work, it is the duty of each to the others engaged on the work to exercise the care and skill ordinarily employed by prudent men in similar circumstances, and he is liable for any injury occurring to any one of the others by reason of a neglect to use such care and skill.


Schmidt v. Beninga, 285 Minn. 477, 487, 173 N.W.2d 401, 407 (1970) (citation omitted). 

Bohman, ANZDL and Concord were not engaged in the “same work,” to which the mutual-duty-of-care rule would apply.  Each party had distinct work.  Bohman had the sole “work” of measuring the load.  ANZDL was not even present when the cargo was loaded.  It rightfully assumed that Bohman would not rely on the dispatch sheets’ dimensions for unloaded cargo, but would necessarily measure the combined total height after the cargo was loaded.  While Concord did measure the load, it did so independently, not jointly with Bohman.  In fact, Bohman claimed not to have any knowledge of Concord’s measurements and thus clearly could not rely on Concord’s actions to relieve him of his duty.  There is no factual basis to infer that any of these parties induced Bohman to forego measurement of the load, or that Bohman failed to do so in reliance upon their actions.

Accordingly, Bohman could not state a valid claim against ANZDL or Concord, and the denial of his motion to amend was appropriate.


[1] Fritz & Co. is not a party to this lawsuit.