In, McComb v. Bugarin, et al., the U.S. District Court of Illinois ruled for the shipper in a case alleging negligent selection of a carrier, where the carrier had collided with the plaintiff’s car at an intersection, causing catastrophic injury/death. While all the facts are too lengthy to include here, the essential fact is that there was no sufficient proof of carrier’s maintenance, record or safety rating being the proximate cause of the damages.
The case is as important for what it did not say, perhaps, as for what it did. By that, I mean the Court did not comment on plaintiff counsel’s expected attempt to tie FMCSA safety ratings to proximate cause, except by saying that such attempt did not prove proximate cause, either in fact or law. In other words, plaintiff cannot (at least in this court) just allege either safety rating or the confusing BASIC scores on maintenance, but must prove that the actual maintenance at the time of the accident was the proximate cause of the accident.
As many of us have said since the Schramm decision, brokers and shippers have for the 50 years prior to Schramm been subject to one clear standard. That standard has always been “reasonable” care in the selection of the carrier. As this Court found, lack of reasonable care is not sufficiently proved by what may be found in the questionable SMS BASICs (or prior SafeStat calculations) alone. Proximate cause must be proved by sufficient nexus between
the actual indications of maintenance at the time of the accident and causation.
That being so, shippers and brokers still have no concise checklist for being found to have exercised reasonable care. Thus, it would seem the broker/carrier agreement must reflect more than reliance on invalid SMS/BASIC scores, but also that the broker/shipper and carrier have provided for constant reporting of current safety status by way of the agreement and the contemporaneous rate confirmation/load tender, to include indemnity from the carrier should they fail to report or misrepresent current safety conditions.
This procedure would seem to add sufficiency to some of the issues implied by the McComb Court, had it ruled on the role of Safety Ratings in determining reasonable care and proximate cause..