dissenting:
Upon consideration of plaintiff’s petition for rehearing, I withdraw my concurrence in the majority opinion and respectfully dissent.
In my opinion, the record and case law support the duty imposed on the defendant by the trial court. In reversing the trial court, the majority focuses upon the four exceptions to the rule denying liability for the criminal acts of a third party, finding none of them applicable. I cannot agree.
I do not agree with the majority’s finding that the defendant received only "inchoate” threats which did not require warnings. As plaintiff argues in her petition for rehearing, the threats were not made by unidentified assailants against unspecified persons. Defendant received threats from two individuals who were identified by name. While it may be true that the precise identity of other individuals making threats or firing shots may not have been known to defendant, it clearly knew the group making the threats and against whom those threats were made — any replacement driver.
I also do not agree that rocks, bottles, and baseball bats are in the same category of anticipated and potential projectiles or weapons as gunshots. A gun is inherently a deadly weapon; rocks and bottles are not. While one may expect violence in the nature of rocks and bottles, one would not expect to be shot for crossing a picket line. Thus, gunshots would constitute a concealed or hidden danger, particularly where defendant had received several threats and reports of gunfire on or near its premises which would mandate warnings.
I respectfully submit that defendant undertook a duty to protect and assure the safety of the replacement drivers, either voluntarily or contractually. Although the majority found that the strike plan was designed for defendant’s own purposes in obtaining a TRO, I believe the plan went further to protect the safety and security of workers. Beyond the affidavit and notification processes, the plan provided for shipment and operating security, sleeping accommodations, telephone procedures, police contact and communication.
The facts and circumstances of this case are more similar to Slager than to Boyd and the cases relied on by the majority. In Slager, while a wildcat strike was underway, certain workers crossed the picket line. The defendant/company asked police officers to be present at the gates so that workers would be protected when they left. The defendant not only had its own security force but also hired a private firm. It did not have a formal written document pertaining to wildcat strikes nor had the defendant experienced violence during previous strikes. At the time of this strike, the defendant had not received any threats against the workers who crossed the picket lines.
The defendant promised to provide safety to those workers who crossed the picket lines, inducing them to continue working. The defendant knew of the problems occurring at the picket line and precisely because of this situation assured workers of their safety. Shortly prior to the accident at issue in Slager, the defendant had called the police in order to secure the gate area. According to the court, because defendant undertook security measures and phoned the police, it foresaw violence and was attempting to fulfill its responsibilities to provide safety to the workers. Based on the above, the court found that a duty arose out of defendant’s express statements, action, and intentions to provide safety and, therefore, a sufficient basis to impose liability on defendant existed.
The facts before us are more pronounced. Before the strike, defendant created a strike plan that included safety measures because of the violence it knew surrounded strikes. USR agreed to compensate Cardinal and Coleman for any personal injuries or property damages sustained as a result of working for it. Defendant requested police presence at the picket line in order to maintain safety. It had its own security force but also hired a private security firm to escort the replacement drivers to assure their safety. USR had received threats and reports of shootings but made a business decision not to inform or warn anyone else. Based on the actions of defendant and the facts and outcome of Stager, I believe there is a sufficient basis to find that defendant undertook a duty to provide security and safety for replacement workers and, therefore, a basis for imposing liability upon it.