dissenting.
The trial court did not determine that there was no bailment, except as such determination may be implied by the conclusion that Firestone owed no duty to the employees.
Be that as it may, I disagree with the majority’s holding that there was evidence of such bailment. Notwithstanding the indicia of employer “control” perceived by the majority as set forth in their opinion, in my view, the employer here lacked the exclusive possession and assumption of control essential to a bailment. The tools in their boxes were merely located within the employer’s premises overnight and on weekends, and only because of the bulk and weight of the tools in their boxes were they routinely stored in that manner. Although it would have required communication and a bit of inconvenience to obtain after-hour entry to the premises in order to remove one’s tools, such was possible and was permitted. Employees did, from time to time, remove some of their tools from the premises for personal use overnight or on weekends. The evidence of “control” alluded to by the majority is not adequate to permit an inference of a bailment relationship.
More importantly, however, I would hold that as a matter of law Firestone did not breach a duty to the employees. As a matter of law, Firestone was not negligent.
The majority holds that it was reasonably foreseeable “that a break-in could occur after working hours at the Firestone store ...” Op. at 85.' The mere possibility of a criminal act by third persons despite a few prior and widely separated incidents, is an inadequate basis upon which to found a successful negligence claim.
Furthermore, I would hold that as a matter of law the premises were entirely secure at the time of the burglary. In this regard it is important to note that entry by the burglars was effected by prying open, with great force, the door jamb of a fire door, seriously damaging the door, breaking the lower door handle and exposing one of two deadbolt locks, which was also pried from the door jamb.
It was not required that Firestone make its store absolutely burglar-proof. It was not necessary to take extraordinary security measures such as suggested by the employees. Employers are not required to employ full-time armed security guards or install elaborate burglar alarm systems in order to avoid tort liability. The precautions taken here were adequate as a matter of law.
I would affirm the summary judgment.