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June 6, 1994


Appeal from the Circuit Court of Cook County, Honorable Thomas P. Quinn, Judge Presiding.

Supplemental Opinion on Denial of Rehearing of November 14, 1994,

O'connor, Campbell, Buckley

The opinion of the court was delivered by: O'connor

JUSTICE O'CONNOR delivered the opinion of the court:

On August 6, 1982, a sniper shot and killed Ralph Jones as Jones drove his truck three miles away from a picket line he had crossed at the East Chicago, Indiana plant of defendant, U.S. Reduction Company (USR). Thereafter, Jones's wife, Sharon Petersen, filed this wrongful death action against USR. A jury found USR guilty of negligence in failing to warn Jones that it had received threats to shoot replacement drivers it had hired to work during the strike and awarded Petersen $2.25 million in damages. USR appeals the judgment.

USR is a manufacturer and supplier of molten aluminum. USR's corporate office is located in Lansing, Illinois. In 1982, its primary operation plant was located in East Chicago, Indiana. On August 4, 1982, USR union truck drivers went on strike. Because a nation-wide recession was occurring at the time, USR decided to continue operations, so as to avoid losing business to competitors. To that end, USR entered into a shipping agreement with Cardinal Transport (Cardinal), an Illinois corporation, which possessed an interstate shipping license. Cardinal leased a small fleet of trucks belonging to Coleman Movers (Coleman), an Illinois corporation. Coleman also provided drivers to drive the trucks to deliver USR's product to its customers. Ralph Jones was a Coleman driver.

As part of its agreement with Cardinal and Coleman, USR agreed to compensate Coleman for any personal injury or property damage its trucks or its drivers incurred crossing the picket line. USR requested the East Chicago, Indiana police to maintain a presence at the picket line. In addition to its own in-house security force, USR hired a private security firm, Industrial Security Management (ISM) to escort the replacement drivers from the USR plant to their ultimate destinations in Wisconsin.

Prior to the strike, USR had implemented a strike plan governing plant operations and the documentation of "incidents" during the strike. At trial, USR witnesses provided somewhat conflicting testimony as to whether the strike plan was a written one. No such plan appears in the record. Barry Brock, Director of Human Resources for USR in 1982, testified that there was a written strike plan; however, no other USR witness recalled seeing a written strike manual.

USR officials who testified about the strike plan agreed that "incidents" during the strike were to be recorded by affidavit, through a chain of command, so that those who "needed to know" would be informed. There is no evidence in the record that USR and Coleman or Cardinal had any written or verbal agreement that USR would inform Coleman of specific incidents that occurred, such as threats to shoot Coleman's drivers or of unconfirmed reports that gunshots had been fired at the plant during the strike. Rather, USR officials testified that its strike plan did not include notifying the truckers of such incidents. The only agreement USR apparently made with the truckers was to provide the security escort, ISM.

Brock testified that under USR's strike plan, Al Super, USR's vice-president of transportation, was to be notified of incidents that affected the replacement drivers and that it would be his responsibility to relay the information on a "need to know" basis. During his testimony, Brock was asked a series of hypothetical questions concerning USR's strike plan. In response, Brock stated that if Super was not notified of any actual gunshots fired, it would constitute a "failure" of the plan. However, the plan would not require affidavits documenting uncorroborated reports of gunfire to be reported to Super or to anyone else.

Brock also testified that in his experience with labor disputes, "threats of doing various forms of violence to people are customary." One week prior to the strike, Carey Proctor, Jr., a USR union employee, told Michael Sertich, a USR vice-president, that if USR operated during a strike, "we'll shoot the motherfuckers." However, Sertich testified that Proctor was drunk at the time, and so he considered the threat to be an intimidation tactic. On the day the strike was announced, Sertich received a second threat from John McClinton, a union official, who threatened action similar to Proctor's. Because of McClinton's position, Sertich took the threat seriously, and filled out an incident report and disclosed the incident to the plant manager. USR never communicated these threats to ISM, Cardinal or Coleman.

The strike began at 11:01 p.m. on August 4, 1982. A picket line formed at the plant entrance, and the usual picket line activities of yelling and rock and bottle throwing commenced. At approximately, 2:30 a.m. on August 5th, Scott Reynolds and Ansel Beatty, two USR management employees, reported that they saw an individual approach the USR grounds and fire two shots. The alleged gunshot incident was immediately reported to East Chicago Police. Also, Reynolds and Beatty filled out affidavits detailing the incident. George Wise, the head of ISM, testified that an ISM guard was stationed at the location of the purported gunshots, but did not report any shots although it was his job to do so. The guard did not testify. The incident was not reported to ISM, Cardinal, or Coleman. No further incidents were reported on August 5th.

Shortly after midnight on August 6, 1982, James Purvis and Ralph Jones began hauling a shipment of molten aluminum from USR's East Chicago plant to Milwaukee, Wisconsin. The escorted drivers left the plant premises without incident. Approximately three miles from the plant, as the trucks passed under an overpass, shots rang out, and Jones was hit in the chest. He continued driving another mile onto a highway, where his truck overturned. The molten aluminum, which attains temperatures of approximately 1500 degrees, spilled onto the highway and caught fire. Jones attempted to escape from the truck, but he was engulfed by the flames and died.

USR contends that it is not liable for Ralph Jones's death. The judgment against it was predicated upon the trial court's ruling that because USR and Ralph Jones were in a relationship "akin to employer-employee," USR owed a duty of reasonable care to protect Ralph Jones from the shooting, which included warning him of both the threats by the strikers to shoot replacement drivers and of the uncorroborated report of gunfire on August 5th. USR maintains that it and Ralph Jones were not in any relationship giving rise to a common law duty of care. Rather, USR contends that under Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596, 35 Ill. Dec. 530, any duty to protect Jones was limited to the provision of security escorts, which it had contractually agreed to provide. ...

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