Security of Transportation Terminals: Emerging Issues[dagger]

Security of Transportation Terminals: Emerging Issues[dagger]

Rincon, Carlos

I.

INTRODUCTION

Civil liability for the criminal acts of third parties is a risk component that has necessitated an increased response from all sectors of industry in the United States. Historically, the most common scenarios from which this issue arises have been in the context of the ownership or occupation of premises. In this regard, the criminal perpetrator’s conduct often falls into one of two categories. In the first scenario, the perpetrator’s intent is to commit a crime against an establishment. The perpetrator’s acts invariably result in collateral risk of injury or death to the establishment’s customers, employees, guests or others having a legitimate reason for being on the premises. In the second scenario, the crime motive is directed at a victim and the nature of the premises lends itself to being conducive to the commission of a crime, for example, assault of an apartment complex resident in a poorly lit parking lot.

In either of the above scenarios, when injury or death arises as a result of the commission of crimes in the premises context, litigation ensues with the cornerstone issue being foreseeability of the occurrence. Victims or their representatives will point to the conduciveness that a premises presents for the commission of a crime such as demographics, historical patterns or other characteristics of the premises. The basis of such an argument is that the commission of the crime, as it occurred, was foreseeable to the owner/occupier of the premises and, thus, created a duty to warn or to protect the victim against the occurrence. The counter-argument will typically be that the criminal acts of the third party were unforeseeable and constituted an intervening or superseding cause to any failure on the part of the owner/occupier of the premises to exercise reasonable care.

The issues involving third-party criminal acts have not been limited to the realm of premises liability. Rather, they have extended to circumstances wherein third-party criminal acts occur outside private premises and involve the use of an instrument of commerce. As the tragic events of 9/11 and the anthrax scare have demonstrated, the criminal mindset has necessitated that risk prevention contemplate circumstances wherein the perpetrator uses an instrument of commerce to inflict injury or death. There is no doubt that these more recent events have documented how industry must be battle-ready to protect, warn of, and deter crimes motivated by political or religious conviction, as opposed to only those crimes motivated by monetary gain or passion. By using instruments of commerce, the perpetrator not only victimizes the innocent persons directly associated with the crime, but also impacts a wide web of other persons and institutions that, though not directly involved, must immediately modify their behavior and operations to address the heightened perception of risk.

Against this backdrop, the trucking industry in the United States has been forced to reevaluate how it is responding to the increased recognition that the criminal mindset may consider a tractor/trailer and its cargo as the next mechanism to deliver a devastating blow to our economy or way of life. As members of the trucking industry and as the lawyers who represent them, when debating how these circumstances have heightened the scorecard on how we will be judged in hindsight to have responded to such an occurrence and what proactive measures should be contemplated and implemented, the logical starting point for discussion would be to address the prevailing legal standards that have given rise to liability for the criminal acts of third parties. Also essential to this discussion is a review of the trucking industry’s response to the heightened sense of concern over recent events that have made foreseeable what was in the past unforeseeable.

II.

LEGAL STANDARDS

A. Duty

As a general rule, and in the absence of a statute, a special relationship or other circumstances that create a duty, an individual is under no duty to protect another from a criminal assault or the willful act of violence of a third person.1 A person, however, may be charged with a duty to take precautions to protect others from intentional criminal acts of third persons when an unreasonable risk of harm is foreseeable.2 The Restatement of Torts more fully describes the duties and liabilities of a premises owner or occupier. The Comment to section 344 of the Restatement states as follows:

Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.3

Thus, in accord with the above standard, the corporate defendant’s risk of exposure lies with its reasonableness in anticipating the conduct, warning others of the conduct and protecting against it.

B. Superseding/Intervening Cause

The standard defense to an assertion that a duty of care is imposed on an owner or occupier of land is that the criminal conduct of third parties was an unforeseen intervening or superseding cause of any alleged injuries. The Restatement of Torts defines a superseding cause as “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.”4 Further, an intervening cause is defined as “one which actively operates in producing harm to another after the actor’s negligent act or omission has been committed.”5

C. Foreseeability

As noted above, however, while the criminal conduct of a third party usually serves as a superseding cause relieving the potentially negligent entity from liability, tort liability will not be excused when the criminal conduct is a foreseeable result of such negligence.6 Consequently, when certain types of criminal conduct are reasonably foreseeable, avoidance of liability will require executing a reasonable security response commensurate with the level of risk. As noted below, what would be required to adequately discharge one’s duty will differ from one fact pattern to another.

For example, in Lopez v. McDonalds7 an action was brought against McDonalds by the survivors and surviving family members of the victims of a massacre that took place in the restaurant. Summary judgment in favor of McDonald’s was upheld on the ground that the boundaries of its duty to take reasonable precautions to protect patrons from reasonably anticipated criminal conduct of unknown third parties did not encompass the burden to protect against once-in-a-lifetime massacres. The likelihood of the unprecedented murderous assault was so remote and unexpected that, as a matter of law, the general character of the restaurant’s nonfeasance in not providing security was held not to facilitate its happening.8

Additionally, even in the presence of a special relationship, civil liability for acts of third persons is not automatic. For example, while an employer-employee relationship may be deemed “special” for purposes of imposing a duty of care on the employer to guard and protect the employee against the criminal acts of others, the possibility of some criminal act, though not necessarily the precise act, must be reasonably foreseeable before the failure of the employer to take reasonable precautions to protect the employee against harm may be said to be negligent.9

D. Preemptive Measures

If it is determined that a criminal event is foreseeable, the analysis then shifts to evaluate whether the defendant has undertaken those measures that a reasonable and prudent entity, facing the same or similar risk of third-party criminal acts, would have initiated. For example, following 9/11, the perception is that terroristic assaults on high-rise, high-profile apartment/condominium complexes in major United States cities are foreseeable. In this context, it has been opined that the traditional analysis of basing foreseeability on whether prior similar crimes have occurred on the same premises will not serve to limit liability for terroristic acts. The argument is based on the events of 9/11, which have made threats of terroristic acts targeting buildings such as Chicago’s IBM Plaza and John Hancock Center foreseeable. As a note, proprietors of premises like those have been pro-active in implementing additional security measures to include increased security staff, checkpoints to review visitor photo identification badges and bags, restricting access to parking garages and random searches of trunks. These proprietors are also in the process of installing x-ray machines, as well as security mail and ventilation systems to prevent bio-terrorist attacks.10

E. Presumption of a Duty

Finally, liability may ensue in a situation in which, absent a special relationship or special circumstances, a duty to protect against the criminal acts of third parties is assumed. As embodied in Mendoza v. Conlico,11 discussed in part IV of this article, this theory of liability presents a viable approach for claimants to pursue actions when they otherwise would have no recourse to pursue legal remedies. The overriding point to be made when discussing the response to this liability approach is that all remedial measures should be initiated and executed with the same vigor whether the duty is one that is inherent or assumed, as the law does not impose a lesser duty on the alleged tortfeasor who assumes a duty he otherwise did not have.

III.

INDUSTRY INITIATIVES AND RESPONSE AS WELL AS GOVERNMENTAL REGULATIONS

Perhaps the single most significant trucking industry development that is highly relevant to managing risk presented by criminal acts of third parties is its integration into the transportation industry as a whole. The use of multi-model transportation networks results in a situation in which each time a new mode of transportation and a new transfer point is introduced into the equation, an element of vulnerability is presented that underscores the importance of ensuring that each segment of the transportation chain is secure.12 In this regard, vertical-looking, all-inclusive security programs, such as the Customs Trade Partnership Against Terrorism (C-TPAT), proposed and sponsored by the United States Customs Service, have been initiated.13 Under this program, all participants in the transportation network may be considered for C-TPAT certification. From importers to air consolidators, licensed brokers, warehousemen and over the road truck carriers, a joint recognition between government and business has been implemented to enhance supply chain and border security. While compliance with added governmental regulations will also increase fixed operating costs, benefits include reduction of border crossing times and providing a competitive advantage by reducing theft and damaged product. Increasing supply-chain efficiency and strengthening existing loss prevention programs result in C-TPAT certifications making good business sense.

Additionally, regulatory bodies such as the United States Department of Transportation (“DOT”) and the Transportation security Administration (“TSA”)14 have promulgated new security requirements for offerors and transporters of hazardous materials.15 The regulations were a result of the work of the Research and Special Programs Administration to establish new requirements to enhance the security for hazardous materials transported in commerce. Shippers and carriers of certain highly hazardous materials are now required to develop and implement security plans in conformity with the requirements. In addition, all shippers and carriers of hazardous materials must assure that their employee training includes a security component. Included among the requirements of a security plan are two areas that would specifically apply to a truck terminal/truck stop facility. Further, specific guidelines for determining who is eligible to apply for and obtain hazardous materials endorsements for a commercial driver’s license have also been enacted. Some of the specific provisions of the new legislation are as follows:

(2) Unauthorized access: Measures to address the assessed risk that unauthorized persons may gain access to the hazardous materials covered by the security plan or transport conveyances being prepared for transportation of the hazardous materials covered by the security plan.

(3) En route security: Measures to address the assessed security risks of shipments of hazardous materials covered by the security plan en route from origin to destination, including shipments stored incidental to movement.16

Additional provisions include:

(a) An [individual] poses a security threat . . . under this section when the TSA determines or suspects [him or her] of posing a threat

(1) To national security; or

(2) To transportation security; or

(3) Of terrorism.17

(b) TSA checks the following databases and analyzes the following information before determining that an [individual] does not pose a security threat warranting denial of an [authorization under this part]:

(1) Interpol and other international databases, as appropriate;

(2) Terrorist watch lists and related databases; and

(3) Any other databases relevant to determining whether an [individual] poses or is suspected of posing a security threat, or that confirm an [individual’s] identity.

As specifically applied to facility security, the Federal Motor Carrier Safety Administration has published guidelines that are to be initiated in the event of a Code Orange National Threat Level designation. Those actions are:

(1) Cooperate with federal or local law enforcement officials concerning security checks or safety checks;

(2) Restrict the availability of information related to your facility and employees, and the materials you handle;

(3) Restrict access to a single entity or gate. Control who enters and leaves your facility, if possible. Require visitors to show photo identification and have someone accompany visitors at all times;

(4) Add security guards and increase off-hour patrols by security or law enforcement officials;

(5) Reduce your internal tolerance for “security anomalies,” such as overdue or missing vehicles, perimeter of physical plant intrusions, unverified visitors, evidence of tampering and the like;

(6) Install additional security systems on areas containing hazardous materials, if needed;

(7) Do not preload hazardous materials shipments;

(8) Require employees to display identification cards or badges while at the facility;

(9) Conduct spot checks of personnel and vehicles;

(10) Test your emergency response communications systems;

(11) Upgrade security procedures for pick-ups and deliveries. Verify all paperwork and require pick-up and delivery appointments from known vendors. Require pick-up drivers to provide driver’s name and vehicle number-confirm with vendor. Accept deliveries in designated areas only;

(12) Confirm legitimacy of new vendors through listings in phone book or industry publications, web sites or references;

(13) secure hazardous materials in locked buildings or fenced areas. Have a signout system for keys;

(14) Secure valves, manways, and other fixtures on transportation equipment when not in use. Secure all rail, truck and barge containers when stored at your location;

(15) Use tamper-resistant or tamper-evident seals and locks on cargo compartment openings;

(16) Maintain current inventories of on-site hazardous materials and check account for shortages and discrepancies.18

For en route security, the following have been adopted during a Code Orange Threat Level:

(1) Verify identity of carrier or driver prior to hazardous materials loading. Ask driver for photo identification and compare with information provided by carrier;

(2) Ask the driver to tell you the name of the consignee and the destination for the material and confirm with your records before releasing shipments;

(3) Identify preferred and alternated routing, including acceptable deviations. Make sure routing complies with local routing restrictions;

(4) If possible, alternate routes to frequent destinations;

(5) Minimize exposure in downtown or heavily populated area and expedite the shipment to the final destination;

(6) Minimize stops en route; if you must stop, select locations with adequate lighting on well-traveled roads and avoid high-crime or dangerous areas;

(7) If materials are stored during transportation, make sure storage facilities are secure;

(8) Train drivers how to avoid highjackings or theft of property-keep vehicles locked when parked and avoid conversation on open channels or with strangers about route, cargo, and destinations;

(9) Consider an escort or guard for high-hazard shipments (e.g. explosives, radioactive materials, or inhalation of hazardous toxics);

(10) Consider using advanced technology to track or protect your cargo en route to their destination (i.e., satellite tracking systems, anti-theft systems for trailers and tractors and surveillance systems). GPS tracking systems should relay updates more frequently;

(11) Install tamper-proof seals on all valves and package or container openings;

(12) Implement a system for a customer to alert the shipper if a hazardous materials shipment is not received when expected;

(13) When products are delivered, check the carrier’s identity with shipping documents provided by the shipper;

(14) Get to know your customers and their hazardous materials programs. If you suspect you shipped or delivered a hazardous material to someone who may intend to use it for a criminal activity, notify your local FBI or local law enforcement officials.19

This recently announced security protocol by the U.S. government has been standard operating procedure for many of the leaders in the private trucking sector. Additionally, organizations such as the American Trucking Association (“ATA”), the National Cargo security Council (“NCSC”), and many other trucking industry organizations are working with their membership to ensure that the private sector response meets and exceeds all of the recent government promulgations. From a liability standpoint, a claim or suit flowing from a security breach will no doubt rely upon existing government regulations and guidelines to establish a minimum standard of care. Consequently, trucking entities and operators of truck stop and truck terminal facilities must be prepared to demonstrate that their own internal operating guidelines adhere to what the government bodies dedicated to fighting crime and terrorism in these sectors say are reasonable approaches to deterring and preventing that activity.

In addition to adhering to and implementing government security-driven guidelines, many trucking industry members are being extremely pro-active in their approach to security by creating partnerships with government agencies to address security threats. For example, “hot spots” for cargo theft have been identified and have led to increased vigilance and prevention measures in those regions. Specifically, cargo theft task forces have been created, among other places, in California, New York and Texas to deal with some of the most profuse problems with cargo theft in the nation.20 These law enforcement units work closely with all members of the transportation industry, including the trucking industry and their insurers, to develop security measures. They respond quickly to reported losses in the continuing effort to deter and minimize those losses attributable to third-party criminal acts. Consequently, interstate trucking companies that run cargo through these regions are “on notice” that the likelihood for criminal activity is higher there than in other parts of the nation. Therefore, an argument that a particular criminal event to a unit driver or involving cargo traveling through one of these regions was not foreseeable will be more problematic.

While highjackings are less common than other forms of cargo theft in the United States,21 the U.S. Department of Transportation has issued recommendations that suggest the use of escorts for particular types of loads irrespective of where it is being shipped.22 Thus, it is clear that the minimum baseline for the types of criminal events that are foreseeable and the corresponding acceptable response to a risk is increasing. This development impacts the standard of care that will be at issue in civil damage actions by litigants and ultimately enforced by the courts. As such, sound security practice dictates that, at minimum, additional information be disseminated to augment the general awareness of the drivers who operate in these regions.

Additionally, according to statistics published by the NCSC, cargo thefts take place when the container or trailer hauling the cargo is parked in the road or in some other type of facility, such as a truck stop or truck terminal.23 Consequently, any member of the transportation chain that has to manage stopped cargo must at minimum employ security measures that can be construed as meeting the state-of-the-art in security to avoid theft or pilfering of cargo. The TCA, for example, has posted security tips for terminals that embody the spirit of many of the terminal security guidelines issued by the United States government in response to a heightened national level of security. The TCA security tips include the following:

1. Either provide your own guards or hire a reputable guard service. Question them as to their hiring practices. Insist that the guard service conduct the same background checks on their guards as you do on your drivers;

2. Spot check the guards on an irregular basis to make sure they’re on the job doing what you want done;

3. Place the guard in an inaccessible area where he/she can monitor activities on the facility and yet be secure and safe from assault. Make sure they have good communications and know who to notify in the event of a problem;

4. Do a physical security audit of your facility. Are you utilizing lighting, fencing, and CCTV to the best advantage possible? Personnel access should be restricted to those areas of concern to them. Truck drivers don’t need to be in the warehouse, and warehousemen don’t need to be in areas out of their job description;

5. Limit yard access after normal business hours;

6. Set up specific procedures concerning type of documentation required before driver is allowed to leave yard. Hold guard accountable for obtaining this documentation; and

7. Conduct random lunch box inspections.24

Members of the trucking industry must be diligent with respect to hiring practices. The emphasis must be on being aware of who is hired and verifying information such as employment history, education, driving records, credit records, criminal records and social security numbers.

In the past, prudent trucking business practice and terminal security management dictated that careful thought be invested in evaluating each of these security issues. Fundamental security protocol restricting access to terminals, securing cargo and conducting background checks on drivers has always been an integral and, in certain facets, a required part of doing business as a trucking carrier in this country. These newly available certifications and regulations are making it such that not only will heightened security detail be encouraged, but also, in many instances, it will be a prerequisite to either maintaining competitiveness in the marketplace or being able to conduct business at all.

IV.

CASE STUDY

A. Background

Assessment of security-based allegations of negligence and gross negligence, both with respect to terminal operations and cargo transport, would be aided by considering the factual circumstances and ensuing theories of liability of Mendoza v. Contico.25 The case involved the violent death of two employees of the Mexican corporation Continental Sprayers, a wholly owned subsidiary of United States parent Contico Manufacturing. The employees were Alfonso Jurado, an unarmed security guard, and Lorena Mendoza, a twentyseven-year-old accounting clerk. They were murdered while transporting a cash payroll from the hub Mexican operation in Cd. Juarez (a border city to El Paso, Texas) to a satellite facility in Palomas, a Mexican city along the Rio Grande.

Continental Sprayers had a substantial manufacturing facility in Cd. Juarez that employed approximately 750 workers. Continental Sprayers was set up as a manufacturing arm by Contico, at that time a global leader in the manufacture of containers, due to favorable labor costs.

The same individual who ran the El Paso management facilities oversaw the Mexican operations on a day-to-day basis and was both a high-ranking employee of Contico and an officer of Continental Sprayers. The individual who served in the capacity as general manager, a Mexican national, was a virtually autonomous decision-maker with extensive authority and discretion with respect to operations on both sides of the border.

As a background to the civil suit in this case, Contico determined that an increase in manufacturing capacity in its Mexico facility was necessary. Consequently, through the general manager, Contico began to actively assess how to increase its Mexico operations. A very heavy saturation of foreign corporation operations during this timeframe resulted in a labor shortage in the Cd. Juarez, Mexico region.

The general manager undertook a comprehensive search for a satellite manufacturing facility. Certain key considerations were driving the site selection, mainly the availability of a suitable workforce, proximity to the Cd. Juarez facility and to El Paso, Texas, acceptable infrastructure and the availability of an existing physical site that could house a manufacturing facility capable of hosting approximately 100 employees and the physical wares to accommodate that type of operation. After considering approximately six other locations, a decision was made to go with establishing a facility in Palomas, which made up for its lack of municipal infrastructure with its available workforce.

Most critical to this case study is that Mexican labor law requires that employees be paid in cash each Friday and at the place of employment. Consequently, consideration would have to be given as to how to get cash payroll from the Cd. Juarez facility to the tiny community of Palomas. Interestingly, absent in Palomas was the existence of a banking facility that could provide a local solution to the Mexican legal requirement of on-site payment of employees. Because the weekly payroll obligation was approximately $4,000 United States dollars per week, the general manager believed that these funds could be transported by highway from Cd. Juarez to Palomas each payday. The general manager had researched the prospect of having an armored car service deliver the cash payroll, but concluded that this was not an available option. Additionally, he had inquired about entrusting a Mexican bank with this cash payroll requirement, but was unable to find a workable solution. When a decision was made to go with Palomas for the expansion facility, the general manager concluded that the cash payroll would be delivered each Friday by some combination of Continental Sprayers employees.

Once Palomas was selected, a campaign was initiated to recruit a local employment force from the community. Public announcements in the form of flyers and postings were distributed en masse to draw applications. Given the manner in which new employee recruitment took place, it was not surprising when it was later learned that background checks on new employees were never completed nor prior employment references validated. Additionally, no consideration was given to conducting an assessment of the criminal history of Palomas at large, the area immediately encompassing the new facility or the highway that would have to be traveled by the Continental Sprayers employees who would be transporting the payroll.26

The system devised by the general manager to deliver the payroll was to have an unarmed security guard and an accounting clerk travel in a company car each Friday morning. They would depart at the start of the business day and would arrive in Palomas approximately two hours later. When the payroll was distributed, they would immediately return to Cd. Juarez. The only navigable road between Cd. Juarez and Palomas is a two lane highway with no shoulder. Because of the prevalence of narcotics trafficking from northern Mexico into the United States, there are differing perceptions of how prudent it is for persons to travel by private automobile in this region. Most United States citizens living in the border region would consider traveling in this manner risky, with the primary threat being roadblocks staged by bandits, corrupt law enforcement or collateral threats posed by narcotics traffickers transporting their illicit cargo. On the other hand, the vast majority of Mexican nationals, though recognizing these risks, would be less prone to be deterred by them, perhaps due to heightened tolerance of risk or lack of sophistication to fully appreciate the true magnitude of these risks. As a result, the task of transporting the payroll was not viewed by those carrying it out as an unreasonable risk. As a native of Mexico, the general manager held the same cultural views of those types of risks that would be more prevalent among his countrymen. Also, despite the contention that accounting clerk Lorena Mendoza had voiced objections and concerns over having to carry out these duties, such concerns were never documented, and were supported only by the hearsay statements of Mendoza’s family.

Early on a Friday morning in August 1990, Jurado and Mendoza left the Cd. Juarez facility and traveled toward Palomas, as they had done without incident for the preceding seventy weeks. At approximately noon, the Cd. Juarez facility was notified that Jurado and Mendoza had not yet arrived. What followed was an exhaustive and non-stop effort on the part of Contico and Continental Sprayers management and employees alike to find the two. Their efforts marshaled all available law enforcement and teams of volunteers to comb the roadway between Cd. Juarez and Palomas. This included use of aircraft in an attempt to find the company vehicle that had been used.

When no word had been received from the two Continental Sprayers employees by day’s end on Friday, fears escalated and tragically were confirmed on the following Sunday afternoon. At that time, an elderly man rummaging through a makeshift dumping area in the outskirts of Palomas came across a burned-out vehicle that looked peculiar. Sensing something odd, he immediately contacted local law enforcement, who proceeded to the site. Upon opening the trunk of the car, the charred remains of Jurado and Mendoza were discovered. While some of the cash payroll seemed to have been consumed in the flames, it appeared from the investigation that the money was taken. Thus, the immediate motive considered by law enforcement was robbery. The criminal investigative trail remained cold and did not produce identification of any suspects.

Several weeks after this occurrence, a ranch located in the United States, but in very close proximity to the border region close to Palomas, was the subject of an armed assault by a gang of several Mexican nationals. United States Border Patrol officers intervened and a gun battle ensued; however, none of the Mexican perpetrators were captured and all were able to make their way back into Mexico. Upon re-entering Mexico, this gang was met up by a strong force of Mexican law enforcement that was able to apprehend one of the suspects. Intense interrogation of the suspect revealed that he was a member of a gang that had carried out the assault of the Continental Sprayers employees that occurred several weeks earlier, though on the outer fringes of involvement. In this confession, he revealed that they were led by several convicted felons and veterans of the Mexican correctional system, all of whom had horrid histories for commission of violent crimes. He stated that in preparation for commission of the Continental Sprayers assault, one of the gang members had obtained employment in the Palomas facility to learn as much as he could about the cash management and payroll systems. Once the perpetrators reached their desired comfort level, they planned an armed robbery using a makeshift roadblock to stop the two Continental Sprayers employees. The confession went on to describe how both employees were tortured, assaulted and shot, eventually being tied up and placed in the trunk of their vehicle. The vehicle was then incinerated with gasoline.

Limitations on forensic science with the Mexican investigation precluded a determination of whether the two victims were alive at the time the fire was started. The confession was later completely recanted by the declarant. Additionally, the purported violent members of the gang who were said to have carried out the physical assault of the two victims and incinerated the vehicle were never captured and presumably to this day remain at large in Mexico. The only evidence to support the conspiracy gang theory was this single confession. Circumstances surrounding how knowing or voluntary the confession was are in question. Consequently, once the confession was recanted, and given that the other gang members who were much more culpable than the declarant were never apprehended, the criminal investigation was essentially closed as unresolved.

A wrongful death and survivorship action was eventually filed in Texas on behalf of both the Continental Sprayers employees’ estates and family members acting as wrongful death beneficiaries. The causes of action were for negligence and gross negligence. The theory of recovery was that the parent, Contico, assumed the duty to provide a safe workplace to the employees of its Mexican subsidiary, based on the fact that high-ranking officers of Contico were involved in the day-to-day management of Continental Sprayers. Because the crime had never been solved, the plaintiffs were given alternatives on trial strategy. First, if this tragedy had in fact come at the hands of an organized conspiracy that infiltrated the company consistent with the confession, the focus was on the absence of background checks that would have potentially detected the questionable background of the infiltrator. Also involved was the lax security that allowed the cash management/payroll process to become so easily understood by a criminal group.

Alternatively, had this crime been attributable to a roaming band of bandits that simply came upon the Continental Sprayers’ vehicle, the plaintiffs contended that such events were readily foreseeable. This was primarily because on the desolate highway a roadblock of the type that was used could very well have been foreseeable.

The action brought by the male security guard’s family resulted in a confidential settlement months before the trial. The action of female accounting clerk was settled two weeks into trial and immediately before closing arguments.

B. Lessons Applicable to the Trucking Industry

The myriad allegations associated with failing to provide a safe workplace are allencompassing and are very instructive to a trucking concern that is looking at selecting a site for a terminal and in contemplating security measures associated with its routes. Each of the factors listed below was a separate alleged count of negligence in the actions making up the case study. Obviously, the defense response was that this occurrence was a directly caused by unforeseeable criminal acts of third parties and that their conduct served to supersede any alleged act or omission of Contico. Alternatively, it was argued that the security measures professed by the plaintiffs’ experts demanded the exercise of extreme high care, not ordinary care. This was because the preventive measures delineated below are not typical in Mexico. This arguments advanced by Contico in various pre-trial motions through multiple procedural vehicles was unsuccessful with two trial judges and were going to be highly unsuccessful with the jury, who never had a chance to deliberate. Post settlement interviews indicated that the jurors were prepared to award a sum of $35 million U.S. dollars for compensatory damages alone and would have most certainly awarded punitive damages.

The issues in Mendoza, provide a template for the types of actions and theories of recovery that could be asserted against a trucking company that enters a new market, opens a new terminal and begins sending drivers through new regions with which it lacks experience. In this context, and in the event of a driver highjacking or cargo highjacking that results in a catastrophic loss, some of the factors that will be pressed by plaintiffs’ counsel will be:

(1) Site selection for a terminal-The extent the trucking entity evaluated the criminal history of the area to host the facility.

(2) Due diligence to ensure that drivers hired did not show any propensity to engage in criminal behavior-This should be separate and apart from DOT mandated checks and particularly in situations where the nature of the cargo involves transporting hazardous materials or other cargo that would make a logical target for a criminal group wishing to inflict massive harm.

(3) Preserving confidentiality of security protocol-To the extent the trucking entity has security procedures in place that are intended to provide an added layer of protection against commission of a criminal act by a third party, these procedures may have to be kept confidential at certain levels, as a breach of confidences could result in compromise of the protocol.

(4) Reducing or eliminating the deterrent effect of security by making security measures too predictable and thus easy to circumvent-The fewer the employees that carry out a high-security critical function, the fewer the souls that would have to be corrupted. The competing point is that the fewer the people involved, the tighter the control. Both considerations have merit, but certainly this issue is one that deserves careful evaluation.

(5) Training to respond to criminal act of third parties, both from a driver reaction standpoint and emergency management response team-Whether it is a driver hauling petroleum who finds himself highjacked or the trucking company who has a unit in this dire predicament, a sound response will only be helped by training and simulations and other measures that will allow all involved to making rational decisions quickly.

(6) Security at the home base terminal-Because the crime could have as its origin the facility of the trucking operation, all facets of the security detail must be carefully evaluated.

(7) Crime history analysis of routes-In instances where a trucking entity is going to begin running in unfamiliar territory or in areas that are extremely desolate and which possess a higher-than-normal incident rate of carjackings or similar crimes, advance planning should be implemented.

V.

CONCLUSION

Over recent years, while the foreseeability of certain catastrophic, politically-motivated terroristic criminal events may be on the rise, those events continue to remain the exception to the more common occurrence of theft for monetary gain. Consequently, transportation terminal operators continue to be much more likely to encounter tort liability flowing from the simple theft of a trailer, as opposed to an event calculated to inflict serious damage on property or endangerment human life. It follows that legal risk analysis would point to the necessity of discharging duties to warn against or to prevent the most commonly anticipated events, with the understanding that measures be implemented to guard against the isolated catastrophic event. In this regard, many of the same security precautions that are undertaken to prevent relatively smaller crime risks also make up part of the elevated security detail created to address heightened levels of national security risk.

On the other hand, in a changing world, and especially in the area of transport of hazardous materials, transportation terminal operators will be required to meet or exceed all facets of government and private sector security advances that are being initiated to protect against a catastrophic third-party criminal or terroristic act. Compliance with this new state-of-the-art security, while presenting new financial burdens, will aid in the deterrence of business and market disruptions that would be much more costly to the industry participant. Additionally, making progress towards implementing improved security measures can go a long way towards establishing that legally imposed duties to prevent criminal acts of third parties have been responsibly discharged. In a time when the unforeseeable is becoming increasingly more foreseeable, a proactive approach to these issues can be the best defense to any prospective tort liability in this area.

1 See Kline v. 1500 Mass. Ave. Apartment Corp., 439 F.2d 477, 481 (D.C. Cir. 1970); see also 57A AM. JUR. 2D Negligence § 96 (2004).

1 See Lillie v. Thompson, 332 U.S. 459 (1947); see also 57A AM. JUR. 2D Negligence § 100 (2004).

3 RESTATEMENT (SECOND) OF TORTS § 344 cmt. f (1965).

4 Id. § 440; see also W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 44 at 305 (5th ed. 1984).

5 RESTATEMENT (SECOND) OF TORTS § 441 (1965).

6 Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985); 57A AM. JUR. 2D Negligence § 621 (2003).

7 238 Cal. Rptr. 436 (Ct. App. 1987).

8 Id. at 512; see also 62 AM. JUR. 2D Premises Liability § 48 (2003).

9 See, e.g., Ozment v. Lance, 437 N.E.2d 930 (111. App. Ct. 1982).

10 See Thomas C. Hornburger & Timothy J. Grant, A Changing World: A Commercial Landlord s Duty to Prevent Terrorist Attacks in Post-September 11th America, 36 J. MARSHALL L. REV. 669 (2003).

11 Cause No. 92-8751, County Court at Law #3, El Paso County, Texas.

12 See Dr. Saul B. Wilen, Countering Terrorism Threats: Trucking Industry and Multi-Modal Distribution Network Vulnerabilities (Feb. 10, 2003), available at http: www.medhorizons.com/ainitiatives/articletracking.htm.

13 U.S. Customs & Border Protection at www.customs.gov/xp/cgov/import/commercial_enforcement/ctpat/.

14 An agency of the Department of Homeland security.

15 49 C.F.R. §§ 172.101 – 172.804 (2004).

16 Id. §§ 172.802(a)(2)-(3).

17 Id. § 1572.107.

18 Federal Motor Carrier Safety Administration, available at http://www.fmcsa.dot.gov/Home_Files/ hmcatt.htm.

19 Id.

20 See TCA, Sharing Information on Cargo Theft, available at http://www.truckload.org/infocenter/ TCAdocs/theftforces.htm; see also Donna Carlson, A Rig At Rest Is A Rig At Risk; Advice From the Cargo Cats: Owner-Operators Should Tighten security, LAND LINE MAGAZINE, March 2000, available at http:// www.landlinemag.com/Archives/2000/mar2000/security.html.

21 See Sean Kilcarr, Cargo Theft a Growing Threat, DRIVERS, available at http://driversmag.com/ar/ fleet_cargo_theft_growing/.

22 See Security Requirements for Motor Carriers Transporting Hazardous Materials, 56 Fed. Reg. 136 (1999).

23 See Kilcarr, note 21 supra.

24 See Carolyn Magner, To Stop a Thief: How to Prevent Cargo Thieves From Ripping You Off, TCA, available at http://www.truckload.org/infocenter/stories/tco0010cargo.htm.

25 Cause No. 92-8751, County Court at Law #3, El Paso County, Texas.

26 Because of the absence of federal or state databases such as those that exist in the U.S., efforts to perform this type of due diligence would most likely had been futile. However, Mendoza family representatives argued that this limitation should have served as notice to Contico officials that no operation in Palomas could have been commenced without significant risk that persons of questionable pasts would be hired. The reality was that compared to their U.S. counterparts, Mexican entities had much less access to information to enable them to make an informed hiring choice. Something as germane as a driving background check is limited by the absence of a national database. These limitations on accessing information would have extended to all facets of the operation, including any desire to conduct a criminal history on the Palomas community, the area encompassing the new facility, or even due diligence on the individual or business group from whom Continental Sprayers was to lease the building that was to house its new operation. The disparity in resources between the U.S. and Mexico developed into an insurmountable trial theme against Contico, namely that “double standards” exist with respect to what the U.S. company would do prior to starting up a new operation in the U.S. and Mexico. While the record was silent on even a remote suggestion that Contico had commenced U.S. based operations while paying particular attention to each of the raised security points, the fact that the Mexico operations did not even present the option of carrying out these security steps made it so that the argument was essentially made that Mexico did not present a safe expansion alternative.

[dagger] Submitted by the authors on behalf of the FDCC Transportation Section.

Carlos Rincon is a senior shareholder in the firm of Delgado, Acosta, Braden & Jones P.C. in El Paso. He attended the University of Texas at El Paso, where he received his B.A. in Latin American Studies, and graduated from the University of San Francisco School of Law. Mr. Rincon is board certified in personal injury trial law by the Texas Board of Legal Specialization and devotes a substantial portion of his practice to representation of national and regional trucking companies. In April 2002, he served as program chair for the inaugural Trucking Law Conference sponsored by the Trucking Law Committee of the Defense Research Institute (DRI). Mr. Rincon is a member of the Federation of Defense & Corporate Counsel (FDCC), the Trucking Industry Defense Association (TIDA) and the Transportation lawyers Association (TLA). Mr. Rincon has been a speaker at numerous continuing legal education programs of the State Bar of Texas and other professional organizations.

Bobbie Marie Guerra-Cavazos is an associate in the firm of Delgado, Acosta, Braden & Jones, RC. in El Paso. She attended the University of Pennsylvania, where she received her B.A. in History & Sociology of Science. She graduated from St. Mary s School of Law in 1998. Her practice areas include mass tort litigation, products liability, insurance litigation, and appellate law.

Copyright Federation of Defense & Corporate Counsel, Inc. Spring 2005

Provided by ProQuest Information and Learning Company. All rights Reserved