Yet another bonehead suing McD's

[ENGINEERS WIFE]

Nude pics in phone lost at McDonald's get online
Updated Sat. Nov. 22 2008 8:00 PM ET

The Associated Press

FAYETTEVILLE, Ark. -- Here's some food for thought: If you have nude photos of your wife on your cell phone, hang onto it.

Phillip Sherman of Arkansas learned that lesson after he left his phone behind at a McDonald's restaurant and the photos ended up online. Now he and his wife, Tina, are suing the McDonald's Corp., the franchise owner and the store manager.

The suit was filed Friday and seeks a jury trial and $3 million in damages for suffering, embarrassment and the cost of having to move to a new home.

The suit says that Phillip Sherman left the phone the Fayetteville store in July and that employees promised to secure it until he returned.

Manager Aaron Brummley declined to comment, and other company officials didn't return messages.

 

[Klinkaroo]

I was going to say that the guy was nuts, but if the store said that they would hold on to it until he picked it up and they decided to download the content that's theft of his personal files.

I it was stolen by a third party and then he was suing McDonalds I would say he was wrong, but if they were the ones that had it well...

 

[Eye In The Sky]

The suit says that Phillip Sherman left the phone the Fayetteville store in July and that employees promised to secure it until he returned.

So its an unfounded allegation that the applicant is making, there's no proof the business actually did it....

 

[kkwd]

How did these jokers find out the pictures were posted on the net? Is this another scam/scheme to make a few dollars? I smell something and it is not the Filet-O-Fish.

 

[midget-boyd91]

I was about to state the required ''this thread is useless without pictures,''  but I couldn't help but imagine a half-ton, whale-eating woman scarfing down McDonalds burgers....so I've decided to take my medication and go to bed.

Midget

 

[fire_guy686]

The suit was filed Friday and seeks a jury trial and $3 million in damages for suffering, embarrassment and the cost of having to move to a new home.

They had to move because their nude pics were posted on the net?? Give me a break. I can see the embarrassment part of it but not the cost of them moving.

Personally I don't have much sympathy for them. Maybe they will realize that if your gonna take pics like that get em off your bloody phone or better yet remember your stuff. I don't remember how young I was when Mommy and Daddy told me to always remember my things.

 

[SupersonicMax]

I don't think it makes it right for someone to take someone else's phone, browse through it, download the pictures on their personal computers and upload them online.  If I left my wallet by mistake in a restaurant, I expect my IDs, money and pictures to be intact, in my wallet when retrieve it from the store. 

 

[Blackadder1916]

Since the opening post did not include a link to the article it quoted, it was difficult to determine if that was the story in total or whether additional information had been left out.  However with a little google was able to find this piece from a paper local to the event that adds a little to the story.

Private Photos Posted Online, Lawsuit Claims
http://www.nwaonline.net/articles/2008/11/22/news/112208fzsherman.txt

By Ron Wood THE MORNING NEWS Last updated Friday, November 21, 2008 7:29 PM CST in News

FAYETTEVILLE -- A Bella Vista couple has sued McDonald's for at least $3 million after nude photographs of the woman were allegedly taken off her husband's misplaced cell phone and posted on the Internet.

Phillip and Tina Sherman say Phillip left his cell phone at McDonald's on Sixth Street in Fayetteville on July 5. Tina Sherman then began receiving offensive calls and text messages about the pictures, then learned her pictures, which she had sent her husband, had been posted on-line along with her name, address and phone number.

The Web site allegedly described how McDonald's employees retrieved the pictures from a phone left at the restaurant.

Before the pictures and information could be taken down, Tina Sherman began receiving threats and lewd, explicit and obscene text messages and phone calls from strangers who had seen the site. There were also similar comments posted on the web site, according to the suit.

The suit names McDonald's Corp., Matthews Management Co. and a manager, Aaron Brummley. Employees of the restaurant had allegedly promised to secure the cell phone, turn it off and safeguard it until Phillip Sherman could retrieve it.

The suit seeks no less than $1 million for outrage; no less than $1 million for public disclosure of private facts; and, no less than $1 million for casting the Shermans in a false light.

The suit seeks damages to be determined by a jury for negligence and negligent supervision.

The suit contends the couple and their family suffered severe mental and emotional distress, physical injury, pain and suffering, embarrassment, damage to their reputations and fear. They also allege loss of earnings and are seeking the cost for having to move to a new residence.

Attempts to contact the Shermans and their attorney were unsuccessful Friday.

 

[fire_guy686]

Since the opening post did not include a link to the article it quoted, it was difficult to determine if that was the story in total or whether additional information had been left out.  However with a little google was able to find this piece from a paper local to the event that adds a little to the story.

Private Photos Posted Online, Lawsuit Claims
http://www.nwaonline.net/articles/2008/11/22/news/112208fzsherman.txt

This article gives a bit of a better picture. While I still don't have a lot of sympathy because they chose to send the pictures via cell phone, I hope they have success with this. Posting pictures is one thing, adding name, address etc brings it to a whole new level.

 

[Long Sword]

I won't give them my sympathy yet, because I still haven't seen their claims substantiated. I also would like to know how this is McDonald's fault rather than the fault of some people who just happened to work at McDonalds. Sometimes news articles leave out so many important details.

 

[Klinkaroo]

I won't give them my sympathy yet, because I still haven't seen their claims substantiated. I also would like to know how this is McDonald's fault rather than the fault of some people who just happened to work at McDonalds. Sometimes news articles leave out so many important details.

I must agree with you on that point, they shouldn't be going after McDonalds, what did the franchise do. The only thing the company did was hire some disrespectful disgusting people... The people who posted the pictures should be the only ones getting sued.

 

[George Wallace]

I don't think it makes it right for someone to take someone else's phone, browse through it, download the pictures on their personal computers and upload them online.  If I left my wallet by mistake in a restaurant, I expect my IDs, money and pictures to be intact, in my wallet when retrieve it from the store. 

Nor is it a smart thing to not Password Protect your Cellphone.  I see several problems with this case.  One is the false impression that a Cellphone is a "Secure Means".  It is nothing but a radio.  I can see the intent to "show hubbie" some family "porn", but the stupidity to keep it on a device that can easily be lost is just that - stupid. 

This should be an interesting case to follow in the Courts, as it relates a lot to Communications Security and the lack of.

 

[ARMY_101]

Working for McDonald's myself, I can't see how this has anything to do with the store.  Even if it was specifically secured and then browsed by one of the crew members on the floor, I see that as being the individual's fault, not McDonald's.  I fail to see how this frivilous lawsuit will get anywhere, but they will unfortunately probably try to settle for a few hundred thousand to make them go away.

 

[Blackadder1916]

. . .  I also would like to know how this is McDonald's fault rather than the fault of some people who just happened to work at McDonalds. Sometimes news articles leave out so many important details.

By a legal doctrine (which should be well known by any employer) called "vicarious liability".  The following, though from a Canadian viewpoint, describes it.

http://www.carters.ca/pub/bulletin/church/2005/chchlb11.htm

B. VICARIOUS LIABILITY
The doctrine of vicarious liability imposes liability upon an employer or principal for the conduct of an employee or agent, on the grounds that the employer or principal should be held accountable for losses to third parties that arise from the actions of the employer or principal. Unlike the principle of direct liability, vicarious liability does not require that the employer or principal actually cause the loss sustained by the third party. Liability is imposed on the employer or principal with the rationale that the loss is the result of a reasonably foreseeable risk and attributable to the employer's or principal's activities, and that it is reasonable that the employer or principal should be liable for the risk.

From a public policy point of view, vicarious liability is designed to ensure that parties undertaking risky enterprises take all reasonable measures to reduce the risk. It is a form of risk allocation, in keeping with the logic behind tort law in Canada; namely, losses will be suffered in our modern world, and we should be aware of the losses we cause, and should try to reduce the risks of such losses, or compensate for such losses when appropriate. As Chief Justice McLachlin stated in Bennett:

"Vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public. Effective compensation is a goal. Deterrence is also a consideration. The hope is that holding the employer or principal liable will encourage such persons to take steps to reduce the risk of harm in the future."2

And this from an American site.

Employer Liability for an Employee's Bad Acts
If your employee hurts someone, you could be legally responsible.

Like it or not, you might be responsible for harm caused by your employees. Under a handful of legal theories, courts have held employers liable for injuries their employees inflicted on coworkers, customers, or total strangers. Here, we explain those legal theories -- and a few commonsense steps you can take to steer clear of trouble.

Job-Related Accidents or Misconduct
Under a legal doctrine sometimes referred to as "respondeat superior" (Latin for "Let the superior answer"), an employer is legally responsible for the actions of its employees. However, this rule only applies if the employee is acting within the course and scope of employment. In other words, the employer will generally be liable if the employee was doing his or her job, carrying out company business, or otherwise acting on the employer's behalf when the incident took place.

The purpose of this rule is fairly simple: To hold employers responsible for the costs of doing business, including the costs of employee carelessness or misconduct. If the injury caused by the employee is simply one of the risks of the business, the employer will have to bear the responsibility.

But if the employee acted independently or purely out of personal motives, the employer might not be liable. Here are a few examples to illustrate the difference:

• A restaurant promises delivery in 30 minutes "or your next order is free." If a delivery person hits a pedestrian while driving frantically to beat the deadline, the company will probably be legally responsible for the pedestrian's injuries.
  
• A technology services company gives its sales staff company cars to make sales calls. After work hours, a sales person hits a pedestrian while using the company car to do personal errands. Most likely, the company will not be held responsible for the incident.
  
• A law firm issues cell phones to all of its lawyers, to allow them to call into the office and check in with clients when they are on the road. A lawyer, driving, hits a pedestrian because she is completely engrossed in her telephone conversation with a senior partner in the firm. The law firm will probably have to pony up for the pedestrian's injuries.
  
• A medical billing company hires a fumigator, who sprays the company's office with powerful pesticides. The next day, a dozen employees fall ill from the fumes. One of the affected employees is sent home; on her way, she suffers a dizzy spell and hits a pedestrian. The company is probably on the hook.

If you are sued under this legal theory of respondeat superior, your employee's victim generally won't have to show that you should have known your employee might cause harm, or even that you did anything demonstrably wrong. If your employee caused the injury while acting within the scope of employment, you will have to answer to the victim.

Whether the employer in this tale is held responsible is a matter for the courts to decide.  However, just because a spotty-faced, minimum wage, semi-illiterate teenage (which could even describe the shift manager at that particular restaurant) may have been the direct culprit (and did it on his own time) does not necessarily absolve the employer from responsibility.  It could also be argued that once the restaurant (in the form of a manager or other employee acting as agent) was in contact with the owner of the cell phone and said they would hold it (safeguard?) until he picked it up, they may have assumed direct liability as well.

This is not much different than how things work in the military.  Under a principle of command responsibility everything that occurs in a particular unit is the responsibility of the commanding officer and if things go seriously pear shaped (particularly if in public) the holder of that position will wear it. 

 

[Bruce Monkhouse]

It could have been downloaded before the management even got a hold of it so.......

 

[ENGINEERS WIFE]

As far as I am concerned if you leave your unsecured cellphone lying around with things of a 'delicate embarrassing nature' you are asking for trouble. 
It is unfortunate if they were harassed and can see why they would be upset.  But, there are lots of sick puppies roaming around, unfortunately for them, one of them got a hold of their unsecured phone. 
I don't understand why it is everyone else's fault though.  Sometimes we make mistakes and they have huge consequences. I am sure they will think twice about what info they leave in their phones.

 

[Foxhound]

Employees of the restaurant had allegedly promised to secure the cell phone, turn it off and safeguard it until Phillip Sherman could retrieve it.

To me, this is the relevant part.  If this can be proven, then the employee(s) were acting as agents for McDonald's® Corp. when they made this promise, and then failed to ensure that their customer's private information would remain secure.  Any employee should be aware that, when they make statements on behalf of their employer, that the employer is going to be held responsible for the content of those statements.

About the only recourse that the company has at this point is to settle the case with the customer, then fire and sue the offending employee for violating the part in the employee agreement where it says, "Don't f*ck up the customers' lives'".

Oh,

wait,

they're screwed.

I kinda feel sorry for McDonald's® here, but, to be very clear, I also sympathise with the unfortunate couple in this story.  I can't imagine how hard this has been for them.

 

[Bruce Monkhouse]

It would be impossible to prove that someone didn't get a hold of those pictures before they promised to secure the phone....

 

[Eye In The Sky]

Personally I don't think McDonals should be the ones to pay for the guy (1) being stupid enough to leave his wife-porn on a cell phone  : and (2) then leaving his cell phone in a public place.

I'd not be surprised if they did it on purpose.  If not, how many people will 'accidentally' start doing the same if this dork and his cell phone porn pin-up wife actually get a settlement?

 

[Foxhound]

It would be impossible to prove that someone didn't get a hold of those pictures before they promised to secure the phone....

Fully understood.  Which is why I highlighted the "If this can be proven" part.

Personally I don't think McDonals should be the ones to pay for the guy (1) being stupid enough to leave his wife-porn on a cell phone  : and (2) then leaving his cell phone in a public place.

I'd not be surprised if they did it on purpose.  If not, how many people will 'accidentally' start doing the same if this dork and his cell phone porn pin-up wife actually get a settlement?

I see we agree, McDonald's® can in no way guarantee that all circumstances were within their control, except the conduct of their employees.  This places them in the hot seat, whether we agree if it is fair or not.  Dollars to doughnuts the corporate lawyers are advising the brass to settle with a non-disclosure clause.