McDonald's: If An Employee Uploaded Nude Photos From Found Cameraphone, Sue The Employee, Not Us

from the would-you-like-fries-with-that dept

Mon, Jun 22nd 2009 9:34am — Mike Masnick

Late last year, we wrote about the odd case where a guy sued McDonald's over the fact that naked photos of his wife appeared online. Apparently, he had left his phone at a local McD's, and now claims that an employee uploaded the photos. As we pointed out in the original post, we had a lot of trouble believing that McDonald's, the company, should in any way be liable. What if the phone had been found by a random other customer? The situation could have been exactly the same, but would the restaurant have been liable? It appears McDonald's is making exactly that argument. Michael Scott points out that the company has made it clear that, if anything was done wrong here, and it was done by the employee, it was done well outside the scope of employment and it makes no sense for the company to be responsible for it.

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Filed Under: camera phones, liability
Companies: mcdonald's

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Anonymous Coward, 22 Jun 2009 @ 9:37am

Except for one little thing: McDonalds has a lost and found policy - the recovered cell phone should have been returned to the manager on duty, who would have secured it. Failure by an employee to respect company rules is an issue.
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- Shawn (profile), 22 Jun 2009 @ 9:42am
  
  Re: ac 1
  Which would put the employee's job at risk for not following McyD's policies, not Put McDonalds at risk don't you think?
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- ChurchHatesTucker (profile), 22 Jun 2009 @ 9:43am
  
  Re:
  "Except for one little thing: McDonalds has a lost and found policy - the recovered cell phone should have been returned to the manager on duty, who would have secured it. Failure by an employee to respect company rules is an issue."
  
  How? The fact that the company has the rule would emphasise (to this layman) that the employee was acting outside the scope of employment.
  
  Would McD's be less liable if they didn't have this rule?
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- Except, 22 Jun 2009 @ 9:49am
  
  Re:
  If an employee is in deliberate violation of company policy, is he not then liable for his own actions?
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- mjb5406 (profile), 22 Jun 2009 @ 10:41am
  
  Re:
  But doesn't your very statement put the responsibility back on the employee for not following the rule? However you look at it, the employee is at fault.
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- Gyroc, 22 Jun 2009 @ 10:43am
  
  Re:
  What you just said is exactly their point they have polices in place it was the employees fault for disregarding those policies.... how did the husband find the pics of his wife....that's hilarious
  
  "Except for one little thing: McDonalds has a lost and found policy - the recovered cell phone should have been returned to the manager on duty, who would have secured it. Failure by an employee to respect company rules is an issue."
  [ link to this | view in chronology ]
- Anonymous Coward, 22 Jun 2009 @ 11:07am
  
  Re:
  What if the phone had been found by a random other customer? The situation could have been exactly the same, but would the restaurant have been liable?
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vastrightwing, 22 Jun 2009 @ 9:39am

McDonalds has lots of loot
You can't overlook this compeling fact. Come on!
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Anonymous Coward, 22 Jun 2009 @ 9:42am

McDonald's
Blaming McDonald's is certainly a stretch. While they're at it why not sue the manufacturer of the phone. Also, they could add Willard Boyle, George E. Smith and AT&T Bell Labs for inventing CCDs and Dr. Fujio Masuoka and Toshiba for inventing flash memory.

Or, he could sue himself for being an idiot, but there probably isn't any money in that.
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RD, 22 Jun 2009 @ 9:46am

We need an "obvious" meter...
Because they have the money.

-Steve Dallas
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- Eponymous Coward, AKA Doug (profile), 22 Jun 2009 @ 12:22pm
  
  Re: We need an "obvious" meter...
  They know it's a multipass.
  
  -Corbin Dallas
  
  (Nice Bloom Co. ref, tho.)
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John Doe, 22 Jun 2009 @ 10:03am

Slippery Slope...
If they are allowed to use the "outside the scope of employment" defense, then many, many other lawsuits would get thrown out as well. Not that it would be a bad thing. But a truck driver that gets into a wreck while speeding would be considered outside the scope of employment because the employee handbook forbids speeding. An airline that crashes a plane because the pilot was drunk would get off the hook because drinking and flying is outside the scope of employment.

So on the one hand, this defense sounds plausible, I doubt it will work because of the precedent it would set for other cases.
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- Shawn (profile), 22 Jun 2009 @ 10:07am
  
  Re: Slippery Slope...
  Driving a truck safely is not outside the scope of a truck drivers work- it is a core function of his job. The cell phone has nothing to do with what McDonald's hired him to do.
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  - John Doe, 22 Jun 2009 @ 10:52am
    
    Re: Re: Slippery Slope...
    Sure it does. Customers leave items behind all the time. McDonald's has a policy about it. An employee violated the policy. So the trucker analogy fits just fine.
    
    I worked at McDs as a teen and a coworker found a purse with $5,000. In this case, he did the right thing and returned it.
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    - Chronno S. Trigger (profile), 22 Jun 2009 @ 11:10am
      
      Re: Re: Re: Slippery Slope...
      Douse McDonald's have a policy about that? When I worked there we didn't. At least we didn't have anything that told us we had one or anything I had to sign. If we found something the manager would put it in the safe, but, as far as I knew, we didn't have any official policy about that.
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      - John Doe, 22 Jun 2009 @ 11:14am
        
        Re: Re: Re: Re: Slippery Slope...
        I haven't worked there in over 20 years so I can't say for sure but I bet they do. Heck, companies have policies about anything and everything these days.
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- Chronno S. Trigger (profile), 22 Jun 2009 @ 10:12am
  
  Re: Slippery Slope...
  What if a trucker that happened to stop at that McD's found the phone and uploaded the picks? Would the trucking company be liable?
  
  Making a cell phone useful is the job of LG (let us assume that the phone is an LG), is LG liable since making the phone usable by anyone is their job?
  
  It seems that making the company liable is a slippery slope in the other direction.
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- DT, 22 Jun 2009 @ 11:34am
  
  Re: Slippery Slope...
  John... the truck driver that's speeding IS within the scope... as he's "working" while the act happens. Esp if it's found that in order to do his job, he had to drive over the speed limit, or outside of normal sleep parameters...
  
  If the driver was just driving an empty truck around on his own time, that would be entirely different.
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  - DWDI, 22 Jun 2009 @ 11:47am
    
    Re: Re: Slippery Slope...
    But if the trucker was driving a stolen truck, and cauc sed an accident then he would be outside of the scope.
    By stealing the phone the employee is outside the scope such as in the case of your insurance is void id you are killed while commiting a criminal act. ergo they should fire his stealing @$$ and walk away. Unless having deviants make the Co. they work for makes them liable then we are in slippery slop indeed.
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- Anonymous Coward, 22 Jun 2009 @ 1:16pm
  
  Re: Slippery Slope...
  It's not a matter of them "getting off the hook", it's a matter of the person responsible being...you know, responsible.
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- Firemonkey, 22 Jun 2009 @ 2:11pm
  
  Re: Slippery Slope...
  Your logic is severely flawed. No one's talking about finding a cell phone in their Big Mac.
  
  If that truck driver picked up a hooker and killed her, the employer would not be liable. If the pilot punched a nun while walking through the airport, the airline would not be liable.
  
  Get your analogies straight.
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pegr, 22 Jun 2009 @ 10:12am

Worthless...
This thread is worthless without pics...
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- wnyght, 22 Jun 2009 @ 10:28am
  
  Re: Worthless...
  Bwahhahahahah! You beat me to it. But.... who is to say that the wife was good looking by traditional standards. Some guys like em big and toothless, (not my taste, but i'm sure some do).
  [ link to this | view in chronology ]
Robb Topolski (profile), 22 Jun 2009 @ 10:17am

I side with the customer on this one...
McDonald's has vicarious liability for the acts of its employees who are acting within the scope of their employment. McDonalds has a dining room where people go, sit, and eat. Sometimes, those customers leave things behind. Those facts puts dealing with customers' left-behind items in the scope of employment of McDonald's workers.

(not a lawyer)
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- mjb5406 (profile), 22 Jun 2009 @ 10:48am
  
  Re: I side with the customer on this one...
  Is McDonald's liable for everything that happens in its restaurants? If a customer picked the phone up and uploaded the pics, is McD's liable because it happened in their restaurant or because an employee should have seen the lost item first and secured it? I believe, at the very worst, the franchisee (if this was not a company-owned store) or Corporate should have fired the worker but that is where its liability ends since, ultimately, keeping a worker on staff or firing them is the only thing they have control of. If this is found to be McD's liability, there will be a spate of frivolous lawsuits filed saying that the behavior of employees of ANY employer is the responsibility of the employer. No employer will want to hire anyone anymore.
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  - John Doe, 22 Jun 2009 @ 11:04am
    
    Re: Re: I side with the customer on this one...
    Where have you been? This is the current state of our court system. Sue the ones with deep pockets because, well, they have deep pockets.
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- minijedimaster (profile), 22 Jun 2009 @ 11:06am
  
  Re: I side with the customer on this one...
  Those facts puts dealing with customers' left-behind items in the scope of employment of McDonald's workers.
  That's why McD's has a policy that if an employee finds customer property that was left behind they're supposed to turn it in to management. IF this particular employee found the phone, put it in their pocket, took it home and uploaded information from it to the web then I don't see how any of that could be McDonald's fault or even preventable by them. All that does is endanger the employee's future employment with the company.
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Michial Thompson, 22 Jun 2009 @ 10:24am

What they should point out
What is not answered is: Was the photos uploaded while on duty? If he uploaded them while on the clock using company computers then McDonalds would be exposed to liability claims. Right or wrong the exposure is there...

On the other hand if he did it away from work and off the clock, then he is responsible for his actions....
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Aaron, 22 Jun 2009 @ 10:29am

McD's is right
Something to consider is that the employee found the found while on the job. However, the employee was not at work and did not use a company computer to upload the pictures to the internet. If the employee had done this on company time then I would side the other way, then the employee would be acting on behalf of the company.

I do think that because the employee did not turn the phone into the manager, the employee should be dealt with according to company policy. Other than that the company should have no involvement.
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Ben, 22 Jun 2009 @ 10:39am

A+ for creativity but greed got in the way.
How much you wanna bet that the employee and the guy are in on this together...The employee is sick of working at McD's so he doesn't care if he gets bagged. The two of them came up with a plan to upload naked pics to the internet and sue McD's split the profit 60/40. I give them an A+ for creativity I would of never come up with this plan but they were too greedy shooting for the big bucks should of targeted a smaller company.

Better yet, drop your cell off to get repaired at the local cell phone store then "find" naked pics of your wife online...more plausable that employee was within scope of work looking at "data" on phone then mis-handled the "data" on to the web.
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KaschaK (profile), 22 Jun 2009 @ 10:46am

McDonalds is sort of wrong
The employee messed up. Taking the phone was theft before it even got to the point of uploading the pictures. Theft committed on company property by a company employee should cause McDonalds to have to shoulder some of the blame (I don't know if it actually will). One could always say that better training or pre-employment screening would weed out employees with these tendencies. Whether it's true or not, it could be argued.

Whether some stranger stealing the phone would make them liable or not is irrelevant. There's no presumption of good conduct guaranteed by McDonalds that can be made by its customers about its other customers. Employees are lent a certain amount of trust by customers because they are officers of the company while on company property.

This is why for my husband, nude pics = false. Enjoy the live show instead!
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- bwp (profile), 22 Jun 2009 @ 11:17am
  
  Re: McDonalds is sort of wrong
  1. Just because an employee violates a law doesn't immediately mean a company is liable for the actions of the employee. Especially if they have an affirmative defense such as a policy and/or procedure regarding what an employee should do in certain situations.
  
  2. Just because something can be argued doesn't mean that it should or that it actually has any merit.
  
  3. No line employee is considered to be an officer of the company.
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  - KaschaK (profile), 22 Jun 2009 @ 4:25pm
    
    Re: Re: McDonalds is sort of wrong
    1. Just because an employee violates a law doesn't immediately mean a company is liable for the actions of the employee. Especially if they have an affirmative defense such as a policy and/or procedure regarding what an employee should do in certain situations.
    ---------------
    Because the gun shop has a policy that says no riddling customers with machine gun fire, they have no liability when it happens. Is that correct?
    
    2. Just because something can be argued doesn't mean that it should or that it actually has any merit.
    -------
    The possibility that something may be found not to have merit is not in itself a reason to be wary of arguing it.
    
    3. No line employee is considered to be an officer of the company.
    ------
    If you want to take the term "officer" literally, then yes you're right. If you are the slightest bit inclined to understand what people are trying to infer without being led, it becomes obvious that "officer" and "representative" are interchangeable in this context.
    
    Most McDonalds restaurants are franchises if I'm not mistaken, so it would be the franchise owner and not the corporation that would be liable if anybody.
    
    Any way you want to turn it semantically though, the idea that gross employee misconduct, failure to ensure professionalism and weed out character defects, and maintain a crime-free and safe workplace is not in any way the responsibility of the company is absurd.
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Anonymous Coward, 22 Jun 2009 @ 10:49am

of all of the nude pictures on the internet. how would that guy happen to find his wifes?
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Xan, 22 Jun 2009 @ 10:57am

Easy money
1. Upload nude pictures of my wife to the internet.
2. Drop off my phone at McDonalds.
3. Profit.
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Crabby (profile), 22 Jun 2009 @ 10:58am

Why are we so reluctant to have someone take PERSONAL RESPONSIBILITY for their own actions? Why is it always the company or person with money who is to blame? Stop the *#%! whining and grow up! The employee is responsible and should be held responsible.
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- Anonymous Coward, 22 Jun 2009 @ 11:06am
  
  Re:
  Well, the employee doesn't have any money because he works at McDs so you surely aren't suggesting to sue him instead?
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- ChrisB (profile), 22 Jun 2009 @ 11:34am
  
  Re:
  Be careful what you wish for. There are a lot of big companies that would *love* to have their employees take the blame for huge mistakes. Say, for example, you are a captain on an oil tanker, you fall asleep, run the ship aground, and dump a billion barrels of oil in the sea. "Personal responsibility" doesn't clean up the shore.
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  - ChurchHatesTucker (profile), 22 Jun 2009 @ 11:45am
    
    Re: Re:
    "Say, for example, you are a captain on an oil tanker, you fall asleep, run the ship aground, and dump a billion barrels of oil in the sea. "Personal responsibility" doesn't clean up the shore."
    
    On the one hand, it's hard to see how the company is actually responsible (assuming they had a 'don't fall asleep' policy.) Sorry that this grunt isn't a millionaire, but the 'grab money to clean shore' isn't really any different than 'grab money to move to Tahiti.' It's just a matter of whose greater good is being serviced.
    
    On the other hand, I can see how corporate policy might contribute to an incident (say, if the captain had been worked to exhaustion due to policies re. loading the ship, etc.)
    
    In *this* case, it doesn't seem to be anything that could be prevented in any other way than simply having a policy (if anyone can--elaborate,) which the employee disregarded. I don't think it would even matter if he used the McD computers to do the upload, since he already had violated their policy.
    
    In any case, having nude pics of your wife on your cell phone should confer *some* liability to you.
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    - Anonymous Coward, 22 Jun 2009 @ 12:44pm
      
      Re: Re: Re:
      In your oil tanker example, there are still plenty of things that the company could do to prevent running aground. I'm not a sailor, so I don't know the particulars, but I'm sure they have measures against that sort of thing. There should be computerized systems that detect when you go off course, co-captains or someone that double checks stuff. I very much doubt that steering a huge oil tanker is left *solely* to one person.
      
      If the company takes reasonable precautions against that kind of thing, then I don't believe they should be held liable for when it happens. Now, if by some terrible miracle the blame could be placed on one person for a tanker crashing, then the company would still probably clean it up to maintain their image. Well, one would hope so.
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Anonymous Coward, 22 Jun 2009 @ 11:05am

Techdirt should sue McDonald over the use of an argument they found first.
On second thought, non. It was obvious.
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Micky D, 22 Jun 2009 @ 11:13am

searching naked pics?
I'm always curious how these guys end up finding the photos of their wives/girlfriends online?
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RD, 22 Jun 2009 @ 11:21am

Grammar Nazi to the rescue!
DOUSE IS NOT DOES!!!

Douse means to extinguish, to put out, as in water on a fire.
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Anonymous Coward, 22 Jun 2009 @ 11:25am

Scope
If the employee performed the act using corporate property or otherwise in the capacity of performance of normal duties, that employee is acting on behalf of the company. If the employee took the camera home, in violation of corporate policy to submit all found items to "lost and found", and uploaded the photos there, then that is outside the "scope of work" and the employee acted independently.

It all depends on the details of the offense, very little of which is stated here.
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- Anonymous Coward, 22 Jun 2009 @ 12:46pm
  
  Re: Scope
  Even if on company property, the actions were against company policy. Unless it could be shown that McD's had approved of the employee's actions somehow, then the employee was clearly NOT acting on behalf of the company.
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Anonymous Coward, 22 Jun 2009 @ 11:34am

Don't McD's employees sell their soul to the company when they sign up? Wouldn't that make what he does McD's responsibility?
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CA_Guy, 22 Jun 2009 @ 11:48am

Wifes nudeness
If you dont want pictures of your wifes business on the internet dont take pictures with your phone....

The real question here is..... Is she hot?
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- Anonymous Coward, 22 Jun 2009 @ 12:50pm
  
  Re: Wifes nudeness
  That is an unreasonable position to take. It's entirely reasonable to take pictures of your wife nude with your phone and expect that it will not find it's way on the internet. What he should have done was not leave it behind unattended. In addition, he could have also password protected his phone.
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  - ChurchHatesTucker (profile), 22 Jun 2009 @ 12:57pm
    
    Re: Re: Wifes nudeness
    "What he should have done was not leave it behind unattended. In addition, he could have also password protected his phone."
    
    Did the phone have a password feature? If not, SUE THEM!
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Bored at work, 22 Jun 2009 @ 11:59am

get real
No one is at fault here except for the dumb ass who took nude photos of his wife with his cell phone. And then he misplaced the phone!!! Sorry, no ones problem but his own.
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- Anonymous Coward, 22 Jun 2009 @ 12:54pm
  
  Re: get real
  That is an unreasonable position to take. It's entirely reasonable to take pictures of your wife nude with your phone and expect that it will not find it's way on the internet. What he should have done was not leave it behind unattended. In addition, he could have also password protected his phone.
  
  While he is not blameless, he still did not upload the photos. Your position is like saying because you didn't lock your doors anyone should be able to legally steal your stuff from your house. Yes, you are to blame for what happened. But no, that doesn't let the thief off the hook for stealing.
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NekkidWife, 22 Jun 2009 @ 12:05pm

Im Curious
"Just because an employee violates a law"

Is it against the law to find something and not seek out a lost and found box at an establishment? At worst the employee violated a policy. He didn't steal anything. He was just unethical. What will you sue the employee for?

PervMan: "Judge, I lost my phone and this guy found it and didn't contact me to return it. And he uploaded nude pics of my wife to the Internet."

Judge: "So you are saying that you left pornographic material out in public for anyone to find?"

Hmmm, I wonder how old the employee is...providing pornography to a minor is serious business...
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- Anonymous Coward, 22 Jun 2009 @ 12:55pm
  
  Re: Im Curious
  Well, it is a civil case, not a criminal one. So I think it's pretty clear that no one is saying he broke the law, even the plaintiff. At least, I think so.
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Anonymous Coward, 22 Jun 2009 @ 12:17pm

I'm suprised a McD employee knows how to upload anything. I bet he forgot to tag it.
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Anonymous Coward, 22 Jun 2009 @ 12:27pm

I didn't read all of the comments, but am I the only one that thinks the man that sued is at fault? If you have those on your phone and you don't want anybody else to see you should probably not leave your phone anywhere. He exploited his wife regardless of who picked it up or uploaded them online.
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- Anonymous Coward, 22 Jun 2009 @ 12:58pm
  
  Re:
  Yeah, the man how is suing is at fault. But that doesn't let the employee off the hook at all for what he did. It's called personal responsibility.
  
  Both of 'em need to take some. By both, I mean the plaintiff and the employee. I believe McD's should have no liability here.
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Dirty Harry, 22 Jun 2009 @ 12:34pm

Pics
Hmmm...I'd have to see the evidence myself. :-)
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Shawn (profile), 22 Jun 2009 @ 12:36pm

Since the wife took the pictures and sent them to the husbands phone lets start the blame train there
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my 2 cents, 22 Jun 2009 @ 12:53pm

Aren't all Mcd's franchise operations?...ie a franchise holder runs the location under license from mcd's...so wouldn't that make the francisee responsable not mcds...ofc the employee violated company policy, and effectivly commited a theft, therefore only he is responsable anyway
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Justin, 22 Jun 2009 @ 12:58pm

Who the hell...
Has nude photos of one's wife on a cell phone and doesn't put a password on it?!

They guy trying to get money for nothing.. that's who.
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Anonymous Coward, 22 Jun 2009 @ 1:21pm

It is not surprising that people on this blog continue to not understand basic agent principal law. Go figure.
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- ChrisB (profile), 22 Jun 2009 @ 2:47pm
  
  Re:
  "It is not surprising that people on this blog continue to not understand basic agent principal law. Go figure."
  
  This is the most interesting comment yet. I went and checked Wikipedia, and yes, it appears this is a clear case of agency. Please AC, come out of the shadows and inject some sense into the discussion. (And no, I'm not being sarcastic.)
  [ link to this | view in chronology ]
- Mike Masnick (profile), 22 Jun 2009 @ 3:01pm
  
  Re:
  It is not surprising that people on this blog continue to not understand basic agent principal law. Go figure.
  
  And it is not surprising that anonymous coward trolls on this blog continue to make pedantic claims like this without explaining themselves. Go figure.
  
  If you have something add, ADD IT. Otherwise, you look like a stuck up fool who wants to show off, but doesn't have the goods to back it up.
  
  This is a conversation. If we got something wrong, tell us, so we can fix it.
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Zentelligent, 22 Jun 2009 @ 1:35pm

Did the husband admit he found the pics online while surfing porn?
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Darve, 22 Jun 2009 @ 2:02pm

shut up, all of you
The amount of debate on this topic is ridiculous. The solution is obvious. If you don't see it or choose to disagree with it anyway, you're an asshole. Now shut up. Everyone.
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OC, 22 Jun 2009 @ 2:53pm

Wait, I'm confused. Was the trucker also at McDonalds or was he the "wife"? And I can't see what an oil tanker has to do with McDonalds, unless maybe it was parked outside.
Stick to the issue, please!
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Me, 22 Jun 2009 @ 9:15pm

Read the articles
If you spend about 10sec and read the articles from the original post you will see:

1. The person called McDonalds and they said they would "secure" the phone.
2. the employee put the pictures up with the womans name and phone number - thus they found the pictures when people started calling.

That starts to make it look a little more like a lawsuit, the person who promised to secure the property would have been acting within his job. Of course its still very questionable.
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