McDonald's Not Dismissed From Nude Photo Case... But It Can Sue Its Own Employee Too

from the everybody-pile-on-now dept

Tue, Jul 7th 2009 12:55pm — Mike Masnick

Last month, we wrote about McDonald's attempt to get dismissed from a lawsuit involving a McDonald's employee who is accused of uploading naked photos found on a phone that was left at the fast food joint. Apparently, the company hasn't been dismissed from the lawsuit, but Michael Scott points out that the court has said that McDonald's can sue the employee in question over the matter for any damages. The court appears to have said that because a McDonald's employee promised to safeguard the phone, it became the company's responsibility -- but the fact that the employee was then negligent allows McDonald's to separately sue the employee for any damages.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

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

36 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 7 Jul 2009 @ 1:14pm

cool, i didn't know low level employees could enter into binding agreements for an entire multinational corporation...
[ link to this | view in thread ]
Ima Fish (profile), 7 Jul 2009 @ 1:18pm

Re:
Which is not surprising because you're likely completely ignorant about the law and with legal concepts such as apparent authority. Why someone so ignorant about a topic feels a need to comment about the topic is way beyond me.
[ link to this | view in thread ]
Killer_Tofu (profile), 7 Jul 2009 @ 1:22pm

Ok, this is stupid
The judge is doing something wrong by not letting McDonald's out of the lawsuit.

I guess all of these major corporations might not want to keep low level employees around anymore since if the employee says or does anything, the entire company is now at risk.

What happened to responsibility? The person who is suing them is still one of the primary people at fault here. I wouldn't have even let him sue.
If you didn't want it out there, don't keep it digitaly. Simple.
[ link to this | view in thread ]
spencerMatthewP, 7 Jul 2009 @ 1:49pm

Is this a corporate store or a franchisee?
I've been following this for a while, and one thing that has never been answered, is this a corporate store, or a franchisee. If it is a corporate store, then sure McDonald's Corp. should be on the hook for responsibility. If it is a franchisee, then the owner of the franchise should be on the hook before McDonald's corp.

But I agree, it is pretty scary that some minimum wage flunky who can't even push the no pickles button correctly can get a company into this much trouble. The solution is pretty obvious, if someone calls and says, "I think I left my ____ there, would you hold it for me until I get there?" The answer will be "No, I cannot take responsibility for your lost item. You may want to hurry back before another customer picks it up."
[ link to this | view in thread ]
E-Rocker, 7 Jul 2009 @ 1:53pm

RE: OK, this is stupid
Isn't there a matter of vicarious liability?
Laws that enable victims to hold one party responsible for the actions of another, based on their relationship to each other. For example, a parent can be held vicariously liable for the harmful actions of their children and an employer can be held vicariously liable for the actions of their employees.

Now it can't be applied just because this employee did something stupid. But can McDonald's prove they trained their employee well enough to know how to deal with the possibility that patrons might forget their personal belongings in the store? Obviously they didn't "train" this employee to go through the contents of the phone and share them with the world, but was there, but did they provide sufficient training as to what should be done? From the sounds of it they didn't, which could make them just as liable as the employee was. Now, if the employee went off and ignored what they were supposed to do, the case would be harder to make.

That's my understanding of it anyways...
[ link to this | view in thread ]
BullJustin (profile), 7 Jul 2009 @ 1:55pm

Re: Re:
Because ignorance creates strongly held opinions.
[ link to this | view in thread ]
Anonymous Coward, 7 Jul 2009 @ 1:56pm

Re: Ok, this is stupid
OK, this comment is stupid.

Yes, there is a sense of responsibility when you leave your phone somewhere. However, the content on that phone is still your personal property.

Someone who takes the phone (supposedly to hang onto it), and then goes through all your personal items, and then uploads them to the internet for all to see IS a violation of your privacy.

Your theory is like saying; Hey man, if you leave your wallet on the table at McDonalds and I find it, and I put all your information online, or use it to sign up for fake credit cards, or sell it to fraudsters, it's YOUR fault - after all, you forgot your wallet on the table. Don't want anyone to steal your information or make a fool of you? Well don't carry a wallet around. Better yet, don't shop online either, because if the site you buy from gets hacked then it's your fault for putting your credit card info out there.

Come on, get real. Digital or not, your privacy rights don't stop because you forget your phone when you're out to lunch. Someone violating those rights SHOULD be held responsible, especially when its an employee of the place you just did business with.

Now should the person be able to sue McDonalds? I don't think so... Just the person responsible - but that is for the justice system to decide.
[ link to this | view in thread ]
Shawn, 7 Jul 2009 @ 1:57pm

Re: Is this a corporate store or a franchisee?
It is a franchise according to the lawsuit. http://www.onpointnews.com/docs/nudephotos.pdf
[ link to this | view in thread ]
Shawn, 7 Jul 2009 @ 1:59pm

Re: Re: Is this a corporate store or a franchisee?
despite the promising name... there are no nude photos in the pdf ... it is the lawsuit papers in pdf form :)
[ link to this | view in thread ]
Steve R. (profile), 7 Jul 2009 @ 2:00pm

Re: Is this a corporate store or a franchisee?
We have a legal system where lawyers use a figurative "shotgun" when filing lawsuits to see what sticks. It's unfortunate, that our legal system seems to be unable to quickly dispose of frivolous "shotgun" claims.
[ link to this | view in thread ]
broc7, 7 Jul 2009 @ 2:12pm

Re: RE: OK, this is stupid
Because a person doesn't know that it's wrong to publicly upload private photos unless the corporate training says so? Thanks, lawyers. This is why shampoo bottles have to say "Lather. Rinse. Repeat."
[ link to this | view in thread ]
Kazi, 7 Jul 2009 @ 2:24pm

What if it was child p... Would the situation be totally different this time around?
[ link to this | view in thread ]
E-Rocker, 7 Jul 2009 @ 2:25pm

Re: Re: RE: OK, this is stupid
Not exactly. You're looking at what the employee did and saying it's ridiculous to hold McDonald's responsible. Which I agree with and is most likely the reason why a court ruled that McDonald's had the right to sue their employee.

The question of vicarious liability is whether or not McDonald's (or the franchisee owner) provided appropriate training on this scenario in the first place. People forgetting their belongings in a restaurant is not a fluke occurrence and, as such, it should be expected that the owner of that restaurant provide proper training on how to deal with that situation. Whether that training is ignored or not impacts the violator. But whether that training occurred in the first place falls to the establishment.

Again, I may be wrong, but this is how I'm understanding the concept.
[ link to this | view in thread ]
Bryon S., 7 Jul 2009 @ 2:29pm

This could all have been avoided by...
1. Locking your phone with a passcode.

2. Not keeping sensitive materials (ie... nude pix) on your unlocked phone.

3. Any of 10,000 other examples of keeping control of your personal belongings.

This situation is only going to lead to more worthless litigation. The fact is... if your phone is unlocked it is a secure as a postcard. Flip it over and you can read everything.
[ link to this | view in thread ]
Scooter, 7 Jul 2009 @ 2:57pm

Sure...until it happens to you!
My sister-in-law is actually the representing law firm of the couple, and if it were me it happened to...I would sue the shit out of them! You need to know the whole story before you condemn the couple for suing.
[ link to this | view in thread ]
Anonymous Coward, 7 Jul 2009 @ 3:06pm

Re: Sure...until it happens to you!
"You need to know the whole story before you condemn the couple for suing."

No I don't! I can condemn all I want on however much information I want!
[ link to this | view in thread ]
Anonymous Coward, 7 Jul 2009 @ 3:06pm

Re: This could all have been avoided by...
So, if I happen to find a car with its doors unlocked, the contents of the care are mine to do with as I please???
[ link to this | view in thread ]
jjmsan (profile), 7 Jul 2009 @ 3:09pm

It is general case law that a business is liable for the actions of an employee if the actions fall within the scope of his employment. By not dismissing the action against McDonalds the court is saying that it would be possible for a jury to find McDonalds at fault. It would depend on who gave the assurance that it would be safe and if the companies procedures were followed. It is unlikely that having no procedure would be a defense as patrons leaving items is easily foreseeable in a food establishment. With a good defense you can argue that the most the company would be obligated for is the physical cost of the phone. The same argument that applies if you have film processed. The company only has to pay to replace the film not the cost of shooting it if the film is destroyed.
[ link to this | view in thread ]
Fiercedeity (profile), 7 Jul 2009 @ 3:11pm

Re: Sure...until it happens to you!
If it'd happened to me I'd have the common sense to know intrinsically that it wasn't the fault of McDonald's, but the employee. I'd probably sue McDonald's though, because they have money and our corrupt justice system will likely allow me to take it.

Face it, this a 100% money grab by this couple. No one should be denying that.
[ link to this | view in thread ]
Dave Lawson (profile), 7 Jul 2009 @ 3:19pm

Re: Re:
Ima Fish: Do you really think that ignorance of the legal details surrounding this case is a bad thing? This case is ridiculous, and the fact that the courts are subject to dealing with insignificant frivolous crap like this feels like a huge disappointment to me. So some guy wasn't careful enough and now there are nude pictures of his wife on the internet? Boo-freaking-hoo. He's not out any money, there is no physical threat to his health, and this doesn't affect him professionally. What it comes down to is the fact that he and his wife are embarassed, but that shouldn't entitle him to any kind of monetary compensation. If anything it entitles this guy to deliver a light beating to the kid who posted the pictures. A little correctly throttled violence would probably do a lot of long term good in this situation.
[ link to this | view in thread ]
Anonymous Coward, 7 Jul 2009 @ 4:02pm

Re: Re:
Whoa dude! You are so smart! Way to go fishfag.
[ link to this | view in thread ]
ChimpBush McHitlerBurton, 7 Jul 2009 @ 4:12pm

Re: Binding Agreements
Yes, kinda interesting...

So all I have to do is find a friend who either works at Mickeys, or will for the sake of this scam...

...then, leave a phone with naked pics of my "girlfriend" for the "employee" to find and "promise" to guard....

...then, upload the photos to the internet, sue, wash, rinse, repeat.

...I sue Mickey's, who has the DEEPEST of pockets, and Mickey's can sue the "employee" who - let's face it - has nothing (he works at Mickey's, remember?)

...So, let's take score. Me and my "girlfriend" and the "employee" can share the million dollar settlement (the employee can file for bankruptcy and THEN collect from me), while Mickey's can suck it.

Us - 1
Mickey's - 0

CBMHB
[ link to this | view in thread ]
Chimpbush McHitlerBurton, 7 Jul 2009 @ 4:15pm

Re: Re: Binding Agreements
Kinda makes you wish for Safe Harbor Laws for Fast Food Establishments, donit Mickey?
[ link to this | view in thread ]
John Doe, 7 Jul 2009 @ 4:22pm

He who has the gold...
...gets sued. There is no money in suing a minimum wage worker so of course McDonald's gets sued. Why is anyone surprised here?
[ link to this | view in thread ]
SuperSparky, 7 Jul 2009 @ 4:25pm

Re: Is this a corporate store or a franchisee?
This is why companies can fire you for your Facebook page etc. If your behavior, even off the clock, reflects badly on the company, then they can fire you.

This is why it is so important, as a company, to screen your applicants well. This is also important, as an employee, to keep your online personality anonymous and don't post pictures. If you absolutely have to post pictures, make darn sure they are only accessible by those you do NOT work with!
[ link to this | view in thread ]
bigpicture, 7 Jul 2009 @ 4:31pm

Personal Responsibility
What about personal responsibility, like if you don't want something to happen then don't create a situation where it can happen. Duh!!!

If you don't want your car stolen then don't leave it unlocked and running. If you don't want your nude pictures on the web, then don't have them on your phone, or don't leave your phone lying around, or buy a phone that locks down with a password and keep it locked down. The same goes for the idiots with the laptops.
[ link to this | view in thread ]
Anonymous Coward, 7 Jul 2009 @ 5:22pm

where r the nude pics again?
[ link to this | view in thread ]
CleverName, 7 Jul 2009 @ 6:30pm

Kinda pathetic
Obvious get rich quick scheme.
[ link to this | view in thread ]
Sirk, 7 Jul 2009 @ 7:25pm

Re: Re: RE: OK, this is stupid
No, shanpoo bottles say 'repeat' because that automatically doubles their sales.
[ link to this | view in thread ]
Azrael, 7 Jul 2009 @ 11:58pm

Re: Re: Re: RE: OK, this is stupid
Where the hell do you live ? Is your country so uncivilized that you need to be taught by your employer and not your parents that it's wrong to look in others people stuff ?
[ link to this | view in thread ]
Azrael (profile), 8 Jul 2009 @ 12:00am

Re: Sure...until it happens to you!
And the whole story is... McDonalds has money, the moron doesn't.
[ link to this | view in thread ]
known coward, 8 Jul 2009 @ 8:31am

Re:
not being a lawyer i would think McDonalds would be Libel for all damages caused by the employee’s actions unless it can be shown that the employee acted in a way contrary to McDonalds corporate policy. McDonalds would have to show that this policy was communicated to its employee’s, unusually via training, or some sort of reference to a policy manual regarding the topic.

If they did not, i believe they are liable for the actions of the employee.
[ link to this | view in thread ]
Almost Anonymous (profile), 8 Jul 2009 @ 11:02am

Re: Re:
Wow, so any of an infinite number of scenarios not covered by the McD's training manual that could result in poor, negligent, or even deliberately bad choices by an employee that results in some sort of damages would make McD's liable?

I hate to see the size of training manuals in the future...
[ link to this | view in thread ]
Almost Anonymous (profile), 8 Jul 2009 @ 11:08am

Re: Re:
I have to side with the AC on this one. If the same dude that "stole" the pictures had instead entered into a multi-million dollar deal with a supplier for *insert item here*, no court in the land will hold McD's to that contract, there was no true meeting of the minds. By the same token I don't feel that the employee can expose McD's to damages through totally unforseen actions that could not have reasonably been addressed.

Now having said that, it would seem that some people know some more about this story than the rest of us. If there are some sort of extenuating circumstances wherein one or more of McD's management behaved badly, perhaps that would open the door to damages.
[ link to this | view in thread ]
E-Rocker, 8 Jul 2009 @ 5:27pm

Re: Re: Re: Re: RE: OK, this is stupid
I live in a country where vicarious liability is a part of the law and am outlining how it is relevant to why these parties can be sued. Do you live in a country that's illiterate?
[ link to this | view in thread ]
Cherry, 30 Mar 2010 @ 12:58pm

Re: Is this a corporate store or a franchisee?
This thing is McDonalds itself does not have a list of corporate or franchisee stores. I have called and asked.
[ link to this | view in thread ]