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Tinia2
11-23-2008, 09:24 PM
I was going to put this into weird news stories but thought this should stand on it's own:
"Wife's nude pics on lost phone end up online:
Ark. man left the phone at a McDonald's; he's now suing for $3 million"
http://www.msnbc.msn.com/id/27867839/

The follow-up shoud be rather interesting.

Senusret I
11-23-2008, 09:28 PM
http://www.a-serious.com/forums/style_emoticons/default/this_thread_is_useless_without_pics.gif

UGAalum94
11-23-2008, 09:32 PM
I really want something to change to reflect that if you are a dumbass you do not get to collect money from other people for your own dumbassery.

If you keep embarrassing photos on your cell phone and you leave your cell phone someplace, NO ONE else is responsible for the embarrassment that you suffer.

I think McDonald's should counter sue for the right to compel this guy to have a warning tattooed on his face so that the rest of us who we are dealing with.

We all do dumb stuff. The unforgivable issue is trying to make other people pay for it.

preciousjeni
11-23-2008, 10:43 PM
http://www.a-serious.com/forums/style_emoticons/default/this_thread_is_useless_without_pics.gif
You said it. :D

XSK_Diamond
11-23-2008, 11:05 PM
The article didn't go into detail, but if the only people who had access to the phone after he left were the employees (this is traceable), then he may have a legitimate case. That doesn't mean he can win the lawsuit, but he knows that. I'll bet he's just trying to get a settlement.

Langox510x
11-23-2008, 11:20 PM
The article didn't go into detail, but if the only people who had access to the phone after he left were the employees (this is traceable), then he may have a legitimate case. That doesn't mean he can win the lawsuit, but he knows that. I'll bet he's just trying to get a settlement.

Agreed. And I honestly hope he doesn't recieve a dime, but at the same time I don't blame him for making the suit.

XSK_Diamond
11-24-2008, 12:03 AM
I think he's wrong in suing McDonald's, though. I can see him bringing personal civil suits against the crew, but how he can feel that the business entity is responsible I don't know. Oh wait, yes I do. It's all about the $$$. :cool:

Agreed. And I honestly hope he doesn't recieve a dime, but at the same time I don't blame him for making the suit.

CrackerBarrel
11-24-2008, 12:21 AM
I think he's wrong in suing McDonald's, though. I can see him bringing personal civil suits against the crew, but how he can feel that the business entity is responsible I don't know. Oh wait, yes I do. It's all about the $$$. :cool:

Because the manager made his promise to secure the phone not as an individual, but in his role as a representative and agent of McDonalds.

Langox510x
11-24-2008, 01:09 AM
I think he's wrong in suing McDonald's, though. I can see him bringing personal civil suits against the crew, but how he can feel that the business entity is responsible I don't know. Oh wait, yes I do. It's all about the $$$. :cool:

I'm not saying he'd be right in suing McDonald's by any means, but the fact is he has a lot more to gain monetary wise if he was to sue McDonalds the corporation. People try and play him off as stupid for trying to sue over this, but honestly I think it more shows a sign of his intelligents. He's high balling a lawsuit of $3 million more than likely knowing there’s a good change the settlement could be in the 6-7 figure range.

Is the guy ethical in suing McDonalds? Maybe not, but the fact is he's only human. If I was in his place and I knew I had a fighting chance at $3 million. Sh!t!!!

cheerfulgreek
11-24-2008, 05:37 AM
I was going to put this into weird news stories but thought this should stand on it's own:
"Wife's nude pics on lost phone end up online:
Ark. man left the phone at a McDonald's; he's now suing for $3 million"
http://www.msnbc.msn.com/id/27867839/

The follow-up shoud be rather interesting.
o.k. so why is it McDonalds fault? He was the one who forgot his phone, McDonalds didn't ask him to leave it. And why would he put nude pictures of his wife on his cell? (for everyone to see in situations like this one)

I'm glad this happened to them both and I hope he doesn't get anything from McDonalds. It's all his fault. What an idiot.

Senusret I
11-24-2008, 08:49 AM
You seem to revel in people's misfortune.

I guess that's only fair because so many people revel in yours.

Tinia2
11-24-2008, 09:08 AM
http://www.a-serious.com/forums/style_emoticons/default/this_thread_is_useless_without_pics.gif
These links may have one or two:
http://technologyexpert.blogspot.com/2008/11/lost-cell-phone-wifes-nude-pics-end-up.html
http://a11news.com/1053/tina-sherman/

These are rather interesting:
http://www.digitalalchemy.tv/2008/11/tina-sherman-sues-mcdonalds-over-photos.html
After the distribution of her photos online, Tina Sherman started receiving strange phone calls (http://www.digitalalchemy.tv/2008/11/tina-sherman-sues-mcdonalds-over-photos.html#) and text messages (http://www.digitalalchemy.tv/2008/11/tina-sherman-sues-mcdonalds-over-photos.html#). She and her husband were forced to move to a new home and are claiming they suffered emotional distress and damage to their reputations. They are seeking $3 million in damages. No photos of her are available anymore online.

http://www.iphonesavior.com/2008/11/tina-sherman-nude-photos-may-prove-hotter-than-mcrib-sandwich.html
Reports indicate that Tina Sherman may have sent photos of herself in various stages of undress to her husband's cell phone, the same phone which Sherman claimed he misplaced. The lawsuit (http://celebrity.rightpundits.com/?p=4670) alleges that before Phillip could retrieve his cell phone from McDonalds, Tina Sherman starting receiving text messages from her husband's phone in response to her pictures. One text message stated:
“I’ve seen your pictures Tina, I liked what I saw.”
The alleged Sherman nudes are currently at the center of a massive Google search by curious gawkers wanting to view the raw proof. The Tina Sherman story has reached "Top 10 Google Trends (http://www.google.com/trends/hottrends?q=tina+sherman+pictures&date=2008-11-23&sa=X)" for the search term "Tina Sherman Nude". But you won't see this hot item featured on McDonald's dollar deal menu anytime soon. The photos were pulled down back in July, making the current Google scavenger hunt all the more futile.

And from what I have seen during a rather down, dirty and fast seach, those are the only ones anyone has been able to locate!!
Some talk about some sites that have many "pop-ups" or unknown installs.
Also some chit-chat about this being a set-up. Hummm.

christiangirl
11-24-2008, 09:59 AM
...if you are a dumbass you do not get to collect money from other people for your own dumbassery.
http://www.storiesofwisdom.com/images/winner-win.jpg

Kevin
11-24-2008, 11:13 AM
It's a gratuitous bailment/publication of private facts case. Usually in these things, there are some damages. Unless the man's wife is a notorious slut, he's probably entitled to something, as is the wife. Now $3 million??? I don't know anything about the Arkansas pleading code, but that could very well be a threshold amount to get on a certain docket or just a ploy to make the defense lawyers to consider a quick and private settlement... who knows which?

The legal test here is pretty easily met. What you have here is a gratuitous bailment, solely for the benefit of the bailor. The duty of care here would be that the bailee not be grossly negligent. The bailee here, as far as I can tell was not just grossly negligent, but wilfully negligent (I mean the McDonald's employee didn't just accidently brush the phone with his elbow causing the photos to be posted online)... the pictures apparently harmed their reputations, God knows what else.

This is a pretty easy verdict for the plaintiff. Probably not for $3 million, but who knows what might happen with a Fayetville jury?

UGAalum94
11-24-2008, 11:40 AM
It's a gratuitous bailment/publication of private facts case. Usually in these things, there are some damages. Unless the man's wife is a notorious slut, he's probably entitled to something, as is the wife. Now $3 million??? I don't know anything about the Arkansas pleading code, but that could very well be a threshold amount to get on a certain docket or just a ploy to make the defense lawyers to consider a quick and private settlement... who knows which?

The legal test here is pretty easily met. What you have here is a gratuitous bailment, solely for the benefit of the bailor. The duty of care here would be that the bailee not be grossly negligent. The bailee here, as far as I can tell was not just grossly negligent, but wilfully negligent (I mean the McDonald's employee didn't just accidently brush the phone with his elbow causing the photos to be posted online)... the pictures apparently harmed their reputations, God knows what else.

This is a pretty easy verdict for the plaintiff. Probably not for $3 million, but who knows what might happen with a Fayetville jury?

Dude, I don't know. If you leave your cell phone with nude pictures of your wife at a McDonald's, I think you've been pretty negligent yourself.

Kevin
11-24-2008, 11:42 AM
Dude, I don't know. If you leave your cell phone with nude pictures of your wife at a McDonald's, I think you've been pretty negligent.

As soon as McDonald's promised to hold onto the phone, all of that went right out the window. The safety of the phone and its contents became McDonald's responsibility.

UGAalum94
11-24-2008, 11:47 AM
As soon as McDonald's promised to hold onto the phone, all of that went right out the window. The safety of the phone and its contents became McDonald's responsibility.

And can you really say that images from an unlocked cell phone left at a McDonald's are actually private anymore? What's his obligation in keeping his own facts private?

ETA: Do any of the news stories deal with how long the phone was at the McDonald's before the manager called?

EATA: I may regret saying this, but I'm going to record my suspicion that the husband and wife in this deal may end up being more responsible than it first appears. I'm just kind of suspicious of the claims.

Tinia2
11-24-2008, 11:50 AM
Dude, I don't know. If you leave your cell phone with nude pictures of your wife at a McDonald's, I think you've been pretty negligent yourself. And can you really say that images from an unlocked cell phone left at a McDonald's are actually private anymore? What's his obligation in keeping his own facts private?

ETA: Do any of the news stories deal with how long the phone was at the McDonald's before the manager called?

As soon as McDonald's promised to hold onto the phone, all of that went right out the window. The safety of the phone and its contents became McDonald's responsibility.
I had the very same thought you did UGAalum94.
The only comment I have seen was in one of the links I posted above:
"and he left his cell phone (http://www.digitalalchemy.tv/2008/11/tina-sherman-sues-mcdonalds-over-photos.html#) at the fast food restaurant while leaving. The store manager assured him that the phone (http://www.digitalalchemy.tv/2008/11/tina-sherman-sues-mcdonalds-over-photos.html#) would be kept safe for his retrieval when he called to locate it, but almost immediately, the photos that she had sent to his phone were uploaded onto a website where users discovered her identity, address, and phone number."

So the question(s) would be:
What happened between the time the Sherman's' lost care, custody, and control of the phone and when the store manager took control of the phone and secured it. And how did he secure it.

UGAalum94
11-24-2008, 11:54 AM
I had the very same thought you did UGAalum94.
The only comment I have seen was in one of the links I posted above:
"and he left his cell phone (http://www.digitalalchemy.tv/2008/11/tina-sherman-sues-mcdonalds-over-photos.html#) at the fast food restaurant while leaving. The store manager assured him that the phone (http://www.digitalalchemy.tv/2008/11/tina-sherman-sues-mcdonalds-over-photos.html#) would be kept safe for his retrieval when he called to locate it, but almost immediately, the photos that she had sent to his phone were uploaded onto a website where users discovered her identity, address, and phone number."

So the question(s) would be:
What happened between the time the Sherman's' left and when the store manager took control of the phone and secured it. And how did he secure it.

Yep, and one of the story says that on the website where the pictures were uploaded that employees admitted to doing it. On the one hand, maybe they are the stupidest employees in the world. On the other, if you wanted three million dollars. . .

ETA: maybe this McDonald's is the most boring place in the world to work, but who takes the time to scroll though images on random cell phones? I guess we'll see if it goes to court.

Tinia2
11-24-2008, 11:58 AM
Yep, and one of the story says that on the website where the pictures were uploaded that employees admitted to doing it. On the one hand, maybe they are the stupidest employees in the world. On the other, if you wanted three million dollars. . .
Agree. Sort of brings to mind all of the stories from the past few years of school kids sending "provocative/adult" photos to their friends and then wondering and getting upset that they were sent to everyone else.

UGAalum94
11-24-2008, 12:15 PM
Agree. Sort of brings to mind all of the stories from the past few years of school kids sending "provocative/adult" photos to their friends and then wondering and getting upset that they were sent to everyone else.

Or the celebrities stories about stuff like this.

It's one thing if your locked phone gets hack or your email account is hacked, but something else entirely when you leave the unlocked phone in a public place.

I can see getting angry at the person who violated your trust if you sent a photo to one person and it ended up all over. I can even see that being regarded as the revealing "private facts" thing Kevin mentioned.

But leaving your accessible phone someplace, not so much.

And what I really think we can all expect from this is that now if you did happen to leave your phone at McDonald's, even if you have no concerns about photos on it, the policy will become that they refuse to secure it for you for fear of created liability.

agzg
11-24-2008, 01:07 PM
ETA: maybe this McDonald's is the most boring place in the world to work, but who takes the time to scroll though images on random cell phones? I guess we'll see if it goes to court.

When I worked at Target and we found cell phones, we tried our best to find numbers labeled home, mom, or dad, so that the person who lost it could be notified by a family member if they didn't have their home number in the phone.

I'm not saying that we went through their pictures (we didn't that I know of), but I do know that employees do scroll through the contacts lists of phones. Perhaps his wife's number had a caller picture, and it was one of the racy ones, which prompted the employee to look for more. Not that their behavior is excusable in any way.

Random: My boyfriend and I met while we were both in school, working at Target. He worked in Loss Prevention. Some guy returned an iPod in the wrong case (he returned a lower gig iPod, I think 36g, in a higher gig box, probably 80 at the time) so it became a loss prevention issue. The moron left stuff on the iPod that he returned, so they were scrolling through it - 90% of it was porn! It became a huge issue and had to be turned over to the police to make sure that none of it was kiddie porn.

Moral: If you leave your cell phone, iPod, etc. places, or you return storable media electronics to the store, make sure you don't have anything on it you wouldn't want your grandma to see!

Kevin
11-24-2008, 02:19 PM
But leaving your accessible phone someplace, not so much.

It wasn't accessible when it was in the store's possession. Agents of the store actually took the phone and used it for a tortuous purpose while it was entrusted to them.

That's definitely not the same as it being left lying around. All of the plaintiff's responsibility to look after his own stuff evaporates when the manager says "Sure, I'll keep this until you can pick it up."

And what I really think we can all expect from this is that now if you did happen to leave your phone at McDonald's, even if you have no concerns about photos on it, the policy will become that they refuse to secure it for you for fear of created liability.Or more likely -- they'll have the manager somehow secure the item. If it was in a locked desk or something of that nature (I'm sure there's a locked area somewhere), then they'll not be breaching their duty of reasonable care with regard to whatever's in their possession.

Tinia2
11-24-2008, 02:26 PM
It wasn't accessible when it was in the store's possession. Agents of the store actually took the phone and used it for a tortuous purpose while it was entrusted to them.

That's definitely not the same as it being left lying around. All of the plaintiff's responsibility to look after his own stuff evaporates when the manager says "Sure, I'll keep this until you can pick it up."

Or more likely -- they'll have the manager somehow secure the item. If it was in a locked desk or something of that nature (I'm sure there's a locked area somewhere), then they'll not be breaching their duty of reasonable care with regard to whatever's in their possession.
Story line, of what I have seen, is a bit cloudy.
"Seems that the McDonalds manager, Aaron Brummley, who had promised to keep the phone secure until Phil Sherman could retrieve it, got curious and started ogling all of Mrs. Sherman."
"Brummley called Phillip Sherman’s mother using his cell phone and said he would keep the cell phone until Phillip Sherman could come pick it up. Before Phillip Sherman could return to the restaurant to get the phone, his wife received text messages from his phone about her racy photos."
"After Tina Sherman learned that it would take 72 hours to completely delete the photos from the site where they were uploaded, she became more mortified, cried uncontrollably and continued to suffer emotional distress, the lawsuit claims."
Yet we have this:"I'm guessing the pics were posted online by some pubescent teen workers at McDonald's, who would also have been the most tech-savvy. That fact is unclear, but it is clear the said employees admitted on the website where they posted the nude photos of Tina Sherman that they retrieved the photos from a cell phone found in the restaurant."

And just think of all the additional emotional distress that has now been caused.

Kevin
11-24-2008, 02:30 PM
What's cloudy? I don't see how any of those facts do anything to mitigate the manager's responsibility. If an employee stole the phone and put the pictures on the internet, then that's the manager's fault for not securing the phone somehow. Like I said, I'm sure there's a safe or a locking desk drawer somewhere on the premises.

Tinia2
11-24-2008, 02:42 PM
What's cloudy? I don't see how any of those facts do anything to mitigate the manager's responsibility. If an employee stole the phone and put the pictures on the internet, then that's the manager's fault for not securing the phone somehow. Like I said, I'm sure there's a safe or a locking desk drawer somewhere on the premises.
Well:
Was it the Manager himself?
Was it an employee a)before the manager got hold of it?
b) after the manager got hold of it?
Was it another customer?
Was it the Shermans' themselves?

I think we all have seen delays in data transfers, up loads and downloads. I have received voice mail messages the next day.
CSI geeks will be looking at logs in order to get a time line.

As for a safe, I know the retail store I worked at years ago had one.
And that is where we put things like credit cards that were found.
Now thinking about that, management would have no control what happened to cards prior to getting them.

Kevin
11-24-2008, 02:52 PM
Again, nothing there to help McDonald's. We know the pictures were uploaded by an employee, so when that happened is not really material.

It's a good lawsuit. The plaintiffs are more than likely entitled to something here.

Tinia2
11-24-2008, 02:59 PM
Again, nothing there to help McDonald's. We know the pictures were uploaded by an employee, so when that happened is not really material.

It's a good lawsuit. The plaintiffs are more than likely entitled to something here.
Do we know?? All we know is what was claimed on a web site as reported in a blog. I have yet to see the original and from what I have seen, it is gone from public view.
All options are open for investigation by the authorities, claimant's and defendants.
And yes, given my families background in P&C insurance and law, I agree with you. They most likely will get something out of this. And if it is by way of trial, it maybe followed by years of appeals (remember the coffee case?).
Or perhaps an out of court settlement.
However, are they entitled to something? ???????

Kevin
11-24-2008, 03:35 PM
However, are they entitled to something? ???????

If the facts given are true, then yes, probably.

Let me just put it this way -- if a client came into my office (and I actually did intake interviews, which I don't) and gave me these facts, I would, without hesitation, agree to take the case.

AGDee
11-24-2008, 04:12 PM
I would think the difficulty would be in determining who had access to the phone before the employees found it. If someone left their phone on a table in a fast food restaurant, anybody could have gotten a hold of it.

KSig RC
11-24-2008, 04:16 PM
And can you really say that images from an unlocked cell phone left at a McDonald's are actually private anymore? What's his obligation in keeping his own facts private?

If I leave my door unlocked, you're not allowed to simply walk in and take what you want. Similarly, if I leave my wallet on a table, you're not allowed to simply take the contents, either.

This was obviously a poor move on the guy's part, but that really doesn't excuse any subsequent actions.

UGAalum94
11-24-2008, 05:03 PM
If I leave my door unlocked, you're not allowed to simply walk in and take what you want. Similarly, if I leave my wallet on a table, you're not allowed to simply take the contents, either.

This was obviously a poor move on the guy's part, but that really doesn't excuse any subsequent actions.

I'm not sure that you can really say that what transpired here is equivalent to entering a home or stealing the wallet.

And actually, what is the legal obligation if you leave a wallet on a table?

Personally, I'm not taking anything out of it and I'd probably wants someone to witness me even looking for ID in it in case something else had been already stolen, but if you leave your wallet in a public place, what is everyone's legal obligation to you? I really don't know.

I don't think it was moral/ethical for whoever to post the photos or harass the wife and I don't feel that the guy somehow deserved it. But I don't think he correctly can claim that he was damaged by McDonald's when his own careless behavior was a pretty big contributing factor.

I'm still really interested to know who did the calling and posting. The poster at the website claimed to be a McDonald's employee, but I'm not sure that makes it really the case.

ETA: from a legal standpoint, I understand Kevin's point that if the manager said he'd protect the phone, he created an obligation, but I still don't think it's appropriate to sue because his own behavior contributed so much to the problem.

KSig RC
11-24-2008, 05:24 PM
I'm not sure that you can really say that what transpired here is equivalent to entering a home or stealing the wallet.


Is it necessary to go through the photos in the phone to identify its owner?

Once the McDonald's manager has offered to store the phone until the owner can receive it (thus taking on the obligation), does the owner have a reasonable expectation that the phone's contents will remain private? Note that this isn't "should" - not at all. Indeed, this argument really doesn't rely on the manager even knowing the phone's owner - but it's certainly stronger with that fact.

Do you think that posting the photos was harmful or damaging to the guy and his wife?

I think it's pretty clear that the answers to these three questions in combination explains the relative comparison - note that I never said "equivalent" either.

ETA: from a legal standpoint, I understand Kevin's point that if the manager said he'd protect the phone, he created an obligation, but I still don't think it's appropriate to sue because his own behavior contributed so much to the problem.

I mean . . . that's cool, but that's kind of a sketchy ethical or moral argument, more than a legal one. I don't think there's any doubt that the manager's actions harmed the plaintiffs, and there's really no justification for them. That's all you really need to sue, and although the guy was kind of an idiot, it doesn't mean he "earned" or "deserved" what happened. I think that's just a YMMV moment though, and likely just represents that we view things in this arena a little differently.

UGAalum94
11-24-2008, 05:42 PM
Is it necessary to go through the photos in the phone to identify its owner?

Once the McDonald's manager has offered to store the phone until the owner can receive it (thus taking on the obligation), does the owner have a reasonable expectation that the phone's contents will remain private? Note that this isn't "should" - not at all. Indeed, this argument really doesn't rely on the manager even knowing the phone's owner - but it's certainly stronger with that fact.

Do you think that posting the photos was harmful or damaging to the guy and his wife?

I think it's pretty clear that the answers to these three questions in combination explains the relative comparison - note that I never said "equivalent" either.



I mean . . . that's cool, but that's kind of a sketchy ethical or moral argument, more than a legal one. I don't think there's any doubt that the manager's actions harmed the plaintiffs, and there's really no justification for them. That's all you really need to sue, and although the guy was kind of an idiot, it doesn't mean he "earned" or "deserved" what happened. I think that's just a YMMV moment though, and likely just represents that we view things in this arena a little differently.

I don't think that he earned or deserved what happened. I just don't think he should be able to hold someone else responsibly financially, especially to the tune of 3 millions dollars, for this.

I think we should go back to dueling pistols.

I also doubt some of the "facts" of the case and it colors my take no doubt. (What exactly did the manager promise? What did he actually do with the phone? Who really posted the photos and made the calls? Then, there's the question of how really damaging it was. The photos were up for 72 hours according to one report.)

One of my little hang ups in life is thinking that we try to make other people responsible for our errors too frequently. It seems like the guy's complaint on some level is that a third party failed to protect him from his own error and how someone else damaged him with his own error. It makes some sense to seek redress from the actual photo poster, but not from folks pretty far removed from the actual damaging acts.

DSTRen13
11-24-2008, 06:39 PM
When I worked retail, and even now, people would call all the time saying they left their crap in our store (and now in our office) and to please find it and secure it for them, which I would then do. So if someone else got to it first, I would then be responsible for lawsuits against the company??? :confused: If this thing actually suceeds, no salespeople are ever going to attempt to find anyone's forgotten items again ...

KSig RC
11-24-2008, 06:42 PM
I don't think that he earned or deserved what happened. I just don't think he should be able to hold someone else responsibly financially, especially to the tune of 3 millions dollars, for this.

I think we should go back to dueling pistols.

I also doubt some of the "facts" of the case and it colors my take no doubt. (What exactly did the manager promise? What did he actually do with the phone? Who really posted the photos and made the calls? Then, there's the question of how really damaging it was. The photos were up for 72 hours according to one report.)

One of my little hang ups in life is thinking that we try to make other people responsible for our errors too frequently. It seems like the guy's complaint on some level is that a third party failed to protect him from his own error and how someone else damaged him with his own error. It makes some sense to seek redress from the actual photo poster, but not from folks pretty far removed from the actual damaging acts.

Yeah - I mean, I'm just going off what we're reading here, and the actual facts may be completely different from what is in the complaint. No doubt about that.

I.A.S.K.
11-24-2008, 06:47 PM
I don't think that he earned or deserved what happened. I just don't think he should be able to hold someone else responsibly financially, especially to the tune of 3 millions dollars, for this.

I think we should go back to dueling pistols.

I also doubt some of the "facts" of the case and it colors my take no doubt. (What exactly did the manager promise? What did he actually do with the phone? Who really posted the photos and made the calls? Then, there's the question of how really damaging it was. The photos were up for 72 hours according to one report.)

One of my little hang ups in life is thinking that we try to make other people responsible for our errors too frequently. It seems like the guy's complaint on some level is that a third party failed to protect him from his own error and how someone else damaged him with his own error. It makes some sense to seek redress from the actual photo poster, but not from folks pretty far removed from the actual damaging acts.

What facts do you doubt? (just wondering)
I think the manager said he'd keep the phone until the guy could pick it up. I think he looked through the phone (being nosey) and found the pictures. Showed the pictures to other employees who uploaded them to the site and then they were texting and making those calls.

It could be extremely damaging. If your boss found nude pics of you online or found that you were even involved with a scandal like this then they could fire you or it could make working conditions so tense that you'd quit.

I think that even though he left his phone on the table because the pictures were on his phone (a private device not something public like facebook) there was an assumption of privacy (a privacy that you would assume would be protected when someone says they'll keep the phone safe for you). If his phone had been picked up by someone random guy then he'd sue the random person. Since his phone was picked up by the manager of the McDonalds he is suing McDonalds. The reason he can sue the company is because these people were acting as representatives of McDonalds when they did this. Thats why there are typically strict rules for most companies as to what you can do in your uniform. When you have the uniform on and are at work you are not just you. You're a rep for your company.

His complaint doesnt seem like he's blaming a third party for not protecting him from his own error. His error was losing the phone. He is not blaming them for his losing the phone. He's blaming them for taking private images from his phone and using them to harass and disgrace him and his wife. Unfortunately for McDonalds these employees are guilty of exactly that.

Kevin
11-24-2008, 07:09 PM
I don't think that he earned or deserved what happened. I just don't think he should be able to hold someone else responsibly financially, especially to the tune of 3 millions dollars, for this.


Don't get too hung up on the dollar amount. There could be perfectly legitimate reasons for this.

In some jurisdictions, you have to plead a certain level of monetary damages to get on a certain docket. While I've never heard of something as high as $3 million, with all the tort reform crap flying around the southern states, I wouldn't be completely shocked.

The number could also be based upon the number of hits on the website. Our libel statute in Oklahoma (not sure about publication of private information) allows statutory damages of as much as $1,000 per publication -- and each viewing of the website could be a publication.

At any rate, I'm sure $3 million is just a jumping off point. I'd be shocked if the jury returned a verdict that high. Even more shocked if a judge allowed it.

Remember -- you're just reading off of the Plaintiff's Petition. They're always going to ask for all kinds of crazy relief. That doesn't mean they're going to get it, nor does it mean that there's even a remote chance of them getting it.

I have doubts that this case is worth more than a few thousand dollars. Maybe the wife really does need therapy for this. I think her image has definitely been tarnished. What's all that worth? I doubt we'll ever know as this'll probably settle for some undisclosed amount.

UGAalum94
11-24-2008, 07:20 PM
What facts do you doubt? (just wondering)
I think the manager said he'd keep the phone until the guy could pick it up. I think he looked through the phone (being nosey) and found the pictures. Showed the pictures to other employees who uploaded them to the site and then they were texting and making those calls.

It could be extremely damaging. If your boss found nude pics of you online or found that you were even involved with a scandal like this then they could fire you or it could make working conditions so tense that you'd quit.

I think that even though he left his phone on the table because the pictures were on his phone (a private device not something public like facebook) there was an assumption of privacy (a privacy that you would assume would be protected when someone says they'll keep the phone safe for you). If his phone had been picked up by someone random guy then he'd sue the random person. Since his phone was picked up by the manager of the McDonalds he is suing McDonalds. The reason he can sue the company is because these people were acting as representatives of McDonalds when they did this. Thats why there are typically strict rules for most companies as to what you can do in your uniform. When you have the uniform on and are at work you are not just you. You're a rep for your company.

His complaint doesnt seem like he's blaming a third party for not protecting him from his own error. His error was losing the phone. He is not blaming them for his losing the phone. He's blaming them for taking private images from his phone and using them to harass and disgrace him and his wife. Unfortunately for McDonalds these employees are guilty of exactly that.

His error, as I see it, wasn't just losing his phone; it was keeping photos that were this embarrassing in a form this accessible to other people with data about his name, address and phone number. And then he left this self-destructive time-bomb unsecured in a McDonald's. He had an obligation to protect himself before anyone else had an obligation to look after him.

In a perfect world, the store employee would have turned off the phone and locked it up until the customer came to get it, I agree.

But I don't think he's entitled to monetary damages from McDonald's.

The facts I doubt: that the manager actually promised to "secure" the phone in a way that guaranteed the guy's privacy, rather than just the phone wouldn't be left where it could be stolen, that no one else had access to the phone other than McDonald's employees, that the family really had to move because the woman had stalkers based on the information being posted for a couple of days. There's part of me that kind of thinks they may have manufactured this themselves.

UGAalum94
11-24-2008, 07:24 PM
Don't get too hung up on the dollar amount. There could be perfectly legitimate reasons for this.

In some jurisdictions, you have to plead a certain level of monetary damages to get on a certain docket. While I've never heard of something as high as $3 million, with all the tort reform crap flying around the southern states, I wouldn't be completely shocked.

The number could also be based upon the number of hits on the website. Our libel statute in Oklahoma (not sure about publication of private information) allows statutory damages of as much as $1,000 per publication -- and each viewing of the website could be a publication.

At any rate, I'm sure $3 million is just a jumping off point. I'd be shocked if the jury returned a verdict that high. Even more shocked if a judge allowed it.

Remember -- you're just reading off of the Plaintiff's Petition. They're always going to ask for all kinds of crazy relief. That doesn't mean they're going to get it, nor does it mean that there's even a remote chance of them getting it.

I have doubts that this case is worth more than a few thousand dollars. Maybe the wife really does need therapy for this. I think her image has definitely been tarnished. What's all that worth? I doubt we'll ever know as this'll probably settle for some undisclosed amount.

Yeah, but her image was mainly tarnished by her own action. She took the photos and she sent them to a phone. Sure, she may have thought they'd be only for her husband to see but she took no precautions to ensure that.

ETA: in some of the articles there are claims that they had to quit their jobs and move based on harassment about the pictures and info that was up for 72 hours. Why wouldn't they be seeking redress from the harassers?

Kevin
11-24-2008, 07:29 PM
As KSig pointed out, that's a moralistic argument [one I disagree with], not a legal one. The issue here is bailment --was there one when the pictures were uploaded to the internet? (google the word if you don't know what it is).

If there was bailment, there is going to be liability (assuming there are no other mitigating facts). It's really not a tough issue.

UGAalum94
11-24-2008, 07:36 PM
As KSig pointed out, that's a moralistic argument [one I disagree with], not a legal one. The issue here is bailment --was there one when the pictures were uploaded to the internet? (google the word if you don't know what it is).

If there was bailment, there is going to be liability (assuming there are no other mitigating facts). It's really not a tough issue.

Did I seem to be trying to making a legal argument?

ETA: I think that I've been trying to say what I think ought to be true, rather than making any claims about what legal is true.

DrPhil
11-24-2008, 07:40 PM
Well, this sucks...idiots need to keep compromising photos off of cellphones, email, etc.

DUHHHHHHHH.....

CrackerBarrel
11-24-2008, 07:49 PM
I have the right to keep whatever I want on my phone. Even if I leave it laying somewhere that doesn't give you the right to publish what's in it. Pretty clear cut in my mind.

I guess you could argue that there was contributory negligence on the part of the man who owned the phone (if the claim was that McDonalds was negligent in not taking actions to stop this from happening, doesn't work if you're claiming that McDonalds DID it) but to me even that doesn't seem like a compelling argument and in any case McDonalds had the "last clear chance" to stop it from occuring.

sugar and spice
11-24-2008, 08:02 PM
Bottom line: if the guy with the lost cell phone talked to the McDonald's manager, the manager said they'd found the phone and would hold onto it for a few days until the guy came to claim it, and then he let his employees have it instead and the pictures got out--then yes, McDonald's bears some legal responsibility here. But the victim would have to be able to prove that the phone was, at some point, in the manager's possession (or at the very least in some employee's possession), and I'm not sure that's true. To me, it sounds like a case where the guy left his phone behind, the manager never knew about it, and now the victim is trying to pin the blame on somebody else so he can make some money off of it.

The gray area here is if an employee really did find the phone, take it home, and distribute the pictures (without the manager ever having knowledge of the phone or the pictures' existence). Is this McDonald's fault or just the individual employee's? (Well, it's the individual's, but McDonald's can probably still get sued for it.)

Most restaurants have specific rules about employees turning over left-behind belongings to the manager as soon as they find them. If you get caught taking any of that stuff home--even, like, a pair of plastic sunglasses that have been in the lost-and-found for six months--you'll likely be fired. Any well-trained manager knows the possible consequences of not protecting any belongings that are left behind and brought to their attention. Then again, this is McDonald's, who allows 18-year-olds to become managers, so their maturity may be suspect. But in general, the idea that a manager would turn over a phone like this to his employees is pretty ludicrous. They know that's likely to end in a lawsuit. Even going through the phone to look for pictures could set them up for a lawsuit, so they'd probably avoid doing that unless the phone's owner called and they were given permission to look through it for identification purposes. I'm surprised at places here that allowed their employees to call names on cell phones that were left behind, because at every corporate place I've worked, that was a big potential violation of privacy. (The independent places worried less because they weren't rich enough that anybody would bother suing them over something that small.)

DrPhil
11-24-2008, 08:12 PM
I have the right to keep whatever I want on my phone.

Of course, you wild man, you. :)

Even if I leave it laying somewhere that doesn't give you the right to publish what's in it. Pretty clear cut in my mind.

And McDonalds will probably be found liable for all the obvious reasons.

That doesn't make the photos that were leaked suddenly go away or remove the common sense from the matter. When we take certain precautions, instead of running the risk of placing ourselves in compromising situations, our lives are a lot simpler. That's about victim precipitation.

UGAalum94
11-24-2008, 08:16 PM
I have the right to keep whatever I want on my phone. Even if I leave it laying somewhere that doesn't give you the right to publish what's in it. Pretty clear cut in my mind.

I guess you could argue that there was contributory negligence on the part of the man who owned the phone (if the claim was that McDonalds was negligent in not taking actions to stop this from happening, doesn't work if you're claiming that McDonalds DID it) but to me even that doesn't seem like a compelling argument and in any case McDonalds had the "last clear chance" to stop it from occuring.

You can keep whatever you want on your phone, but if you leave your phone in a fast food restaurant, you're a fool if you assume your private photos will remain private.

So what precautions do you want to depend on? Not having compromising photos on your phone? Locking the images on your phone? Keeping up with your own damn phone? Or leaving it just as it is and hoping that the McDonald's employees will handle things for you?

Some of these seem like better options than others to me if the end goal is not being embarrassed by the photos on your phone.

But making McDonald's pay is our legal answer. yay!

ETA: I guess I should add that I've got little problem making the actual posters of the photos pay.

cheerfulgreek
11-24-2008, 09:28 PM
You seem to revel in people's misfortune.

I guess that's only fair because so many people revel in yours.
I don't consider that a misfortune, it's pure stupidity. As I said, I hope they get nothing.

KSig RC
11-24-2008, 11:51 PM
But making McDonald's pay is our legal answer. yay!

ETA: I guess I should add that I've got little problem making the actual posters of the photos pay.

... but these guys only got to the position they were in (i.e. they only had access to the phone) via their employment for McDonald's, while acting as agents of McDonald's. If it were simply customers that had done this, then it would be completely different - this isn't some technicality, in my mind.

Kevin
11-24-2008, 11:58 PM
I'm not sure how much the agency relationship plays into this. In fact, I think that's a pretty weak claim as employers typically aren't liable for the intentional torts of their agents.

A bailment claim is what seems to fit best, at least if you want access to the deep pocket.

And UGA, making people pay for their wrongs isn't exactly a new thing. I guess you can continue to ignore me when I explain to you that the 3-million figure is in no way representative of what the plaintiff will probably end up with... but I guess it offends you that anyone ever has to compensate another person for a dignity tort?

Tinia2
11-25-2008, 12:01 AM
... but these guys only got to the position they were in (i.e. they only had access to the phone) via their employment for McDonald's, while acting as agents of McDonald's. If it were simply customers that had done this, then it would be completely different - this isn't some technicality, in my mind.
All the information we have seems to be based solely on a civil complainant.
Who seems to be focusing everything on one target.
The one which is best known and has the deepest pockets. And is the easiest target.
Which is rather normal in civil cases. It is that approach or a full bore shot-gun in which you name everyone and everything and let the court sort it all out.

Nothing I have seen, so far, proves that it was the agents/servants of McDonald that caused this. Before or after the stated phone call.
http://www.foxnews.com/story/0,2933,456804,00.html
"I would strongly caution anyone from jumping to conclusions without having all the facts. I believe this act was perpetrated by individuals who do not represent my organization," Bill Mathews, the McDonald's franchisee, said."

This story will most likely go on for months if not years.

And now the flip side of story:
Tina Sherman Nude Photos Story Likely A Hoax, Naked Pictures Don't Exist
http://www.postchronicle.com/news/original/article_212188416.shtml

Nude Photos on iPhone a Wakeup Call:
Companies can learn a few lessons from alleged smartphone incident.
"Whether the Arkansas incident bears out -- there have been some online reports it's a hoax -- companies can learn several lessons, Cross said. "
http://www.internetnews.com/security/article.php/3787141/Nude+Photos+on+iPhone+a+Wakeup+Call.htm

Well, let see what snope.com and other fact check sites come up with now.
As well as the court system.

Tinia2
11-25-2008, 12:28 AM
I'm not sure how much the agency relationship plays into this. In fact, I think that's a pretty weak claim as employers typically aren't liable for the intentional torts of their agents.

A bailment claim is what seems to fit best, at least if you want access to the deep pocket.

And UGA, making people pay for their wrongs isn't exactly a new thing. I guess you can continue to ignore me when I explain to you that the 3-million figure is in no way representative of what the plaintiff will probably end up with... but I guess it offends you that anyone ever has to compensate another person for a dignity tort?
$3 million is just the starting point Kevin:
"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."
PLUS damages:"The suit seeks damages to be determined by a jury for negligence and negligent supervision."
http://www.nwaonline.net/articles/2008/11/21/news/112208fzsherman.txt

However, if this is only a hoax/shakedown, wonder what will happen?

UGAalum94
11-25-2008, 10:25 AM
I'm not sure how much the agency relationship plays into this. In fact, I think that's a pretty weak claim as employers typically aren't liable for the intentional torts of their agents.

A bailment claim is what seems to fit best, at least if you want access to the deep pocket.

And UGA, making people pay for their wrongs isn't exactly a new thing. I guess you can continue to ignore me when I explain to you that the 3-million figure is in no way representative of what the plaintiff will probably end up with... but I guess it offends you that anyone ever has to compensate another person for a dignity tort?

It offends me that we compensate people when their own idiocy was a big part of the problem, and it offends me when we hold people who were only at best indirectly involved the most responsible financially.

This guy could have taken a lot of precautions to avoid nude photos of his wife being in the hands of McDonald's employees or anyone else for that matter. Instead, it becomes McDonald's burden and that seems nutty.

As often happens in my ridiculous posting on GreekChat, I've argued myself into a more extreme position than I probably really hold. I don't mind people being compensated when they are victimized by others. But they should bear responsibility for their own actions and we should be really careful about who we make pay. Only the people actually responsible should have to pay. It should be really hard to tie in a third party simply because they have more money and yet, I think we allow it to happen pretty frequently. We allow people's sense that the victims are entitled to be compensated to override holding the people responsible responsible.

As I've said before, I'm really curious as to what exactly transpired and knowing that would play a big part in determining how much happened because of their roles McDonald's employees or exactly what kind of a bailment existed if any and who can logically be thought to be involved in it.

KSig RC
11-25-2008, 11:35 AM
I don't mind people being compensated when they are victimized by others. But they should bear responsibility for their own actions and we should be really careful about who we make pay. Only the people actually responsible should have to pay. It should be really hard to tie in a third party simply because they have more money and yet, I think we allow it to happen pretty frequently. We allow people's sense that the victims are entitled to be compensated to override holding the people responsible responsible.

I don't think this (holding a merely tangentially-related third-party deep-pocket defendant liable to up the plaintiff's earn) actually happens very often - I think the 'ideal' of the deep-pocket defendant is much more prevalent than the actuality. That's actually why it is such a powerful defense - the reality is outstripped by the outrage. Now, the plaintiff can file against just about any party, but Kevin has already covered why that's really not a big deal from an award standpoint.

Remember, too, that the media loves to show "frivolous" lawsuits (mostly because people have a preconception that there are far too many lawsuits nowadays), so we don't exactly see a representative sample, and even then the coverage is often very cursory and incendiary.

The classic example would be, ironically, the McDonald's 'hot coffee' case, which was not only not frivolous under any reasonable standard, but the award really wasn't even that far out of line with the nature of the injury and the corporate conduct involved. However, it's pretty easy to say "holy shit what a retard, obv obv obv coffee = hot!" and so that's what people think . . . we don't hear so much about fused labia requiring reconstructive surgery, or the fact that MCD corporate refused repeated warnings to serve the coffee cooler because it would result in more refills (at the cost of fractional cents per cup).

UGAalum94
11-25-2008, 01:12 PM
I don't think this (holding a merely tangentially-related third-party deep-pocket defendant liable to up the plaintiff's earn) actually happens very often - I think the 'ideal' of the deep-pocket defendant is much more prevalent than the actuality. That's actually why it is such a powerful defense - the reality is outstripped by the outrage. Now, the plaintiff can file against just about any party, but Kevin has already covered why that's really not a big deal from an award standpoint.

Remember, too, that the media loves to show "frivolous" lawsuits (mostly because people have a preconception that there are far too many lawsuits nowadays), so we don't exactly see a representative sample, and even then the coverage is often very cursory and incendiary.

The classic example would be, ironically, the McDonald's 'hot coffee' case, which was not only not frivolous under any reasonable standard, but the award really wasn't even that far out of line with the nature of the injury and the corporate conduct involved. However, it's pretty easy to say "holy shit what a retard, obv obv obv coffee = hot!" and so that's what people think . . . we don't hear so much about fused labia requiring reconstructive surgery, or the fact that MCD corporate refused repeated warnings to serve the coffee cooler because it would result in more refills (at the cost of fractional cents per cup).

Actually, I was hoping that nobody would bring up why I felt like the hot coffee case was so different from this one because I can remember being involved with a discussion about that here too. And I do feel like that case is quite different.

Maybe it is my own misconception about how many cases actually go to trial with the deep pockets defendant still attached or even what percentage of those end up with awards. But I know that the fear of such lawsuits seems to drive a lot of goofy behavior. Maybe, as usual per my worldview, the media is to blame.

KSig RC
11-25-2008, 02:07 PM
Maybe it is my own misconception about how many cases actually go to trial with the deep pockets defendant still attached or even what percentage of those end up with awards. But I know that the fear of such lawsuits seems to drive a lot of goofy behavior. Maybe, as usual per my worldview, the media is to blame.

To be fair, it's not so much the media itself, as the demands of the people watching/reading, which the media has to be responsive to. It's kind of a negative feedback loop, to my mind.

Kevin
11-25-2008, 04:30 PM
>> It's not fair to go after deep pocket defendants... (paraphrased)

There is a good reason why in most states, we allow injured parties to go after the 'deep pockets.' The concept is called joint and severable liability, and I'm pretty sure most states still follow this, although there is a trend with tort reform to do away with this rule.

The idea behind this is that we, as a society, place a higher priority on making injured parties whole than we do protecting the liability/exposure of people who cause or have a hand in causing injuries.

How this would work is that the plaintiff sues everyone, gets the money from the easiest place to get money (from the corporation who probably has enough premises liability coverage to pay for everything). That corporation's insurance company here (McDonald's) would then in turn seek contribution from the employees.

Other systems discourage injured parties from suing in the first place because no one will represent someone who has a low likelihood of ever receiving anything other than a [worthless] judgment.

I think it's a fine system, and it's not perfect, but if we think the courts are supposed to make people whole, this is the only way folks will ever be made whole.

KSigkid
11-25-2008, 04:43 PM
>> It's not fair to go after deep pocket defendants... (paraphrased)

There is a good reason why in most states, we allow injured parties to go after the 'deep pockets.' The concept is called joint and severable liability, and I'm pretty sure most states still follow this, although there is a trend with tort reform to do away with this rule.


Plus, there's the whole idea of having the loss fall to the person/entity with the most ability to absorb that loss. As someone who works for a big company, it's not my ideal...haha.

I agree that the public's understanding of tort cases are almost always going to be the big ones with the big payouts. There's no reason for the media to report on the smaller cases, or even on defendants' verdicts (to a certain extent) because those stories aren't fascinating to anyone outside of the legal community. Like anything else, the media won't care if it's not an interesting story, and big-money lawsuits/settlements are interesting.

UGAalum94
11-25-2008, 08:51 PM
>> It's not fair to go after deep pocket defendants... (paraphrased)

There is a good reason why in most states, we allow injured parties to go after the 'deep pockets.' The concept is called joint and severable liability, and I'm pretty sure most states still follow this, although there is a trend with tort reform to do away with this rule.

The idea behind this is that we, as a society, place a higher priority on making injured parties whole than we do protecting the liability/exposure of people who cause or have a hand in causing injuries.

How this would work is that the plaintiff sues everyone, gets the money from the easiest place to get money (from the corporation who probably has enough premises liability coverage to pay for everything). That corporation's insurance company here (McDonald's) would then in turn seek contribution from the employees.

Other systems discourage injured parties from suing in the first place because no one will represent someone who has a low likelihood of ever receiving anything other than a [worthless] judgment.

I think it's a fine system, and it's not perfect, but if we think the courts are supposed to make people whole, this is the only way folks will ever be made whole.

It makes more sense to me to go after deep pockets defendants for the reasons you mention when there are real, somewhat objective damages or costs to care for the injured person although I still think it's more of a mistake than you do*. But in a case like the subject of this thread, what would it mean to make people whole? I have less faith than you do that a jury will make an appropriate determination.

*I think we might be better off having some sort of general insurance pool to cover real damages rather than expecting the nearest deep pocket to pay. I think there's societal harm in the belief that if you perceive yourself as injured, the best thing to do is magnify your injuries in a court case and seek payment from whomever you can get it from. But honestly, I don't sit around thinking about this a whole lot.

I do know there are a lot of auto accident suits that occur or escalate beyond settlement that seem to reflect a desire to get more money than one probably really deserves. While people need to be able to seek relief from their injuries, injuries shouldn't be regarded as a lottery ticket and I don't think the whole personal injury law phenomena is totally made up.

Kevin
11-25-2008, 10:13 PM
It makes more sense to me to go after deep pockets defendants for the reasons you mention when there are real, somewhat objective damages or costs to care for the injured person although I still think it's more of a mistake than you do*. But in a case like the subject of this thread, what would it mean to make people whole? I have less faith than you do that a jury will make an appropriate determination.

Take it up with your state legislature. They could abolish dignity torts if they wanted to. And for the umpteenth time, just because a plaintiff asks for $1 million doesn't mean that they're going to get anything close to that. In fact, if this thing goes to trial and I'm the defense attorney, I'm going to ask the plaintiff to justify to the jury exactly how they came to the $3 million number. In fact, a good defense theme might be 'although the plaintiff arguably suffered a wrong, it does not mean she has hit a gold mine.' (or something to that effect). My point is that again, there doesn't have to be any basis whatsoever for requesting certain relief... it's just words on paper.

*I think we might be better off having some sort of general insurance pool to cover real damages rather than expecting the nearest deep pocket to pay. I think there's societal harm in the belief that if you perceive yourself as injured, the best thing to do is magnify your injuries in a court case and seek payment from whomever you can get it from. But honestly, I don't sit around thinking about this a whole lot.

We do that with our cars. Just about every state requires you to carry insurance. I know some are starting to require folks to carry major medical. I don't think, however, for intentional torts, that those should necessarily be insurable. If you attempt to murder me, on purpose, I ought to be able to sue you for everything you're worth. It only seems fair that it should be you, the party who injured me that has the burden of making me whole rather than some general insurance pool. Would it be fair, since your sentence is 10 years that 3,650 people be chosen at random and have to each serve a day of your sentence?

I do know there are a lot of auto accident suits that occur or escalate beyond settlement that seem to reflect a desire to get more money than one probably really deserves. While people need to be able to seek relief from their injuries, injuries shouldn't be regarded as a lottery ticket and I don't think the whole personal injury law phenomena is totally made up.

As someone who handles personal injury cases (we don't actively seek them out, but I get saddled with the ones that come through the door), I have yet to see someone get rich in a personal injury settlement. In fact, more often than not, the injured party has to either take the insurance company's check (and take a hickey) or take his chances with a jury which might award him nothing... not to mention have to put up with the difficulty of a defendant who has no assets or exempt assets to go after with a judgment.

Personal injury law, quite honestly, is a huge pain in the ass for everyone involved. The insurance companies always somehow manage to turn a profit.

UGAalum94
11-26-2008, 11:18 AM
Take it up with your state legislature. They could abolish dignity torts if they wanted to. And for the umpteenth time, just because a plaintiff asks for $1 million doesn't mean that they're going to get anything close to that. In fact, if this thing goes to trial and I'm the defense attorney, I'm going to ask the plaintiff to justify to the jury exactly how they came to the $3 million number. In fact, a good defense theme might be 'although the plaintiff arguably suffered a wrong, it does not mean she has hit a gold mine.' (or something to that effect). My point is that again, there doesn't have to be any basis whatsoever for requesting certain relief... it's just words on paper.



We do that with our cars. Just about every state requires you to carry insurance. I know some are starting to require folks to carry major medical. I don't think, however, for intentional torts, that those should necessarily be insurable. If you attempt to murder me, on purpose, I ought to be able to sue you for everything you're worth. It only seems fair that it should be you, the party who injured me that has the burden of making me whole rather than some general insurance pool. Would it be fair, since your sentence is 10 years that 3,650 people be chosen at random and have to each serve a day of your sentence?



As someone who handles personal injury cases (we don't actively seek them out, but I get saddled with the ones that come through the door), I have yet to see someone get rich in a personal injury settlement. In fact, more often than not, the injured party has to either take the insurance company's check (and take a hickey) or take his chances with a jury which might award him nothing... not to mention have to put up with the difficulty of a defendant who has no assets or exempt assets to go after with a judgment.

Personal injury law, quite honestly, is a huge pain in the ass for everyone involved. The insurance companies always somehow manage to turn a profit.

Weren't we talking third party- deep pockets cases? I don't think we're better off making the nearest deep pocket pay if they are only tenuously involved in the injury. It's not much better than your everybody serves a day example; it's we're basically going to make your company serve this because you happened to be around. I think rather than doing for somewhat associated but not particularly responsible deep pocket, we'd be better thinking of it a different way with people seeking relief from a fund they were obligated to contribute to.

I'm also not sure why you are so hung up on the amount they get in the current case and keep returning to it as if it matters. If the amount is small enough that the people who committed the actual injury to her dignity can pay, the people who posted the photos or texted her, great, but I still don't think McDonald's needs to pay anything be it $3 or $3 million.

They were no more responsible as a corporation for what happened than the guy who left his phone with the nude photos was. Why would they need to pick up his loss of dignity tab?

And I'm not sure why you think I'm completely opposed to dignity torts. I'm opposed to making people pay for stuff that, all things considered, isn't particularly their fault. If I harm your dignity, seek to recovery from me alone, not from an entity not particularly responsible for my behavior simply because they've got more money.

KSig RC
11-26-2008, 11:53 AM
And I'm not sure why you think I'm completely opposed to dignity torts. I'm opposed to making people pay for stuff that, all things considered, isn't particularly their fault. If I harm your dignity, seek to recovery from me alone, not from an entity not particularly responsible for my behavior simply because they've got more money.

Because this is, to be blunt, completely untenable as a system..

The dollar value of dignity could be anything from $0.75 to $750,000 depending on whether the loss of job possibilities, etc. are truthful and correct. The dollar value of a recovery possible from a manager at McDonald's could probably be anything from $3 to maybe $30,000 over the course of decades (and worth less at present-day value).

Simply put, the agent of direct harm likely can't produce a sufficient recovery. So what now? Do you just say "too bad"? The ramifications of that seem much worse than the small chance of an illegitimate recovery when liability is extended to the corporate entity.

UGAalum94
11-26-2008, 12:13 PM
Because this is, to be blunt, completely untenable as a system..

The dollar value of dignity could be anything from $0.75 to $750,000 depending on whether the loss of job possibilities, etc. are truthful and correct. The dollar value of a recovery possible from a manager at McDonald's could probably be anything from $3 to maybe $30,000 over the course of decades (and worth less at present-day value).

Simply put, the agent of direct harm likely can't produce a sufficient recovery. So what now? Do you just say "too bad"? The ramifications of that seem much worse than the small chance of an illegitimate recovery when liability is extended to the corporate entity.

Okay, so then we go to the sort of general fund idea where we're all self insured against dumbassery of our own or other people's making. (ETA: along with my dueling pistols suggestion earlier, could we consider a debtors' prison for people who make too little money for sufficient recovery but who are the actual agents of harm? I'm not really serious, but one of the really perplexing parts when you think about it, is how little responsibility the actual wrong-doers will have to take.)

Seriously, I don't know how it ought to work, but I'm apparently a whole lot less satisfied with the present system than the lawyers on this thread which probably reflects at least two things: if I had more direct experience, I might change my mind and if you are already making a living within the present system, you probably buy in more.

KSig RC
11-26-2008, 12:49 PM
Okay, so then we go to the sort of general fund idea where we're all self insured against dumbasery of our own or other people's making.

I know you're being somewhat tongue-in-cheek, but that's actually how the current system that you're railing against works - that cost is included in every burger (and Norelco razor, and monthly daycare payment, and...).

Seriously, I don't know how it ought to work, but I'm apparently a whole lot less satisfied with the present system than the lawyers on this thread which probably reflects at least two things: if I had more direct experience, I might change my mind and if you are already making a living within the present system, you probably buy in more.

I think you actually gave the 'correct' answer earlier: no one can really come up with a better system. If I heard one, I'd be down for it - but I've never heard one.

UGAalum94
11-26-2008, 01:27 PM
I know you're being somewhat tongue-in-cheek, but that's actually how the current system that you're railing against works - that cost is included in every burger (and Norelco razor, and monthly daycare payment, and...).



I think you actually gave the 'correct' answer earlier: no one can really come up with a better system. If I heard one, I'd be down for it - but I've never heard one.

I acknowledge that I can't back this up very well, but I still think it would be better for our perception of being responsible for ourselves not to have the pay out connected to some corporation say 5% responsible when the dumbass himself is say 20% responsible.

Sure, we can spread the corporate cost out to the rest of us through other means, but there's still a suggestion of actual responsibility by the company and therefore a suggestion that we aren't mainly responsible for ourselves. And I don't know if this comes out in the societal wash or not.

(Now, I don't really know how my general fund idea encourages individual responsibility better since it probably would require the government to act on our behalf.)

KSigkid
11-26-2008, 01:28 PM
I think you actually gave the 'correct' answer earlier: no one can really come up with a better system. If I heard one, I'd be down for it - but I've never heard one.

Exactly - there are a lot of smart lawyers, judges and law professors who have been trying to come up with a better system, but nothing has come up as of yet.

Also, as far as being "self-insured" against these risks, even putting aside the larger companies that are self-insured in one way or another, that's what property/liability/umbrella insurance is there to do. As long as you are within the insurance contract, the insurers are picking up part of the bill on this. Now, it might trickle down into higher insurance rates later on, but there is a mechanism there for at least partial protection. (I could go into more, but this is what I do for a living, and it would probably get too boring for most of the board).

I don't think it's quite correct to say that the law community is satisfied because they are "already making a living" in the current system. Honestly, lawyers will still find work in an alternate system, through counseling individuals and companies, putting together risk avoidance plans, etc. Plus, as I noted above, there are people in the profession who are looking for a "better" option.

Also, again, the perception of widespread outrageous court judgments isn't entirely correct. RC, Kevin, GP and others may be able to correct me if I'm wrong, but isn't in-court litigation at an all-time low (i.e. the "Vanishing Trial" theory)? It obviously doesn't account for all litigation (since it takes so long to get to court anyway, through discovery, depositions, etc.), but it shows that these types of cases are the exception, not the norm.

I acknowledge that I can't back this up very well, but I still think it would be better for our perception of being responsible for ourselves not to have the pay out connected to some corporation say 5% responsible when the dumbass himself is say 20% responsible.

Sure, we can spread the corporate cost out to the rest of us through other means, but there's still a suggestion of actual responsibility by the company and therefore a suggestion that we aren't mainly responsible for ourselves. And I don't know if this comes out in the societal wash or not.

(Now, I don't really know how my general fund idea encourages individual responsibility better since it probably would require the government to act on our behalf.)

As to your first point in the above post, a number of states have a mechanism in place for this in comparative negligence; in that way, either the plaintiff's recovery is reduced by his/her "fault" in the incident, or, in some states, if the plaintiff is found to be more than 50% liable by the judge or jury, the plaintiff will walk away with nothing.

UGAalum94
11-26-2008, 01:37 PM
Exactly - there are a lot of smart lawyers, judges and law professors who have been trying to come up with a better system, but nothing has come up as of yet.

Also, as far as being "self-insured" against these risks, even putting aside the larger companies that are self-insured in one way or another, that's what property/liability/umbrella insurance is there to do. As long as you are within the insurance contract, the insurers are picking up part of the bill on this. Now, it might trickle down into higher insurance rates later on, but there is a mechanism there for at least partial protection. (I could go into more, but this is what I do for a living, and it would probably get too boring for most of the board).

I don't think it's quite correct to say that the law community is satisfied because they are "already making a living" in the current system. Honestly, lawyers will still find work in an alternate system, through counseling individuals and companies, putting together risk avoidance plans, etc. Plus, as I noted above, there are people in the profession who are looking for a "better" option.

Also, again, the perception of widespread outrageous court judgments isn't entirely correct. RC, Kevin, GP and others may be able to correct me if I'm wrong, but isn't in-court litigation at an all-time low (i.e. the "Vanishing Trial" theory)? It obviously doesn't account for all litigation (since it takes so long to get to court anyway, through discovery, depositions, etc.), but it shows that these types of cases are the exception, not the norm.



As to your first point in the above post, a number of states have a mechanism in place for this in comparative negligence; in that way, either the plaintiff's recovery is reduced by his/her "fault" in the incident, or, in some states, if the plaintiff is found to be more than 50% liable by the judge or jury, the plaintiff will walk away with nothing.

Good to know.

DaemonSeid
11-26-2008, 01:39 PM
This whole thread just goes to show why cell phones are evil...


























*sending an incrininating pic to someone now.*

KSig RC
11-26-2008, 01:46 PM
I acknowledge that I can't back this up very well, but I still think it would be better for our perception of being responsible for ourselves not to have the pay out connected to some corporation say 5% responsible when the dumbass himself is say 20% responsible.


As per the latter part first, KSK did a good job discussing the comparative negligence consequences - I don't know if you live in a CF% state, and the rules vary state-to-state, but that deals with quite a bit of what you're looking at.

As per the first part, I don't know how to reconcile that with decades of evidence that the 'deterrent' effect of laws or potential punishment varies from quite low to nonexistent.

UGAalum94
11-26-2008, 01:53 PM
This whole thread just goes to show why cell phones are evil...

*sending an incrininating pic to someone now.*

Yeah, and it also makes me wonder if I'm unusually prudish in my lifelong photo taking habits.

Maybe digital photography has created a pretty big divide in terms of people's photo taking sensibilities. If you're old enough to have had your memories shaped by having strangers develop your photos, you're also probably old enough that the idea of taking nude digital images of yourself is pretty horrific in its own right.

I just don't get how casually carrying around naked photos of your wife and leaving them at McDonalds is something that someone with much dignity would do.

UGAalum94
11-26-2008, 01:56 PM
As per the latter part first, KSK did a good job discussing the comparative negligence consequences - I don't know if you live in a CF% state, and the rules vary state-to-state, but that deals with quite a bit of what you're looking at.

As per the first part, I don't know how to reconcile that with decades of evidence that the 'deterrent' effect of laws or potential punishment varies from quite low to nonexistent.

Yeah, and if a lot of the problem is actually with media shaped misunderstanding of actual legal trends, it's hard to argue that changing the actual law will correct it.

I will say I still don't like it, and we all know how valuable that it.

KSigkid
11-26-2008, 02:07 PM
Yeah, and if a lot of the problem is actually with media shaped misunderstanding of actual legal trends, it's hard to argue that changing the actual law will correct it.

Honestly, putting aside the media thing, I just don't think many people want to understand the legal process at that specific level unless they've been involved in a lawsuit or are a member of a law-related field. There's just not a lot of reason why someone (outside of those in law-related employment and those involved in lawsuits) would want to know that much information.

It's the same thing, in my mind, as knowing about the legislative process. It's not a bad thing to know, but at the same time the public is very much results-oriented and doesn't care about or wants to ignore the process.

That's obviously painting things with broad brush strokes, so take it as you will...

UGAalum94
11-26-2008, 02:16 PM
Honestly, putting aside the media thing, I just don't think many people want to understand the legal process at that specific level unless they've been involved in a lawsuit or are a member of a law-related field. There's just not a lot of reason why someone (outside of those in law-related employment and those involved in lawsuits) would want to know that much information.

It's the same thing, in my mind, as knowing about the legislative process. It's not a bad thing to know, but at the same time the public is very much results-oriented and doesn't care about or wants to ignore the process.

That's obviously painting things with broad brush strokes, so take it as you will...

I preface this by saying, I'm not anti-lawyer by any stretch of the imagination, but some of what makes it hard to follow is the efforts of lawyers and legal language. We need an entire devoted, specified, occupational class of folks to deal with it, and I'm not sure that's a pure coincidence.

KSigkid
11-26-2008, 02:25 PM
I preface this by saying, I'm not anti-lawyer by any stretch of the imagination, but some of what makes it hard to follow is the efforts of lawyers and legal language. We need an entire devoted, specified, occupational class of folks to deal with it, and I'm not sure that's a pure coincidence.

I see where you're going, and I don't agree, but I don't want to hijack the thread. I will say, though, that not every legislator (i.e. the people who actually make the laws) is a lawyer, so we have to be careful how far we stretch this idea of it not being a "pure coincidence."

If you want to discuss it further feel free to PM me, as I don't want to take away from the central point of the thread.

UGAalum94
11-26-2008, 02:32 PM
I see where you're going, and I don't agree, but I don't want to hijack the thread. I will say, though, that not every legislator (i.e. the people who actually make the laws) is a lawyer, so we have to be careful how far we stretch this idea of it not being a "pure coincidence."

If you want to discuss it further feel free to PM me, as I don't want to take away from the central point of the thread.

I wasn't going to stretch it beyond that. I don't think we have a legal system designed for understanding by non-lawyers. I'm not trying to suggest nefarious intent on the part of lawyers, but I think there's some cause and effect rather than pure coincidence. As legal fields and legal study get more specialized, I think the law gets further and further away from the experience of non-lawyers. That's all.

CrackerBarrel
11-26-2008, 10:43 PM
As to your first point in the above post, a number of states have a mechanism in place for this in comparative negligence; in that way, either the plaintiff's recovery is reduced by his/her "fault" in the incident, or, in some states, if the plaintiff is found to be more than 50% liable by the judge or jury, the plaintiff will walk away with nothing.

I was under the impression that comparative/contributory negligence is only available as a defense to negligence torts (which defamation/libel/intentional infliction of emotional distress are not) so in this case would only be available as a defense if they were asserting a claim of negligence against McDonalds.