Sep 052009
 September 5, 2009  Posted by  Court, Featured News, Online, Workplace

The Associated Press reports that 3rd District Court of Appeals has overturned a decision awarding 10 women $1.4 million for severe emotional distress after their Polaris Industries employee pictures were copied by an employee of Securitas Security Services (the security company providing security services to their employer) and then posted to porno sites on the Web after the employee ejaculated on the pictures. According to court documents, the employee, Troy C. Schmidt had access to their photos and:

At some point, Schmidt copied the photographs of approximately thirty female employees to a flash drive. He printed the photographs at home, ejaculated on them, and posted pictures of the adulterated photos on adult websites he created on Yahoo!. Polaris investigated after being alerted to the problem, and identified Schmidt as the likely party. Schmidt admitted to everything in a statement and contacted all web sites to have the material removed. The matter was also referred to the local police by the affected employees, but the district attorney determined that there was no prosecutable crime.


Two different sets of plaintiffs filed civil actions. After Polaris was dismissed from the one action in which it was named, the two cases were consolidated. Following a bench trial, the court found Schmidt liable for defamation and invasion of privacy and Securitas liable for negligent training and supervision. The court awarded the ten plaintiffs a total of $1,400,000 in damages for severe emotional distress, in varying amounts of $50,000, $75,000 and $333,333. The significantly larger amounts for three plaintiffs were awarded, in part, on the basis of a hostile work environment at Polaris following the Schmidt incident.

Securitas appealed, and on appeal, the court held (pdf) that Securitas could not be held liable because Schmidt’s actions were not reasonably foreseeable and Securitas could not be held liable for what happened on property owned and monitored by Polaris:

We conclude Securitas was, as a matter of law, not negligent under the circumstances of this case. Securitas provided Schmidt with training concerning both sexual harassment and employee theft. The guard shack computer was owned, maintained, and monitored by Polaris. […] It was not reasonably foreseeable that Securitas’s conduct would probably result in harm to some person or some thing. There is nothing inherently dangerous about permitting employees to access the internet at work. Further, there is no evidence, nor did the trial court explicitly find, that Schmidt ever used the work computer to transmit images, adulterated or otherwise.

The court also reversed the awarding of damages to the women, holding that:

… public policy concerns would also preclude liability. First, the plaintiffs’ injuries here were too remote from the alleged negligence. It would be an understatement to say Schmidt’s actions were bizarre and unexpected. Schmidt’s actions were unimaginable. Further, while he obtained access to the plaintiffs’ images through his employment, similar images could be obtained elsewhere. The images were not of persons who were unclothed or engaged in private conduct. Additionally, any harm caused by Securitas’s failure to follow up with Yahoo! or the police, or the police or district attorney’s office’s failure to further investigate or prosecute, is far too attenuated from any breach of a duty of employee supervision.

We also conclude that allowing recovery would have no sensible or just stopping point for essentially the same reasons set forth in Sigler. Securitas trained Schmidt concerning sexual harassment and employee theft and ensured internet use was monitored and filtered. Schmidt testified he knew he was expected to adhere to the computer usage policies of Securitas’s clients and was aware of Polaris’s policy. Further, contrary to the trial court’s conclusion, employers have no duty to supervise employees’ private conduct or to persistently scan the world wide web to ferret out potential employee misconduct. Were we to allow the plaintiffs’ claims here to proceed, “this expansion of liability would be limitless and turn employers into guarantors or insurers.”

The court’s reasoning in directing dismissal of the claims against Securitas makes some sense if Securitas had performed background checks before hiring Schmidt, because even though the misappropriation of the photos occurred “on the job,” the security shack was owned and monitored by Polaris, not Securitas, and as the court commented, who would reasonably have anticipated this type of misuse of employee photos?

So Polaris was not liable, Securitas was not liable, and the only one with liability was the employee.

In the Lori Drew case, some of us blogged about how not all despicable behavior is criminal. This seems to be another one of those cases.

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