[QUOTE=KGS]
This is what you get when a verdict relies on a jury composed of Kentucky rednecks & hillbillies who married their cousins.
[/QUOTE]
Emphasis added.
Can you provide any evidence that that is the case, or is your comment simply rooted in ignorant bigotry?
[QUOTE=Contrapuntal]
Emphasis added.
Can you provide any evidence that that is the case, or is your comment simply rooted in ignorant bigotry?
[/QUOTE]
I think we already know the answer to that. So far with most of the arguments against the settlement, I feel embarrassed to be on that side.
[QUOTE=Una Persson]
And yet, I still insist that for this hoax to work, it depends upon a failure in the stewardship that human beings are supposed to show each other. It depended upon a person being so incredibly stupid that they would willingly commit or assist in committing a sexual crime on a young girl on incredibly flimsy urging. It reminds me of that psychology experiment, I forget the name, where people could be urged into shocking the hell out of other unknown people simply by an authority figure telling them to do so.
[/QUOTE]
It’s called the Milgram experiment. Apparently, appox. 60% of people are willing to deliver a fatal shock to another person.
[QUOTE=Una Persson]
Would anyone here have done exactly what the manager did? Explain why you would have done that.
[/QUOTE]
I think the point is that you never know what you are capable of. The issue, I think, its that once you accept someone as an authority, you are willing to compromise your own morals based on their instructions. However, I think most are not stupid enough to accept the initial premise: that a cop calls asking you to do the things the caller asked them to do. I say this for a number of reasons:
OK first, How would an employee have the opportunity to steal a purse from a customer without arousing suspicion? Where was the purse? How would strip searching her help? How does any rational person not wonder about these things? Especially since the manager presumably knew the girl fairly well. It’s one thing to shock a stranger, but entirely different to abuse someone you know.
[QUOTE=Una Persson]
They gave the criminal scumbag more than a million dollars.
Imagine it. Through your own stupidity, you assist willingly in the sexual assault of a terrified girl. The result? Jackpot! Is this fiction, or reality?
I don’t know how anyone can be proud of that trial outcome. It almost makes me feel dirty just reading about it.
[/QUOTE]
Unbelievable. Maybe the jury got a call on the phone that told them they had to give the scumbag a million dollars because McDonald’s was secretly an illegal drug operation and had to be punished.
Does anyone know any detail on the trial of the guy who made the call, and how he was found not guilty? Per Wikipedia, they traced him by *69 and the phone card used, and have him on video at Wal-Mart making the call 
Ok, let’s try looking at this from the perspective of the LAW, not our emotional reactions. With respect, Una Persson, I think you know better; while I think many naive (meaning unlearned in the law) people would agree with your reaction, I think you should have enough familiarity with tort law concepts to know that your statements have no bearing on the legal liabilities here.
This tort case sounds in negligence (fancy lawyer speak meaning it’s a negligence case). To be liable under negligence law in the United States, there have to be four things:
A duty owed by the defendant to the plaintiff
A breach of that duty by the defendant
The breach proximately causes
Legally cognizable damages to the plaintiff.
Did McDonald’s owe a duty to the employee?
Without getting into really technical details, the duty owed by one person to another is that behavior which a reasonably prudent person in the same situation would engage in. We don’t expect people to be perfect, but we do expect people to take reasonable care so that their actions don’t result in injury to others.
Now, if all we knew was that the assistant manager got the call, ostensibly from a police officer, and hauled the employee in and forced her to strip, etc., we might well ask what in the world duty McDonald’s as a corporation owed to the employee which we would consider breached. As treis put it, should McDonald’s really have to consider all sorts of possible outlandish situations in selecting and training management? Is it really negligent as a corporation every time it hires a manager who ends up acting quite foolish or stupid? [NB: this IS a company owned restaurant]
But that set of facts isn’t what we have here. Here, McDonald’s was in possession of knowledge, knowledge specific to this type of incident. By the time of this incident, 68 stores had reported this hoax. 17 of them had occurred in McDonald’s stores. And McDonald’s was already defending four lawsuits stemming from such hoaxes. So McDonald’s knew that these hoaxes were occurring, knew that they resulted in behavior that was otherwise quite unthinkable, knew that they had already occurred in the general area of this restaurant. Under the circumstances, the question becomes, does a reasonable corporate person, knowing what McDonald’s knew, owe a duty to its managers and employees to warn them about such hoaxes? I think we would have to agree that a reasonable corporate person would be expected to warn its management staff, especially in its company owned stores. Really good corporate citizens might even consider warning the foot soldiers, too.
Now, does that “duty” on the part of McDonald’s extend to the employee here? Even if we limit the duty to a requirement that McDonald’s warn its managers, the person to whom the duty would be owed are the employees, because its the employees who end up being the victims of the hoax (I’m not going to address the question of liability to the assistant manager, because that’s a red herring and can be discussed in a separate thread). So, McDonald’s owes a duty to its employees to try and prevent these hoaxes from happening, which it can meet by simply making sure its managers know that such calls have been occurring, and are hoaxes.
Did McDonald’s breach its duty to the employee?
Company executives testified that they had sent out memos to owners and operators about the hoaxes. However, one such memo in 2003 noted that, “It appears the information is not reaching our restaurant staff.” (quoting global security director). The manager, assistant manager involved, assistant manager also on duty at the time, and the AREA manager (multiple stores) all testified they had never heard about the hoaxes. So clearly, evidence shows that McDonald’s was not being successful in getting the information out. And, as pithily noted by the plaintiff’s attorney during closing arguments, “they get the word out when there is a McRib special.” In other words, when it wants to McDonald’s is able to notify everyone down to counter personnel of something the company considers important enough.
Did the breach of duty proximately cause
First question: did the breach cause the plaintiff’s damages? Here is where many of you are getting hung up. For there to be cause, it is not necessary that the breach be the ONLY cause. As long as the breach is a part of the causation, cause exists. So the fact that the stupidity of the assistant manager (and, potentially, of the plaintiff) also caused the situation is irrelevant. We must agree that the duty to warn exists precisely so that, if such a call were received, the assistant manager (and, presumably, the plaintiff) would know to ignore it (or, better, to report it). So, by breaching the duty to warn, the assistant manager was left unprotected against what was known to be a potential for being duped into precisely the sort of thing she did (and lets not be too harsh on her; it happened to 68 other people as well!).
But, for negligence, it can’t just be a cause. It has to be what we call the “proximate” cause. I wish I could give you a simple definition of that term, but frankly, no one knows exactly what it means, legal scholars argue about it all the time, courts reach quite interesting results because of it (can anyone say Palsgraf??). It is supposed to mean the cause closest in relationship with the event in question (that’s why “proximate” is used. But it has evolved to mean that cause which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the [event] could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act." (quoting Black’s Law Dictionary, 5th ed.) That’s quite a mouthful. It means, in essence, the cause for which we are willing in tort law to find you liable (we don’t think anything that intervened takes you off the hook for your breach).
Did that happen here? We know that there was some astoundingly difficult to understand behavior by the assistant manager (not to mention the boyfriend!!). Shouldn’t that be considered a legally intervening, or superceding cause? If the only duty from McDonald’s was a general duty of care to its employees, probably so, yes. But the duty here was the duty to warn against this specific hoax. Had that duty not been breached, the assistant manager would not have taken the plaintiff into the room, and done what she did. The foreseeable consequence of failing to warn is precisely what happened: the imposition of criminal sexual acts upon an employee by management under the color of authority of the local police. In short, the breach proximately caused the whole thing. The “stupid” acts of the assistant manager can’t be considered sufficient to break the causation chain because they are precisely the acts the breach itself would be expected to produce.
Now, however, we get to the boyfriend. This part of the case is where I suspect some attention would be given on appeal. While the failure to warn certainly can be expected to lead to the actions of the assistant manager (they are part of the prior pattern), can we consider the calling in of the boyfriend, and the cooperation in getting the plaintiff to engage in fellatio a foreseeable consequence of the breach? The trouble is, once you set in motion a chain of events through your negligence, unless you can point to an intervening cause sufficient to act as a termination of your own causation, you will be responsible for the damages, even if it seems a bit like a Rube Goldberg machine was in action. Compare, for example, a multi-car crash resulting from one person running a red light; there may be events in the chain quite amazing in result, all of which were proximately caused by your simple running of the light. In short, while I think an argument can be made that the boyfriend’s behavior could be considered outside the scope of the damages for which the company is liable, it is not even close to open and shut.
Legally cognizable damages
Not really at issue here. Clearly there were damages; “She began suffering from panic attacks, severe insomnia and nightmares about “a guy attacking” her, according to a court deposition from her therapist, Jean Campbell. Riddled with anxiety and depression, Ogborn was forced to switch from one antidepressant to a second, then a third and a fourth, before she finally found some relief.” (from the article linked by brickbacon) In addition, it appears that some aspect of Kentucky law allowed the plaintiff to include a claim for punitive damages, which appear to make up the majority of the liability found to exist ($5M, if I understand the breakdown).
I will also point something out: generally, punitive damage awards aren’t available as an option unless the behavior of the defendant isn’t merely “negligent.” Somewhere along the line, there has to be something about the defendant’s actions that the law considers really bad, sufficient not only to require compensating the plaintiff but also punishing the company. I don’t know exactly why there was a potential for punitive damages here; I’ve not read what the legal basis for the punitive damage claim was. But it underscores that this was not a marginal case, with merely negligent behavior at its crux.
Finally, please note that McDonalds also did some less than intelligent things here. First, they appear to have lied about the matter, asserting that the plaintiff was on the clock at the time of the incident, when, in fact, the records showed she was not on the clock (if she had been, it would have been a workers’ compensation case, with no civil tort liability). Second, they may have withheld evidence about the other cases about which they knew (the plaintiff’s attorney makes reference in closing arguments to McDonald’s “concealing 16 boxes of documents showing that exactly the same thing that happened to Summers befell managers at its other restaurants.” And thirdly, the jury at least decided that the company attempted to falsely attribute certain false statements to a maintenance man at the store, who, in actual fact, appears to have been one of the few who wasn’t willing to go along with what the “police” were asking be done during the hoax. Jury in McDonald’s hoax strip-search case argued over award total for Louise Ogborn (Courier-Journal, 10/6/07)
I’m not saying the result of the case is something everyone, even in the legal community could agree on. I AM saying that American tort law (largely based on the common law we inherited from England, so not drastically different from English law around the world) provides a substantial basis for this result. In short, it is not some “travesty,” but rather a predictable result under the law.
Good Job, counsellor.
More proof that law & order rule!
Fellatio ensues, once again.
Just kidding, DSYoungEsq, that was awesome.
[QUOTE=DSYoungEsq]
But that set of facts isn’t what we have here. Here, McDonald’s was in possession of knowledge, knowledge specific to this type of incident. By the time of this incident, 68 stores had reported this hoax. 17 of them had occurred in McDonald’s stores. And McDonald’s was already defending four lawsuits stemming from such hoaxes. So McDonald’s knew that these hoaxes were occurring, knew that they resulted in behavior that was otherwise quite unthinkable, knew that they had already occurred in the general area of this restaurant. Under the circumstances, the question becomes, does a reasonable corporate person, knowing what McDonald’s knew, owe a duty to its managers and employees to warn them about such hoaxes? I think we would have to agree that a reasonable corporate person would be expected to warn its management staff, especially in its company owned stores. Really good corporate citizens might even consider warning the foot soldiers, too.
[/QUOTE]
If we looked at a 10 year history of all incidents at McDonald’s we would see numerous sorts of flat out stupid actions by managers and employees. That doesn’t mean McDonald’s has a responsibility to warn each and every employee of each and every stupid act that an employee has committed. It is reasonable for McDonald’s to expect that their manager’s would act with an ounce of common sense.
In addition to that, McDonald’s has numerous policies that were violated in this incident. Managers aren’t allowed to detain employees. They certainly aren’t allowed see their employees naked. They aren’t allowed to let non-employees behind the counter. They are supposed to call HR and the police on accusations of theft. I’m sure that if I had the McDonald’s manager’s handbook I could find a dozen more policies violated by the manager.
What you in essence are requiring McDonald’s to do is compile a handbook of stupid and distribute it to all of their employees. Otherwise they are some how negligent. It’s no longer acceptable for companies to write out detailed policies and rely on their employees common sense. They must detail every single course of action that might result in employee harm and ensure that every employee knows about every single one of those incidents. That’s completely unreasonable, and ridiculous on it’s face.
After typing all of that out I find that the manager in question was told what to do in this type of situation:
http://www.pioneernews.net/articles/2007/10/04/breaking_news/breaking02.txt
[QUOTE=DSYoungEsq]
Ok, let’s try looking at this from the perspective of the LAW, not our emotional reactions. With respect, Una Persson, I think you know better; while I think many naive (meaning unlearned in the law) people would agree with your reaction, I think you should have enough familiarity with tort law concepts to know that your statements have no bearing on the legal liabilities here.
[/QUOTE]
I didn’t once claim to speak as to what constituted liability under tort. So you can take your thinly-veiled personal attack elsewhere.
If this was GQ and the topic was factually how could McDonald’s be liable, then I would never have posted a single word. But this was GD, where opinion on principle has validity, even though it may be in conflict with practice and fact. You might note this in the numerous threads in this forum which have been posted to over the past 8 years…for example, there is no factual answer to such questions as “Is Iran going to attack us” or “Should there be a stigma on masturbation.”
So presenting your factual discussion is fantastically good and useful. Except, I guess, when you taint it by leading off with a snipe at me. But hey, for most folks reading this forum, that’s probably just an unexpected bonus, so no worries there!
Let’s focus for a minute on what treis posted after this. Let me quote the relevant portion:
IF it was true that the manager had been instructed to do pre-work which included a specific policy on what to do about non-employees behind the store counter, theft, and strip searches, then the whole rest of what you wrote seems sort of like a waste of time.
Why the deafening silence on what treis posted? Not even from the cheering section? That surely must be because the link is inaccurate, or fake, or the testimony is being dismissed out of hand by you all because you obviously have better access to the facts of the case. I am free and open to any of the above before I rush to judgment - so which is it? Educate us all.
However, if you’re going to tell me that even IF the testimony is completely true, and the manager DID receive training or have access to training materials which specifically covered strip searches, AND McDonald’s is still just as liable, then I’m not going to argue tort with you (which I never did in the first place). In fact, if you’re going to present fact that even if every word of the testimony is true regarding training and McDonald’s still, somehow, must pay not only the victim of the manager but the convicted criminal scumbag manager as well, then…I will have nothing more to say to you other than, to paraphrase an old expression, the law is an giant lobotomized braying jackass.
And that’s not stating any factual opinion on tort, before you wag your virtual finger at me again…
It’s being discussed in this thread right here since the first page. It’s only a red herring in your opinion; in my opinion it’s an indefensible travesty of justice. I’m not surprised you won’t address it. It would be like me trying to explain how a safety factor of 1.00001 might be legal but nonetheless absolutely embarrassingly butt-fuckingly stupid.
Una Persson: I applaud your post. What is tort is not what is right, in this case it seems obvious that the law has nothing to do with justice or what is right.
I will join you in being laugh at for our naive belief that the law is not always right and often painfully stupid and unjust.
Jim
Yes, but you conveniently left out:
From the same link. It’s always convenient in discussing trial outcomes to leave out the evidence that doesn’t support your position. 
Even so, let’s look at what you did include:
What McDonald’s did was provide its management trainees with a manual, which includes 45 pages on security issues alone. And the only testimony we have on this is that the attendees to the training session were to do some “pre-work” prior to attending, presumably including reading all 45 pages of this manual.
If that is the sum total of the training provided to assistant managers in this area, is it any wonder that NEITHER assistant manager on duty considered what was going on something they should handle differently? Shift managers for McDonald’s aren’t always the brightest bulbs in the packet (which is what you should expect when you pay what McDonald’s does for the position). Asking them to read and digest, then remember 45 pages of detailed instructions on what to do when certain security issues crop up is not exactly the prudent way to proceed, is it? And the trainer himself says he wishes he’d been told about it, presumably so that he could have emphasized the issue in training.
Going then to your main complaint, are you asserting that you don’t think McDonald’s had a duty to warn? If you are stating, “I don’t think McDonald’s should be held to have such a duty, and here is my reasoning,” I’m not going to argue with you. I’ve said it isn’t open and shut either way. But if you are saying, “I don’t think anyone could possibly hold McDonald’s to have a duty to warn, and here is my reasoning,” I’m going to take issue with your statement. This isn’t a case of any old stupid thing happening. This is the case of a specific type of stupid thing happening repeatedly, with serious consequences. And as noted, there were already four lawsuits on file for similar incidents. Trust someone who has been paid counsel for a national company that you don’t just ignore such things, you make damn good and certain that the word gets out when your company has liability issues like that! :eek:
Which brings up the point that McDonald’s a corporate attorney testified that they HAD tried to get word out. There is testimony that an undated memo was sent out by corporate, but no evidence it reached the local level. There was also testimony that stores were sent voice mail, but that the warning was vaguely worded. In short, McDonald’s has already established by its own actions it felt it had a duty to warn; it just didn’t follow through to make sure that its local managers and employees knew about it.
You state
Well, perhpas so, but evidence shows that they cannot expect that, at least in these types of cases. Certainly it is not unreasonable to hold that McDonald’s had a duty to do more than they did about this type of situation.
[QUOTE=DSYoungEsq]
You stateWell, perhpas so, but evidence shows that they cannot expect that, at least in these types of cases. Certainly it is not unreasonable to hold that McDonald’s had a duty to do more than they did about this type of situation.
[/QUOTE]
Bullshit, why oh why does McDonald’s have to be responsible for every asst. manager in their giant corporation is not dumb enough to strip search and rape a poor frightened teen?
Are you so caught up in the law, that you are that far removed from common sense?
Jim
[QUOTE=Una Persson]
The facts of the case have been out and about in the public for years. While the transcript of the trial is not public (yet), it’s pretty fucking clear what happened.
It was a bad verdict, and she shouldn’t get a dime from McDonalds. She should however be able to sue those people…who are they called…oh yeah, the actual perpetrators into the Stone Age.
[/QUOTE]
THIS was your first foray into the situation under discussion. THAT is a statement that the VERDICT was bad, not that this is a case where the result, while possibly legal, shouldn’t occur.
I never insulted you. I simply stated that you were addressing the wrong issues in your attack on the verdict. If you wish to assert that the law shouldn’t allow for this type of result, by all means, please go ahead! (Note I haven’t said whether or not I disagree with that position; for all you know I may well totally agree!).
But if you are going to assert that this is a “bad verdict,” then you need to address it within the context of the law in place.
[QUOTE=Una Persson]
IF it was true that the manager had been instructed to do pre-work which included a specific policy on what to do about non-employees behind the store counter, theft, and strip searches, then the whole rest of what you wrote seems sort of like a waste of time.
Why the deafening silence on what treis posted?
[/QUOTE]
Note my post on exactly that issue, please. You might do better in these discussions if you don’t get all emotionally involved and full of fulmination. Just a suggestion…
[QUOTE=What Exit?]
Bullshit, why oh why does McDonald’s have to be responsible for every asst. manager in their giant corporation is not dumb enough to strip search and rape a poor frightened teen?
Are you so caught up in the law, that you are that far removed from common sense?
Jim
[/QUOTE]
Please note that McDonald’s itself has already, by its actions, indicated it had a duty to warn about these cases. That is the duty they breached.
If you insist upon hiring people who are going to act in ways you don’t want them to (as evidenced by the past results), why would you be surprised when they proceed to do it again, in such a way as to totally screw up? I’m not saying what the assistant managers did is smart (though I will point out that, as referenced before, what people do when they think they are under the instruction of police authority is pretty bizaare). But McDonald’s knew that the likelihood was high for this result; they just didn’t deal with it adequately. Thus, the result of the case isn’t unreasonable, even if you and I might find a different result from looking at the same mountain of facts (which, by the way, I advise you to look at before offering opinions on the case; or at least as much of it as we can see, since we weren’t in the trial courtroom, didn’t see the witnesses, didn’t listen to their intonations, etc., so can’t really reach truly valid conclusions on a number of the “facts” in dispute). <shrug>
[QUOTE=DSYoungEsq]
Please note that McDonald’s itself has already, by its actions, indicated it had a duty to warn about these cases. That is the duty they breached.
If you insist upon hiring people who are going to act in ways you don’t want them to (as evidenced by the past results), why would you be surprised when they proceed to do it again, in such a way as to totally screw up? I’m not saying what the assistant managers did is smart (though I will point out that, as referenced before, what people do when they think they are under the instruction of police authority is pretty bizaare). But McDonald’s knew that the likelihood was high for this result; they just didn’t deal with it adequately. Thus, the result of the case isn’t unreasonable, even if you and I might find a different result from looking at the same mountain of facts (which, by the way, I advise you to look at before offering opinions on the case; or at least as much of it as we can see, since we weren’t in the trial courtroom, didn’t see the witnesses, didn’t listen to their intonations, etc., so can’t really reach truly valid conclusions on a number of the “facts” in dispute). <shrug>
[/QUOTE]
You know what, I am going to bow out. This discussion leaves me too angry. If I did anything wrong mods, please let me know by Email, I am unsubscribing from this thread.
Jim
[QUOTE=What Exit?]
Bullshit, why oh why does McDonald’s have to be responsible for every asst. manager in their giant corporation is not dumb enough to strip search and rape a poor frightened teen?
Are you so caught up in the law, that you are that far removed from common sense?
Jim
[/QUOTE]
It sounds to me like you’re suggesting that even though it had already happened dozens of times and double digits at McDs and they clearly knew it was a real possibility they still have no obligation to warn other managers and employees simply because it’s so incredibly stupid.
That makes no sense to me at all. If several of my employees stuck a fork in a light socket I’d be astounded by their stupidity but I’d still feel obligated to do something from preventing it from happening again.
It seems obviously negligent to me to not take proper precautions just because the act , that has happened several times, is really stupid.
[QUOTE=DSYoungEsq]
THIS was your first foray into the situation under discussion. THAT is a statement that the VERDICT was bad, not that this is a case where the result, while possibly legal, shouldn’t occur.
[/QUOTE]
IMO a statement that a VERDICT is bad is equivalent to saying that the result of a trial (meaning, in this case, the VERDICT), should not occur. In general, in my ethics, bad things are things which should not occur. Forgive me if I don’t have a law degree and this is some very fine point of legal semantics that I’ve fallen victim of. For anyone outside of a law class I reckon that saying a Verdict is bad == the Verdict should not occur. And at no point did I even imply that the Verdict was illegal.
Translation: “I didn’t insult you, you’re just hysterical.” :rolleyes:
Now that’s just plain rude, and disappointing.
I stated before the difference between GQ and GD, and why I feel my posts, even if they are not considered by some to be textbook in-line under tort law, or in-line at all, are nonetheless a valid point of opinion based on an opinion of Right and Wrong. At no point did I attempt or imply I was presenting a legal opinion factually.
The victim deserved compassion, justice, and compensation - but not from McDonald’s. IMMFO.
I’ve stated all I can and will on this subject. It is scientifically impossible for me to explain my position better. I’m going to bow out with What Exit, not because I’m “emotional” but because it’s clear there will be no meeting of the minds.
I just read this thread right after reading the “15 year old girl gets pepper sprayed” thread and its funny seeing the contrast between that threads “you should always do whatever a cop says even if they are wrong or being assholes” vs this threads “the girl is a retard for following orders”.