MALICIOUS PROSECUTION RULING: "WELCOME TO THE 21ST CENTURY"

The Illinois Appellate Court just made malicious prosecution cases more difficult with its ruling in Reynolds v. Menard (First District, 2006). The plaintiffs, an elderly couple, were arrested at a Menard's store. They had purchased a number of items which they subsequently returned. When they did so it appears they were given a store credit in excess of their purchases. When they subsequently returned yet again to attempt additional purchases, they were detained and arrested for retail theft. The decision to do so was based in part on "red flags" that popped up in the Menard computer system when the history of the purchases was examined. The plaintiffs refused to plea on the criminal charges, went to trial, and were found Not Guilty. They then sued Menard for Malicious Prosecution. A jury found for Menard and further indicated, via Special Interrogatory, that Menard did not act with malice or without probable cause. The trial court then entered judgment notwithstanding the verdict, and after a hearing on damages, a different jury awarded plaintiffs $76,000. Menard appealed, arguing in part, that that the trial court erred in entering judgment notwithstanding the verdict, as sufficient evidence existed to support the original verdict on behalf of Menard.

The Appellate Court first spelled out the elements of a cause of action for malicious prosecution: 1) the commencement or continuation of an original criminal or civil action by the defendant; 2) the termination of that proceeding in favor of the plaintiff; 3) the absence of probable cause for that proceeding; 4) malice on the part of defendant and 5) damages suffered by plaintiff. The Appellate Court also defined "probable cause" as "...a state of facts that would lead a person of ordinary caution and prudence to believe, or to entertain a suspicion, that the person arrested committed the offense charged." The state of mind of the person commencing the prosecution, rather than the facts, or the guilt/innocence of the accused is at issue. After getting the fundamentals out of the way, the Appellate Court got down to the nitty gritty - that reliance on computer records for probable cause is permissible. "Welcome to the 21st Century. We find that probable cause to believe a person is guilty in the context of a malicious prosecution or false imprisonment actions may be based on information from sources other than personal knowledge, including information from other persons as well as from records kept on store computers. The Court held that there was sufficient evidence from which the jury could have found for the defendant. The judgment of the trial court was reversed and the trial court was directed to enter judgment on the jury verdict finding defendant did not act with malice.

POLICE MISCONDUCT RESULTS IN $6.74 MILLION DOLLAR VERDICT

As reported by Fran Spielman in the April 18, 2006 Chicago Sun Times, a Cook County jury recently rendered a verdict of $6.74 million dollars against the City of Chicago Police Department for the wrongful imprisonment of three men for a 1997 murder they did not commit. The civil trial grew out of the 1997 murder of Sindulfo Miranda, the owner of a furniture store in the City. Miranda was kidnapped and killed by members of the Latin Kings street gang who mistakenly believed he was a drug dealer. Omar Aguirre, Edgar Duarte Santos and Robert Gavol were picked up for the crime. Two of the plaintiffs had proof they were working at the time of the crime, which was ignored, according to their attorney, former Corporation Counsel James Montgomery. In addition, although neither Aguirre or Santos spoke much English, but both allegedly provided confessions in English. The three men ultimately spent five years in prison, until 2002, when federal prosecutors received information about the actual killers, who were indicted and convicted. The City dropped charges against Aguirre, Santos and Gavol in 2002 and the sentences were vacated.

Montgomery argued that the confessions were coerced, as were supposedly corroborative witness statements. The jury apparently agreed and found the City had acted with malice and had no probable cause for the charges. Montgomery offered evidence that one of the plaintiffs lost his family, who "gave up on him" during the incarceration. Another one of the plaintiffs became estranged from his wife and a sick child during the 5 years in prison. The jury awarded $3 million each to Aguirre and Santos, and $740,000 to Gayol.

Jennifer Hoyle, a spokesman for the City of Chicago, said attorneys for the City would be filing post-trial motions and would review their options if those motions failed.

INSURANCE COMPANIES BEING PROBED ON KATRINA CLAIMS

The Chicago Tribune recently reported that Mississippi Attorney General Jim Hood has convened a grand jury to investigate whether State Farm improperly denied Hurricane Katrina claims. Hood is looking into whether State Farm tried to pressure the engineering consultants they used to alter reports about how homes were damaged or destroyed by the storm. Hood's actions come after a number of State Farm claimants had filed civil lawsuits against the insurer claiming that State Farm tried to hide that wind had been the primary cause of their losses, and pointed to flooding instead. [The claimants' policies apparently did not cover flooding-related damages]. Hood recently subpoenaed records from State Farm and a Mississippi judge allowed the insurer until May 26, 2006 to provide the documents.

And Hood is taking a look at Allstate as well. In September, 2005 he filed a civil suit againt the "Good Hands" company fighting Allstate's attempt to contest certain hurricane claims by citing certain exclusions in the relevant policies. Hood took position in that case that the language relied upon by Allstate was too vague.

MERCK TAKES A BIG HIT IN VIOXX TRIAL

On April 6, 2006, a New Jersey jury held Merck & Company responsible for the heart attack and subsequent health problems suffered by Vioxx user John McDarby. McDarby had been a Vioxx user for years, and then suffered a heart attack in his home, as well as a broken hip. McDarby alleged the the heart attack and broken hip started an irreversible decline in his health, ultimately leaving him in a wheelchair, unable to care for himself.

McDarby and his lawyers alleged that Merck, losing market share because of the advent of Celebrex, rushed Vioxx to the market, even though Merck knew the drug caused cardiovascular difficulties. And Vioxx made a lot of money for Merck - $2.5 billion in 2003 alone. But Merck had to pull it from the market in 2004 after clinical studies showed long-term users to be at increased risk for heart attacks and strokes.

The jury awarded McDarby $4.5 million in compensatory damages, finding that the company failed to adequately warn McDarby about the risk factors. In additon, the jury also awarded McDarby $9 million in punitive damages. This is the second Vioxx loss Merck has suffered at the state level. The company has also prevailed in two cases. There are nearly 10,000 additional cases still pending.

The same jury found against plaintiff Thomas Cona who had also sued Merck for a heart attack he suffered. Although the jury found Merck had failed to adequately warn Cona as well, they determined that Vioxx hadn't been a factor in his heart attack and awarded him $450 to cover his out of pocket expenses.

SUPREME COURT UPHOLDS SEXUAL HARASSMENT VERDICT

The April edition of Fortune Small Business has an interesting article on a sexual harassment case arising out of New Orleans. The plaintiff, Jennifer Arbaugh was a waitress at the Moonlight Cafe. After the owner allegedly groped her and made lewd remarks, she sued. A federal jury awarded her $40,000. The defendant appealed, and argued that the business had less than 15 employees, and therefore wasn't governed by the legislation at issue. [The article indicated that Title VII provides that companies with less than 15 employees can't be held liable for sexual harassment]. The District Court agreed, as did the Federal Appeals court. The Supreme Court however, disagreed in a February, 2006 decision. The Supreme Court held that after Moonlight had litigated the case through trial, it couldn't then take the position the claim was legally insufficient. Commentators have suggested that the defendant probably could have had the case tossed at the outset if it asserted the 15 employee provision.

FEDERAL JUDGE QUOTES ADAM SANDLER

According to a March 6, 2006 report at The Smoking Gun, a Bankruptcy judge in Texas recently quoted none other than Adam Sandler in a recent ruling. In his February 21, 2006 order, Judge Leif Clark denied defendant's motion after noting that "...the court cannot determine the substance, if any, of the Defendant's legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant's motion is accordingly denied for being incomprehensible".

The Judge however, wasn't done yet. He added a footnote that read as follows:

Or, in the words of the competition judge to Adam Sandler's title character in the movie "Billy Madison,", after Billy Madison had responded to a question with an answer that sounded superficially reasonable, but lacked any substance,

Mr. Madison, what you've just said is one ofthe most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time and invites this sort of footnote.

No word on whether the movant appealed. Who says federal judges don't have a sense of humor?

BEDBUGS BACK IN THE NEWS

The Chicago Sun-Times recently reported that a Chicago woman and her husband are suing a Catskills resort for $20 million after she allegedly suffered 500 bedbug bites while staying at the hotel last summer. Ms. Leslie Fox claims that the incident occurred while she and her husband were staying at the Nevele Hotel in Ellenville, New York. The article noted that Ms. Fox discovered the bites after her third night in the hotel. Fox appeared on The Today Show shortly after the story went public and displayed a bunch of pictures presumably taken shortly after she discovered she had been bitten. The pictures showed some pretty nasty looking red lesions all over the body of Ms. Fox, who is allegedly still receiving treatment. An attorney for the hotel claimed that the property is regularly inspected by pest control companies that will certify the resort was "bug-free".

This is the second time in recent history bed bug cases have made news. In 2004 the Seventh Circuit here in Chicago upheld an unusual verdict in a bedbug case. In Mathias v. Economy Lodging (7th Circuit, 2003) the a federal jury awarded the plaintiffs $5000 in compensatory damages and $186,000 in punitive damages against the defendant. In Mathias though, there was some rather damaging evidence against the defendant. Evidence came out that bedbugs had been discovered some 2 years before plaintiffs were bitten and an exterminator had suggested fumigation, but the Economy refused. Finally, and likely most damaging, was the evidence that the defendant continued to rent the room after it had been classified as DO NOT RENT ROOM UNTIL TREATED.

BUDWEISER EMPLOYEES - BE CAREFUL!

Saw an interesting story in Jeff Ruby's The Closer column of the March, 2006 Chicago Magazine. Jeff reported on a recent year-end summary of interesting workplace events as compiled by Challenger, Gray & Christmas, a Chicago outplacement firm. The compilation, aptly entitled 2005 Most Unbelievable Workplace Events, described an unfortunate decision made by a Budweiser distributor employee in Greeley, Colorado. Seems the employee, a Mr. Ross Hopkins, was enjoying a Coors at a local establishment and was spotted by the son-in-law of his boss. The son-in-law offered to buy Hopkins a Bud, but Hopkins refused. The following Monday, Hopkins was fired. According to Hopkins lawsuit, he was advised that drinking a competitor's beer was "...putting food on the competitor's table, while we are putting food on yours." According to Ruby's article, Hopkins claimed he ordered a Bud, but the waitress mistakenly brought him a Coors. Moral of the story? If Hopkins ever buys a horse, it damn well better be a Clydesdale.

DRUMBEAT GETTING LOUDER FOR GEORGE??

As reported by Michael Sneed and Eric Herman in the February 24, 2006 Chicago Sun-Times, it appears Cardinal Francis George ignored early warning signs about Rev. Daniel McCormack. As reported in the article, a review board at the Archdiocese of Chicago advised George to remove McCormack in October of 2005. George however, failed to act on the advice and McCormack remained at St. Agatha's Parish until January of 2006 when he was charged with molesting two boys. Recently McCormack was charged with abusing another boy - in January of 2006, some three months after George received the Review Board's recommendation to remove McCormack. The spokesperson for the Cardinal, Colleen Dolan admitted that George had received "interim advice" to remove McCormack, but noted that "There was no formal recommendation." The Department of Children and Family Services has also indicated it is looking into additional allegations against the priest.

PARKINSON'S DRUG ALLEGED TO CAUSE COMPULSIVE BEHAVIOR

Max Wells, retired doctor, filed a lawsuit on friday, February 17th, against drug manufacturer Glaxo Smith Kline and seven casinos after gambling away $14 million. Wells' complaint alleges that Glaxo Smith Kline failed to warn him that the Parkinson's drug he was taking could lead to compulsive behavior and that the Casinos knew of Mayo Clinic studies that documented the danger in a study of 11 patients taking the drug.


Class Action Lawsuits filed as a result of drug's effects.

National Geographic publishes its thoughts on the subject.

TROOPER'S WIDOW SUES MAKERS OF COLD DRUG

Saw an interesting note in the January-February 2006 Vested Interest, the Illinois Trial Lawyers Newsletter. The note described a lawsuit recently filed by the widow of an Oklahoma state trooper who was gunned down by someone high on methamphetamine. The widow filed suit against several makers and sellers of the drug pseudoephedrine. The lawsuit appears to allege that the makers and sellers of the drug were aware the meth addicts were buying pseudoephedrine, not for medicinal purposes, but to extract certain ingredients that would allow them to make, and presumably get high on meth. The widow is also alleging that the defendant companies[including Pfizer, Wal-Mart and Walgreens] knew how to make pseudoephedrine in such a manner that drug addicts couldn't extract the meth ingredients. Presumably the widow has evidence[probably from the criminal trial] that the shooter purchased the medication, extracted the necessary ingredients, got high and then killed her husband. Even if that is the case, the drug manufacturers will certainly argue that the risk of methheads buying a cold medication, altering it, and then cooking up meth wasn't foreseeable - and as a result, they wouldn't have any duty to prevent it. It will be interesting to see if the defendants did in fact have an alternative way to make the drug where vital ingredients couldn't be extracted. If so, that would suggest they were on notice that addicts were using the drug for alternative purposes. That fact may be critical in rebutting the inevitable defense that the makers couldn't forsee this odd string of events taking place. In light of the way meth has taken hold in the Midwest, for some time now, perhaps the defendants did know something like this was possible.

JURY AWARDS MILLIONS AGAINST CHICAGO P.D.

As reported in the Chicago Tribune on Saturday, February 18, 2006, a Cook County jury returned a $6.74 million dollar verdict against the Chicago Police Department for using excessive force and coercion to wrongfully obtain murder convictions against three men that were later vacated. The men, Omar de Jesus Aquirre, 37, Savier Duarte Santos, 33 and Robert Gayol, 42, spent years in custody or prison before being freed in 2002. They alleged that Chicago Police picked them up for questioning in November of 1997 after the murder of Southwest Side furniture store owner. The plaintiffs alleged they were physically abused by the police, who also concocted fake stories to secure their convictions.

The jury awared $3 million to both Aquirre and Santos. Before his sentence was vacated, Aquirre was serving a 55 year sentence. Gayol had been sentenced to life. Santos had cooled his heels in custody for 4 years and then served only six months of a 12 year sentence, pursuant to a deal he had cut with prosecutors. The lawyers representing the three men had requested an award of $21.5 million.

ILLINOIS CITIZENS PREVAIL IN RIGHT TO KNOW CASE

Congratulation to The Southern Illinoisan newspaper for sticking to their guns in a lengthy public health fight they have been waging with the Illinos Department of Public Health[IDPH]. After 8 years of litigation and appeals, the Illinois Supreme Court recently ruled that the IDPH had to fork over certain public health records they had been withholding. The newspaper had been fighting to obtain IDPH data regarding neuroblastoma, a rare childhood cancer. The Supreme Court ruled that the IDPH must comply with the newspaper's Freedom of Information Request that would help identify "clusters" of cancer cases. The original request was filed shortly after a civil lawsuit was filed by several families in Taylorville, Illinois. The families suspected that the cancer developed by their children resulted from coal tar at a nearby utility plant. The families had shown a link between the cancers and the contaminants, and a monetary settlement was reached. The paper wanted to find out if children in others areas of the state were at also at risk from similar contaminants or carcinogens.

So the Southern Illinoisan filed a Freedom of Information Request for the data in 1997. There was no request for specific names. Instead, the paper was looking for the type of cancer, date of diagnosis and zip code of all cancer patient diagnosed since1985. Seems reasonable enought. But the IDPH didn't think so. The Department denied the request, alleging the data could be manipulated to identify the patients. To prove their point, the Department offered evidence that a professor of Computer Science could use the information requested to determine the names of most of the patients. [It should be noted that the Professor had a Ph.D in computer science, used sophisticated search techniques and expensive software to get the names]. The newspaper filed suit in 1998, seeking court intervention to get the records. The trial court ruled for the paper, but the IDPH fought the ruling, and the Appellate Court overturned the lower court's decision. The case was sent back to the lower court. And again, in 2002, the trial court ordered the Department to turn over the data. In fact, the trial judge, William Schwartz, ordered the agency to pay the paper's legal fees, because he found the Department's conduct was "obstreperous". But the IDPH wasn't done. They took the fight to the Illinois Supreme Court. Thankfully the Supreme Court ordered that the records were to be turned over. But the IDPH seemingly hasn't given up. A spokesman for the IDPH was quoted as saying "We are very disappointed and wer are exploring all options" to avoid release of the data, including legislation.

Makes you wonder why the IDPH would fight so hard to keep these records confidential. Wonder what they are so afraid of...

CHICAGO TRIBUNE BLASTS IMESCH

The February 9 Chicago Tribune had a great editorial today regarding the utter failings of Joliet Bishop Joseph Imesch after being confronted with pretty concrete evidence that priests in his archdiocese were sexually abusing young people. The editorial actually quotes deposition testimony from Imesch that was unsealed last week. At one point, Imesch was asked about a report to diocesan officials in 1985 that a Woodridge priest might be having a sexual relationship with a 14 year old girl. Imesch was asked if he contacted police. His response? "I would not do that...There is no verification. There is no hard evidence this was happening. And I'm not going to go say, Hey police, go check on my priest." Later, Imesch testified: "I'm not going to go to the police and say that I've got a suspicion that one of my priests is dating a young girl. I'm not going to do that." Why not? A sexual relationship between an adult man and a child is illegal - Imesch surely knew that, but did nothing.

Another bit of testimony that turns the stomach - came about when the lawyer discussed the victim's age...
Q: She was a 14 year old girl.
A: We didn't know that at the time.
Q: You didn't ask.
A: We didn't know who to ask.
I have an idea - how about the priest who is carrying on with the child? A couple of phone calls could have confirmed the victim's age. But Imesch didn't do a thing. Thankfully someone else[with some character]did go to the police and the priest involved was ultimately convicted of criminal sexual abuse.

There was additional questioning about another priest who was accused of abusing young boys in Lombard. Imesch testified the priest acknowledged skinny-dipping with the boys and playing games with them while nude. Imesch simply moved the priest to another parish where he was also accused of abuse. When questioned about the credibility of the Lombard allegations, Imesch responded: "Well, I think what happened happened. It was not considered a crime or a criminal activity so there was not reason for me not to transfer him." The Bishop of Joliet it seems, thinks it is perfectly acceptable for a grown man to play in the nude with young boys.

To add insult to injury, Imesch released a letter last weekend noting that the incidents occurred "...before psychologists recognized that behavior of that kind was indicative of a severe problem..." What a crock. He didn't know that these incidents indicated problems? He is either remarkably stupid, or simply lying in a misguided effort to protect the archidocese from the inevitable legal fallout. Imesch also bemoaned the fact that the media is portraying him as someone who doesn't care about the safety of children. Having read the excerpts above, what else could you conclude about this creep?

MICHAEL B. HYMAN ARTICLE IN CRAIN'S

For those of you who haven't heard, the American Tort Reform Association[ATRA] recently announced that Cook County, Illinois[the county where Chicago is located] is a "judicial hellhole". Michael Hyman, a Chicago attorney, wrote a nice piece recently in Crain's Chicago Business, explaining why ATRA is all wet. First, in calendar year 2004, jury verdicts in Cook County were 51% for plaintiffs and 49% for defendants - hardly the breakdown you you expect in a "judicial hellhole". [Frankly those numbers suprised me - Cook County has always been regarded as a friendlier forum than some of the surrounding counties. But these numbers suggest, to me anyway, that even Cook County juries are getting more conservative]. The 2005 numbers are apparently also split down the middle.

Hyman also pointed out that in the ATRA article, the authors focused on four cases that Cook County judges kept in Cook, that in ATRA's opinion, should have been transferred to other counties. What ATRA failed to mention[shockingly] was that the cases were decided prior to 2003, when the Illinois Supreme Court enacted a major change in the relevant caselaw. Hyman closed his article by noting that ATRA is nothing more than a well-financed special interest group trying to manipulate the jury system to serve the interests of the corporate world. Well done Michael.

KENNETH P. NOLAN ARTICLE

For those of you who get Litigation, the ABA Quarterly publication, don't miss Kenneth P. Nolan's Sidebar, in the Spring issue, starting on page 57. A short, funny, easy read in which Mr. Nolan explains just why he became a lawyer. In the course of the article he offers a number of simple, practical things young lawyers[and perhaps even some not-so-young laywers] can do to become great trial lawyers. I would link to it if I could, but I haven't figured out just how the hell to do that just yet.

BURGER KING CASE GOES TO ILLINOIS SUPREME COURT

The Illinois Supreme Court will decide if a fast food restuarant has a duty to build barricades around those parts of the restuarant near the parking area. On January 12, 2006, the Supreme Court heard oral arguments growing out of a tragic incident at a Rockford Burger King in 2001. At that time Detroy Marshall II, a patron seated in the restuarant dining area, was killed when a driver lost control of her car in the Burger King parking lot, and crashed into the building. Marshall was crushed by the car. The case had been thrown out at the trial level, but reinstated on appeal. Marshall's attorneys argue that it is reasonable to hold Burger King liable because it should anticipate that cars will have sudden mechanical problems in the parking lot, causing contact with the restuarant structure. The defense response is that this particular circumstance was impossible to anticipate or prevent. A group of businesses filed a "friend of the court" brief in which they argued that holding Burger King liable would alter the business landscape of Illinois by requiring business owners to erect barriers on their property to prevent similar occurrences. My prediction? The Court holds that Burger King does not have any duty to install barricades to protect their customers.

ITS GOOD TO BE AN ISMIE BIGWIG

The drumbeat on medical malpractice reform was relentless. Everyday it seemed like there was another story in the paper about how doctors were fleeing the state because medical malpractice suits had driven up premiums. And there were countless stories about how much the insurance companies for the doctors were paying out in runaway verdicts. So the doctors got to push their "tort reform package" where pain and suffering damages were limited.

So it was interesting to see a Mike Fitzgerald's January 1, 2006 article in the Belleville New Democrat about how ISMIE cuts back in these challenging times. You would expect that with all the settlements and verdicts they were allegedly paying out, there would be a freeze on salaries. Not quite. Let's take ISMIE CEO Larry Lerner for example. Despite all stories in the media, ISMIE actually found some money to give him a raise. The raise he got in 2004 brought his annual salary to nearly $1 million dollars. But that's not all. He also got a low interest $995,000 mortgage on his 4800 square foot home in a fashionable North Shore neighborhood.

And then there is Don Udstuen, a former Illinois State Medical Society lobbyist. He got nearly $5 million dollars in deferred compensation right about the time he quit his post. Yeah, $5 million dollars. They found some money to pay him too. And a word or two about Don. This is the very same "Dr. Don" who was a member of former Governor George Ryan's "kitchen cabinet". As an esteemed member of that group, he accepted kickbacks from people who got state contracts through his influence. Mr. Udstuen also pled guilty to federal tax charges growing out of monies he secretly stashed away and lied about while a member of Metra's board. [Incidentally, it should also be noted that when Dr. Don was in trouble with the feds he agreed to cooperate and wear a wire so he could implicate his long-time friend Governor Ryan. Quite a guy.]

The conclusion? Times are always good if you are an ISMIE bigshot.

IN MARYLAND, MOONING IS OK

In the interests of discussing ground-breaking legal developments, have to share this story I saw the other day in the Chicago Sun-Times. A Montgomery County, Maryland judge recently ruled that the act of mooning[dropping one's pants and flashing one's buttocks]is not illegal. This landmark ruling grows out of an apparent on-going dispute between two Maryland neighbors, Raymond Hugh NcNealey and Nanette Vonfeldt. McNealey and Vonfeldt had a heated argument the night before the "incident". The following morning, as Vonfeldt walked out of her apartment, she ran into McNealey. Words were exchanged and then Nealey mooned Vonfeldt and her eight year old daughter. [Just a quick aside - what kind of loser moons a little girl?] McNealey was charged with indecent exposure and convicted.

McNealey appealed the conviction, arguing that the state law in issue prohibited the display of "private parts" but not the buttocks. His attorneys even cited a 1983 United States Supreme Court ruling holding that indecent exposure only related to a person's genitals. On appeal, Judge John W. Debelius III ruled that although McNealey's actions were "disgusting" and "demeaning", he wasn't guilty of indecent exposure and overruled the lower court. Interestingly, Debelius noted in his opinion that "If exposure of half of the buttock constituted indecent exposure, any woman wearing a thong at the beach at Ocean City would be guilty." True enough. But those young ladies are simply enjoying the beach. Sounds like McNealey was using his ass in an effort to show his disdain with Ms. Vonfeldt. So the key issue goes to the mooner's intent But I digress...The thing that really caught my eye about this piece was the quote from McNealey's attorney, James Maxwell, who noted the ruling should "...bring comfort to all beachgoers and plumbers" in the state of Maryland.

NEW JERSEY COURT: EMPLOYER HAS DUTY TO STOP PORN SURFING

According to a recent article in the ABA JOURNAL eREPORT, the Superior Court of New Jersey, Appellate Division, recently ruled that when an employer has actual or imputed knowledge that an employee is accessing pornography at work, the company has a duty to investigate and stop the activity. The case, Doe v. XYC Corp. involved an rather ugly factual situation. An employee of the defendant company was viewing pornographic websites while at work. Supervisors became aware, had a talk with the employee, and instructed him to stop visiting the porn sites. Due to company privacy rules, there wasn't much follow-up after the initial discussion. Sadly, sometime thereafter, the worker took pornagraphic images of his 10 year old stepdaughter and submitted them to a child porn site. The child's mom sued, seeking to have the employer held responsible for the subsequent sexual abuse. She argued that had the company taken more agressive action regarding the inappropriate sites, the abuse might have been prevented. Tough sell. And, not suprisingly, the trial court granted summary judgment, saying that the abuse had taken place inside the home, which was not under the employer's control. In addition, the trial court felt that the employer acted reasonably by instructing the worker to stay away from the porn sites. Mom wasn't satisfied and appealed.

And mom must have known something because the Appellate Court reversed. The Court ruled the company knew or should have known that the employee was looking at porn. The Court went on to note that once they knew about this guy's viewing habits, they should have gotten the police involved or terminated him. But the Court didn't completely endorse plaintiff's case. The opinion indicated that the Appellate Court was troubled by the proximate cause issue. The case was remanded back to the trial court, where the plaintiff, according to the Appellate Court, must prove that the sexual abuse would have been averted if the employer had stopped the porn-viewing at work. Just how precisely the plaintiff can prove that is beyond me. Plaintiff may have won this particular battle, but will likely lose the war.