Wife's nude pics on lost phone end up online
 

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.

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.

You said it. :D

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.

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.

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!!!

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.

You seem to revel in people's misfortune.

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

These links may have one or two:
http://technologyexpert.blogspot.com...cs-end-up.html
http://a11news.com/1053/tina-sherman/

These are rather interesting:
http://www.digitalalchemy.tv/2008/11...er-photos.html
After the distribution of her photos online, Tina Sherman started receiving strange phone calls and text messages. 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/...-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 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" 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.

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.

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.

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 at the fast food restaurant while leaving. The store manager assured him that the phone 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.

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.

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.

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!

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.

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.

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? ???????

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.

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.

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.

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.

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 ...

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.

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.

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.

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.

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?