I finished watching the 2 hour episode of “24” this week and knew that somehow it would end up in a blog again. Where else can you see a main character that looks like Elvis that is a President of a foreign country? Plus, every hour of the show, his hair kept getting higher and higher. It was so disconcerting that I was concerned about how the “bad guys” would be able to get him switched into a little Prius with those low ceilings. I realized that they figured it out by drugging him and putting him in the trunk. The hair problem was averted.
Meanwhile, you have to feel a whole lot safer because Jack Bauer has proven that he can out shoot a dozen bad guys. You have to assume that despite being outnumbered, he was successful in outmaneuvering them because they were wearing hot dark ski masks over their face, and probably couldn’t see very well. OK, by now I’m sure that you are wondering why I have turned this legal blog into a blog about the show “24”. In reality, it’s an introduction to a failure of “Protect and Serve”. The disappointing story follows.
Phil Sherman and his wife Tina, stopped at a Fayettville McDonalds, in 2008, on their way to visit friends. After leaving and traveling several miles to Bella Vista, Tina received a call from her husband’s cell phone. It was the manager back at McDonalds. He told her that her husband had left his phone in the restaurant but that he (manager) would put it in a safe place until they came back the next day, to get it.
Later that day, Tina initially received 2 text messages from her husband’s phone, despite her belief that the phone was locked up. One said, “Hey, do you know who I am?” the second message read, “I’ve seen your pictures Tina, I liked what I saw.”
Unfortunately for Tina, her husband’s cell phone contained compromising photos of her that she had forwarded to him. Once she realized what these 2 text messages were indicating, she texted back to the “McDonald’s/husband’s” phone to say, “This is my husband’s phone. Please turn it off. Thank you for your consideration”.
Several more texts were sent from the husband’s phone. Some were sexual and others were threatening. At that time, the Shermans drove back to the McDonalds and it was locked. Mr Sherman went to the drive -through window and someone passed the phone to him. At the same time, he noticed 3 employees running from the store.
Thereafter, the Shermans learned that the photos had been posted on the internet. They filed suit against McDonald’s (Sherman v. McDonalds) for 3 million dollars under the legal concept of bailment. The claim was that the restaurant manager was responsible for the guest’s property after “voluntarily” assuming such duty. As the Sherman attorney stated, “the case is not simply about leaving personal property in a public place, but about McDonald’s, through its employees, assuming the duty to turn the telephone off and safeguard it and then failing to do so.”
The Defendants, (McDonald’s, Franchisee, store manager) argued that even though the manager had said that he would lock it up; In fact, there was no duty because initially leaving the cell phone was a result of the negligence of Phillip Sherman. As such, the defendants answered the suit that “there was no duty to safeguard the contents of a negligently lost cell phone.
In April 2009, an Arkansas Judge denied defendants’ motion to dismiss. It is now being reported that after a year, the Defendants have now settled the claim for a confidential amount. If you read the lawsuit that I have posted, you will see a recitation of the horrible conduct of those involved in the posting of the photos. Unfortunately, it’s a reminder that despite the value of technology, it can also work against people when dealing with the conduct of bad actors. That’s one of those cases where it would be hard to even put a value on such bad actions.