Employer Not Liable for Employee’s “Bizarre and Unexpected” Conduct
One of the more notable aspects of this recent appellate decision is the commentary concerning two recent decisions of the Wisconsin Supreme Court regarding the negligence. Should the court consider whether the defendant's actions constituted a breach of the duty of ordinary care? See, Behrendt v. Gulf Underwriters Insurance Co., 2009 WI 71. Or, should it evaluate whether the defendant had a duty under the circumstances of the case? See, Hocking v. City of Dodgeville, 2009 WI 70.
In Maypark v. Securitas Security Services USA, Inc., 2008 AP 1528, the appellate court noted that it was unsure of which approach it should apply in the present case. Unfortunately, the appellate court did not attempt to clarify the analysis to be used.
Several women employees filed suit against the security company at their employer, Polaris. The plaintiffs alleged that the defendant, Securitas, was negligent in training and supervising its employee. The defendant contracted with plaintiffs' employer to provide security personnel at its plant. An employee, Schmidt, of the defendant was the security supervisor at the Polaris plant. Polaris provided the guard shack and the guard shack's computer where Mr. Schmidt was stationed. As part of his duties, Schmidt was responsible for producing badges for Polaris' employees. Polaris allowed the defendant to access to the employees' photographs.
Using the computer in the guard shack, Schmidt copied photographs of 30 female Polaris employees to a flash drive. Schmidt printed the photos on his home printer, ejaculated on them and posted the resulting collage on websites he created on Yahoo!.
After a trial to the court, the judge found that Securitas was negligent and awarded a total of $1.4 million in damages to the employees. Securitas appealed.
The court of appeals framed the issue as whether it should find that Securitas was not negligent as a matter of law. The court noted the apparent inconsistency in the recent higher court rulings:
. . . given recent guidance from our supreme court, it is unclear how we are to set forth our analysis. Depending on the cases we review, we should either (1) evaluate whether Securitas had a duty under the circumstances of this case, see Hocking . . . or (2) consider whether Securitas's actions constituted a breach of the duty of ordinary care, see Behrendt.
In Maypark, the appellate court found, "without explicitly employing either approach" that Securitas was not negligent, as a matter of law. The court found that Securitas had provided Schmidt with training concerning sexual harassment and employee theft. The computer in the guard shack was owned and maintained by Polaris. Polaris had installed software to block inappropriate websites. The court found that it was not reasonably foreseeable that unsupervised access to employee photographs would result in harm. The photographs did not contain sensitive information such as social security numbers.
The court also found that the plaintiffs' injuries were too remote from the alleged negligence. The appellate court observed that Schmidt's actions were "bizarre and unexpected" and "unimaginable." Finally, the court noted that the type of photographs used to make the security badges could easily be obtained elsewhere. Therefore, the judge was reversed and the court stated that "employers have no duty to supervise employees' private conduct or to persistently scan the World Wide Web to ferret out potential employee misconduct. "
