What's it worth?

[Sue U]

I have a case that has me stumped for value -- i.e., what would I expect a jury to award, and how much a reasonable settlement of the claims should be. Please let me know what you think.

Here are the facts: An employee of a janitorial services company installed hidden (but in retrospect, not very well hidden) video recording devices in a womens restroom at a busy office buliding located in a suburban corporate park. Over the course of about a year before being discovered, he made numerous video recordings which he downloaded to his computer (and may have shared with others or posted on the Internet; that has yet to be determined). At any rate, the police have about 9 hours of existing video from this guy, which I have not seen but which the investigating detective tells me is "pretty graphic" and "shows women at their worst." Following his arrest, the janitor, who was in the U.S. illegally, fled the country before he could be tried on criminal charges. His employer apparently had not made even a cursory effort to check his background or residency status before putting him on the job.

Here is the law: An employer has a duty to control an employee so as to prevent risk of intentional harm to others where (1) the employee is permitted access to the premises by virtue of his employment, (2) the employer has the ability to exercise supervisory control, and (3) the employer should know of the necessity for, and have the opportunity to exercise, such supervisory control. A landlord and any other entity in possession and control of a commercial property has a duty to inspect, maintain, manage and supervise the premises to keep them free of hazards and risks to the safety and security of those on the property.

I represent about 50 women who, as office workers in the building, used the restroom facilities in question on a regular basis. We are bringing claims against the missing janitor, the janitorial services company, the property manager and the landlord. What is the full value (jury verdict)/settlement value (compromise to avoid costs and delays of litigation) of this case, and how should responsibility be apportioned among the parties?

[Timster]

Sue, while I can agree that the employer who did not do a proper background check may be liable; what does anyone else have to do with it?

As far as damages go, what price does one put on embarrassment? Was anyone's career ruined?

[@meric@nwom@n]

I could write my opinion but I charge $600 and hour for that.

[Long Run]

Presumably, if the employer had done a background check, they would have learned the tortfeasor (legalize for bad guy) was an illegal, but not that he was a pervert. If the search would have shown that he was a pervert, then I would think there would be clear liability; not so sure about liability if the background check would only show he was an illegal. In any event, the liability is solely with the employer on this part as I don't see how the property manager or landlord should have any responsibility beyond hiring a reputable company for their janitorial services. I would guess the insurance company for the janitorial service company will want to settle.

I can't see there being liability on the part of the landlord or property manager, or the employer janitorial service company for not supervising the work of the janitor to the extent they are supposed to search the premises for hidden cameras. I don't know what the standard of care is, but doing sweeps for hidden cameras would seem to be way beyond the standard of care, without some reason to make such a search. How were the cameras found?

I see where figuring out damages is hard. There likely is not any economic damages (beyond some medical claims from the stress) -- it is all invasion of privacy. Is that $10,000 per person, $100,000? Probably pretty sympathetic plaintiffs, and clearly outrageous situation, and a deep pocket. Too bad the real bad guy gets away.

[Mr. Duality]

Whoever was directly employing and supervising him should get 80% of the blame. The property manager and the landlord each get 10%. If the videos are on the internet the victims should get a large payment, maybe $75k or $100K each. If the videos are not on the internet, they should get maybe 5 or 10 thousand each.

[Sue U]

Sue, while I can agree that the employer who did not do a proper background check may be liable; what does anyone else have to do with it?

The law provides that an employer is responsible for the conduct of its employee (as well as the hiring and supervision of employees).
The law provides that a landlord is responsible for keeping the premises safe by performing adequate inspections, maintenance and supervision.

As far as damages go, what price does one put on embarrassment? Was anyone's career ruined?

The claim, if I wasn't clear, is invasion of privacy: the women had a reasonable expectation that they would not be spied on and recorded while using the bathroom. What is the invasion of privacy worth? Does someone's career have to be ruined in order for there to be any compensation for unlawful invasion of a person's privacy?

I could write my opinion but I charge $600 and hour for that.

Not asking for expert opinion, but I'll keep you in mind for my next nursing mal case.

[Sue U]

I see where figuring out damages is hard. There likely is not any economic damages (beyond some medical claims from the stress) -- it is all invasion of privacy. Is that $10,000 per person, $100,000?

Thanks a lot, Helpy Helperton; that's kind of the point of my question.

[@meric@nwom@n]

@meric@nwom@n wrote:I could write my opinion but I charge $600 and hour for that.


Not asking for expert opinion, but I'll keep you in mind for my next nursing mal case.

I was making a leetle joke. I am not a malpractice nurse and I am fairly certain they don't make $600 and hour. Unless of course they can find a lawyer willing to pay it.

[Gob]

I'm sorry Sue, I don't think American.

[Sean]

Was it Chuck Berry again?

[Sue U]

I'm sorry Sue, I don't think American.

This isn't "American," this is a dignitary tort recognized throughout the English common-law world. But perhaps in Australia you hold your right to privacy particularly cheap?

[Gob]

Oh we do, but, as you may have gathered, things (at least to me) seem to be different here.

[Gob]

I'm trying to, but failing to, find a similar case here, to compare and contrast.

A JAPANESE man who took secret footage of women showering at a Melbourne backpackers hotel has been jailed for at least two months.

http://www.theaustralian.com.au/news/na ... 1112889272

Nothing about the backpackers place being sued though.

[Sue U]

As it turns out, it may in fact be the case that you have no such rights. Apparently, America and Germany recognize tortious invasion of privacy, while UK and Aus do not. This author is arguing for recognition in Canada:

http://heinonline.org/HOL/LandingPage?c ... &id=&page=

Odd; it's something that seems so elemental to me.

[rubato]

I don't see how the employer is liable for his actions here.

You will have to show how janitors ought to be supervised so closely that they cannot do such a thing. And you will have to show that this is financially a reasonable requirement. I don't think you can do that.

Otherwise sue the person who did it.

yrs,
rubato

[Gob]

As it turns out, it may in fact be the case that you have no such rights.

I think we'll survive...

[Scooter]

I would follow a similar approach to the example you once gave for calculating pain and suffering awards - break it down to its simplest component parts and then multiply it together to calculate the award. The average woman uses the restroom, say, 4 times per day and works, say, 225 days per year. So her privacy was violated approx. 900 times. Is each violation of privacy worth $100? Then her claim is worth $90,000. Existence of any recordings is worth $500 per incident plus $1000 per each transmission to a third party, or $5,000 for each day the recording was posted on a website.

Any of the numbers can be jigged according to your judgment of what a jury might find reasonable.

[Gob]

So this guy could go bankrupt for something his janitor did?

[MajGenl.Meade]

Refreshingly this doesn't seem to be a simple case of "deep pockets". The three entities seem to have genuine liability. Seriously, the crime is horrific. The women will never have a day in which they don't shiver at the thought of strangers observing their most private moments. The long-term effects may be truly awful. There is no "reasonable" number IMO - such mental anguish cannot be valued. As a jury member, I'd look favourably on US$1million per person, assuming that the janitor (absconded) will have his $250K covered by his direct employer's insurance.

On the other hand, I heard that Gob's best offer was A$20 for DVD and A$5 for PAL.

Apologetically
Meade

[Sean]

On the other hand, I heard that Gob's best offer was A$20 for DVD and A$5 for PAL.

LMAO - $10 for NTSC.