In Shepherdsville, Kentucky, McDonalds is facing a tort action that may be unique in the annals of the law involving a hoax, unlawful imprisonment, and sexual assault. Lousie Ogborn worked at McDonalds when she was 18 in April 2004. She received a hoax call from a man who claimed to be investigating a theft. During a 3 ½ hour search, the assistant manager Donna Jean Summers asked her boyfriend to take over. Ogborn was convinced to perform sex acts on herself and the boyfriend, Walter Nix Jr. – which were captured on the security camera.
Summers was convicted of unlawful imprisonment and Nix is serving a 5-year sentence for sexual abuse and other crimes. David Stewart, was acquitted last year on charges of impersonating an officer, soliciting sodomy and soliciting sexual abuse in the incident.
She is arguing that McDonalds was aware of other such calls and should have warned employees. Or, as her counsel explained, “They get the word out when there is a McRib special. They get the word out on how to detect a counterfeit bill. They certainly can get the word out on that.”
Of course, there remains the problem that most mentally competent people would have realized that there was something amiss when the inquiry moved to the strip and sexual stages. It is a case that shows how criminal and torts actions will often follow each other. Usually, as with O.J. Simpson, the different standards that apply (beyond reasonable doubt vs. preponderance of the evidence) makes the tort action easier to win. However, in this case there remains huge questions of the contributory negligence of the victim and the low likelihood that anyone would fall for such a scam to this degree. Moreover, under the doctrine of respondeat superior, an employer is generally (but not always) excused from vicarious liability for conduct that is criminal or for intentional torts. Such matters fall outside of the scope of employee. There are exceptions. This limitation is why it is important to establish direct negligence rather than vicarious liability in this case: to wit, McDonalds failed to inform all stores that hoax calls had occurred.
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