Phillip Sherman has a super-sized problem. He went to a Fayetteville, Arkansas restaurant and left his cell phone on the table with nude pictures of his wife. While he said the store promised to hold the phone for him, the pictures and embarrassing information appears on the Internet. He is now suing McDonalds for $3 million dollars.

Sherman and his wife, Tina, claim they were forced to move house after the Tina’s name, address, and telephone number appeared online, alongside the photos. They are also alleging loss of earnings.

The case turns on allegations of negligence, privacy violations, and bailments. If employees accessed the cell phone to determine who was the owner, they would still not be privileged to post the photographs. The act would constitute a violation of the tort of the public disclosure of private facts as well as intrusion upon seclusion. Of course, in any negligence action, there is contributory negligence by the husband. If you object to people looking at your golden arches, you should not be cavalier with the photos. However, if the employees had to access the photos from an internal file (one would hope that this was not his wallpaper selection for the phone), it does raise some interesting questions.

McDonalds itself would not appear responsible for the actions of a rogue employee. However, the failure to secure the phone may raise a legitimate question of negligence. Stores usually post signs that they are not responsible for left or lost items. McDonalds can claim that these phones have the same legal status as trash.

Yet, if they told Sherman that they would hold the phone for him, there is some type of gratuitous bailment formed. Under the common law, a gratuitous bailment (for the benefit of only the bailor) requires only a duty of slight care. However, even that standard might be difficult to meet if the McDonald’s employees were able to pass around the internal pictures before the item was retrieved.

There also remains the question of causation. Sherman will have to prove that the photos must have come from McDonalds. He clearly does not appear particularly careful with the nude pictures of his wife and McDonalds may challenge factual causation.

As for Sherman, the need to have nude pictures of one’s wife at the ready may be a call for intervention like ordering comdoments with the Happy Meal — it may show a bit too much of an obsession. I suggest that he download my happy goat picture and such things will not happen in the future.

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