An Arkansas couple who allege employees of a McDonald's misappropriated digital nude photos of the wife have filed a $3 million lawsuit that includes what may be the first ever claim of negligent failure to “protect and secure” a cell phone.

Under the legal concept of “bailment,” a restaurant generally is responsible for the safety of a guest's property, especially when it takes temporary possession of the property. Phillip Sherman and his wife Tina allege McDonald's “voluntarily assumed” such a duty after he left his cell phone containing the nude photos at one of the chain's restaurants in Fayetteville, Ark.

Before Phillip Sherman was able to retrieve the phone, the photos were downloaded from it and posted on a website which, according to the Shermans, is frequented by “pedophiles and perverts.”

McDonald's breached its duty “to protect and secure the cellular telephone belonging to Plaintiff Phillip Sherman,” the couple allege in their complaint, by “invading the private and personal contents of the cellular telephone” and publishing the photos online. Tina Sherman had previously sent the photos “in confidence” to her husband.

“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 failing to do so,” the Shermans' attorney, Tina M. Damron, said in a statement.

The couple visited the McDonald's in Fayetteville on their way home to Bella Vista, Ark., on July 5. After they left the restaurant, Phillip Sherman's mother received a call from manager Aaron Brummley on her husband's cell phone.

Brummley told her he had Phillip's phone, the suit says, and said he would turn it off and put it in a safe place for pickup the next day. But early on July 6, Tina received two text messages from her husband's phone which said “Hey do you know who I am?” and “I've seen your pictures Tina, I liked what I saw.”

A later text message directed Phillip to the website where the photos had been posted, along with Tina's name and phone number. The photos were removed from the site –- but not before one man from Fayetteville posting in a message thread said he lived near the Shermans and other users of the site suggested “what he should do” when he arrived there.

“To date the Plaintiffs have no security and continue to suffer severe emotional distress while remaining in their own residence,” the suit says. The Shermans are also seeking damages for outrage and invasion of privacy.

A bailment normally exists when the bailor surrenders possession of property to the bailee and the bailee has a duty to return the goods. The alleged arrangement between Phillip Sherman and the McDonald's does appear to be a bailment insofar as Brummley took possession of the phone and “warranted” that it would be kept safe.

But negligent safekeeping of property cases usually involve the loss of or damage to a bailor's property and it is far from clear that the Shermans can hold McDonald's liable for "invading" the contents of the cell phone.

In a variation on the same theme, the parents of a Snohomish, Wash., teenager have sued the high-school administrators who suspended her from the cheerleading squad after nude photos of her and a friend were taken from a cell phone and distributed to other students.

The defendants violated Brooke Nielsen's privacy by “possessing, viewing, and circulating Ms. Nielsen's image without her consent or authority of law,” the complaint says.

By Matthew Heller
12/11/08