A McDonald's franchisee had no duty to prevent the misappropriation of nude photos from a customer's lost cell phone, the franchisee argues in a motion to dismiss an unusual negligence lawsuit.

The phone belonged to Phillip Sherman of Bella Vista, Ark., who left it at a McDonald's in nearby Fayetteville. He sued the franchisee, Mathews Management Co., in November, alleging its employees assumed a duty to “protect and secure” the contents of the phone.

According to the complaint, restaurant manager Aaron Brummley told Sherman's mother he had the phone and said he would turn it off and put it in a safe place for pickup the next day. But before Sherman could retrieve it, nude photos of his wife which he had stored in the phone were allegedly downloaded from it and posted on a website.

Mathews contends in its motion to dismiss that it owed no duty to Sherman since “The phone was left at the restaurant solely due to plaintiffs' negligence, and there is no law establishing a duty on the part of a restaurant franchisee to safeguard the contents of a negligently lost cell phone.”

“If anything, the situation this Court faces involves a case of gratuitous bailment,” Mathews says, referring to the legal term for a person's agreement to watch over another's property without compensation.

In his response to the motion, Sherman defines the case as one of “negligent performance of [an] undertaking to render services.”

Mathews “promised and undertook to perform the services of turning the Plaintiffs' cellular telephone off, to place it in the office, and to keep it safe,” he says -- “so much so as to require the Plaintiffs themselves to give their name and a description of the phone before the same would be released and turned on.”

Sherman cites Keck v. American Employment Agency, 652 S.W.2d 2 (1983), in which the Arkansas Supreme Court said an employment agency could be sued for failing to protect a client from the prospective employer who raped her.

“The Restatement of Torts recognizes ... that simply because a third person commits a crime, that does not always exonerate one who created the situation which allowed the crime to occur,” the court noted.

But the defendant in Keck was held liable for the third party's conduct because of “its contractual relationship with Stacy Keck, its ability to foresee some danger to her, and because it had some degree of control over the employers it made available.” Sherman can allege no such “special relationship” between him and the McDonald's.

As for the bailment issue, the plaintiff concedes that “it may be advisable and appropriate for Plaintiff to allege a claim based on bailment in the future after discovery is completed ...” But as Mathews points out, no claim for failure to protect the bailment of his cell phone “would attach in the absence of proof of gross negligence.”

McDonald's has filed a separate motion to dismiss in which it says it does not exercise any control over the day-to-day operations of the restaurant and therefore cannot be held vicariously liable for the employees' actions. A hearing on the motions is set for April 3.

By Matthew Heller
2/24/09