Taking the Corporate Apologists to Task
Yesterday, this post about the fundamentally disgusting and disgraceful sexual abuse and humiliation of an 18 year old woman touched on the tangential issue of the reactionary "tort reform" provocateurs blaming the victim and her lawyers. The young woman, Louise Ogborn, sued the venerable institution of McDonalds, which Ted Frank of Overlawyered calls a "tertiary innocent victim."
A jury returned a verdict against McDonalds in the total amount of $6.1 Million, including a $5 Million punitive damage award. As one of the Overlawyered sycophantic commenters notes, this is proof that jurors are ignorant unemployed or elderly people who feel good about themselves because they are "GIVING free money away." (his caps, not mine).
While most of what appears at Overlawyered can be laughed at as being the rantings of a fringe element view of the evils of the civil law system, as expressed by people who enjoy a paycheck from such thoughtful groups as the American Enterprise Institute (What? You thought they weren't paid for writing this drecht?), this time they've gone too far.
In their blind support of big business over all else, they have demeaned a young woman who was subjected to a strip search in the back room of a McDonalds restaurant, where she worked, by her manager. She was then subjected, still held in captivity in the back room, to a naked spanking and then forced to perform oral sex on the McDonalds manager's fiance. She was forced to do jumping jacks, naked, to see if stolen items would fall out of her body. She cried and pleaded to be let out, but remained captive in that back room of McDonalds for hours.
McDonalds knew that there was someone, pretending to be a cop, targeting fast food restaurants for this specific purpose. McDonalds claims it sent out a mass email to its managers. The manager claims she never saw any such email. The manager said that the caller "knew the lingo" and was convincing that the manager had to follow his directions. The manager was the boss of this young woman. The manager held her in custody in the back room of McDonalds. The manager was the living, breathing representative of his "tertiary innocent victim," McDonalds.
I can appreciate as well as the next guy that Overlawyered serves its big business masters by spinning any significant lawsuit into an unwarranted attack on corporate America. But this time it did so at the expense of a young woman who was subject to conduct that would make any human being wretch. This time the Overlawyered thinkers have gone so deep into the sewers that they have covered themselves in the detritus that cannot be washed away.
While Overlawyered never had much credibility with anyone who wasn't already a card-holding member of the hallelujah chorus of corporate apologists, it now proves beyond any doubt that it will sacrifice any pretense at humanity to push its agenda of the victimization of corporate America, just because some evil, money-grubbing 18 year old had the audacity to expect that she would be able to go home from her job at McDonalds that day without having been kidnapped, strip-searched, sexually abused and humiliated at the hands of her employer.
This went way too far over the line. Overlawyered is a disgrace. And I sincerely hope that Ted Frank has no daughter who might someday be subjected to what happened to Louise Ogborn. If you have a moment, please let Ted Frank know how you feel about his attack on Louis Ogborn.
A jury returned a verdict against McDonalds in the total amount of $6.1 Million, including a $5 Million punitive damage award. As one of the Overlawyered sycophantic commenters notes, this is proof that jurors are ignorant unemployed or elderly people who feel good about themselves because they are "GIVING free money away." (his caps, not mine).
While most of what appears at Overlawyered can be laughed at as being the rantings of a fringe element view of the evils of the civil law system, as expressed by people who enjoy a paycheck from such thoughtful groups as the American Enterprise Institute (What? You thought they weren't paid for writing this drecht?), this time they've gone too far.
In their blind support of big business over all else, they have demeaned a young woman who was subjected to a strip search in the back room of a McDonalds restaurant, where she worked, by her manager. She was then subjected, still held in captivity in the back room, to a naked spanking and then forced to perform oral sex on the McDonalds manager's fiance. She was forced to do jumping jacks, naked, to see if stolen items would fall out of her body. She cried and pleaded to be let out, but remained captive in that back room of McDonalds for hours.
McDonalds knew that there was someone, pretending to be a cop, targeting fast food restaurants for this specific purpose. McDonalds claims it sent out a mass email to its managers. The manager claims she never saw any such email. The manager said that the caller "knew the lingo" and was convincing that the manager had to follow his directions. The manager was the boss of this young woman. The manager held her in custody in the back room of McDonalds. The manager was the living, breathing representative of his "tertiary innocent victim," McDonalds.
I can appreciate as well as the next guy that Overlawyered serves its big business masters by spinning any significant lawsuit into an unwarranted attack on corporate America. But this time it did so at the expense of a young woman who was subject to conduct that would make any human being wretch. This time the Overlawyered thinkers have gone so deep into the sewers that they have covered themselves in the detritus that cannot be washed away.
While Overlawyered never had much credibility with anyone who wasn't already a card-holding member of the hallelujah chorus of corporate apologists, it now proves beyond any doubt that it will sacrifice any pretense at humanity to push its agenda of the victimization of corporate America, just because some evil, money-grubbing 18 year old had the audacity to expect that she would be able to go home from her job at McDonalds that day without having been kidnapped, strip-searched, sexually abused and humiliated at the hands of her employer.
This went way too far over the line. Overlawyered is a disgrace. And I sincerely hope that Ted Frank has no daughter who might someday be subjected to what happened to Louise Ogborn. If you have a moment, please let Ted Frank know how you feel about his attack on Louis Ogborn.
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10/8/2007 7:43 AM
Overlawyered wrote:
The DC Examiner quotes both Walter and me in their series on corruption in the trial bar. Damned if you do, damned if you don't: privacy laws interfere with college mental-health treatment, which of course... -
10/8/2007 8:34 AM
Overlawyered wrote:
The DC Examiner quotes both Walter and me in their series on corruption in the trial bar. Damned if you do, damned if you don't: privacy laws interfere with college mental-health treatment, which of course...
Scott, I'm shocked that you think that it's more important to punish innocent corporations than actual rapists. Why not sue the phone company, too?
Meanwhile, one guilty party--the manager who ordered the sexual humiliation of the girl--won $1.1 million from innocent McDonald's shareholders, and another guilty party--the man who made the phone calls--got off scot-free because the witnesses discredited themselves in their greed to attack the innocent deep pocket. This is what I criticize, and this is what you ignore in your multiple attacks on me.
The victim has to pay the victimizer, and the perpetrator goes scot-free because of the actions of trial lawyers.
That you think that is justice shows how twisted your concept of the word is.
The record will reflect that I thought such lawsuits were an outrage long before I took a substantial paycut to work at AEI to promote the public good. It's a sign of the weakness of your argument that you resort to ad hominem.
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Yes Ted, I do resort to ad hominem this time. I am outraged by your attack on the victim for the audacity of seeking compensation for what was done to her. If this is a sign of the weakness of my argument, then I am powerless in the face of your great might.
As for who is the victim here, Louise Ogborn or McDonalds, my opinion is clear. Others can formulate their own opinion.
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Ted,
I'm not sure I understand your position (after reading you post and your comments here).
Are you saying that only the manager should not have received damages or that both the victim and the manager should not have received this award?
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Gideon, I recognize that Scott doesn't wish to address the arguments I actually made, but I discuss the legal theory in detail in 2006 in the course of discussing an Eleventh Circuit case where the court got it right and threw out the case before it got to the jury.
http://www.overlawyered.com/2006/09/deep_pockets_files_plaintiff_m.html
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It seems a better idea to wait until all the Overlawyered voices had their say before coming back to this. First, a few preliminaries:
1. Ted, I cleaned up the link in your comment, since it's easier from my end. I hope you won't mind. Of course, Gideon asked you a simple question, and you never answered him, preferring instead to attack me for not addressing arguments you made in a post more than a year ago.
2. Some of your readers (I see that we had about 150 readers come here from Overlawyered, with 4 as of now posting a comment) complain that my post was a rant. Guilty. I thought I was perfectly clear that I found your position to be outrageous. If I wasn't clear, I apologize. My post was indeed a rant. That, of course, doesn't preclude ranting at Overlawyered. But if picking at a word is the best your readers can do, I'm comfortable with that.
Now turning to your "arguments" in you post of more than a year ago, let us consider:
So Louise Ogborn is responsible? She "consented" to being stripped, doing naked jumping jacks, being spanked and ultimately performing oral sex on Nix, Summers' fiance? And it stopped the minute Louise "withdrew consent?" Was her crying and pleading to be let go part of her consensual conduct too?
There is no question that McDonalds had the deep pockets in this case, but having deep pockets does not exculpate McDonalds from its responsibility. What is intolerable, under the facts and circumstances of this particular case, is that you would claim that Louise Ogborn agreed to be the subject of this horrific abuse. That is what makes your position outrageous. This is like blaming the victim of rape for not fighting to the death.
This is a serious question: Do you still argue that Louise Ogborn is responsible for what happened to her because she consented to it? It's a simple yes or no question.
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Again, you misrepresent me rather than address what I said. I never said Ogborn was responsible for what happened to her. Your quote comes from my discussion of the 11th Circuit case (which fully answered Gideon's question) not the Ogborn case. In the 11th Circuit case, the victim consented; when she withdrew consent fairly early, the store personnel stopped their actions. To the extent she consented to unreasonable requests and is a competent adult, one holds her at least partially responsible for her choices. Hundreds of fast food workers got these phone calls and had the common sense to recognize them as hoaxes and refused to comply.
Ogborn did protest, and Walter Wes Nix continued his abusive actions over Ogborn's protests--which is why Nix was criminally convicted of sexual abuse and sexual misconduct. Ogborn is a victim of the caller, Summers, and Nix. Nix is not a McDonald's employee, and there is no reasonable theory of causation that makes McDonald's liable for his behavior.
Ogborn was abused because (1) a caller committed a felony as part of a hoax; (2) Summers disregarded her training, McDonald's policy, and common sense to unlawfully imprison Ogborn for three and a half hours, something for which she was convicted; (3) Summers' fiance, Nix, who did not work at McDonald's, and thus could not have been affected by any McDonald's training, deliberately chose to sexually abuse Ogborn, something for which he was convicted. (No reasonable person would believe that McDonald's would demand that it was requiring oral sex on a stranger.) That's three unquestionably proximately culpable parties, at least two of whom committed intentional torts, any one of whom could have acted to prevent the injury to Ogborn, but it's McDonald's that is on the hook for $6 million. Why stop with McDonald's? Why not the phone company? They were aware of the hoax, too: should they preface every phone call from a payphone with an announcement that real police officers don't ask for strip searches over the phone? Many of the victims were wearing sneakers: surely Nike could've placed a warning on their shoes after they learned about the hoax from reading about it on the front page of the Wall Street Journal. If proximate cause means anything, McDonald's should not be liable. If McDonald's had a policy of strip-searching employees that someone could abuse that would be one thing, but here they violated no legitimate duty: there is no need to warn managers not to spank.
Meanwhile the likely caller went free because his defense attorney, Steve Romines, was able to impeach Ogborn and Summers with evidence that they were cooperating to bring a $200M suit against McDonald's, and successfully created reasonable doubt by accusing Ogborn of being in on the hoax. The guilty went free so that the innocent could be punished--and this you call justice.
One hopes that the appellate courts correctly apply the law and throw this case out. It never should have gone to a jury.
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Even in the Ogborn case, the only reason that Nix was called in to perform the strip search was that Summers asked another employee to performed the strip search, *and that employee refused*. Even with this plain injection of common sense into the process, Summers bulled ahead. It's hard to see what McDonald's could do differently in such a situation that would have prevented Summers from acting differently given the manifest recklessness with which she behaved in performing a strip search using a non-employee over the objection of every other employee in the store. The law requires only that McDonald's act reasonably. You seek to hold them strictly liable for the criminal acts of three people acting in concert.
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lol. Can't answer the question when you get caught there, eh Ted? Lots of words to cover the shame?
First, you keep claiming I misrepresent you, when I print YOUR OWN WORDS. Then, you waste 500 words trying to weasel your way out from under YOUR OWN WORDS. Then, you just make up facts, and present your convenient assumptions as fact, like your claim that the Stewart jury acquitted because of the Ogborn suit. This is baseless fabrication, but presented in a very authoritative way. Do you usually get away with that?
Sorry Ted, you can't weasel your way out of your own words, or make up facts when you get caught. At least you're not foolish enough to try to claim that because it's a franchise, McDonalds isn't liable.
As for McDonalds, if you believe this demonstrated no failure to properly hire and train their managers in dealing with employees and police, effectively disseminate information about a known hoax and threat, and take reasonable precautions protect its known young employees, who are submissive to authority, from older managers, then there's no hope for reasoning with you.
And that, Ted, is why your position in this case is outrageous. Give it a rest Ted. Go back to your hallelujah chorus, where you can make up stories and no one cares.
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It's quite clear you have no interest in debating this honestly. You quote my words about Case A and falsely represent them as being about Case B, and when you're called on it, repeat the lie, refusing to admit that there are two different cases and that you misrepresented me.
You fail to identify the legal principle that holds McDonald's liable, but not the phone company and countless other innocent third parties. You fail to distinguish Ogborn's case from the earlier case correctly thrown out of court, and fail to identify why the earlier court is wrong.
There are three intervening causes before one can even look at McDonald's, and then you still have the causation problem that it wasn't the alleged lack of training that explains Summers' and Nix's criminal actions.
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It's kinda hard to "debate this honestly" with a guy who makes up his own facts, who disavows his own written words and, bottom line, just refused to "get" the basic legal principles that McDonalds is not absolved of its own liability because Summers and Nix engaged in criminal conduct. But since you won't be pinned down by facts or law, or even your own words, then I guess this can't be debated honestly. Nice try Ted.
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I haven't disavowed any of my written words and I haven't made up any facts. I merely note that you quote me about a Georgia case (which is quite plain to anyone who reads the">http://www.overlawyered.com/2006/09/deep_pockets_files_plaintiff_m.html">the post), and you now make the dishonest claim a third time that I was talking about the Kentucky case, even though you've been corrected multiple times now.
Summers gave an Alford plea and was found guilty. That should have preclusive effect: she had mens rea, therefore McDonald's lack of training isn't the cause of her criminal behavior, much less the criminal behavior of her fiancee who didn't work for McDonald's. Ogborn begs Summers for help, and Summers refuses to stop the sexual abuse. Game over, yet the court allowed the case to proceed.
The law is clear: every court before the Kentucky court to consider claims against McDonald's rejected them before they got to a jury. You still haven't explained why those courts got it wrong.
Stewart's *only* defense that wasn't rebutted by physical evidence was his attorney's claim that Ogborn was in on the hoax as a scheme to win money from McDonald's and that the phone call therefore wasn't illegal. Given the overwhelming evidence tying Stewart to the phone call, it is reasonable to conclude that that had something to do with the jury's reasonable doubt. But, hey, Stewart's not a corporation, so he's got that going for him.
It is you who refuses to recognize law or facts.
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Aw Ted. The facts don't change in the same case. You wrote that about Ogborn. The same Ogborn. You can keep claiming I'm dishonest, but that's not going to change the fact that you have stated, on these facts, that Ogborn was guilty, that Nix never did anything and that she consented to what happened. ITS THE SAME SET OF FACTS.
Stewarts attorney claimed actual innocence. Note the link from your favorite news source, Fox, about Stewarts attorney stating that he was innocent. Only you have come up with this cockamamie secret information about what happened in the Stewart criminal case. No one else says this but you. You can expect to taken as credible when you just make things up all the time.
Unlawful imprisonment, the crime Summers was convicted of, is a strict liability offense. It doesn't have a mens rea component. And Summers brought fiance Nix into the private McDonalds office, but you see no connection here at all, right? Moreover, it doesn't absolve McDonalds failure, and McDonalds has a duty to Ogborn.
Give it up Ted. You just keep digging yourself deeper and deeper into a hole with your disavowal of your prior statements and making up new facts with every comment. Take a deep breath and go back to where people like your made-up facts.
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Um, I can't see how he's making up facts, much less in each new post. Actually, *all* of the posts in this particular mini-thread are looking prtty much the same... Ted states many of the same things, you state many of the same things. Neither will change their mind, as you are in disagreement about the underlying facts.
Having followed Overlawyered for some time now (I'm just a "sycophant", right?), and having followd up on some of Ted's references, etc, there, I have generally found "his" facts to be accurate, but it gets old to read such a back-and-forth ignoring, whichever side one is on.
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No one said Ogborn isn't a victim of Nix, Summers, and allegedly Stewart. Donna Jean Summers won $1.1 million. Is she a victim for ordering Ogborn to strip and do jumping jacks? Is it justice that the most culpable party escaped scot-free because of Ogborn's and Summers's attorneys' tactics? Why can't you address the arguments that were actually made instead of attacking strawmen?
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And now you have fallen into the strawman argument, Ted. While Summers and Nix are indeed culpable, that doesn't miraculously excuse McDonalds. Deflecting attention by point elsewhere is a smoke screen. I haven't argued for Summers' award, yet you want to attribute that to me? Shame, Ted. Summers was convicted of unlawful imprisonment. No mention of that either, Ted. What gives?
As for the trial acquittal of the man who made the telephone call, you have attributed that to Ogborn's and Summer's attorneys tactics. No one else has done so, but perhaps you were on the jury and know something that the rest of the world does not?
So now your arguments are addressed. But you knew all this, and still persisted in promoting your beloved corporations as victims agenda. Happy?
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I'm one of Overlawyered's "sycophants", I suppose. I don't receive a paycheck from anyone for what I write here (or there).
*I* certainly don't "love" corporations at all, and I am still quite disturbed at how this case turned out.
This is not remotely "justice".
And, if it makes you feel less dirty when you try to understand the logic, you can replace the awful, evil corporation with an individual (if McDonald's were owned by a signl individual, for instance), and realize that the result would have been the same (the quest for deep pockets).
That is, the system is broken. I (and I've sen Ted do this as well) complain about the brokn-ness of the system whether the victim is a wealthy corporation or a dead-broke bum on the street.
Injustice is still injustice, no matter how much money the victim has. You would appear to define justice as a case where those with money are forced to give it those without.
I define justice as punishing the guilty and at least trying to make whole the victim. How much money either party has is not relevant.
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If you are truly desirous of "justice", then this decision should thrill you. After all, the members of a jury who heard all of the evidence decided that McDonalds was "guilty". In fact, the jury found them so very "guilty" that they awarded punitive damages. You should be thrilled, since you have no love of corporations and want only the guilty to pay. And so all is right with the world. Unless, of course, one blindly assumes that any time a jury awards a judgment against a party that doesn't seem obviously guilty under your personal analysis of right and wrong (without your having the benefit of facts or evidence, of course), then it must be injustice.
By the way, is there a reason that you've used a fictitous email address when commenting? Does your opinion embarrass you? It shouldn't. You're entitled to your opinion.
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1. I use a false address for several reasons, the simplest being because I don't want even more spam (not accusing you personally - it's what I do just about everywhere).
2. I AM "truly desirous of justice", and I DO NOT find this case "just" (as I have already said). You are making the argument that jury verdicts are INHERENTLY just (that's YOUR "blind assumption"). This is false on its face, or there would be no reason to ever review a jury verdict, and sveral layers of reviw are built into our system.
I need only one fact to see that it is not the fault of McDonald's: the business in question was not owned by them. The proper people to sue would be the franchise owner.
Beyond that, there is an admittedly more grey area where I have difficulty finding the employer responsible for a first-time offense (that is, the employee had no history for them to judge by) that was explicitly against the employer's policies (that is, they didn't condon what was done - they explicitly told people NOT to do it). Imagin yourself in that position: you explicitly tell someone not to do something, they do it, and it's somehow YOUR fault? Now, if that happens again, I can see it.
As to whether or not Louise Ogborn is in any way responsibl... well, at least some. The proper response by your employer asking you to strip naked in their office is to quit on the spot and file a lawsuit (actually, I would give them one warning about said activity, just in case it was meant as some kind of practical joke, but then I would do exactly that). They have no authority to do so, it is almost crtainly a crime, the only way they can "force" you to comply is to threaten to fire you, etc, etc. That does NOT mean she was not the victim of a crime, it simply means she also did something very stupid.
As an example, I would say that a woman (or man, for that matter) who got drunk and walked around the "bad" part of town, alone, at night, dressed in such a way as to obviously display wealth, was also at least somewhat responsible when they are mugged... this does NOT excuse the mugger, of course (or rapist, if that occurs), it is simply pointing out the facts.
Ted's analysis of who is responsible, as much as it flies in the face of our EMOTIONS, is logically correct.
Finding McDonald's at fault for this is just a search for deep pockets. The jury feels good that they tried to give justice to the victim, but simply taking from someone who can afford it crates another injustice for the one you just "righted". At best, that's breaking even, but that's without considering all the wasted time and effort along the way, AND that money really doesn't completely right the wrong in the first place, so I view cases like this as a loss for justice.
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If you want your blog to be taken seriously, you need to avoid name calling when you don't even know the people whose characters you besmirch. The view shared by the Overlawyered readers is the mainstream view, not the views of a fringe element.
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Mainstream? Maybe at some radical right wing revival meeting, but not in the rest of the country. And who are you to suggest what blog gets taken seriously? Overlawyered is like a car crash. We may rubberneck, but no one wants to be involved in it.
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Let me get this straight. You're calling what they do "ranting"?
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No kidding, Joe Bingham. All I see here is hysterical name-calling.
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I'm glad to see there are still stupid people like Louise Ogborn out there who would rather strip and suck dick than stand up for themselves
The world is my oyster !!!!!!!
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