Recent Developments from Around the States

NJ Court Finds Duty on Part of Employer to Exercise Reasonable Care on Employee's Viewing of Child Pornography

The Superior Court of New Jersey, Appellate Division has held that when an employer has actual or implied knowledge that an employee is using his/her work computer to view pornography, and possibly child pornography, that employer has a duty to investigate and interfere with these activities such that they do not result in harm to third parties. Doe v. XYC Corporation, 2005 WL 3527015 (Dec. 27).

Plaintiff Jane Doe filed an action on behalf of her minor daughter Jill Doe in the Superior Court of New Jersey, Somerset County, against Defendant XYC Corporation. The complaint alleged that because the company knew or should have known that its employee, Jane's husband and Jill's stepfather, was using his work computer to view and download child pornography, XYC had a duty to report Employee to the authorities, and that XYC negligently breached that duty, resulting in Employee's ability to continue photographing and molesting Jill Doe. The employee in question, an accountant for XYC, had been cited and reprimanded on numerous occasions for accessing pornographic cites, including child pornography, at his workstation. In June 2001, Employee, who had been secretly photographing and videotaping his 10-year-old stepdaughter at home in nude and semi-nude positions, transmitted three of these photos over the Internet from his work computer in order to gain access to a child pornography site. Following a search of his work space and computer by the Prosecutor's Office, which turned up numerous pornographic images and communications on child pornography cites, Employee was arrested. The lower court, responding to Jane Doe's specific allegations, granted summary judgment for Defendant both because Employee's conduct at home, the illicit photographing and molesting of Jill Doe, was not under the company's control, and because Defendant did not have the duty to investigate its employees' private communications, therefore indicating an absence of proximate cause linking the company to the harm suffered by Jill.

Reversing the lower court's order, the Superior Court of New Jersey, Appellate Division, began by noting a procedural defect in Plaintiff Jane Doe's complaint that caused the trial court judge to lose focus on the ultimate issue in the case. The court found that the complaint led the lower court to “'mistakenly focus[] on the conduct of Employee at home in taking nude photos, over which the Court concluded [defendant] had no duty to control,'” rather than on “'Employee's use of [Defendant's] chattel, ie, its computer network, to transmit [Jill's] photos on the Internet, over which it did have control.'” By shifting its focus to this inquiry, the Superior Court of New Jersey, Appellate Division found that Defendant indeed had the ability to and had undertaken to monitor Employee's use of his work computer and that, based on Defendant's written and orally disseminated policies regarding the nature of e-mails and internet searches generated on Defendant's premises, “Employee had no legitimate expectation of privacy that would prevent his employer from accessing his computer to determine if he was using it to view adult or child pornography.” Further, the court found that “[D]efendant, through its supervisory/management personnel, was on notice that Employee was viewing pornography on his computer, and, indeed, that this included child pornography,” and was thus under a duty to investigate this misuse of company property. Because of its knowledge and given the fact that the viewing of child pornography is both a state and federal crime and against public policy, Defendant had a duty to exercise reasonable care to interfere with Employee's activities that inarguably “posed a threat of harm to others, although not necessarily Jill.”

Turning to the proximate cause inquiry, the court found that while it could conclude that a reasonable trier of fact might find, based on the record, that had Defendant undertaken an appropriate investigation after being put on notice as to Employee's illicit activities, the harm caused to Jill would have been averted, there was not sufficient evidence from which to conclude that Jill suffered harm as a result of the transmission of her photos via Employee's workplace computer. Thus, the court remanded the case to address this second issue in order to determine Defendant's liability.

NJ Court Finds Duty on Part of Employer to Exercise Reasonable Care on Employee's Viewing of Child Pornography

The Superior Court of New Jersey, Appellate Division has held that when an employer has actual or implied knowledge that an employee is using his/her work computer to view pornography, and possibly child pornography, that employer has a duty to investigate and interfere with these activities such that they do not result in harm to third parties. Doe v. XYC Corporation, 2005 WL 3527015 (Dec. 27).

Plaintiff Jane Doe filed an action on behalf of her minor daughter Jill Doe in the Superior Court of New Jersey, Somerset County, against Defendant XYC Corporation. The complaint alleged that because the company knew or should have known that its employee, Jane's husband and Jill's stepfather, was using his work computer to view and download child pornography, XYC had a duty to report Employee to the authorities, and that XYC negligently breached that duty, resulting in Employee's ability to continue photographing and molesting Jill Doe. The employee in question, an accountant for XYC, had been cited and reprimanded on numerous occasions for accessing pornographic cites, including child pornography, at his workstation. In June 2001, Employee, who had been secretly photographing and videotaping his 10-year-old stepdaughter at home in nude and semi-nude positions, transmitted three of these photos over the Internet from his work computer in order to gain access to a child pornography site. Following a search of his work space and computer by the Prosecutor's Office, which turned up numerous pornographic images and communications on child pornography cites, Employee was arrested. The lower court, responding to Jane Doe's specific allegations, granted summary judgment for Defendant both because Employee's conduct at home, the illicit photographing and molesting of Jill Doe, was not under the company's control, and because Defendant did not have the duty to investigate its employees' private communications, therefore indicating an absence of proximate cause linking the company to the harm suffered by Jill.

Reversing the lower court's order, the Superior Court of New Jersey, Appellate Division, began by noting a procedural defect in Plaintiff Jane Doe's complaint that caused the trial court judge to lose focus on the ultimate issue in the case. The court found that the complaint led the lower court to “'mistakenly focus[] on the conduct of Employee at home in taking nude photos, over which the Court concluded [defendant] had no duty to control,'” rather than on “'Employee's use of [Defendant's] chattel, ie, its computer network, to transmit [Jill's] photos on the Internet, over which it did have control.'” By shifting its focus to this inquiry, the Superior Court of New Jersey, Appellate Division found that Defendant indeed had the ability to and had undertaken to monitor Employee's use of his work computer and that, based on Defendant's written and orally disseminated policies regarding the nature of e-mails and internet searches generated on Defendant's premises, “Employee had no legitimate expectation of privacy that would prevent his employer from accessing his computer to determine if he was using it to view adult or child pornography.” Further, the court found that “[D]efendant, through its supervisory/management personnel, was on notice that Employee was viewing pornography on his computer, and, indeed, that this included child pornography,” and was thus under a duty to investigate this misuse of company property. Because of its knowledge and given the fact that the viewing of child pornography is both a state and federal crime and against public policy, Defendant had a duty to exercise reasonable care to interfere with Employee's activities that inarguably “posed a threat of harm to others, although not necessarily Jill.”

Turning to the proximate cause inquiry, the court found that while it could conclude that a reasonable trier of fact might find, based on the record, that had Defendant undertaken an appropriate investigation after being put on notice as to Employee's illicit activities, the harm caused to Jill would have been averted, there was not sufficient evidence from which to conclude that Jill suffered harm as a result of the transmission of her photos via Employee's workplace computer. Thus, the court remanded the case to address this second issue in order to determine Defendant's liability.