Wisconsin Court of Appeals rules employer had no duty to monitor computers.

• Author: Ziemer, David

Byline: David Ziemer

In the first Wisconsin Court of Appeals opinion to address a defendant's duty of care since two Supreme Court opinions on the issue were released on July 9, the court expressed bewilderment as to what standard to apply.

[G]iven recent guidance from our supreme court, it is unclear how we are to set forth our analysis, began Judge Michael W. Hoover, writing for the court.

Ultimately, though, the court decided that, whatever analysis it employs, the result is the same -- an employer was not liable for an employee's misuse of a computer at work to invade the privacy of female employees of another company.

Securitas Security Services USA, Inc. provided security services to Polaris Industries, Inc. Polaris employees wore photo identification badges created by Securitas. Securitas employees used a computer owned and monitored by Polaris, and the computer had a program that prevented access to inappropriate Internet sites.

Troy Schmidt, a Securitas employee, copied photographs of approximately 30 female Polaris employees to a flash drive, printed the photographs at home, masturbated over them, and then posted pictures of the adulterated photos on adult Web sites he created on Yahoo!.

When Schmidt's activities were discovered, he was terminated, but several employees of Polaris brought suit against Schmidt and Securitas.

After a bench trial, Securitas was found liable for negligent training and supervision, and the employees were awarded a total of $1.4 million.

Securitas appealed, and the Court of Appeals reversed.

The court set forth two possibilities for its review of the case: (1) evaluate whether Securitas had a duty under the circumstances of this case, citing Hocking v. City of Dodgeville, 2009 WI 70, 768 N.W.2d 552; or (2) consider whether Securitas's actions constituted a breach of the duty of ordinary care, citing Behrendt v. Gulf Underwriters Insurance Co., 2009 WI 71, 768 N.W.2d 568.

But the court concluded that it did not matter which approach it used, because the result would be the same.

A conclusion of no negligence under the first approach requires that we determine the defendant was not required to act, while under the second it requires that we determine there was no breach for failing to act because the defendant was not required to act (emphasis added by court).

Rather than look to either of the July 9 Supreme Court opinions, the court looked instead to an earlier negligent supervision case, Sigler v...