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Published: November 19, 2008
Author: Lori Lubinsky
On November 6, 2008, the Court of Appeals upheld the dismissal of a plaintiff's lawsuit against Cuna Mutual Insurance Society based on a Cuna employee's use of his company computer and company cellular telephone to harass the plaintiffs. The Court of Appeals found that the plaintiff's complaint did not allege sufficient information against Cuna to state a claim against Cuna for negligently supervising its employee, and that all negligence claims against Cuna were barred under public policy grounds.
Factual Background
Cuna's employee, Thomas Kobinsky, allegedly harassed the Plaintiffs, David L. Sigler and Patricia A. Sigler, following an altercation between David Sigler and Kobinsky. Kobinsky anonymously placed public ads falsely stating that David Sigler had a business which he did not have, signed the Siglers up for various subscriptions and made commitments on their behalf. Law enforcement officials tracked the source of the information to Cuna and identified Kobinsky of the subject.
Cuna conducted an internal audit and discovered that Kobinsky used his company-issued cellular telephone to call the Siglers workplace and used his company computer to conduct various searches for information relating to the Siglers. The Siglers sued Kobinsky and Cuna. Their claims against Cuna included negligence and negligent supervision. Cuna moved for summary judgment, arguing in part that the Siglers' negligence claims lacked merit. The Siglers opposed that motion and argued that Cuna inadequately trained and supervised Kobinsky regarding its technology resources policy and did not enforce those policies.
Analysis
The Wisconsin Court of Appeals held that it was not reasonably foreseeable that permitting employees to have unsupervised access to the Internet would probably result in an unnecessary risk of harm to some person or thing. Accordingly, the court found that the Siglers failed to state a negligent supervision claim against Cuna. In addition, the court held that public policy factors precluded liability against Cuna. In particular, the court found that Cuna would not be liable as a matter of public policy because the injury to the Siglers was too remote from Cuna's alleged negligence. The court noted that Kobinsky's actions were bizarre and unexpected, Cuna had no relationship with the Siglers, and all information Kobinsky obtained regarding the Siglers was found on public websites. The court also found that allowing recovery against Cuna would enter a field of no sensible or just stopping point. The court found that Cuna had adequate computer usage policies which it communicated to its employees, and its employees were required to review and certify that they read and complied with these policies. The court concluded its opinion by stating the following: "Were we to allow the Siglers' claim to proceed, this expansion of liability would be limitless and turn employers into guarantors or insurers."
Bottom line
This case shows the importance of having proper computer usage policies that prohibit use of corporate computers for personal or wrongful reasons, as well as the importance of communicating those policies to all employees. Employers who take proper measures to prohibit actions like that of Kobinsky should be protected from liability for an employee's use of corporate computers for personal, harassing reasons. Sigler v. Kobinsky, Case No. 2008AP29 (Nov. 6, 2008).
Lori M. Lubinsky is an attorney with Axley Brynelson, LLP. She can be reached at (608) 283-6752 or llubinsky@axley.com.
This article was featured in the December 2008 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul C. Glazer and published by M. Lee Smith Publishers LLC. Reproduced here with the permission of M. Lee Smith Publishers, LLC.
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