A quick confession before I begin; I fully intended to start writing this article about how frivolous Katie McLaughlin's, Jared Fogle's ex-wife, lawsuit against Subway was. After all, one of the elements to prove in a lawsuit is that the defendant owed the plaintiff a duty, which the failed to fulfill. This failure has to be the proximate cause of the plaintiff's injuries.
On the surface, it would appear that were this case to be successful it would create a new duty for employers to notify family members and romantic partners of potentially damaging or criminal behavior, otherwise they would be subject to potential civil liability. For instance, if I were stealing from the law firm, the firm would have a duty to notify my wife, on the off-chance that my hypothetical thieving behavior could cause her harm. Apply this to every bad behavior, such as cheating, problems with drugs or alcohol and you could see where such a ruling would essentially place employers in a de facto parenting role over their employees.
The Cliffs Notes version of Ms. McLaughlin's case as it has been reported is that if Subway would have informed her of what they had heard about Jared Fogle's penchant for children, she would have never married him and never suffered the damage to her reputation that comes from having married America's most infamous child-sex predator. Underlying this charge is the idea that Subway owed a duty to warn Ms. McLaughlin.
However, after reading through the lawsuit filed by Ms. McLauglin's attorney, there seems to be a potential duty to Ms. McLaughlin that Subway created in its dealings with Jared Fogle. If this duty does exist, then the rest of the lawsuit certainly satisfies the case elements necessary for a successful civil lawsuit. The lawsuit certainly raises enough interesting legal questions to warrant further examination.
McLaughlin v. Doctor's Association Inc. (Subway) Hinges on Duty
The defense for Doctor's Association Inc., a.k.a. Subway, in this case is most likely going to be that they didn't owe Ms. McLaughlin a duty. In the normal course of affairs, employers have absolutely no duty to warn spouses about inappropriate behavior. Anticipating this defense, the plaintiffs attack it along two lines. While both of these theories seem like a stretch, they're not so far out of left-field as to be dismissed out of hand.
The first line of attack is that Subway's actions created a duty to warn Ms. McLaughlin that would not normally exist. According to the lawsuit, public relations people in Subway responded to a franchisee's concern about Fogle's interest in children by saying that he was seeing someone (Ms. McLaughlin), so that shouldn't be an issue in the future.
So it appears that Subway should have known about Jared's behavior, but felt that Ms. McLaughlin's influence would keep him out of trouble. Given that Jared was integral to their marketing efforts, relying on Ms. McLaughlin to have a positive effect could be construed as part of a PR and marketing strategy. If this is the case and can be proved, then Subway would have created new duties towards Ms. McLaughlin, beyond those owed to a wife.
Strengthening this argument is the Jared "Family Man" ad campaign that Subway ran in early 2015. This ties into duty and a separate misappropriation of likeness allegation. I'm way out of my depth when it comes to misappropriation of likeness allegation, so I'll refrain from commenting on it. I will say that the argument is that Subway did not obtain permission for Subway to use the likeness of Ms. McLaughlin or her children in the campaign. While the depictions of the family are crude, they do accurately reflect gender, size, and hair color. Also, the crude depictions are presented as Jared's family.
Leaving aside the misappropriation of likeness argument, this further bolsters that claim that Ms. McLaughlin and her children were part of Subway's marketing plans. Whether the relationship is official or not is irrelevant. It is similar to when companies try to argue that someone is an independent contractor, then try to control them like they are an employee. Courts don't fall for the too clever by half sleight of hand and it won't necessarily take an official relationship for court's to conclude they owed a greater duty to Ms. McLaughlin, given her prominence in their marketing decisions.
It is recognized that employers have a duty to keep employees safe from other employees. For instance, if a company hires a convicted rapist upon his release from jail, the argument that other employees need to be warned is quite strong. Essentially, companies have duties to warn of hazards, even when they hazards are in human form. Is this an airtight argument that Ms. McLaughlin was owed a duty by Subway? Absolutely not, but it is a much stronger case than what was reported in the media.
The other duty argument hinges on Indiana Code 31-33-5-1. The relevant section of the law reads as follows:
Duty to make report--In addition to any other duty to report arising under this article, an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article.
Like legal issues concerning misappropriation of likeness, criminal law, particularly child abuse law is a subject on which I am eminently unqualified to speak. Not having the slightest clue of Indiana case law regarding this statute, I can only look at it as a partially informed layman.
For this argument to stick, it would have to apply to general allegations of abuse, since based upon publicly available information, it doesn't appear that Subway was ever aware of a specific abuse allegation against a specific child. The only thing that has been reported so far is that on numerous occasions, people informed Subway that Jared was really into kids. While this certainly raises red flags, without knowing more about Indiana law it is impossible to see if such vague suspicions are grounds for triggering this duty.
While some may argue that there is a jurisdictional issue, since it is not known if anyone in Indiana raised possible abuse allegations, the fact that Mr. Fogle was sent to schools across the country, including in Indiana, after Subway became aware of the allegations could render those concerns moot.
For the sake of argument, let's assume that the plaintiff's side gets their way and Subway is found to have violated their duty to report abuse allegations to authorities. One may be inclined to ask, "Isn't the reporting duty owed to the state, not Ms. McLaughlin?" This would technically be correct, but it would be parsing the issue a bit too much.
We all owe a duty to one another to obey applicable laws. When we violate those laws and someone is harmed as a result, they can be eligible for compensation. For instance, when you're driving in a car, the state establishes speed limits and the duty to follow those would most directly be owed to the state. However, if my speeding causes an accident and injures someone, they certainly have a solid case against me, because I owed them a duty to obey the law.
Suppose that instead of a wife having her family unnecessarily torn apart and had to endure a lifetime of pain and ridicule, that an Indiana child had been assaulted by Mr. Fogle as a result of Subway's failure to report possible child abuse as required by law. No one would bat an eye when the victim turned around and sued Subway. While it seems strange that it is a wife and her children bringing the case, it cannot be argued that they weren't greatly harmed by Mr. Fogle's actions.
If the plaintiffs can establish that they were owed a duty, it becomes pretty clear that the breach of that duty caused Ms. McLaughlin harm. Her contention that the marriage would have never taken place had she been given proper warning definitely seems likely. That would make connecting the breach of duty to the harm she and her family have suffered since it came out that her husband was a pedophile to be pretty straight-forward.
Like the other argument to establish a duty, this one isn't clear-cut either. However, the claim that a duty exists is not as far-fetched as it appears at first glance. Unless I am completely off base, there certainly seems to be enough evidence in this case to survive a motion for summary judgment, which would then put this lawsuit on a path towards a trial. Absent a settlement, it would ultimately be up to a jury to sort out these arguments and determine whether Subway was negligent.
What Are the Potential Consequences of McLaughlin v. Doctor's Association Inc.?
As I've mentioned before, the legal fight between Ms. McLaughlin and Subway is not your typical lawsuit. I'm certainly glad that I won't have to play a role in sorting this out. It has the potential to impact the law well beyond this one case.
Some may predict the demise of our legal system if companies have a duty to notify spouses of employees of potential illegal conduct. Such a precedent would be an absolute nightmare and unworkable. This is because it would squarely conflict with reasonable privacy expectations that employees have from their employers. A verdict in Ms. McLaughlin's favor, if improperly applied could present a no-win situation for employers, which would have far-reaching consequences throughout our economy.
In this nightmare scenario, employers could face liability for not divulging damaging personal information, on mental anguish grounds from aggrieved spouses, while at the same time they could be sued for breaching the expectations of privacy that their employees have. This would be a complete disaster and probably why the case could not proceed if Ms. McLaughlin was claiming that a duty was owed to her simply because Subway should have known Jared Fogle was a bad guy and she was dating him.
While it's not a perfect analogy, I think we all agree that if Mr. Fogle had been dating a 16-year old, Subway would have had an obligation to notify that girl's parents of their relationship, in light of the rumors they had heard. One could even argue that Subway had a duty to notify Ms. McLaughlin of Mr. Fogle's proclivities, simply because their was a young girl in the home. Had she been attacked it, the duty and liability in the case would have been much clearer. It is not a leap to get from there, to owing a duty to Ms. McLaughlin once she became part of Subway's marketing strategy.
I think it is these unique circumstances that will keep this case from being applicable in too many instances beyond this particular case. I do not think most people would find it unreasonable that if your marital relationship becomes part of your employer's business strategy, they owe some duty to that spouse. While this may be a somewhat novel legal theory, it isn't made up out of whole cloth. Businesses acquire extra duties by engaging in commerce. They have duties to employees by virtue of having employees, vendors by virtue do doing business with them, essentially businesses owe duties to darn near everyone with whom they do business. When they cross a line by calculating the business impacts of an employee having a wife, when that becomes a business consideration, then it would be unreasonable for them to have a perceived benefit, without a corresponding duty.
This may not fly in court, but given the increasingly blurred lines between the professional and personal spheres in our society, lines increasingly blurred by businesses themselves, this was an issue that was bound to end up in a court room sooner or later. Due to poor reporting of a very complex legal case, it is quite possible for people to see this as a frivolous lawsuit, but when you dig a little deeper, it's a fascinating case worth keeping an eye on.