After Mr. Yockey and his daughter used the one operational unisex bathroom in Starbucks, little K.Y. observed a digital video recorder in the U-shaped drainpipe under the sink.
K.Y.’s height placed her closer to eye level with the pipe, where the camcorder nested in plain view, facing the toilet. She pointed it out to her dad.
Unbeknown to the Yockeys, they had been filmed as they attended to their personal and private needs.
William Yockey immediately removed the camera from its location and reported this violation of his and his daughter’s safety and privacy to the store manager. He insisted that she call the police without delay.
The date was April 23, 2011.
All of the foregoing, and much of what will follow, can be found in the case of William Andrew Yockey et al. v. Starbucks Corp., which is pending before the D.C. Court of Appeals.
Yockey kept the camcorder in his possession until he surrendered it to the police. At that point, it had been on for several minutes.
When they arrived, police roped off the area, took photographs and dusted the camcorder for prints. Officers kept it for their investigation and to use as evidence.
D.C. police were unable to identify who placed the camcorder in the Starbucks bathroom. No arrests were made.
So later that year, the Yockeys filed suit against Starbucks, charging the company with negligence and negligent hiring, training and supervision.
During pre-trial discovery, lawyers for the Yockeys tried to determine whether Starbucks employees played a role in planting the camera.
On March 22, 2012, lawyers for Starbucks filed a motion for summary judgment. A D.C. Superior Court judge heard arguments from both sides and granted Starbucks’s motion on July 31, on the grounds that the Yockeys “suffered no physical injury” under the “zone of physical danger” test.
The zone of physical danger is a rule in tort law that, in effect, allows a plaintiff to recover damages for emotional distress only when it follows physical injury.
The Yockeys appealed the judge’s decision.
Lawyers and, ultimately, the courts are going to thrash out this case.
But it strikes me that discovering that a camera has been surreptitiously recording you and your child while in the bathroom is a sound basis not only for experiencing mental anguish but also for taking that invasion of privacy out of someone’s hide.
Hubert “Hank” Schlosberg, one of the Yockeys’ lawyers, said in an interview this week that the police had allowed him to view the camcorder’s recording. The police, he said, were unable to identify the male figure who planted the camcorder under the sink. He said scenes of victims, including William Yockey and his daughter, using the toilet were “disgusting.”
Schlosberg was equally outraged by the behavior of Starbucks. He told me that the store had at least four surveillance cameras operating at the time of the Yockeys’ experience — a point Schlosberg also noted in his appeal filing.
The Seventh Street store surveillance recordings are sent to the company’s headquarters in Seattle, he said.
Schlosberg said that despite repeated requests to Starbucks headquarters to produce the footage the security cameras had taken on the date of the incident, the company has not done so.
Instead, Schlosberg told me (as he also wrote in his court filing), Starbucks produced “irrelevant footage” taken on a different date.
The footage sent from Starbucks headquarters, he said, did not show the Yockeys, the store employees or the police who investigated the scene.
Starbucks spokesman Zack Hutson said in a telephone interview that the company was concerned about “the disturbing complaint” and that the store notified the police and assisted in the investigation. “The safety of our customers and partners is our number one priority” he said. “As a part of regular store operations” Hutson added, “we monitor the seating areas and restrooms in our stores on a regular basis to identify potential safety or security concerns.”
Hutson also noted that the case was dismissed by a lower court.
When asked about the missing footage from the surveillance cameras, Hutson said that Starbucks “tried diligently to find the relevant footage but was unsuccessful for technical reasons.”
The Yockeys, now living in Texas, are waiting to hear from the D.C. Court of Appeals.
Meanwhile, I’ll make my own coffee.
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