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A Los Angeles, California judge has found that Sears Holdings Corp (Sears) can be held liable for negligence in an action brought against them by more than 25 female plaintiffs who had been spied on and recorded in a store dressing room and bathroom.
Sears Maintenance worker, Alejandro Gamiz, used peepholes and cameras to spy on female customers and employees in the fitting rooms and restrooms of a North Hollywood, California Sears store.
Gamiz had been employed at the store from 2009 to 2012 and viewed and recorded more than 1,000 women and girls over the span of his employment. Gamiz installed motion activated cameras and peepholes the size of pencil tips, that "blended in really well" making them difficult to detect. Gamiz confessed to masturbating while peeping into the women's restroom and downloading recordings, some to the Internet, from the hidden video cameras.
Sears fired Gamiz and he was arrested after it discovered the hidden video equipment. Gamiz was sentenced to one year in jail and three years of probation.
Cause of action for negligence
The plaintiffs, represented by a NTL's Top 100 Trial Lawyer Michael Alder of Alder Law, P.C., claim that Sears was negligent in its hiring, supervising and retaining of Gamiz. A former employee of Sears, plaintiff Krystel D., is also claiming that Sears retaliated against her for speaking with the media about the Peeping Tom, for filing a complaint and assisting in legal proceedings arising out of Gamiz's and Sears' conduct, according to the complaint.
Sears attempted to escape liability claiming it had no duty of care to the plaintiffs for Gamiz's conduct, which it described as "unforeseeable." Sears asked the court to grant an "exception to its duty of care" because Gamiz's conduct was "criminal" and "bizarre," according to court documents. Sears also asserts that when it hired Gamiz, his background check came back clear.
Sears has an affirmative duty to protect
The judge denied its motion, stating "the law imposes an affirmative duty of care to protect customers [and] employees." The court found that Sears needed to make the women's fitting rooms and restrooms reasonably safe by supervising male employees who had access to these rooms.
Sears and the plaintiffs agree that the store has a policy in place of restricted male employees from fitting rooms during store hours, unless accompanied by a manager or loss prevention employee. The store also prohibits video equipment from being utilized in the restroom or fitting rooms and trains its employees not to use cameras in fitting rooms or restrooms.
Employment of Peeping Tom caused injury
When Sears reviewed its closed circuit television (CCTV), footage showed Gamiz repeatedly going in and out of the fitting room, unescorted during store hours, in violation of the store policy. Gamiz also had independent access to the store from 6:00 am to 8:30 am each morning, before any other employees arrived at 8:30am.
The judge found that Gamiz's employment relationship with Sears and his unsupervised access to the women's fitting room and restroom, were directly related to the opportunity he had to install the cameras and make the peepholes that caused the plaintiff's harm.
The judge further attributed moral blame to Sears for allowing Gamiz "unfettered access" to rooms used for "undressing and for private bodily functions" and for its "failure to supervise" him.
Sears' motion for summary judgment was denied, the court dismissed the cause of action against Sears for its negligent hiring of Gamiz. The court found that Sears owed a legal duty of care, and ruled that issues on whether Sears breached its duty of care, and if its actions were a substantial factor in bringing about the plaintiffs injuries, are triable issues of fact.