Law prof: Suit vs. Foster's unlikely in bath cam case

Conor Makem (Rochester Police photo)

The victims of a suspected bathroom camera scandal at the Foster’s Rochester bureau probably don’t have much of a civil case against the newspaper in connection with the alleged actions of a former employee who was arrested on Invasion of Privacy charges earlier this month, according to a highly recognized Harvard law professor who specializes in tort law.
Conor Makem, 45, a former reporter for Foster’s Daily Democrat and the Rochester Times, was terminated by Foster’s hours before his arrest on Oct. 17.
He is charged with 25 misdemeanor counts of Invasion of Privacy involving six alleged victims and one felony count of Falsification of Physical Evidence for disposing of the suspected camera, police said.
John Goldberg, a Harvard law school professor who has authored several books and notable articles regarding tort law, told The Lebanon Voice on Tuesday that it would be “pretty unlikely” any civil suit against Foster’s could hold water.
Goldberg explained there are two types of liability that normally come into play in cases where an employer is sued for the actions of an employee.
One is pretty cut and dry, he said, like when a delivery driver injures another motorist or pedestrian in the course of his work as a deliveryman.

John Goldberg

The other scenario in which a lawsuit may have traction is in a case where the employer or management was either negligent in preventing the illegal activity or was actively engaged in the illegal activity.
He said that type of action “would be a real stretch” in this case as he understood it.
Rochester Police, meanwhile, continue the forensic study of Makem’s computers and other devices, including his iMac computer on which police say they found several dozen images of child pornography. Makem has not been charged in connection with those images.
The initial police investigation began on Oct. 7 when the woman who first discovered the suspected camera called police to ask if Makem had contacted them about the device as he had promised, and officers realized he had not.
Police on Oct. 10 executed a search warrant at the Foster’s Rochester Bureau at Merchants Plaza and seized computers and other electronic devices used by Makem, including some owned by Foster's.
The female victims listed in police charges were unknowingly videotaped “in various stages of undress” while in the Merchant’s Plaza women’s bathroom shared by Foster’s Rochester Bureau staff and several other businesses.
A felony Falsification of Evidence conviction can bring up to 7 years in prison, while Class A Misdemeanors can draw a year apiece.
Makem is also a member of the Makem and Spain Brothers Band, a well-known touring band that plays traditional Irish music.