Could Subway be Liable in Jared Fogle Case?

Jared Fogle, the former Subway spokesman, who is on the brink of a plea deal with the feds admitting that he solicited and paid for sex with minors and obtained child pornography, will pay $1.4m to his fourteen victims ($100k each) as part of his criminal plea bargain.  As I noted here on my blog and on Huffpo Live last week, the restitution, does not preclude the victims from suing in civil court and seeking more.

Now, though, we have an additional, far more deep-pocketed defendant in a potential civil case: Subway!

Slate reports (via Business Insider) that back during Fogle’s tenure as spokesman, a franchisee had reported Fogle to two levels of Subway management.  It seems that while at the franchisee’s store, Fogle had inquired about the possibility of sex with her underage cousin and had revealed that he had paid for sex with a 16-year-old in the past.  This franchisee warned Subway that he was a risk to young people.  Yet they continued to use him in national advertising campaigns.  Now, A Florida radio host, Rochelle Harmon-Walrond, has come forward.  Per Gawker (via Slate), she states that when Fogle came on her show, he was inappropriate toward her children and their friends.  Unfortunately, Ms. Harmon-Walrond does not have a copy of the email she sent alerting Subway.

If Subway continued to send Fogle into their commercial properties after notification that he may be a risk to children, Subway could be held negligent for any bad acts that happened as a result.

The legal definition of negligence is “a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.”  Negligence usually involves actions, but it can also pertain to the failure to act.  So if Subway affirmatively booked him for more appearances or failed to cancel upcoming scheduled appearance, either could constitute a failure by Subway to act with ordinary prudence.  To assess whether an entity’s act (or omission) lacks reasonable care, we look at the foreseeable likelihood that harm will occur as a result, the severity of that harm, and the burdens of mitigating the risk of harm.  (For more information, see Restatement (Third) of Torts:  Liability for Physical Harm)


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