Daily Labor Report ®

Student in Viral Zoom Bathroom Video Loses Bid to Sue University

Jan. 21, 2021, 6:26 PM

A female Simmons University graduate student who inadvertently left her webcam on while using the bathroom during a Zoom class failed to allege how the Boston-area college is liable for her professor’s alleged subsequent posting of a video of the incident on Twitter, which went viral, the District of Minnesota said.

Jennifer Miles “was understandably humiliated” by the social media rush on the footage, which was viewed more than 7 million times and prompted numerous tweets, Facebook posts, YouTube videos, and even a skit on Saturday Night Live, the court said.

Kyle Killian, who taught the “Family Approaches” class she was taking at the time of the February 2019 incident, created the video using his cell phone, according to Miles.

Miles sued both Killian and the university for various violations of tort law, but the university can only be held liable if the professor’s alleged actions fell with the scope of his employment, the U.S. District Court for the District of Minnesota said. Miles didn’t sufficiently allege that Killian’s recording and broadcast of the video fell within his employment, so the university is entitled to dismissal from the suit, the court said.

The dismissal, however, is without prejudice in the event that discovery on the remaining claims against Killian personally turns up evidence enabling Miles to show her professor indeed acted within the scope of his job, Judge Eric C. Tostrud said.

The judge rejected Miles’ contention that whether her complaint included enough details on the scope-of-employment issue wasn’t something that should be decided at the motion-to-dismiss stage. Courts are divided on that question, but “the better interpretation” is that it can be weighed then, Tostrud said.

Disputed fact questions typically are reserved until after motions for summary judgment have been filed, but that doesn’t mean the factual sufficiency of a lawsuit isn’t at issue at the pleadings stage, the judge said.

Holding otherwise would be at odds with federal rules and would impermissibly shift the burden on the scope-of-employment question from Miles to the college, Tostrud said.

Miles’ employment-related allegations fell short because she didn’t allege the professor’s actions were or should have been foreseeable by the university, the court said. Her mere reference to the university’s confidentiality policy over classes conducted via Zoom wasn’t enough, the court said.

She also failed to describe how her teacher’s posting was made while he was actually working, the judge said.

The judge rejected Miles’ alternative theory that the university aided and abetted the professor’s actions.

That theory of vicarious liability hasn’t been adopted by any Minnesota court and it’s unlikely the Minnesota Supreme Court will embrace it, the court said. And Miles’ allegations also were deficient under that theory even if it were viable, he said.

The case is Miles v. Simmons Univ., 2021 BL 18702, D. Minn., No. 0:20-cv-02333, 1/20/21.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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