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On Friday, it was reported that a Nevada woman has sued Match.com for “failing to disclose dangers of online dating.”
Mary Kay Beckman’s experience was certainly traumatic: she alleges she met Wade Ridley through the site and dated him for a mere eight days. After a couple of harassing text messages, he disappeared for four months then surprised her in her garage, stabbing her repeatedly, stomping on her, and leaving her for dead. She has since had three brain surgeries, as well as “extensive psychological counseling, dental care to repair her jaw, treatment with eye and ear specialists to preserve her sight and hearing, and continued physical therapy.” Ridley was subsequently charged with the murder of another woman. He killed himself in prison.
Beckman is certainly a sympathetic plaintiff, and her tragic case of domestic violence is another reminder of why the Violence Against Women Act should be reauthorized. Tort law, however, is not about sympathy, but rather responsibility. In this case, we return to a basic question of tort law: when do we hold a person or company responsible for the criminal actions of another?
I’ve written about this issue several times before, exploring whether Jerry Sandusky’s abuse victims can sue Penn State, whether Jaycee Dugard can sue over negligent parole supervision, whether Yale should be liable for Annie Le’s death, and whether Monsignor Lynn had a duty to report child abuse by priests. It’s certainly not a common legal issue, but it resurfaces regularly; two weeks ago, the widow of a man killed in the Aurora theater shooting sued James Holmes’ psychiatrist.
The key legal word here is “duty.” Did Match.com have any legal duties to Beckman, and, if so, what were those duties? Here’s the Match.com complaint. Putting off the other details for a moment, let’s focus on its claims about a legal duty:
Defendant MATCH owed a duty of reasonable care to inform and warn Plaintiff that use of the Match.com website could likely be dangerous. …
Defendant MATCH owed a duty of care to Plaintiff, a paying subscriber to Match.com, to protect her from individuals trolling the website to further criminal activity. …
Defendant MATCH owed Plaintiff a duty of reasonable care to ensure that Plaintiff was not exposed to dangerous individuals while utilizing Defendant’s matchmaking services.
These conclusions, made in support of her claims for “Negligence (Failure To Warn),” “Negligence,” and “Negligent Infliction of Emotional Distress,” echo the language of duty typically found in negligent hiring / retention cases, the same claim at issue in the Annie Le case.
Notably, Match.com’s User Agreement requires arbitration for “resolving any dispute or claim arising out of or relating to … the Service, or the Website” and says “any dispute between you and Match.com, shall be governed by the laws of the state of Texas,” so we’ll go with Texas law. Under Texas negligent hiring law:
The basis of responsibility under the doctrine of negligent hiring is the master’s negligence in hiring or retaining in his employ an incompetent servant whom the master knows or by the exercise of reasonable care should have known was incompetent or unfit and thereby creating an unreasonable risk of harm to others.
Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex.Civ.App. 1979)(emphasis added).
But there are two problems with applying some variant of a negligent hiring claim to these facts, a complicated problem and a simple problem.
Here’s the complicated problem: is it right to say that Match.com has the same legal duty to investigate its subscribers as an employer has to investigate its employees? That’s essentially what was alleged back in April 2011 by a woman who was raped by a man she met on Match.com. She didn’t request monetary damages in her lawsuit, though, just an injunction requiring Match.com screen subscribers against federal and state sex offender databases. She dropped her lawsuit when Match.com started doing that.
I don’t think we need to answer that complicated question here, however, because of the simple problem: even if we assume Match.com has that legal duty, Match.com did not have any way of knowing that Ridley was a psychopath. Prior to this assault, Ridley had no known criminal record (at least that’s what Match.com said in a statement), and the complaint itself makes no mention of a prior criminal record.
In other words, even if we assume Match.com should have done more, there’s nothing more Match.com could have done to discover that Ridley was a murderer. That, at least in my mind, ends the “Negligence (Failure To Warn),” “Negligence,” and “Negligent Infliction of Emotional Distress” claims.
Beckman also alleges “Negligent Misrepresentation” and “Deceptive Trade Practices 15 U.S.C. §45(a)(1)” claims, which allege in pertinent part:
32. Defendant MATCH failed to exercise reasonable care in communicating to Plaintiff, a paying subscriber to Match.com, the dangers associated with online matchmaking and the potential of meeting an individual whose intentions are not to find a mate, but to find victims to kill or rape.
33. Defendant MATCH misrepresented to Plaintiff that the site was safe, consistently lead to loving relationships, and was comprised of individuals seeking healthy relationships.
DECEPTIVE TRADE PRACTIVES [sic] 15 U.S.C. §45(a)(1)
42. Defendant MATCH has employed deceptive acts and/or practices directly affecting commerce by way of falsely advertising matchmaking services purporting to only facilitate happy and healthy relationships between its members.
43. Defendant directly misled Plaintiff into believing that a subscription to Defendant’s services would result in a stable and loving relationship with another member, as Defendant’s advertisements portray only loving and healthy relationships.
44. Defendant directly misled Plaintiff into believing that a subscription to Defendant’s services came with associated protections and safeguards that are absent in other internet based forums.
Starting with the low-hanging fruit, I have never seen a 15 U.S.C. §45(a)(1) claim, and for good reason: there’s no private right of action under the statute. Only the Federal Trade Commission can enforce it. See this footnote from a 2009 case collecting court opinions on the issue.
That leaves just Negligent Misrepresentation, and, I think that one is doomed, too. Texas recognizes the claim, but the plaintiff must prove “the defendant supplies ‘false information’ for the guidance of others in their business.” Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex.1991). Even if we assume the claim applies to Match.com — the claim is usually used when professionals like auditors, lenders, and attorneys supply information to third-parties, see McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex.1999) — I think the plaintiff will have trouble showing, as a factual matter, that Match.com “misrepresented to Plaintiff that the site was safe, consistently lead to loving relationships, and was comprised of individuals seeking healthy relationships.”
The site’s user agreement, at least as of now (and I assume it has had something like this for some time), says:
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS. YOU UNDERSTAND THAT MATCH.COM CURRENTLY DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS MEMBERS. MATCH.COM ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF ITS MEMBERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS MEMBERS. MATCH.COM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF MEMBERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE MEMBERS.
The law doesn’t take every word crammed into a user agreement to be the gospel, but the practical reality is that Match.com doesn’t “misrepresent” that everyone there has good intentions, and the site does take steps to promote dating safety, and includes a link to “Online Dating Safety Tips” from every page, which includes reasonable guidance like “tell a friend” and “stay sober” and the like, as well as a reminder:
We don’t conduct criminal background checks on our users, so if you would like more information about someone, we recommend using the Internet and government resources available to everyone. This can include typing the person’s name into a search engine, reviewing public information made available by government offices, or using a paid service to obtain a full background report.
Thus, even if we assume Beckman was unaware of the dangers of meeting people on the Internet, It’s hard to see what Match.com should have done different to warn her of the dangers of online dating.
Which brings us to one final problem: what if Match.com made all of those warnings even more prominent, and Beckman had done more research into Ridley? What would it have revealed? Truth is, there are violent people out there, many of whom have no record at all — like with the horrifying story here in Philadelphia last week in which an exterminator with no criminal record murdered a pediatrician because they got into an argument.
There may come a lawsuit where a victim of a crime successfully alleges that Match.com should have done a better job vetting its subscribers’ pasts (like by recommending and offering background checks, the way that Sittercity does), but this lawsuit is not it.