In this chapter, we briefly examined several cases in which the employer’s surveillance was challenged as an alleged invasion of employees’ privacy. Are there circumstances under which an employer’s failure to provide surveillance will support tort liability? In one recent case, Dean, a mentally disabled but “very dedicated” Whataburger employee of fourteen years, was murdered when he was shot in the face by Marshall, who was, at the direction of Love, attempting to rob the Whataburger restaurant at which Love served as manager. In the wrongful death suit brought by Dean’s estate against Whataburger, the plaintiffs’

expert “emphasized that Whataburger was the only fast-food chain of which he was aware that had ‘failed to develop a comprehensive robbery prevention program to protect its employees.’” At the time of the capital murder of Dean, Whataburger had no security manual or methodology in place. There were no minimum standards published or training provided to managers, and “Whataburger’s conduct of not addressing workplace violence and robbery prevention fell below the standard of care and constituted malice or conscious indifference to the magnitude of the risk of harm and disregard for the safety of its employees. This conduct was a proximate cause of Christopher Dean’s death.” The expert focused in particular on the “lack of security guards, alarms, bullet-resistant barriers, and surveillance equipment,” and cited “a combination of surveillance camera and hold-up alarm system as significant deterrents.” Should Whataburger be found liable for Dean’s death? See Barton v. Whataburger, Inc., 2009 WL 417292 (Tex. App., February 13, 2009).