Lis & the Single Girl: How to Refuse a Background Check

Every so often, we hear people yell obscenities anywhere, anytime, and for any reason. What do we do about it?

We usually just shrug and look the other way. But just so you know, the next time you want to swear at someone or something in your own apartment, think twice! You could face up to 90 days in jail and a fine of up to $300 for disorderly conduct!

Yes, that was exactly what happened to Dawn Herb in Scranton, Pa., when she shouted profanities at her overflowing toilet. Herb was charged with disorderly conduct in her own apartment when her next-door neighbor failed to have her quiet down and called the police. As Herb said, "It doesn't make any sense. I was in my house. It's not like I was outside or drunk. The toilet was overflowing and leaking down into the kitchen and I was yelling (for my daughter) to get the mop."

Isn’t this just silly? Since when did police start prosecuting people for swearing at their toilets? Charges for disorderly conduct are usually aimed at deterring disruptive behaviors in public places. The $300 fine and 90 days jail time for letting your mouth loose are harsh punishments, especially when you’re just minding your own business in your own personal space.

Mary Catherine Roper, an attorney with the American Civil Liberties Union in Philadelphia, took issue with the citation and is bringing a case against the police department. The broad and vague definition of disorderly conduct is spilling over to our basic, protected civil liberties. We need to remind the police officers about our First Amendment rights to freedom of speech and the self-governing concept of “My home is my castle.” Instead of being the language police in our homes, police should focus on the obnoxious and unruly conducts that happen every day on the streets! Toilets can never beat that!

Woman cited for yelling obscenities at her toilet

Most of us will admit to cringing at the sound of the dentist's drill. But now, there’s one more reason for you to fear seeking dental care — you could be treated to a breast massage! What? Isn’t this sexual battery and medical malpractice?

Mark Anderson, a dentist in Woodland, CA, was accused of fondling the breasts of 27 female patients in the last five years. He claims that these breast rubs are an appropriate procedure for treating a common jaw problem, called temporo-mandibular joint disorder (TMJ). Sure, massaging the muscles can help with TMJ pains, but those relaxing techniques for the pain are in muscle areas like your face, neck, and shoulders, NOT your breasts! And by the way Doc., the last time I checked, a woman’s breasts are made up of fatty tissues, not muscles. If you’ve got a creepy dentist groping around in your shirt, chances are, you left the office worse off than when you went in!

The administrative law judge has suspended Anderson’s dental license last month and Anderson was charged with two misdemeanor counts of battery and sexual battery. Sexual battery is the act of making unwanted and sexually offensive contact with an intimate body part of another person. In this situation, Anderson’s occupational status put him in a position of trust to his patients and even though these women may have consented to the massage, their consent was no consent at all when obtained by deception.

I say Anderson should be charged with medical malpractice as well! Anderson’s unethical breast massage treatment is a material departure from the standard of care normally found in dentists treating similar conditions of TMJ pains. If you searched for “TMJ massage” on the Internet, you would not find one article in the first 20 that recommended breast massage for women.

I cannot stress enough here: Breast massage is NEVER a recommended treatment for a dentist to perform! If you feel that you’ve been inappropriately treated by your physician or any medical professional, contact an attorney in your local area immediately. And remember, the breast bone is not connected to the jawbone.

Embattled California Dentist Says Breast Rubs Necessary

“I’m tired of filling out countless forms and complying with background checks to get a job. I’m insulted by the criminal background checks. Isn’t seeing me in person enough?” Serena (New York, NY)

Let’s say an employer, without performing any background check on a prospective employee, hires her to provide gardening services at individual homes. After weeding the garden, the employee then breaks into the backdoor of the house, stealing all valuable belongings of the homeowner. Yikes! Under common law of most states, the employer would liable for negligent hiring because the employer unreasonably exposed the public to a potentially dangerous individual, which may have been avoided had the employer completed a proper background check on the employee’s records.

As you can see, one dealing with the public is responsible to exercise a duty of reasonable care to select employees competent and fit for the work assigned to them and to refrain from retaining the services of unfit employee. When an employer neglects such a duty and as a result, injury is occasioned to a third person, the employer may be liable for negligent hiring. Even if the injury is brought about by the willful act of the employee beyond the scope of his employment, the employer may still be liable for breaching his duty. Sorry boss, it didn’t matter that the employee had completed her gardening duties and was acting beyond his scope of employment when he broke into the house—you shouldn’t have sent her there in the first place!

However, liability of an employer is not to be predicated solely upon failure to investigate the criminal history of an applicant. The totality of the circumstances surrounding the hiring must be considered in determining whether the employer exercised due care.

There are two fundamental requisites in the tort of negligent hiring. The first involves knowledge of the employer and the foreseeability of harm to a third person. An employer is only responsible for the torts of his employee when employer knew or has reason to know of the particular unfitness, incompetence, or dangerous attributes of the employee and can reasonably foresee that such qualities would create a risk of harm to another person. The second requires the showing that through the negligence of the employer in hiring or retaining the employee, the latter’s unfitness, incompetence or dangerous characteristics proximately caused the injury.

Therefore, as a reminder to employers: Please do not cut corners or try to save costs by hiring employees without first doing a background check. And, for our part, we’ll keep filling out those forms.

A Look at Negligent Hiring Lawsuits

My boyfriend and I went to watch my son’s baseball game over the weekend. The opposite team hit a baseball over the fence, which struck my boyfriend on the arm while he sat along the benches on the sideline. Now, he has a terrible bruise and can barely raise his arm. Can I sue the school, baseball coach, or student for tort liability and in providing insufficient safety measures?

Probably not. Your boyfriend would not be able to recover from any injury unless he can prove that his injury was caused by the hitter’s intentional conduct or reckless misconduct. For an act to be intentional, courts look to see if the actor desired to cause the consequences of his act or he believed that the consequences were substantially certain to result from it. I would very much like to believe that the young batter did not intend for the baseball to strike your boyfriend.

Between participants in a sporting event, there is no liability for injuries caused by negligent conduct and only injuries caused by intentional conduct or reckless misconduct could give rise to cause of action. The general principle is that the spectator or the participant must accept from a participant conduct and risks associated with that sport. Thus, a player who injures another player or spectator in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence. In other words, no duty is owed to protect the victim from that conduct. The spectator assumes the ordinary risks of the game, one of which is the risk of being hit by a baseball in a baseball game.

The underlying policy for this “participant/spectator rule” is that were courts to find such a duty between co-participants in a sport, it might very well stifle the rewards of athletic competition. Who else would dare play sports like football or boxing, where bodily contact is an inherent part of the game, if players could easily be liable every time someone is injured? Think about the rule this way: generally, the higher degree of danger present in the sport, the lower is the player’s duty of care to others.

So, now that we know we assume the risks of injury as spectators of our children’s sporting events, never move your eyes off flying baseballs…and of course, your child’s spectacular performance!

Spectators assume obvious risks in unprotected areas of ballfield

I have a family member who owns a 2006 Toyota Prius. He was recently in an accident on the freeway, hit some debris and his tires blew. He lost control then t-boned a car transport trailer. He's fine, thank goodness and has insurance, but it dawned on him later that out of the four airbags that surround him — and definitely should have gone off — NOT ONE did. He had even paid more for the extra "security." Since he wasn't hurt and the accident was certainly not Toyota's fault, do you think he should still contact a lawyer regarding the airbags to maybe file suit? –Mario (Washington)

First off, let me say that I am very happy to hear no one was physically injured in this accident. That said, I am appalled to hear that not one of the four airbags went off during the crash! In this situation, the manufacturers may have warranted to the public a product that is inherently defective. To prevent manufacturers from walking away with our money and without penalties, it never hurts to consult a lawyer to determine whether a products liability claim is possible in your situation. Before you do that, however, let me explain a bit more about products liability law.

Products liability law is based on the responsibility of a manufacturer to compensate consumers for injuries caused by the defective or dangerous product that it placed on the market. The basic idea underlying products liability law is that the companies providing the products are usually in the best position to prevent defective products from entering the marketplace, so if they fail to do so or if the product is inherently dangerous, they’re usually held strictly liable.

Any or all parties along the chain of manufacture of the Toyota Prius may be held responsible for the injuries caused by the defective product, either in its design, manufacturing process, or marketing strategies. To succeed in a products liability claim, the product must be salvaged after the accident and should not be altered or changed in any way. You will need an expert in the field to testify that under similar situations, the Prius airbags should have inflated upon impact and that its failure to inflate as expected is a breach of warranty of fitness for its purpose to protect the driver from collisions. If the product is not properly preserved for an expert to evaluate it, this may destroy your right to compensation.

Unfortunately, if the injury is not serious or as in your case where there is no actual, physical injury, a products liability action may not be economically feasible. The entire process could take a considerable amount of time and cost to successfully pursue. So, the bottom line is that while consulting a lawyer about your situation is recommended, the decision to file suit against the manufacturers will require more investigation. That being said, you can always call your Attorney General’s Office and tell them your car is a “lemon”. You may find you are not alone in making your complaint.

Products Liability—Legal Information Institute


The information contained in this Web site feature entitled “LIS ON LAW,” is provided as a service to visitors of, and does not constitute legal advice or establish an attorney client relationship. FOX NEWS NETWORK, LLC makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site feature and its associated sites. Nothing provided herein should be used as a substitute for the advice of your own counsel.

Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. To read the rest of Lis's bio, click here.