A customer at a T.J. Maxx store in upstate New York has lost her lawsuit against the retailer for allowing a man to take photos up her skirt by using her as “human bait” in a sting operation.

Security workers did not warn customers that they were surreptitiously videotaping the man as he visited the store in Watertown, N.Y. Svetlana Van Buren, who sued the parent company of T.J. Maxx for premises liability and invasion of privacy, alleged she “unwittingly became a sex crime victim” by walking into the trap they had set for him.

“TJX knew it, in bushel baskets full, that this was a bad guy who was preying on women in their store,” Van Buren's attorney told a Jefferson County Supreme Court jury. She was seeking at least $75,000 in damages.

Under tort law, a business owner has a duty to take “reasonable precautions” to make its premises safe if it “either knows or has reason to know from past experience 'that there is a likelihood of conduct on the part of third persons ... which is likely to endanger the safety of the visitor.'”

But after a three-day trial, the jury cleared TJX Companies (NYSE: TJX) of any liability. The defense argued that it took “reasonable precautions” by, among other things, videotaping the suspected predator and calling police after he took an “upskirt” photo of an unidentified woman in the store.

It was “unfortunate” that between the time police were called and the time they arrived, “he did it again” to Van Buren, defense counsel Craig M. Dolinger said.

With Van Buren as the complainant, Jeremiah L. Williams was convicted of violating a New York law that prohibits “upskirting” and sentenced to two to four years in prison. If Van Buren was harmed in any way, Dolinger argued, it was “not the result of actions of the TJX company, it's the result of the actions of Jeremiah Williams.”

As Van Buren argued, however, she “walked onto a stage” set up by T.J. Maxx. And the company is very fortunate it was not sued over its cavalier disregard for customers' safety by the unidentified “upskirting” victim.

According to trial testimony, T.J. Maxx security hatched the plan to catch Williams in the act of “upskirting” after an employee, Robert Amell, observed him in the Watertown store eight or nine times previously and figured out what he was doing.

Amell testified that on June 14, 2006, he videotaped Williams taking a photo up the skirt of the unidentified woman and immediately called police. While officers were en route, he saw him approach Van Buren and also “upskirt” her.

Van Buren attorney James T. Snyder argued that instead of using a customer as “human bait” to catch Williams, the store should have deployed an undercover female police officer or investigator. At a minimum, he said, Amell should have approached Van Buren and warned her about Williams or inserted himself between them.

Dolinger countered that TJX did not have the resources to station an undercover officer in its stores at all hours on the chance Williams might come into one. It is not clear why the company was not able to catch him by using video from in-store surveillance cameras.

Van Buren, formerly of Ogdensburg, N.Y., and now a Nebraska resident, testified she has suffered anxiety and depression because of the incident at T.J. Maxx and is afraid of what might happen when Williams is released from prison. He is scheduled to be paroled in June.

By Matthew Heller
On Point

Victoria's Secret appears to have developed a double-D sized products liability problem. At least 17 women have sued the company over injuries that allegedly resulted from defectively manufactured undergarments (see link below).

Several of the cases are class-action variations on the theme that some "chemical, toxin, or allergen" in Victoria's Secret products is causing women to break out in a rash. The most bizarre case -- that of Macrida Patterson, who says a decorative metallic piece flew off her Sexy Little Thing thong and struck her in the eye while she was changing for work -- was settled in March 2009.

UNSAFE UNDIES?