Patricia Soliman v. the Kushner Companies, Inc ( 2013 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5397-10T2
PATRICIA SOLIMAN,
Plaintiff-Appellant,
v. APPROVED FOR PUBLICATION
October 17, 2013
THE KUSHNER COMPANIES, INC.
a/k/a KUSHNER COMPANIES; APPELLATE DIVISION
WESTMINSTER MANAGEMENT,
L.L.C.; CK BERGEN HOLDINGS,
L.L.C. a/k/a CK BERGEN
HOLDINGS; CK BERGEN
ASSOCIATES, L.L.C. a/k/a
CK BERGEN ASSOCIATES;
KUSHNER PROPERTIES, INC.;
WESTMINSTER MANAGEMENT, L.P.;
ROUTE 208 ASSOCIATES, L.L.C.;
PHIL CHAIKLIN; HIGH TECH
INSTALLATIONS; and HIGH TECH
DEPOT, L.L.C.,
Defendants-Respondents.
MICHELE F. AVRIN,
Plaintiff-Appellant,
v.
THE KUSHNER COMPANIES, INC.
a/k/a KUSHNER COMPANIES;
WESTMINSTER MANAGEMENT,
L.L.C.; CK BERGEN HOLDINGS,
L.L.C. a/k/a CK BERGEN
HOLDINGS; CK BERGEN
ASSOCIATES, L.L.C. a/k/a
CK BERGEN ASSOCIATES;
KUSHNER PROPERTIES, INC.;
WESTMINSTER MANAGEMENT, L.P.;
ROUTE 208 ASSOCIATES, L.L.C.;
PHIL CHAIKLIN; HIGH TECH
INSTALLATIONS; and HIGH TECH
DEPOT, L.L.C.,
Defendants-Respondents.
CaC (infant Plaintiff #1) by
her mother MAC (Plaintiff #2)
and MAC (Plaintiff #2)
individually;, AaC (infant
Plaintiff #3) and AyC (infant
Plaintiff #4) by their mother
RLC (Plaintiff #5) and RLC
(Plaintiff #5) individually;
TaK (infant Plaintiff #6) by
her father ToK (Plaintiff #7)
and ToK (Plaintiff #7)
individually; SG (infant
Plaintiff #8) by his mother
AG (Plaintiff #9) and AG
(Plaintiff #9 individually);
DK (infant Plaintiff #10) by
her father JK (Plaintiff #11)
and JK (Plaintiff #11)
individually; DeL (infant
Plaintiff #12) and TL (infant
Plaintiff #13) and DaL
(infant Plaintiff #14) by
their mother DL (Plaintiff
#15) and DL (Plaintiff #15)
individually; JG (infant
Plaintiff #16) by his mother
JJ (Plaintiff #17) and JJ
(Plaintiff #17) individually);
JL (infant Plaintiff #18) and
TL (infant Plaintiff #19) by
their mother GCL (Plaintiff
#20) and GCL (Plaintiff #20)
individually; ST (infant
Plaintiff #21) and AT (infant
Plaintiff #22) by their mother
LT (Plaintiff #23) and LT
2 A-5397-10T2
(Plaintiff #23) individually;
AY (infant Plaintiff #24), and
LY(infant Plaintiff #25) by
their mother WFY (Plaintiff
#26) and WFY (Plaintiff #26)
individually; KrZ (infant
Plaintiff #27) by her mother
KZ (Plaintiff #28) and KZ
(Plaintiff #28) individually;
BF (infant Plaintiff #29) and
AF (infant Plaintiff #30) by
their parents RF (Plaintiff
#31) and MF (Plaintiff #32)
and RF (plaintiff #31) and MF
(Plaintiff #32) each
individually; AN (infant
Plaintiff #33) and RN (infant
Plaintiff #34) by IN
(Plaintiff #35 and IN
(Plaintiff #35) individually;
JJa (infant Plaintiff #36)
by her parents JaJ (Plaintiff
#37) and MC (Plaintiff #38)
and JaJ (Plaintiff #37) and
MC (Plaintiff #38)
individually; CB (Plaintiff
#39); YC (Plaintiff #40); GE
(Plaintiff #41), Edi
(Plaintiff #42); AD
(Plaintiff #43);, EDr
(Plaintiff #44); ADr
(Plaintiff #45); GF
(Plaintiff #46); SF
(Plaintiff #47); CL
(Plaintiff #48); AL
(Plaintiff #49); MMa
(Plaintiff #50); KBM
(Plaintiff #51); MMo
(Plaintiff #52); KN
(Plaintiff #53); MP
(Plaintiff #54); IR
(Plaintiff #55); KS
(Plaintiff #56); CS
(Plaintiff #57); BS
(Plaintiff #58); LW
(Plaintiff #60); and EF
3 A-5397-10T2
(Plaintiff #60);
Plaintiffs-Appellants,
v.
THE KUSHNER COMPANIES, INC.
a/k/a KUSHNER COMPANIES;
WESTMINSTER MANAGEMENT,
L.L.C.; CK BERGEN HOLDINGS,
L.L.C. a/k/a CK BERGEN
HOLDINGS; CK BERGEN
ASSOCIATES, L.L.C. a/k/a
CK BERGEN ASSOCIATES;
KUSHNER PROPERTIES, INC.;
WESTMINSTER MANAGEMENT, L.P.;
ROUTE 208 ASSOCIATES, L.L.C.;
PHIL CHAIKLIN; HIGH TECH
INSTALLATIONS; and HIGH TECH
DEPOT, L.L.C.,
Defendants-Respondents.
RICKY DIPILLA, MARY ELLEN
PHELAN, PERRY DEATON, KENNETH
THIMMEL, JONATHAN SCOTT
STEPHENS, PHYLLIS RUBIN,
VIVIANA A. WISSE, MARY
PETRUCELLO, MIKE O'SULLIVAN,
LAURA PHELAN, EDWARD ROBINSON
and WILLIAM NEWMAN,
Plaintiffs,
v.
ROUTE 208 ASSOCIATES, LLC,
THE KUSHNER COMPANIES,
WESTMINSTER MANAGEMENT, LLC,
CK BERGEN HOLDINGS, LLC,
KUSHNER PROPERTIES, INC.,
WESTMINSTER MANAGEMENT, L.P.,
Defendants.
4 A-5397-10T2
Argued May 16, 2012 - Decided October 17, 2013
Before Judges Fuentes, Graves, and Harris.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-2581-08.
Gerald H. Baker argued the cause for appellants
(Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C.,
attorneys; Lawrence M. Simon and Mark J. Cintron, on
the brief).
Derek A. Ondis argued the cause for respondents High
Tech Installations, High Tech Depot, L.L.C., and Phil
Chaiklin (Romando, Zirulnik, Sherlock & DeMille,
attorneys; Mr. Ondis, on the brief).
Stuart J. Polkowitz argued the cause for respondents
The Kushner Companies, Inc., Westminster Management,
L.L.C., CK Bergen Holdings, L.L.C., CK Bergen
Associates, L.L.C., Kushner Properties, Inc,
Westminster Management, L.P., and Route 208
Associates, L.L.C. (Mautone & Horan, P.A., and Brach
Eichler L.L.C., attorneys; James J. Horan and Mr.
Polkowitz, of counsel and on the briefs).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
These are four consolidated law suits brought by employees
of tenants and members of their families, including minors,
against the landlord and managers of this commercial office
building, as well as a number of other companies responsible for
installing and maintaining video monitoring and recording
5 A-5397-10T2
equipment intentionally concealed inside smoke detectors in four
public bathrooms, two male and two female.1
Defendants claimed the cameras were positioned to monitor
or focus only on the "common area" of the bathrooms, where the
washbasins are located. Stated differently, defendants claim
the cameras were not placed to monitor the toilet stalls and
therefore did not invade or violate plaintiffs' expectation of
privacy.
It is not disputed that the managers of the office building
installed this surveillance equipment in 2003, ostensibly in
response to complaints made by certain tenants of vandalism and
damage to bathroom facilities. The scope and nature of the
vandalism included both the area where the washbasins are
located, as well as the toilet areas. Specifically, defendants
allege tenants complained the toilets in these bathrooms were
overflowing and being rendered unusable by unknown individuals
intentionally or negligently placing paper towels or other
obstructions into the toilet bowls to block or impede the flow
of water. According to defendants, they installed the video
surveillance equipment and concealed the cameras inside the
1
Plaintiffs alleged that some of their children used the
bathrooms when they visited on "Take Your Child to Work Day."
6 A-5397-10T2
bathrooms' smoke detectors to deter this vandalism and gather
evidence against the alleged vandals.
Although installed and made operational in 2003, defendants
claimed the entire video surveillance equipment lay dormant and
unused for four years. Defendants claimed the stealthy
monitoring of the bathrooms began in 2007, and only functioned
for three continuous days.
This monitoring operation came to an abrupt end only by
sheer happenstance, when a tenant employee walked by a closet
with a sign on the door that read: "Authorized Personnel Only."
Although defendants intended the closet door to remain closed
and locked at all times, that day the door was inadvertently
left ajar. When the employee looked inside the closet, he
discovered video monitors displaying a live video feed of the
four bathrooms.
This employee immediately reported his discovery to the
local police department. The responding police officers
investigated the claim and confirmed the existence of the video
surveillance operation, and disconnected the camera lenses
concealed inside the smoke detectors. An investigator from the
Bergen County Prosecutor's Office took custody of the computer
equipment for further investigation. It is not disputed that
7 A-5397-10T2
law enforcement authorities decided not to file criminal charges
against anyone connected with the surveillance operation.
In these consolidated civil complaints, plaintiffs allege
intentional and negligent infliction of emotional distress,
common law invasion of privacy, and invasion of privacy under
N.J.S.A. 2C:58D-1(b). Plaintiffs seek common law compensatory
damages, punitive damages under the Punitive Damages Act (PDA),
N.J.S.A. 2A:15-5.9 to -5.17, and statutory damages under
N.J.S.A. 2C:58D-1(c). Plaintiffs argue the evidence permits a
rational fact finder to infer that the camera lenses concealed
inside the smoke detectors may have been positioned, at least
part of the time, to monitor the toilet stalls -- areas of the
bathrooms defendants conceded are private. However, even if
this covert video surveillance operation was limited to the so-
called common areas of the bathrooms, plaintiffs argue they
still have a cognizable cause of action under these same
theories of liability.
The Law Division granted defendants' motions for summary
judgment and dismissed plaintiffs' cause of action as a matter
of law. The motion judge accepted defendants' factual claims as
to the nature and scope of the video surveillance operation, and
found plaintiffs did not have a reasonable expectation of
8 A-5397-10T2
privacy in the areas of the bathrooms outside the toilet stalls
where the wash basins are ordinarily located.
In this appeal, plaintiffs argue the motion judge erred in
accepting defendants' claims concerning the nature and scope of
the surveillance operation because, from the evidence presented,
a rational jury could reject defendants' claim and find in favor
of plaintiffs' factual contention that the scope of the
surveillance included the toilet stalls. Independent of this
material factual dispute, plaintiffs argue that the motion judge
erred, as a matter of law, by concluding plaintiffs did not have
a reasonable expectation of privacy in the areas of the
bathrooms outside the toilet stalls where the washbasins are
located.
We agree with plaintiffs' argument and reverse the trial
court's order dismissing the counts in their complaints grounded
on invasion of privacy. The trial court erred in dismissing
plaintiffs' complaints as a matter of law. Under these
circumstances, a rational jury could find defendants' actions
violated plaintiffs' reasonable expectations of privacy. These
material issues of fact cannot be resolved through summary
judgment. We affirm, however, the court's dismissal of
plaintiffs' claims based on intentional and negligent infliction
of emotional distress.
9 A-5397-10T2
In our view, a rational jury could find that shielding the
cameras from detection by placing them inside facially
innocuous, yet ubiquitous safety devices, such as smoke
detectors, is more suggestive of a sinister voyeuristic purpose
than a good faith reasonable attempt at combating vandalism.
This plausible conclusion by a jury is further supported by
defendants' decision to disregard the suggestions made by the
Fair Lawn Police Department to place a sign on the bathroom
doors alerting all who entered that the bathroom's so-called
"common areas" were monitored by video cameras.
However, even assuming a good faith motive, a rational jury
could find that the approach adopted by defendants here is per
se unreasonable because: (1) the clandestine nature of the
surveillance operation negated the deterrent effect defendants
allegedly sought to create; (2) acts of vandalism to bathrooms
do not justify the installation of a covert video surveillance
system to monitor inherently private areas like bathrooms; (3)
although all areas of a bathroom are deemed private, bathrooms
intended to be used exclusively by women and girls are
inherently more susceptible to invasion of privacy claims.
Plaintiffs can present evidence to a jury that women and girls
utilize public bathrooms, including areas outside the toilet
stalls, with the reasonable expectation that their private
10 A-5397-10T2
grooming activities will only be visible to fellow female users
who may be present at the time; and (4) both men and women may
have used the so-called quasi-public areas of the bathrooms to
perform personal grooming or other private activities when no
one else was visibly present that they would have otherwise
refrained from performing even in the presence of members of
their own gender.
Based on these plausible findings, plaintiffs may be
entitled to compensatory relief under both common law principles
of privacy and pursuant to the specific cause of action for
invasion of privacy authorized by the Legislature under N.J.S.A.
2A:58D-1. Depending on whether the jury awards compensatory
damages, plaintiffs have also presented sufficient evidence to
preserve the right to seek an award of punitive damages in a
bifurcated proceeding as required under the PDA.
Because the trial court dismissed plaintiffs' cases as a
matter of law, we review all facts in the light most favorable
to plaintiffs, including any inferences that may be drawn from
the evidence presented. Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995); R. 4:46-2(c).
I
At all times relevant to this case plaintiffs Soliman and
Avrin worked in an office building located on Route 208 in Fair
11 A-5397-10T2
Lawn. CaC plaintiffs were employees and parents of children who
visited their parents on "Take Your Child to Work Day," at
offices owned by defendants. These children used the bathrooms
while at the office building. Although the bathrooms were
locked, defendants provided keys to all tenants who in turn
supplied them to their employees.
Route 208 Associates was the landlord of the building in
2003. In response to plaintiffs' interrogatories, defendants
gave the following explanation for their decision to install
video recording equipment in the bathrooms:
In 2003, in response to ongoing vandalism in
both the men's and women's bathrooms located
on the upper level of the building,
surveillance cameras were installed in the
bathrooms, although at that time were not
wired or otherwise made operational. Prior
to the installation of those cameras,
representatives of tenant, Maxell . . . had
communicated complaints to the building
management regarding the conditions in the
restrooms including complaints of paper
being stuffed down toilets with resulting
backup, overflow, etc. In addition to
expending money for plumbing repairs, the
defendant's building manager spoke with the
Fairlawn [sic] Police who suggested placing
hidden cameras in the restrooms for the
purpose of identifying who was going in and
out, or putting "fake" cameras in the
restrooms with a sign indicating the
premises were under surveillance. The
police department suggestions were
communicated to . . . Maxell via email of
May 28, 2003. Although defendant's email
asked Maxell what it would be comfortable
with, Maxell's representative replied that
12 A-5397-10T2
they "do not need to even know what action
you elect to take. . . ."
The incidents of vandalism subsided for some
time, but then intensified in 2007 as
evidenced by further emails from Maxell's
representatives to building management and
visa [sic] versa. In an effort to identify
the vandals, the building managers arranged
to make the cameras operation, which
included the installation of a digital video
recorder (DVR) and a monitor located in a
maintenance closet. The cameras became
functional on or about March 28 or 29, 2007
and then were observed by one or more
employees of the buildings tenants who were
passing the maintenance closet. These
observations by employees of the buildings
tenants resulted in calls to the Fairlawn
[sic] Police Department who responded to the
location on or about March 30, 2007. The
Bergen County Prosecutor's Office
subsequently took possession of the video
monitor, DVR, and other equipment.
The surveillance cameras were positioned in
such a way that although people could be
seen entering or exiting the bathrooms and
near the sink areas, they would not be
observed at or in the stalls or at the
urinals in the men's room. It was expected
that any images captured by the surveillance
cameras would depict people entering and
leaving the restroom areas. The DVR that
was recording the images from the
surveillance cameras was confiscated by the
Bergen County Prosecutor's Office who
investigated the matter. Upon belief, no
case was presented to a Grand Jury and the
Prosecutor's Office decided not to pursue a
prosecution against anyone. The defendant
has no knowledge that its employees stopped
to view images on the video monitor nor
reviewed any recorded images on the DVR.
(Emphasis added).
13 A-5397-10T2
Plaintiff Patricia Soliman submitted a certification in
opposition to defendants' motion for summary judgment.
Plaintiff's counsel used Ms. Soliman's certification in direct
support of her personal claims and as representative of the type
of privacy injury suffered by the women and girls who used these
bathrooms:
After learning about the discovery of
the hidden cameras I felt that my rights had
been violated and my privacy invaded.
I no longer trusted the environment
within the building, and in particular the
bathrooms.
I lived in Hawthorne at the time and
after the discovery of the cameras, I would
go home for lunch to use my bathroom and to
the extent possible would "hold it in"
throughout the day.
I continue to this day to have
psychological issues as a direct result of
the discovery of the cameras, and continue
to have difficulty trusting public places
such as bathrooms and dressing rooms, as
well as new environments such as hotel
rooms.
The location of the hidden devices
within the bathrooms was in immediate
proximity to the stalls.
During the time I worked in the
building, prior to the discovery of the
cameras, I would use the restroom several
times per day.
During the time I worked in the
building, prior to the discovery of the
14 A-5397-10T2
cameras, I would on occasion change clothing
in the sink areas of the bathroom, keeping
on undergarments while changing outer
layers.
I consider being viewable in
undergarments by members of the opposite sex
to be a violation of my expectations of
privacy.
Had I known I could be viewable by
members of the opposite sex through cameras,
I would never have changed in the bathrooms,
and would have avoided use of the bathrooms
completely.
(Emphasis added).
At her counsel's request, Soliman consulted with Dr. Peter
Crain, a physician and diplomate of the American Board of
Psychiatry and Neurology, and of the American Board of Forensic
Psychiatry. Dr. Crain opined that Soliman did not trust
restrooms and as a consequence suffers from anxiety. He
diagnosed Soliman as suffering from "Specific Phobia to Public
Restrooms." Because she avoided using the restroom at work and
avoided eating and drinking during work hours, Soliman developed
distention of the bladder, hypoglycemia, and anxiety; she also
has difficulty with focusing. Despite Dr. Crain's evaluation
and diagnosis, Soliman decided not to seek psychiatric
treatment. She hoped that her anxieties and fear of public
bathrooms would subside after she left her employment.
15 A-5397-10T2
Avrin claimed her psychological injuries resulting from the
incident on March 30, 2007, manifested in her developing an
obsessive compulsive preoccupation or disorder with her privacy.
These psychological factors, such as fear of public restrooms
and difficulty sleeping, also affected her physical condition,
causing ocular migraines. Although she claimed to have
consulted with a physician, she did not supply a report or
claims expenditures for medical care as a measure of damages.
However, Avrin also consulted with Dr. Crain on one
occasion and rendered a report to document this
medical/psychiatric intervention. She complained to Dr. Crain
of waking during the night and suffering from two migraine
headaches. Dr. Crain diagnosed Avrin as suffering from
obsessive compulsive disorder and aggravation of pre-existing
migraines due to stress. Dr. Crain submitted Avrin's
evaluation less than two weeks after the incident. As was the
case with Soliman, Avrin opted to defer any psychiatric
treatment to see if her symptoms would improve on their own over
time.
The CaC plaintiffs all provided similar accounts of their
emotional trauma and medical experiences in their responses to
defendants' interrogatories. The infant plaintiffs described
their emotional injury in terms of "wounded sensibility." In
16 A-5397-10T2
their capacity as guardians ad litem, the parents of the
affected children alleged claims that included phobia of
bathrooms, anxiety, embarrassment, emotional distress,
humiliation, depression, anger, and nervousness. All of the
parents also alleged experiencing anxiety when using public
restrooms and all of the CaC plaintiffs invoked the statutory
cause of action under N.J.S.A. 2A:58D-1 as a basis for liability
for invasion of privacy.
Five CaC adult plaintiffs provided expert reports from
psychologist Dr. Moti Peleg, who is also Board certified in
traumatic stress and a diplomate of the American Board of
Forensic Examiners and the American Academy of Pain Management.
Dr. Peleg diagnosed RF as suffering from generalized
anxiety disorder. He noted, however, that Minnesota Multiphasic
Personality Inventory (MMPI) psychological testing would be
needed to determine if there was a causal connection between the
incident, and to ascertain whether RF suffered from a pre-
existing anxiety/panic condition and, if so, whether the pre-
existing condition had been exacerbated by this incident.
With respect to AG, Dr. Peleg diagnosed her as suffering
from generalized anxiety disorder, despite initially finding
only mild forms of post-traumatic stress disorder (PTSD). Aside
from fear of using public restrooms, Dr. Peleg opined that AG
17 A-5397-10T2
did not report significant adverse effects on her life as a
consequence of this incident. She did not complain of being
depressed or anxious, and did not appear to be visibly
traumatized.
In CB's case, Dr. Peleg's diagnosis included adjustment
disorder with mixed emotional features. However, he did not
relate this diagnosis to the incident at issue. Dr. Peleg did
not find any indication of long term chronic symptoms due to the
incident. Dr. Peleg diagnosed LT with generalized anxiety
disorder and major depression. As was the case with RF, Dr.
Peleg qualified his diagnosis by noting that further MMPI
psychological testing was needed to rule out a pre-existing
anxiety/panic condition. Finally, with respect to RC, Dr. Peleg
diagnosed generalized anxiety disorder. He also noted that RC
did not appear to have any significant long term chronic
symptoms due to the incident.
II
We begin our analysis by reaffirming that we review the
grant or denial of a motion for summary judgment de novo. Town
of Kearny v. Brandt, 214 N.J. 76, 91 (2013). We grant summary
judgment only "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
18 A-5397-10T2
any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." R. 4:46-
2(c). We must determine whether "the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill, supra, 142 N.J. at 540.
Applying this standard, we are satisfied that the record
cannot support the dismissal of plaintiffs' cause of action as a
matter of law. Before addressing directly the many material
issues of fact in dispute, we will first delineate the legal
bases of plaintiffs' claims.
A
Our Supreme Court has acknowledged that the right to
privacy is "grounded" in the Fourteenth Amendment of the United
States Constitution's concept of "personal liberty." John Doe
v. Poritz, 142 N.J. 1, 77-78 (1995), (quoting Whalen v. Roe, 429
U.S. 589, 598 n.23, 599-600, 97 S. Ct. 869, 876 and n.23, 51 L.
Ed. 2d 64 73 and n.23 (1977)). As expressed in the Fourteenth
Amendment, "the right of privacy safeguards at least two
different kinds of interests: 'the individual interest in
avoiding disclosure of personal matters,' and 'the interest in
19 A-5397-10T2
independence in making certain kinds of important decisions.'"
Id. at 77 (internal citation omitted).
We recognize that the privacy rights characterized by the
Court as "grounded" in the Fourteenth Amendment apply only in
cases alleging unreasonable and intrusive action by a
governmental actor. Ibid. Here, plaintiffs allege their right
to privacy was violated by private actors, thus rendering
inapplicable the Fourteenth Amendment's laudable protection. We
nevertheless view the Fourteenth Amendment as a national
expression of public policy, a moral compass to help us focus on
the values that are at stake in this case.
By contrast, independent of the privacy rights conferred by
the federal constitution against unreasonable searches or
seizures by governmental actors, our Supreme Court has
recognized "at least" two New Jersey-centric bases protecting
the right to privacy: "the common law and article I, paragraph 1
of the New Jersey Constitution." Hennessey v. Coastal Eagle
Point Oil Co., 129 N.J. 81, 94 (1992). Our rights to privacy
expressly provide New Jersey citizens with the legal means to
seek redress against all those who seek to undermine or violate
their privacy, regardless of their status as public or private
actors.
The New Jersey Constitution provides:
20 A-5397-10T2
All persons are by nature free and
independent, and have certain natural and
unalienable rights, among which are those of
enjoying and defending life and liberty, of
acquiring, possessing, and protecting
property, and of pursuing and obtaining
safety and happiness. N.J. Const. art. 1,
par. 1.
The Court in John Doe v. Poritz, supra, 142 N.J. at 89,
reaffirmed that this provision in our State's Constitution
guarantees to all the right of privacy. We have enforced this
constitutional right to privacy with equal vigor, finding it to
encompass "'the right of an individual to be . . . protected
from any wrongful intrusion into his [or her] private life which
would outrage or cause mental suffering, shame or humiliation to
a person of ordinary sensibilities.'" Burnett v. County. of
Bergen, 402 N.J. Super. 319, 332 (App Div. 2008), rev'd, in
part, on other grounds, 198 N.J. 408 (2009) (quoting McGovern v.
Van Riper, 137 N.J. Eq. 24, 32, 43 A.2d 514 (Ch. 1945), aff'd,
137 N.J. Eq. 548, 45 A.2d 842 (E. & A. 1946)).
As the Court noted in Hennessey, supra, the right to
privacy is also recognized and protected under our common law as
"the tort of intrusion on seclusion." 129 N.J. at 94. Adopting
the legal principles reflected in the Restatement (Second) of
Torts § 652B (1977), the Hennessey Court defined this privacy
tort to impose civil liability on "'[o]ne who intentionally
intrudes, physically or otherwise, upon the solitude or
21 A-5397-10T2
seclusion of another or his private affairs or concerns, [this
individual would be] subject to liability to the other for
invasion of his privacy, if the intrusion would be highly
offensive to a reasonable person.'" Id. at 94-95 (emphasis
added).
The comments section of the Restatement contains a number
of scenarios or illustrations that, in the opinion of the
commentators, show how to trigger liability under this tort. In
our view, the following illustrations involve circumstances
analogous to the salient facts alleged by plaintiffs here.
A, a woman, is sick in a hospital with a
rare disease that arouses public curiosity.
B, a newspaper reporter, calls her on the
telephone and asks for an interview, but she
refuses to see him. B then goes to the
hospital, enters A's room and over her
objection takes her photograph. B has
invaded A's privacy.
[Restatement (Second) of Torts § 652B,
comment B, illustration 1 (1977).]
A, a young woman, attends a "Fun House," a
public place of amusement where various
tricks are played upon visitors. While she
is there a concealed jet of compressed air
blows her skirts over her head, and reveals
her underwear. B takes a photograph of her
in that position. B has invaded A's privacy.
[Restatement (Second) of Torts § 652B,
comment c, illustration 7 (1977).]
22 A-5397-10T2
In Villanova v. Innovative Investigations, 420 N.J. Super.
353, 360 (App. Div.), certif. denied, 208 N.J. 597 (2011), we
were recently presented with the opportunity to reexamine the
contours of the tort of invasion of privacy in the modern world
of electronic surveillance. The plaintiff in Villanova sought
to recover damages from a private investigator hired by his wife
to investigate his "suspected infidelities." Villanova, supra,
420 N.J. Super. at 355. The defendant placed a concealed global
positioning satellite (GPS) tracking device on the plaintiff's
car without his knowledge or consent. Ibid.
We affirmed the trial court's decision granting the
defendant's motion for summary judgment. Id. at 356. Writing
for the panel, Judge Lisa explained that "the placement of a GPS
device in [the] plaintiff's vehicle without his knowledge, but
in the absence of evidence that he drove the vehicle into a
private or secluded location that was out of public view and in
which he had a legitimate expectation of privacy, does not
constitute the tort of invasion of privacy." Ibid.
Our analytical approach to these types of cases has not
wavered. "[O]ne who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of another or his [or
her] private affairs or concerns, is subject to liability to the
other for invasion of his [or her] privacy, if the intrusion
23 A-5397-10T2
would be highly offensive to a reasonable person." Figured v.
Paralegal Tech. Serv., 231 N.J. Super. 251, 256 (App. Div.
1989), appeal dismissed, 121 N.J. 666 (1990) (quoting
Restatement (Second) of Torts § 652B (1977)) (emphasis added).
Mindful of these legal standards, and based on our de novo
review of the record presented to the trial court, we conclude
that plaintiffs presented sufficient evidence to bring this
matter before a jury. Here, defendants deployed a highly
invasive, intentionally clandestine video surveillance system in
bathrooms intended to serve the occupants and visitors of this
office complex. This approach does not include, in our view, a
plausible justification for concealing the video lens inside
smoke detectors or explain why defendants did not place a sign,
located at a conspicuous entry point of the bathrooms, alerting
all who entered of the existence of surveillance equipment
monitoring the so-called "common areas" of the bathrooms, as
specifically suggested by the Fair Lawn Police Department.
Defendants allege that the surveillance equipment was
installed and rendered operational in 2003; yet it lay dormant
and unused for nearly four years. They further claim that the
actual surveillance operation was short-lived, beginning on
March 28, 2007, when High Tech Depot connected the cameras to a
digital video recorder (DVR) and a monitor was placed in a
24 A-5397-10T2
maintenance closet that had a locked door marked "Authorized
Personnel Only." It operated for nearly three days until it
was inadvertently discovered on March 30, 2007, when an employee
who worked in the office building passed by the maintenance
closet while the door was left ajar.
The record shows that both the affected employees and the
building management called the Fair Lawn Police Department in
response to this discovery. The former called the police to
report what they in good faith believed to be a criminal act
involving the violation of their right to privacy, possibly
including evidence of a scheme involving child pornography; the
latter called the police to remove "a news camera team" that was
on site investigating the incident.
The Bergen County Prosecutor's Office conducted its own
independent investigation and concluded that criminal
prosecution was not warranted. It took possession of the
monitor, DVR, and other surveillance equipment.
The property manager told police that the cameras were
installed to monitor the restrooms due to vandalism problems and
that they were strictly focused on the sink areas and did not
provide a view of the stalls. Kushner defendants claimed that
the cameras were positioned only to allow observation of persons
at the sink areas.
25 A-5397-10T2
Conversely, plaintiffs assert that the cameras were
positioned so that they also provided observation of the stall
areas. To support this claim, plaintiffs relied on Detective
Jeffrey Welsh's statement on the third page of his supplemental
investigation report that stated: "the video monitor displayed
the 4 bathrooms showing the sink and bathroom stall areas."
Kushner defendants denied the cameras were ever positioned to
monitor the toilet stalls. In rebuttal, defendants cite to
Police Officer Michael Franco's report, where he stated that for
all four restrooms, two male and two female, "there was no view
into the stalls, only the sink area."
Exercising our de novo review, we conclude a rational jury
is free to reject, as a matter of credibility, defendants'
assertion that the surveillance equipment was not used
immediately after it became operational in 2003. A jury could
find defendants' account in this respect as merely reflective of
a self-serving, post-discovery strategy to mitigate damages.
Jurors may also accept Detective Jeffrey Welsh's statement that
the video monitor displayed images of "the sink and bathroom
stall areas." If this plausible outcome is accepted by a jury,
it will satisfy plaintiffs' burden of proof as to liability
under the common law, that the intrusion involved here "'would
be highly offensive to a reasonable person.'" Hennessey, supra,
26 A-5397-10T2
129 N.J. at 95 (quoting Restatement (Second) of Torts § 652B
(1977)).
In Rumbauskas v. Cantor, the Court was asked to determine
"whether the tort of intrusion on seclusion is an 'injury to the
person' barred by the two-year limitation period set forth in
N.J.S.A. 2A:14-2 or is an 'injury to the rights of another'
barred by the six-year limitation period set forth in N.J.S.A.
2A:14-1." 138 N.J. 173, 175 (1995). The controversy in
Rumbauskas arose from what Justice O'Hern characterized as "[a]n
innocuous rivalry between two suitors of a woman . . ." Ibid.
However, what began as "mere harassment" between "suitors"
eventually "escalated into stalkings and threats to kill."
Ibid.
In addition to whatever involvement the parties had with
the criminal justice system, the plaintiff in Rumbauskas filed a
civil action seeking monetary damages for invasion of privacy.
Id. at 176-77. In addressing the central legal question raised
in the appeal, i.e., what statute of limitation applies to a
cause of action grounded in the tort of invasion of privacy, the
Court noted it had previously cited with approval2 the Law
2
This was a reference to Montells v. Haynes, 133 N.J. 282, 292
(1993), in which the Court held that the two-year statute of
limitations in N.J.S.A. 2A:14-2 applied to a cause of action
(continued)
27 A-5397-10T2
Division decision in Canessa v. J.I. Kislak, Inc., 97 N.J.
Super. 327 (Law Div. 1967), "which held that the six-year
statute of limitations applied to an invasion-of-privacy claim."
Id. at 178.
Faced with this seemingly analytical paradox, the Court
noted that the tort of invasion of privacy in Canessa was
limited to the unauthorized, misappropriation and use of the
plaintiff's photograph or likeness to advance the defendant's
commercial interest. Rumbauskas, supra, 138 N.J. at 179. Under
those circumstances, and after "analyzing numerous cases
attempting to clarify the concept of the tort of invasion of
privacy," the Law Division in Canessa concluded
Entirely apart, however, from the
metaphysical niceties, the reality of a case
such as we have here is, in the court's
opinion, simply this: plaintiffs' names and
likenesses belong to them. As such they are
property. They are things of value.
Defendant has made them so, for it has taken
them for its own commercial benefit.
[Ibid. (quoting Canessa, 97 N.J. Super. at
351) (emphasis added).]
The Court in Rumbauskas ultimately concluded that "the
problem" with considering the holding in Canessa as an
(continued)
brought under the Law Against Discrimination (LAD), N.J.S.A.
10:5-13. Rumbauskas, supra, 138 N.J. at 178-79.
28 A-5397-10T2
analytical paradigm was that the common law tort of invasion of
privacy
is not one tort, but a complex of four. The
law of privacy comprises four distinct kinds
of invasion of four different interests of
the plaintiff, which are tied together by
the common name, but otherwise have almost
nothing in common except that each
represents an interference with the right of
the plaintiff to be let alone.
[Rumbauskas, supra, 138 N.J. at 179.
(internal citation omitted) (emphasis
added).]
In reaching this conclusion, the Court adopted the approach
endorsed by the Law Division in Canessa, supra, 97 N.J. Super.
at 33, as first articulated by William L. Prosser, in "The Law
of Torts," § 112 (3rd ed. 1964):
The four classifications that Dean Prosser
propounded are: (1) intrusion (e.g.,
intrusion on plaintiff's physical solitude
or seclusion, as by invading his or her
home, illegally searching, eavesdropping, or
prying into personal affairs); (2) public
disclosure of private facts (e.g., making
public private information about plaintiff);
(3) placing plaintiff in a false light in
the public eye (which need not be
defamatory, but must be something that would
be objectionable to the ordinary reasonable
person); and (4) appropriation, for the
defendant's benefit, of the plaintiff's name
or likeness.
[Rumbauskas, supra, 138 N.J. at 179 (citing
W. Page Keeton, et al., Prosser and Keeton
on the Law of Torts § 117 (5th ed. 1984)).]
29 A-5397-10T2
Based on plaintiffs' factual contentions, the privacy
interest at stake here is freedom from "intrusion" or prying
into inherently non-public areas where there is a reasonable
gender-specific expectation of privacy. In this context, the
tort of invasion of privacy "is simply that [the] defendant's
conduct struck directly at the personhood of [the] plaintiff."
Id. at 182. Comparing this injury to "the claim in Montells,
supra, 133 N.J. at 293," (an action brought by the plaintiff
under the LAD seeking compensatory damages for sexual harassment
and hostile work environment), the Court in Rumbauskas noted
that the "defendant's conduct 'cuts most deeply at the personal
level.'" Ibid.
In comparing the injuries suffered by a plaintiff in an LAD
action alleging sexual discrimination in the work place with the
injuries or damages associated with or recoverable by a
plaintiff in an action grounded in the common law tort of
invasion of privacy, the Court in Rumbauskas cited to the
following passage from Montells, in which the Court noted the
Legislature's then recent amendments to the LAD specifying the
"harm suffered by both the people and the State from the
'personal hardships' caused by discrimination[.]" Montells,
supra, 133 N.J. at 287 (emphasis added). These amendments to
the LAD clarified the meaning and expanded the scope of the type
30 A-5397-10T2
of "personal hardships" suffered by those who experience
invidious discrimination in the work place.
The Legislature further finds that because
of discrimination, people suffer personal
hardships, and the State suffers a grievous
harm. The personal hardships include:
economic loss; time loss; physical and
emotional stress; and in some cases severe
emotional trauma, illness, homelessness or
other irreparable harm resulting from the
strain of employment controversies;
relocation, search and moving difficulties;
anxiety caused by lack of information,
uncertainty, and resultant planning
difficulty; career, education, family and
social disruption; and adjustment problems,
which particularly impact on those protected
by this act. Such harms have, under the
common law, given rise to legal remedies,
including compensatory and punitive damages.
The Legislature intends that such damages be
available to all persons protected by this
act and that this act shall be liberally
construed in combination with other
protections available under the laws of this
State.
[N.J.S.A. 10:5-3.]
In our view, and most importantly consistent with the
Court's own views in Rumbauskas, supra, 138 N.J. at 179,
plaintiffs who have experienced a violation of their personal
privacy may have endured many of these same "personal
hardships." We thus hold that a plaintiff in a cause of action
predicated on the tort of invasion of privacy, grounded in the
subcategory of "invasion of intrusion on [the] plaintiff's
physical solitude or seclusion," which include the
31 A-5397-10T2
characteristics of unconsented prying, may recover compensatory
damages for "personal hardships," similar in kind and scope to
those codified in N.J.S.A. 10:5-3, if plaintiffs can show a
causal link between defendants' intrusion and these "personal
hardships." As a threshold issue, plaintiffs must show in these
consolidated cases that defendants' actions to clandestinely
monitor their activities in a gender-restricted bathroom is
subject to liability, because it is the type of intrusion that a
reasonable person would find to be highly offensive.
Depending on the availability of compensatory damages, we
are equally satisfied that this same evidence may support an
award of punitive damages under the PDA's definition of "actual
malice." N.J.S.A. 2A:15-5.10.
B
Plaintiffs also asserted invasion of privacy claims under
N.J.S.A. 2A:58D-1a, which provides:
An actor who, without license or privilege
to do so, photographs, films, videotapes,
records, or otherwise reproduces in any
manner, the image of another person whose
intimate parts are exposed or who is engaged
in an act of sexual penetration or sexual
contact, without that person's consent and
under circumstances in which a reasonable
person would not expect to be observed,
shall be liable to that person, who may
bring a civil action in the Superior Court.
[(Emphasis added).]
32 A-5397-10T2
Alternatively, plaintiffs assert a claim under N.J.S.A.
2A:58D-1b, which provides:
An actor who, without license or privilege
to do so, discloses any photograph, film,
videotape, recording or any other
reproduction of the image of another person
whose intimate parts are exposed or who is
engaged in an act of sexual penetration or
sexual contact, without that person's
consent and under circumstances in which a
reasonable person would not expect to be
observed, shall be liable to that person,
who may bring a civil action in the Superior
Court. For purposes of this section,
"disclose" means sell, manufacture, give,
provide, lend, trade, mail, deliver,
transfer, publish, distribute, circulate,
disseminate, present, exhibit, advertise or
offer.
In terms of damages, the statute specifically authorizes the
court to award:
(1) actual damages, but not less than
liquidated damages computed at the rate of
$1,000.00 for each violation of this act;
(2) punitive damages upon proof of willful
or reckless disregard of the law;
(3) reasonable attorney's fees and other
litigation costs reasonably incurred; and
(4) such other preliminary and equitable
relief as the court determines to be
appropriate.
[N.J.S.A. 2A:58D-1c.]
In our view, the same record discussed at length during our
analysis of the evolution of the tort of invasion of privacy
33 A-5397-10T2
under the common law renders plaintiffs' cause of action under
this statute not suitable to summary judgment disposition.
Without belaboring the issue, a reasonable jury could find that
defendants' clandestine video surveillance equipment captured
images of plaintiffs performing personal grooming or biological
activities that exposed their intimate parts.
In response to plaintiffs' interrogatories, defendants
conceded that the surveillance operation was conceived and
installed in response to "complaints of paper being stuffed down
toilets with resulting backup, overflow." A jury is entitled to
infer from this admission that the cameras' monitoring scope
included surveillance of the toilet stalls in order to identify
the individual or individuals engaging in this alleged
vandalism. This plausible finding is further corroborated by a
supplemental investigation report prepared by Fair Lawn Police
Detective Jeffrey Welsh, in which he stated: "the video monitor
displayed the 4 bathrooms showing the sink and bathroom stall
areas."
Finally, we affirm the trial court's dismissal of
plaintiffs' claims of intentional and negligent infliction of
emotional distress. To make out a prima facie case of
intentional infliction of emotional distress, a plaintiff must
show that: (1) the defendant acted intentionally; (2) the
34 A-5397-10T2
defendant's conduct was "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community;" (3) the defendant's
actions proximately caused him/her emotional distress; and (4)
the emotional distress was "so severe that no reasonable
[person] could be expected to endure it." Segal v. Lynch, 413
N.J. Super. 171, 191 (App. Div. 2010) (quoting Buckley v.
Trenton Saving Fund Soc., 111 N.J. 355, 366 (1988)). Here, the
trial court correctly found the record does not contain
sufficient evidence for a rational jury to find a legal basis to
hold defendants accountable on this standard of liability.
We reach a similar conclusion with respect to the tort of
negligent infliction of emotional distress. This tort is
intended to compensate those who witness "shocking events that
do not occur in the daily lives of most people." Frame v.
Kothari, 115 N.J. 638, 644 (1989). Events or circumstances that
have been found to present cognizable claims under this tort
include bystanders to accidents, Portee v. Jaffee, 84 N.J. 88(1980); medical malpractice committed in the presence of the
plaintiff, Kothari, supra, 115 N.J. at 640; Strachan v. John F.
Kennedy Memorial Hospital, 109 N.J. 523 (1988); or cases
involving loss of a corpse, Muniz v. United Hospitals Medical
35 A-5397-10T2
Center Presbyterian Hospital, 153 N.J. Super. 79 (App. Div.
1977). The evidence described at length here does not
constitute this type of trauma.
To summarize, we are satisfied that the evidence presented
is sufficient to withstand defendants' summary judgment
challenge on the claims grounded on the tort of invasion of
privacy. We thus reverse and remand this matter for trial
before a jury on this issue. The judgment of the trial court is
otherwise affirmed. We do not retain jurisdiction.
36 A-5397-10T2