Patricia Soliman v. the Kushner Companies, Inc

NOT FOR PUBLICATION WITHOUT THE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