The Tort of Intrusion Upon Seclusion

Friedman v. Martinez, 242 N.J. 450 (2020). The Torts class in the first year of law school deals with, among other things, the tort of intrusion upon seclusion. It is one of several branches of the right to privacy. As Chief Justice Rabner wrote for a unanimous Supreme Court in this case today, the intrusion upon seclusion tort “allows individuals whose privacy has been invaded to seek recovery for their injuries.”

Today’s case arose because a janitor in an office building had hidden video recording equipment in women’s bathrooms and a locker room for a period of months. That sort of intrusion upon seclusion or solitude plainly qualified as a tort, since it met the requirement, drawn from Restatement of Torts (Second), section 652B, that “the intrusion would be highly offensive to a reasonable person.” The question, though, was whether a group of plaintiffs who could not show through the tapes that they themselves were recorded could survive a motion for summary judgment. As discussed here, the question presented was whether plaintiffs needed to “demonstrate that their images were actually captured on a recording device or that they were present when recording devices were active” in order to maintain a claim.

The Law Division granted defendants’ motion for summary judgment as against the group of plaintiffs who could not identify themselves on the tapes. The judge ruled that, as Chief Justice Rabner summarized, “in general, an actual recording is not necessary to demonstrate intrusion. But the court found there was no evidence the dismissed plaintiffs had used a restroom while a camera was concealed there.”

The Appellate Division reversed, agreeing that a recording was unnecessary, but holding that plaintiffs might be able to prove their case through circumstantial evidence. Today, the Supreme Court reversed and reinstated the dismissal of the claims of this group of plaintiffs.

Chief Justice Rabner noted that courts elsewhere had split as to whether evidence of an actual viewing or recording in a private space is required to establish the intrusion tort. Some such cases have held that no viewing or recording is required. Others have said that the absence of a viewing or recording can affect damages but does not a plaintiff’s ability to state a claim. Still others “require some showing that a defendant actually saw or heard private activities.”

Chief Justice Rabner’s opinion endorsed the first of those approaches, agreeing with the courts below. “It is the intrusion itself, and not an actual viewing, that is critical.” The Court also agreed with the Appellate Division that plaintiffs in such cases can establish their claim through circumstantial evidence.

But the Court found that in today’s case, the record did not contain sufficient evidence to show that plaintiffs had been in a women’s room that had a camera. It was not clear which bathrooms had cameras, and after three years of discovery, this plaintiff group “had not offered proof from which one could reasonably infer that they used a restroom while a camera was placed there.” Their counsel stated that plaintiffs could offer affidavits, but none were presented. Accordingly, even applying the standard of review of summary judgments, which gives the opposing party the most favorable view of the evidence, plaintiffs’ evidence did not suffice to defeat summary judgment.

The Court’s opinion today contains a detailed analysis of the intrusion tort, as well as a historical perspective on it. Defendants won the day due to the state of this particular record, but the Court made clear that, in New Jersey, plaintiffs’ evidentiary burden in such cases is less than what some other courts have held.