Law, Business and Society 11th Edition by Tony McAdams

Exercise 2

EISENHAUER, P. J.
I. BACKGROUND FACTS AND PROCEEDINGS
[Sara] Koeppel and Deanna Miller were the only employees of Speirs, an insurance agent. A small (4' × 7') bathroom with a sink and toilet is located in the office. On December 27, 2005, Koeppel discovered a digital surveillance camera hidden inside the office bathroom. After contacting the Waterloo Police Department, a search warrant was obtained and officers located the camera in the bathroom. The camera was positioned to view the toilet and surrounding area. When confronted by police, Speirs produced the receiver and monitor for the camera from a locked drawer in his desk.
When questioned about the presence of the camera, Speirs admitted he had placed it in the bathroom on December 26, 2005, and stated he did so because he suspected one of his employees was abusing drugs while at work and was concerned she would embezzle money. Speirs claimed he was unable to get a signal from the camera when it was in the bathroom. At the time the officers arrived, the surveillance system was not set up to receive images from the camera. However, setup could be completed by plugging the equipment found in Speirs's desk drawer into an electrical outlet.
After connecting the equipment, the officers tested it and found it did not work. Speirs told the officers the camera battery was likely dead. After changing the battery at Speirs's suggestion, a fuzzy picture of the toilet seat and bathroom wall was visible. The image would cut in and out every few seconds. Videotapes located in Speirs's office were blank.
Speirs purchased the camera on November 26,2005. Miller told the police, when interviewed on December 28, she saw the camera in the bathroom on November 28, 2005. Speirs, in another proceeding, testified he used the camera to monitor Miller at her desk on December 10, 2005, and in seven or ten viewings, he observed no wrongdoing.
*****
Koeppel [sued] Speirs, alleging...invasion of privacy.... Speirs then filed a motion for summary judgment… claiming there was no actual intrusion upon Koeppel's privacy because there is no evidence he viewed her in the restroom. Koeppel [argued] Speirs's act of placing the camera in the bathroom with the intent to view her was an invasion of her privacy. She also argued there was sufficient evidence for the jury to find the camera was operational.... The district court entered its ruling, granting Speirs's motion. The court agreed Speirs intended to view Koeppel while she was in the bathroom, but concluded Koeppel could only be liable for an actual intrusion on her privacy, not an attempted intrusion. Finding no evidence Speirs viewed Koeppel in the bathroom, the court dismissed the claim.
On November 25, 2008, Koeppel appealed….
*****
III. INVASION OF PRIVACY
Koeppel first contends the court erred in granting summary judgment on her invasion of privacy claim. She contends Speirs's act of placing a camera in the bathroom with the intent to view her is sufficient to support a cause of action for invasion of privacy. In the alternative, she contends there is a question of fact as to whether there was an actual intrusion into her privacy.
… Iowa has adopted the tort of invasion of privacy, as set forth in the Restatement (Second) of Torts (1977), which provides the right to privacy can be invaded by "unreasonable intrusion upon the seclusion of another."… Under this theory,
[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.
… To recover under this theory, Koeppel must show Speirs intentionally intruded upon her seclusion, and that a reasonable person would find the intrusion "highly offensive."
There is no question viewing or recording Koeppel while in the bathroom would be considered "highly offensive" by any reasonable person. There also can be no dispute a bathroom is a place where one enjoys seclusion. Nor is it debatable that Speirs acted intentionally in placing a recording device in the bathroom. The question presented in this case is whether there is enough evidence to create a question of fact as to whether there was an intrusion on Koeppel's privacy.
The district court concluded an actual invasion of privacy must occur for the cause of action to stand and found no facts supported an actual invasion. Koeppel argues intent to intrude on privacy is enough to maintain a cause of action. She cites In re Marriage of Tigges and two cases outside this jurisdiction in support of her argument.
In the case of Tigges, our supreme court addressed the question of unreasonable intrusion upon the seclusion of another where a husband secretly videotaped his wife in their bedroom. Tigges, 758 N.W.2d at 825. The husband argued there was no invasion of privacy because the video captured nothing "private" or "sexual" in nature. Id. at 829. In rejecting this claim, our supreme court stated:
The wrongfulness of the conduct springs not from the specific nature of the recorded activities, but instead from the factthat Cathy's activities were recorded without her knowledge and consent at a time and place and under circumstances in which she had a reasonable expectation of privacy.
Id. at 830. We disagree with Koeppel's assertion that Tigges supports the proposition that the focus of invasion of privacy claims are on the intent of the perpetrator; as our supreme court states, it's the fact the victim was recorded without her knowledge and consent that results in the intrusion. See id.
*****
Koeppel cites Harkey v. Abate, In that case, the plaintiffs brought an invasion of privacy suit after using a roller-skating rink restroom with see-through panels installed in the ceiling, which permitted surreptitious observation from above. The Michigan Court of Appeals stated:
In our opinion, the installation of the hidden viewing devices alone constitutes an interference with that privacy which a reasonable person would find highly offensive. And though the absence of proof that the devices were utilized is relevant to the question of damages, it is not fatal to plaintiff's case.
… Although this case does not support Koeppel's argument that mere intent to intrude on privacy is enough, it provides guidance in establishing the proof necessary to survive summary judgment on an invasion-of-privacy claim.
*****
In its summary judgment ruling, the trial court...cites Brazinski v. Amoco Petroleum Additives Co where a female business invitee brought an invasion-of-privacy claim after learning the defendant had a television camera trained on the entrance of a locker room for its female employees. The court… concluded the plaintiff's claim could not stand because she was unable to show she had been in the locker room during the period the surveillance was being conducted The case is distinguishable from Koeppel's case, however, because as a business invitee, the plaintiff in Brazinski was not presumed to have used the locker room as the defendant's female employees did.... Unlike Brazinski, there is no doubt in the present case that Koeppel used the office bathroom.
*****
From the foregoing cases, we conclude to succeed on her claim, Koeppel must show the surveillance camera was capable of functioning while in the bathroom. Speirs claims it was not, that he was unable to receive any signal from the camera in the bathroom. Other evidence shows when a new battery was in the camera, a picture of the bathroom was visible on the monitor in Speirs's office, albeit not a clear and consistent one. The images obtained from the bathroom need not have been of high quality to establish an invasion of privacy, nor did the camera need to be pointed at the toilet-it is sufficient that the seclusion of the bathroom, a private area, was intruded upon. There is also evidence the camera was in the bathroom earlier in November.
*****
Accordingly, we reverse the district court ruling granting summary judgment in favor of Speirs on this claim.
*****
The court in Koeppel cited an additional case involving the following facts: The director of a nonprofit residential facility for neglected and abused children learned that someone was accessing pornographic websites late at night from a facility office computer located in an enclosed office. The two employees stationed in that office performed clerical work during normal business hours and were not suspected. Without telling them, the director installed a hidden camera in the office, trained on the computer in question. The camera did not operate during the day. After discovering the camera, the employees sued for invasion of privacy.
a. How might this case support the court's decision in KoeppeP.
b. Decide. Explain. See Hernandez v. Hillsides, 47 Cal. 4th 272 (Cal. 2010).