Can a plaintiff advance an invasion-of-privacy claim based on a hidden camera, without offering proof of an actual recording, using the "intrusion upon seclusion" argument?

In Friedman v. Martinez, a civil case over a janitor planting a secret camera in an office building women's bathroom, the state Supreme Court reversed the Appellate Division's decision and reinstated a summary judgment dismissal against one group of plaintiffs, holding that although they had to show some proof that they were in the restroom or vicinity, they did not have to show proof of being recorded.

"We reverse the judgment of the Appellate Division and reinstate the trial court's order granting summary judgment," wrote Chief Justice Stuart Rabner for the unanimous court in the 36-page opinion Tuesday.

"'Intrusion upon seclusion' is a tort that allows individuals whose privacy has been invaded to seek recovery for their injuries. In New Jersey, the tort provides a cause of action against the intentional intrusion, 'physical[] or otherwise, upon the solitude or seclusion of another … if the intrusion would be highly offensive to a reasonable person.' Restatement (Second) of Torts § 652B from 1977.

"An intrusion on privacy occurs when someone uses a private space where a spying device has been concealed and 'the intrusion would be highly offensive to a reasonable person,'" Rabner said.

"To bring a claim, the victim does not have to present direct evidence that she was secretly recorded. She can instead establish a case of intrusion on seclusion based on reasonable inferences drawn from the evidence."

Two groups of plaintiffs emerged in the case filed in 2014: the "Friedman plaintiffs," a group of about 30 women who could identify their images on the recovered video footage from hidden cameras; and the "Arendt plaintiffs," the remaining 35 women who could not, though they had been in the restroom at issue, they claimed.

William Buckley of Schenck, Price, Smith & King in Florham Park represented defendants I&G Garden State LLC, Jones Lang LaSalle Inc. and LaSalle Investment Management Inc. Buckley was not available for comment.

Millburn solo Jeffrey S. Mandel represented defendants Ruben Sabillon, Jamar Sailor, and Planned Security Services Inc. and its employees.  "The Supreme Court properly weighed the privacy interest of those who believe they were videotaped against the requirement that lawsuits require evidence, whether circumstantial or direct," Mandel said in a phone call on Wednesday.

Franklin P. Solomon of the Solomon Law Firm in Cherry Hill, as well attorneys from Hill Wallack and Locks Law Firm, represented several Arendt plaintiffs. Solomon could not be immediately reached for comment.

The case was on appeal and argued before the Court on Jan. 21.

The American Civil Liberties Union of New Jersey, an amicus curiae in support of all the plaintiffs, was represented by CJ Griffin of Pashman Stein Walder Hayden in Hackensack.

"Today's ruling is a victory for privacy rights. We are pleased that the Court recognized that the mere placement of a secret camera in a bathroom stall is a privacy violation and happy that the Court rejected any standard that would require victims to provide direct evidence of the privacy intrusion, such as their images on video tapes," Griffin said in an email to the Law Journal.

"That standard would have been far too rigid, especially in this day and age where so many cameras simply livestream onto the internet or social media," added Griffin.

Defendant Teodoro Martinez was arrested in November 2009 and charged with placing hidden cameras inside bathrooms in the five-story building where he worked as a janitor and in the locker room. Martinez later revealed to a police detective, Ordel Taylor, that he spent more than a year recording images and that he had placed three or four portable cameras among the 15 bathrooms at various times throughout the building, according to the decision.

The court said about three hours of recorded footage was recovered, which included graphic recordings of women using a bathroom. Martinez was charged with one count of third-degree invasion of privacy, but ultimately fled the country, according to the decision.

The Friedman and Arendt plaintiffs emerged, totaling about 60 women who had worked in the office building with the alleged hidden cameras. They filed an 11-count complaint against the multiple defendants, including Martinez; his employer and related entities, and Planned Security, the company hired by a building tenant, along with Sabillon and Sailor, who worked for Planned Security as guards.  Among the charges were tortious invasion of privacy and intentional and negligent infliction of emotional distress.

The Friedman plaintiffs contended they could identify their recorded images from the confiscated footage. The Arendt plaintiffs said they could not.

The defendants moved for partial summary judgment solely against the Arendt plaintiffs, arguing they could not demonstrate an invasion of their privacy. Partial summary judgment was granted in January 2014, and all claims by the Arendt plaintiffs were dismissed. The motion judge repeatedly agreed with the Arendt plaintiffs that evidence of a recording was not needed to state a claim, but found there was no other way in this case to show the women had been in one of the bathrooms with a planted camera. More evidence of some sort was required to prove the presence of a camera, said the judge.

The trial judge said the case was more complex than Soliman v. Kushner Cos., a 2013 Appellate Division decision where the defendants admitted they installed cameras in certain restrooms of an office building to deter vandalism. Unlike Soliman, the Arendt plaintiffs "can't prove the camera was there when the plaintiff was in" the bathroom, the trial court ruled, according to Tuesday's decision.

The Arendt plaintiffs appealed. The Appellate Division considered the intrusion claims by those plaintiffs only, as did the justices.

"On direct appeal, [the Arendt] plaintiffs did not advance arguments independent of the intrusion claim for other counts in the complaint," Rabner said Tuesday.

The Friedman plaintiffs proceeded with their case against the same defendants until February 2016, when the trial court granted summary judgment in favor of Martinez's employer and partial summary judgment in favor of the building owner and managers. The Friedman plaintiffs also settled with the remaining defendants shortly after, the court noted.

According to the decision, the Arendt plaintiffs filed a notice of appeal in July 2016 to challenge the trial court's 2014 summary judgment order. The owner-managers in turn filed a cross-appeal to challenge the trial court's partial denial of their motion for summary judgment. In support of their cross-appeal, the owner-managers submitted new evidence not previously shared, including a summary of the detective's interview with Martinez in which the janitor admitted placing the hidden cameras.

In March 2018, the Appellate Division reversed the grant of summary judgment against the Arendt plaintiffs, holding that the plaintiffs could maintain a cause of action for intrusion upon seclusion without proof that "their images were actually captured" in a recording, and that it's possible to prove invasion of privacy through circumstantial evidence.

The Appellate Division observed that "[a]ny plaintiff who could assert she used the same restroom around the same time should not have been dismissed by way of summary judgment." The panel also found that the trial court "took a far more restrictive view of plaintiffs' proofs than" the summary judgment standard permits.

The Supreme Court granted petitions for certification by the owner-managers and the Planned Security defendants last year.

On Tuesday, the court said it had previously adopted §652B of the Restatement (Second) of Torts, which subjects to liability someone "who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another … if the intrusion would be highly offensive to a reasonable person."

Rabner noted that the restatement does not suggest a plaintiff must show someone saw or heard recorded information to be able to bring a claim.

And, he added, "Neither Soliman nor any other reported New Jersey decision squarely addresses whether simply placing a recording device in a private space is enough to establish an invasion of privacy without proof of an actual recording."

The court agreed with the Appellate Division's view, and that of other courts outside New Jersey, in concluding that a victim does not have to present evidence that he or she was secretly recorded to bring a cause of action for intrusion on seclusion.

"The tort is tied to the placement of a surveillance device in an area reasonably expected to be private," Rabner said. "It is the intrusion itself, and not an actual viewing, that is critical. … It doesn't depend on when – or whether – direct evidence of actual spying is found.

"A court could reasonably infer that someone who worked in the vicinity of a bathroom around the same time a camera was hidden there met that standard," wrote Rabner.

But with the Arendt plaintiffs, the chief justice said, the court could not reasonably infer that cameras had been placed in all 15 bathrooms, making it impossible for the trial court to find they had satisfied their burden by a preponderance of evidence to state a prima facie claim of intrusion.

"The evidence falls short of demonstrating facts within the Arendt plaintiffs' control: that they used bathrooms with cameras during the relevant time period," said Rabner. "The 2014 record does not reveal where or when the Arendt plaintiffs worked in the office building, which restrooms they used, or the particular restrooms the Friedman plaintiffs used, which could have helped identify where cameras had been placed.

"In any event, without some showing of how the requested materials could help the Arendt plaintiffs state a prima facie claim of intrusion, it was not premature to grant summary judgment after three years of discovery," said Rabner. "We therefore reinstate the trial court's order."