Koeppel v. Speirs

808 N.W. 2d 177 (Iowa 2011)

Opinion By Chief Justice Cady

In this appeal, we must decide whether surveillance equipment secretly installed in a bathroom can support a claim for invasion of privacy when the equipment could not be operated after it was discovered to produce identifiable images. The district court determined evidence of an actual, rather than attempted, intrusion was required and granted summary judgment for the defendant after concluding the evidence was insufficient to sustain the plaintiff's claim. The court of appeals reversed, finding the evidence of intrusion was sufficient to survive summary judgment. On our review, we affirm the decision of the court of appeals, reverse the decision of the district court, and remand for further proceedings.

* * * Robert Speirs was an insurance agent for an insurance company. He operated his business from an office building in Waterloo. He employed Sara Koeppel and Deanna Miller to assist him in his business. The office included a reception area occupied by Koeppel and Miller, an office occupied by Speirs, and a small unisex bathroom. The bathroom contained a sink, toilet, and black floor shelf. The shelf had a hollow rectangular base and was positioned between the sink and the toilet. In October 2005, Speirs noticed Miller's work performance had deteriorated. He began to suspect she was engaged in conduct detrimental to the operation of his office. In response, Speirs decided to monitor Miller's activities at work using a hidden camera. On November 26, 2005, Speirs purchased a security camera, monitor, videocassette recorder (VCR), and video tape. The camera was powered by a nine-volt battery and functioned independently of the receiver and monitor. When the camera was switched on, it would send radio wave signals to the receiver corresponding to the images captured by the camera. The receiver, in turn, sent the images to the monitor for viewing. The receiver, monitor, and VCR were located in Speirs' office. The battery only had a lifespan of a few hours.

Speirs claimed that, on December 10, he installed the camera in the reception area of the office to monitor Miller's workstation. As a result, he was able to observe the reception area from the monitor in his office. He had no difficulty observing Miller when the equipment was in operation. However, he did not observe any misconduct by Miller and removed the camera from the reception area after approximately ten days. He claimed he was never able to record the camera images with the VCR. On December 26, Speirs claimed he found a hypo-dermic needle in the office parking lot near the spot Miller parked her car. As a result, he installed the camera inside the hollow base of the shelf in the bathroom. He claimed, however, the equipment did not operate after he placed the camera in the bathroom. Instead, he claimed the monitor in his office produced only static or, at other times, displayed a "no signal" message. After unsuccessfully working with the equipment to produce a picture on the monitor, Speirs claimed he unhooked the monitor and receiver and put them in his desk drawer. Nevertheless, he left the camera in the bathroom and claimed he intended to remove it before Koeppel and Miller arrived at work the following day.

The next day, Koeppel discovered the camera in the bathroom. She took photographs of the scene and reported her discovery to the police. The photographs showed the camera angle pointing towards the toilet in the bathroom. The police investigation uncovered the monitor and receiver located in Speirs' office. The camera was found in the bathroom but was inoperable due to a dead battery. The investigating officers replaced the battery in the camera, assembled the equipment, and attempted to operate the monitoring system. They eventually observed a "snowy, grainy, foggy" image on the screen of either the legs or arms of the investigating officer who was inside the bathroom. This image appeared only briefly before the monitor displayed a "no signal" message.

Koeppel filed a claim for damages against Speirs and the insurance company. The petition alleged invasion of privacy and sexual harassment. Miller filed a separate action against Speirs and the insurance company based on the same claims. The district court eventually dismissed the insurance company as a defendant in the lawsuit because it found Speirs was an independent contractor rather than an employee. It also granted summary judgment for Speirs on the sexual harassment claim because Speirs, as an employer of less than four people, was not subject to liability under Iowa [law].

Speirs also moved for summary judgment on the invasion-of-privacy claim. He claimed the camera did not constitute an intrusion as a matter of law because it did not actually allow him to view or record Koeppel and Miller. Koeppel claimed she produced sufficient evidence of an invasion because Speirs placed the camera in the bathroom with the intent to view her and the camera was operable. * * * The district court granted Speirs' motion for summary judgment on the invasion-of-privacy claim . . . reasoning that, although Speirs intended to view Koeppel in the bathroom, the tort of invasion of privacy required proof the equipment had worked and Speirs had viewed the plaintiffs. It concluded the standard required an actual, as opposed

to attempted, intrusion. * * * The court of appeals . . . reversed the ruling in favor of Speirs on the invasion-of-privacy claim. The court of appeals concluded the evidence indicating the camera was operational in the bathroom was sufficient to survive summary judgment on the issue of invasion of privacy. * * *

The case before us presents an issue of first impression pertaining to the quantum of proof necessary to establish an intrusion under the "unreasonable intrusion upon the seclusion of another" prong of the invasion-of-privacy tort. * * * [W]e begin by reviewing the under-lying policy of the cause of action.

1. Invasion of privacy

* * * Conduct that intrudes on privacy gives rise to liability because it can cause a reasonable person "mental suffering, shame, or humiliation" inconsistent with the general rules of civility and personal autonomy recognized in our society. * * * Importantly, the cause of action for invasion of privacy imposes liability based on a particular method of obtaining information, not the content of the information obtained, or even the use put to the information by the intruder following the intrusion. Thus, proof that information obtained through an intrusion has been distributed to third parties is not required.

Invasion of privacy developed from "the com-mon law to fill a need for the protection of the interest which a person has in living without unwarranted publicity." Four types of invasion of privacy were recognized: "unreasonable intrusion upon the seclusion of another, . . . appropriation of the other's name or likeness, . . . unreasonable publicity given to the other's private life, . . . [and] publicity that unreasonably places the other in a false light before the public." These four distinct forms of invasion each represent an interference with the plaintiff's right to be left alone, but they are otherwise unrelated. * * * Unreasonable intrusion upon seclusion [claims] generally require[] the plaintiff to establish two elements. The first element requires an intentional intrusion into a matter the plaintiff has a right to expect privacy. The next element requires the act to be "highly offensive to a reasonable person." We have held that an intrusion upon seclusion occurs when a person "intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns . . . if the intrusion would be highly offensive to a reasonable person."

* * * In this case, the parties do not dispute that placing a camera in a bathroom would be highly objection-able to a reasonable person, nor do they dispute that a bathroom is a place where a reasonable person expects to be left alone. Instead, the parties disagree about the proof necessary to show the act of intrusion occurred. Koeppel primarily argues the installation of the cam-era in the bathroom with the intent to view is sufficient. Speirs argues the element of "intrusion" requires proof of an actual viewing at the time the activities in private took place or a recording that could be viewed at a later time. In other words, Speirs claims he could not be liable for his conduct if the camera could not function to pro-duce an image. * * *

1. Sufficient evidence of Intrusion

Courts across the nation are divided on the question whether a person can intrude without actually viewing or recording the victim. Some courts conclude the installation of surveillance equipment in a private place is sufficient to show an intrusion. The seminal case representing this view is Hamberger v. Eastman [a 1964 New Hampshire case]. In Hamburger, a husband and wife brought an invasion of privacy suit against their landlord, who they alleged installed a recording device in their private bedroom. The plaintiffs alleged the device was "capable of transmitting and recording any sounds and voices originating" from their bedroom. The land-lord argued no claim for relief had been stated because the plaintiffs had not alleged that anyone listened or overheard anything originating from the bedroom. The court held the plaintiffs were not required to prove the defendant actually overheard or viewed the activities in a secluded place to show an intrusion occurred. Instead, it found an intrusion occurs when the defendant performs an act that had the potential to impair a person's peace of mind and comfort associated with the expectation of privacy.

* * * Similarly, in Johnson v. Allen [a 2005 Georgia

case], an employer installed a camera behind a ceiling tile above a stall in the women's bathroom. The manager testified he installed the camera after he had heard rumors of employees using and selling drugs on the premises. In addressing the invasion-of-privacy claim brought by the female employees who discovered the hidden camera, the court first noted the use of a bathroom is "an immensely intimate act." However, the court continued by noting that, when a private place is not used for its intended purposes, the employer's right to prevent illegal activity must be weighed against the right to seclusion. Yet, there was no evidence the surveillance was conducted as an immediate follow-up to a tip that drugs were being sold or used in the bathroom. Instead, the court reasoned the camera was positioned to view the women in the bathroom continuously, without reasonable limitation. Most notably, the court determined under its standard of review that, although there was no conclusive evidence that the camera was operational at any point in time, the plaintiffs must be afforded all reasonable inferences from the record. As a result, the court found the mere presence of the camera in the women's restroom constituted sufficient evidence to allow the plaintiffs' claims to survive summary judgment. The Hamberger view that mere placement of equipment can constitute an intrusion has continued to be followed in several other jurisdictions.

. . [While] other courts have adopted a standard of intrusion requiring a defendant either see or hear another person's private activities, [t]his standard appears to represent the minority view. In deciding a standard for Iowa, we think it is important to keep in mind that the tort protects against acts that inter-fere with a person's mental well-being by intentionally exposing the person in an area cloaked with privacy. The point of disagreement among courts across the nation essentially boils down to whether the harm sought to be remedied by the tort is caused by accessing information from the plaintiff in a private place or by placing mechanisms in a private place that are capable of doing so at the hand of the defendant. Both perspectives clearly have support in other jurisdictions. However, we find the approach taken in Hamberger and its progeny is more consistent with the spirit and purpose of the protection of privacy. The secret use of an electronic listening or recording device is abhorrent to the interests sought to be protected by the tort. * * * [T]he minority rule fails to provide full protection to a victim, while giving too much protection to people who secretly place recording devices in private places. Direct evidence that an actual viewing occurred can be difficult to establish, and a person who is inclined to secretly place a camera in a private area can easily incapacitate the camera when it is not in use so as to minimize any responsibility upon discovery. A plaintiff who learns a camera was placed in a private place should not be forced to live with the uncertainty of whether an actual viewing occurred. Such an approach would leave those victims with a reason-able belief that someone could have listened to or seen a private moment without a remedy simply because the device was unable to actually operate to invade privacy at the time it was discovered.

We recognize this case is complicated by evidence

that the camera could not be configured and operated after it was discovered to capture images from the bathroom and transmit them to the monitor and recorder in the office and by Speirs' claim that he was never able to use the equipment to actually see into the bathroom.

* * * It would be inconsistent with the policy of the tort to find an intrusion when the privacy of the plaintiff could not have been exposed in any way. Thus, a belief by a plaintiff that a person invaded his or her privacy by placing an apparent recording device in a private area does not establish an intrusion if the device was not capable of being configured or operated to transmit or record in any conceivable way. Accordingly, proof the equipment is functional is an ingredient in the inquiry. Indeed, the very purpose of the tort is to protect the opening up of a private place where the plaintiff seeks seclusion. If the fact finder finds from the evidence that the device could not have intruded into the privacy of the plaintiff in any manner, the tort of invasion of privacy has not been committed. Yet, if the fact finder finds from the evidence that the device could have intruded into the privacy of the plaintiff, the element of intrusion is satisfied. * * * The equipment does not need to be operational at the time it is discovered. Instead, the fact finder must only conclude that the equipment could have been operational so as to invade the plaintiff's privacy.

In this case, Speirs presented evidence tending to dispute Koeppel's claim the battery-operated camera could have functioned at any time when she was in the bathroom. This evidence tended to show the camera did not send a strong enough signal to Speirs' office that would have exposed her privacy. Yet, Koeppel submitted evidence that the camera was capable of working when a fresh battery was in place. Under the standard we adopt in this case, a reasonable fact finder could conclude the camera was capable of exposing the plaintiff's activities in the bathroom. Importantly, there was evidence the camera was capable of operation, and there was evidence it operated in the past from a different location in the office. This evidence meets the standard and would lead a reasonable person to believe his or her privacy had been invaded.

Speirs argues that a standard of intrusion that does not require evidence that the camera actually functioned to record an image essentially creates a tort of attempted invasion of privacy. We disagree. We recognize attempted conduct normally does not give rise to an intentional tort because the required element of actual harm does not occur. It is axiomatic that there can be no tort if there is no injury. * * * However, the act of intrusion is complete once it is discovered by the plaintiff because acquisition of information is not a requirement. Additionally, harm from intrusion arises when the plaintiff reasonably believes an intrusion has occurred. Therefore, the standard we establish to satisfy the intrusion element does

not create a claim for attempted invasion of privacy.

* * * In light of the policies underlying intrusion

upon seclusion and our prior holdings, we conclude the district court erred in granting Speirs' motion for sum-mary judgment. An electronic invasion occurs under the intrusion on solitude or seclusion component of the tort of invasion of privacy when the plaintiff establishes by a preponderance of evidence that the electronic device or equipment used by a defendant could have invaded privacy in some way.

Overview:

This week's assignment forum examines how invasion of privacy and intrusion could impact the monitoring and surveillance of employees. This is the seventh assignment forum related to your course project.

Your unit 7 assignment forum is based on the Koeppel v. Speirs case study found in Chapter 15 of your textbook. The case involved a private-sector employer's installation of a concealed video surveillance camera that was challenged in an intrusion upon seclusion privacy tort claim. At issue was the legality of whether surveillance equipment secretly installed in a bathroom can support a claim for invasion of privacy when the equipment could not be operated after it was discovered to produce identifiable images. The court ultimately concluded that an intrusion upon seclusion claim does not require evidence that the offending party actually succeeded in viewing or otherwise intruding on the plaintiff. You will explore the facts leading up to a decision in this case and evaluate the importance of this ruling to human resources practice of and your role as a human resources practitioner.

Instructions:

In your role as the Human Resource Manager you will have to ensure that monitoring and surveillance of employees follows applicable laws. Read the Koeppel v. Speirs case study found in Chapter 15 of your textbook readings this week. Based on your review of the case study, address the following:

1. The district court determined evidence of an actual, rather than attempted, intrusion was required and granted summary judgment for the defendant. However, the court of appeals reversed, finding the evidence of intrusion was sufficient to survive summary judgment. Discuss the determining factors that led to this conclusion. In responding to this topic, be sure to address any invasion of privacy laws that were referenced in their ruling.