Carter v. Innisfree Hotel, Inc.

• Decision Date: 12 May 1995
• Citation: 661 So.2d 1174
• Parties: Paul CARTER and Wendy Carter v. INNISFREE HOTEL, INC. 1940393.
• Court: Alabama Supreme Court

Page 1174

661 So.2d 1174

Paul CARTER and Wendy Carter v. INNISFREE HOTEL, INC.

1940393.

Supreme Court of Alabama.

May 12, 1995.

W. Lee Gresham III of Hardin & Hawkins, Birmingham, for appellants.

Robert H. Sprain, Jr. and Clark A. Cooper of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for appellee.

INGRAM, Justice.

Paul Carter and Wendy Carter sued Innisfree Hotel, Inc. ("Innisfree"); Birmingham Civic Center Hotel, d/b/a Travelodge; Travelodge Motels and Motor Hotels; Forte Hotels, Inc.; and Eagle Security, Inc., alleging various claims arising out of an alleged "peeping Tom" incident during their stay at the Birmingham Civic Center Travelodge hotel. The trial court entered a summary judgment in favor of all defendants. The Carters appeal from the summary judgment as it relates to Innisfree.

On a motion for summary judgment, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact (i.e., that there is no dispute as to any material fact) and that the movant is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957 (Ala.1992); Elgin v. Alfa Corp., 598 So.2d 807 (Ala.1992). "The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact." McClendon, at 958; Elgin, at 810-11.

Rule 56 must be read in conjunction with the "substantial evidence rule," § 12-21-12, Ala.Code 1975, for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). In order to defeat a defendant's properly supported motion for summary judgment, the plaintiff must present substantial evidence, i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). On review of a summary judgment, this Court considers the record in a light most favorable to the nonmovant and it resolves all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993).

The record, viewed in a light most favorable to the Carters, Wilma Corp., supra, suggests the following facts:

On February 25, 1993, the Carters traveled from their home in Huntsville to attend a concert that evening at the Birmingham Civic Center. They planned to spend the night in Birmingham after the concert. Because they were unfamiliar with the Birmingham area, they drove around the area near the Civic Center to locate a hotel convenient to that location. Being familiar with the "Travelodge" name, the Carters decided to rent a room for the night at the Birmingham Civic Center Travelodge. ¹ They checked into Room 221 that afternoon, and, after purchasing fast food, went back to their room to eat and relax. While in the room, they heard knocking and scratching sounds, which appeared to emanate from behind a wall near the bathroom; the wall was covered by a mirror. However, they assumed that the sounds were from a neighboring room. The Carters conducted their private marital activities that afternoon, including sexual intercourse, without regard to the strange noises. Wendy was undressed in front of the mirror for nearly two hours that afternoon, while applying her makeup and fixing her hair in preparation for the concert. Before the concert, while Paul was brushing his teeth in front of the mirror, he noticed two scratches in the mirror at eye level. He did nothing about the scratches at that time. The Carters went to the concert as they had planned.

After the concert, Paul again looked into the mirror and saw the scratches. He then removed the mirror and found two round, dime-sized scratches on the back of the mirror. Wendy later described the view through the mirror as "like looking through regular glass with the back gone." Upon closer inspection, Paul found a large hole in the wall behind where the scratches were placed on the mirror. There was a hollow space approximately 1.5 feet wide between the Carters' wall and the wall of the adjoining room, which allows for maintenance workers to repair wiring and plumbing pipes. After looking at the hole closely, the Carters noticed a hole in the wall of the adjoining room that was covered by the mirror in that room. There was black electrical tape stuck onto the mirror of the other room; when Wendy pulled the tape off, the Carters discovered scratches on that mirror as well.

Believing that someone had spied on them through the mirror, Paul walked down to the registration desk to complain and to request a refund. Paul asked the person behind the desk whether he could use her telephone to call the police; she allegedly told him, "[T]here's a pay phone around the corner," and refused to allow him to use the office telephone. Paul said a hotel security guard at the desk told him, "[O]kay, boss man, just go back up to your room. Don't worry about it." The guard then accompanied Paul back to the room. According to Paul, after seeing the holes, "[the guard] said it was nothing. That's all he kept saying. He was the one that was acting the strangest out of all of them." Paul then telephoned the police and asked them to investigate; they were not able to identify the alleged "peeping Tom." After the police and several maintenance workers left, the Carters checked out of the hotel and drove back to Huntsville. Paul testified that he has suffered chronic nervousness and sleeplessness since the incident. Wendy testified that she and Paul have had strains in their marriage resulting from nervousness and paranoia she has suffered due to the incident.

Innisfree, a management corporation, manages the Travelodge hotel pursuant to a contract with Merchants Bank of Kansas City, the owner of the hotel. Innisfree contracts with a security personnel company to provide security for the premises. Nora Ward, a manager employed by Innisfree, later found scratches on the mirrors of 13 other rooms at the hotel; 6 other rooms had holes cut into the wall behind the mirror, similar to the hole in Room 221. She testified that her investigation revealed that the holes had been cut to facilitate the servicing of cable wiring. Ward also testified that access into the maintenance space between the rooms may be gained only by cutting a hole into the wall; this is not disputed by the Carters. However, Ward admitted that the mirrors in the Carters' room and the adjoining room could be removed for viewing from one room into the other through the holes and scratches. This is contradictory to Ward's statement in an earlier affidavit that one could not have looked into Room 221 from the adjoining room; in that affidavit Ward stated that the scratches on the mirror in Room 221 were not in alignment with the hole. Although Ward stated that she inspects the Travelodge's rooms on a daily basis, she testified that she did not know of the holes and scratches until the Carters complained about them.

The Travelodge customer who rented the adjoining room during the Carters' stay testified that he did not spy on the Carters. However, the record does not indicate whether he was absent from his room during the time the noises occurred. The record indicates that security guards, maintenance workers, housekeepers, and management personnel employed by Innisfree all have access to master keys that open the hotel rooms.

The Carters contend that the trial court erred in entering a summary judgment in favor of Innisfree on their claims of invasion of privacy, breach of contract, negligence, outrage, and fraud.

Invasion of Privacy

This Court defines the tort of invasion of privacy as the intentional wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. Nipper v. Variety Wholesalers, Inc., 638 So.2d 778 (Ala.1994); Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705 (Ala.1983); Alabama Electric Co-operative, Inc. v. Partridge, 284 Ala. 442, 225 So.2d 848 (1969). One may invade another's privacy through either an intrusion upon a physical space, such as a trespass, or by an invasion of one's "emotional sanctum"; the law prohibits a wrongful intrusion into either of these areas of privacy. Phillips, supra. In defining the invasion of privacy tort, the Phillips Court quoted comment b to Restatement (Second) of Torts § 652B (1977):

"The invasion may be physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs window with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns...."

Phillips, 435 So.2d 705, 710-11 (Ala.1983).

After reviewing the evidence, we conclude that a jury could reasonably find that the Carters' privacy had been intruded upon by Innisfree; therefore, the summary judgment was inappropriate on the Carters' invasion of privacy claim.

As stated above, the bumping and scratching sounds came from behind the wall where the mirror was stationed. The Carters both testified that the scratches were arranged so as to fit over the hole. The hole in the adjoining room was located directly opposite the hole in Room 221; scratches were found on that mirror as well, covered with electrical tape. The Carters do not dispute Innisfree's contention that the maintenance space between the two walls may be accessed only...