Elmore v. Atlantic Zayre, Inc., 71557

• Decision Date: 24 February 1986
• Docket Number: No. 71557,71557
• Citation: 178 Ga.App. 25,341 S.E.2d 905
• Parties: ELMORE v. ATLANTIC ZAYRE, INC. et al.
• Court: Georgia Court of Appeals

Page 905

341 S.E.2d 905

178 Ga.App. 25

ELMORE v. ATLANTIC ZAYRE, INC. et al.

No. 71557.

Court of Appeals of Georgia.

Feb. 24, 1986.

Jeffrey B. Talley, Dallas, for appellant.

Gregory J. Digel, Newton M. Galloway, Atlanta, for appellee.

CARLEY, Judge.

A customer made a complaint that homosexual activity was occurring in a rest room that appellee-defendant Zayre's maintained for the convenience of its patrons. In response, appellee-defendant Cox, who is Zayre's loss prevention manager, inspected the rest room and observed an exhibition of highly suspicious behavior therein. He and another member of the security staff then determined to verify that criminal activity was occurring behind the door of a closed stall. For that purpose, they went to a location in a storage area above the rest room, where a crack in the ceiling provided a vantage point. Based on their observations, appellant-plaintiff was arrested and charged with sodomy. Pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), appellant pled guilty without admitting the commission of sodomy and received a probated first offender sentence. Appellant then brought the instant civil action, alleging that appellees had invaded his privacy by "spying on him in a private place." This appeal is from the grant of summary judgment in favor of appellees. Appellant contends that the trial court erred in granting summary judgment because the following genuine issues of material fact remain: whether appellees invaded his privacy by peeking through a crack in the bathroom ceiling; whether any homosexual activity actually took place in the bathroom prior to appellees' surveillance of appellant; and, whether appellant actually committed any homosexual or other criminal act.

An action in tort for the invasion of privacy may be based upon an intrusion into one's private affairs or seclusion. See Jones v. Hudgins, 163 Ga.App. 793, 794, 295 S.E.2d 119 (1982); Sun v. Langston, 170 Ga.App. 60, 61, 316 S.E.2d 172 (1984). Appellant asserts that appellees' act of "spying" on him while he was in the private seclusion of the toilet stall constituted such an actionable invasion of privacy. An individual clearly has an interest in privacy within a toilet stall. See Wylie v. State, 164 Ga.App. 174, 296 S.E.2d 743 (1982). "However, the law recognizes that the right of privacy is not absolute.... 'But it [right of privacy] must be kept within its proper limits, and in its exercise must be made to accord with the rights of those who have other liberties, as well as the rights of any person who may be properly interested in the matters which are claimed to be of purely private concern.' [Pavesich v. New England Life Ins. Co., 122 Ga. 190, 201 (50 SE 68) (1905).]" Bodrey v. Cape, 120 Ga.App. 859, 866, 172 S.E.2d 643 (1969). (Emphasis in original.)

In the instant case, the toilet stall which appellant was occupying was in a restroom provided by appellee Zayre's for use by its customers. Thus, appellee Zayre's had an overriding responsibility to its patrons to keep that restroom free of crime, safe, and available for its intended purpose. The evidence is uncontradicted that appellees' investigation was prompted by a customer complaint of homosexual activity in the restroom. Acting solely upon this complaint, appellee Cox inspected the restroom. There, his own suspicion was alerted by seeing three or four men along the wall seemingly waiting for the second and third stalls, both of which were occupied, even though the first stall was empty and in working order. Only then was the decision made to go above the restroom and determine if any criminal activity was in fact occurring. Although the issue has not been specifically addressed in Georgia in the context of a civil action, criminal cases arising out of similar facts provide compelling authority as to the relative balance to be struck between appellant's asserted right of privacy and appellee Zayre's clear responsibility to its customers. Under similar circumstances to those which exist in the case sub judice, police surveillance has been held not to constitute an invasion of the right of privacy. "Where, 'as here, the police have reasonable cause to believe that public toilet stalls are being used in the commission of crime, and when, as here, they confine their activities to the times when such crimes are most...