Harkey v. Abate, Docket No. 66169

• Decision Date: 16 March 1984
• Docket Number: Docket No. 66169
• Citation: 346 N.W.2d 74,131 Mich.App. 177
• Parties: Judith Ann HARKEY, Individually and as Next Friend of Jeanne R. Harkey, Plaintiff-Appellant, v. Michael ABATE, Defendant-Appellee. 131 Mich.App. 177, 346 N.W.2d 74
• Court: Court of Appeal of Michigan — District of US

Page 74

346 N.W.2d 74

Judith Ann HARKEY, Individually and as Next Friend of Jeanne

R. Harkey, Plaintiff-Appellant, v. Michael ABATE, Defendant-Appellee.

Docket No. 66169.

131 Mich.App. 177, 346 N.W.2d 74

Court of Appeals of Michigan.

Submitted March 8, 1983.

Decided Dec. 19, 1983.

Rehearing Denied Feb. 14, 1984.

Released for Publication March 16, 1984.

[131 MICHAPP 179] Stephen M. Landau, Southfield, for plaintiff-appellant.

Michael J. Kieltyka, Southfield, for defendant-appellee; Michael J. Murry, Mount Clemens, of counsel.

Before J.H. GILLIS, P.J., and HOOD and KNOBLOCK ^*, JJ.

KNOBLOCK, Judge.

Plaintiff, individually and as next friend of her daughter, appeals from circuit court orders denying her motion to amend her complaint and granting summary judgment in favor of defendant.

Plaintiff's original complaint, filed on August 28, 1981, alleged that plaintiff and her daughter were patrons at defendant's roller-skating rink on April 19, 1979, and that, while on the premises, they had utilized the women's restroom provided by defendant for his patrons. Plaintiff thereafter discovered that the defendant had installed see-through panels[131 MICHAPP 180] in the ceiling of the restroom which permitted surreptitious observation from above of the interior, including the separately partitioned stalls. Plaintiff alleged that defendant had personally viewed plaintiff and her daughter while they used the restroom and claimed that that defendant's conduct constituted an invasion of their privacy, for which they seek damages.

Defendant moved for summary judgment pursuant to GCR 1963, 117.2(3), alleging there existed no genuine issue of fact. The motion was supported by an affidavit of defendant asserting he did not personally view the plaintiff and her daughter as alleged. Plaintiff conceded at the time of the hearing on the motion that there appeared to be no proof available which would establish that defendant had actually viewed plaintiff and her daughter in the restroom, but she asserted such proof is unnecessary to establish a prima facie case of invasion of privacy. The trial court apparently disagreed and granted summary judgment.

The legally protected right of privacy has been variously defined as:

"[T]he right of an individual to be let alone, or to live a life of seclusion, or to be free from unwarranted publicity, or to live without unwarranted interference by the public about matters with which the public is not necessarily concerned, or to be protected from any wrongful intrusion into an individual's private life which would outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities." 77 C.J.S., Right of Privacy, Sec. 1, pp 396, 397.

The type of invasion of privacy alleged in this case may be characterized as an "unreasonable intrusion upon the seclusion of another", 3 Restatement of Torts, 2d, Sec. 652A, p. 376, or more specifically an [131 MICHAPP 181] "[i]ntrusion upon the plaintiff's seclusion or solitude, or into his private affairs". See Prosser,Privacy, 48 Cal.L.Rev. 383, 389 (1960); Beaumont v. Brown, 65 Mich.App 455, 461, 237 N.W.2d 501 (1975), rev'd on other grds. 401 Mich. 80, 257 N.W.2d 522 (1977). A necessary element of this type of invasion of privacy is, of course, that there be an "intrusion". The issue presented for our resolution is whether the installation of the hidden viewing devices complained of can itself constitute a sufficient wrongful intrusion into the seclusion or solitude of plaintiff and her daughter so as to permit recovery. We hold that it can and that, therefore, the granting of summary judgment was improper.

The Michigan Supreme Court acknowledged the concept of the right of privacy in the early case of De May v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881). In that case, Mrs. Roberts gave birth in her home and the attending physician allowed a young man, who had accompanied him to carry his bags, to remain in the room during the delivery. In affirming a verdict in favor of Mrs. Roberts based on an invasion of privacy, the Court stated:

"It would be shocking to our sense of right, justice and propriety to doubt even but that for such an act the law would afford an ample remedy. To the plaintiff the occasion was a most sacred one and no one had a right to intrude unless invited or because of some real and pressing necessity which it is not pretended existed in this case. The plaintiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this right by requiring others to observe it, and to abstain from its violation." 46 Mich. 165-166, 9 N.W. 146.

To our knowledge, the specific issue raised in this case has not been previously addressed by the courts of this state. The New Hampshire Supreme [131 MICHAPP 182] Court, however, confronted an analogous situation where a landlord had secretly installed a listening device in the bedroom of his tenants, enabling him to monitor and record voices and sounds emitting therefrom. Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239; 11 A.L.R.3d 1288 (1964). The court held that, in spite of the fact that the tenants did not allege the landlord actually utilized the listening device, their complaint adequately stated an action for invasion of privacy.

The installation of viewing devices as alleged by plaintiff is a felony in this state. M.C.L. Sec. 750.539d; M.S.A. Sec. 28.807(4). Though this statute does not specifically impose civil liability for such conduct, nor does plaintiff's complaint assert liability based on its violation, it does constitute, at a minimum, a legislative expression of public policy opposed to such conduct.

The type of invasion of privacy asserted by plaintiff does not depend upon any publicity given to the person...