Hougum v. Valley Memorial Homes

• Decision Date: 27 January 1998
• Docket Number: No. 970108,970108
• Parties: Daniel HOUGUM, Plaintiff and Appellant, v. VALLEY MEMORIAL HOMES, Sears, Roebuck and Co., and Shane Moran, Defendants and Appellees. Civil
• Court: North Dakota Supreme Court

Page 812

574 N.W.2d 812

1998 ND 24

Daniel HOUGUM, Plaintiff and Appellant, v. VALLEY MEMORIAL HOMES, Sears, Roebuck and Co., and Shane

Moran, Defendants and Appellees.

Civil No. 970108.

Supreme Court of North Dakota.

Jan. 27, 1998.

William E. McKechnie (argued), of William E. McKechnie & Associates, Grand Forks, for plaintiff and appellant.

Jane L. Dynes (argued), of Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, for defendants and appellees Sears, Roebuck and Co. and Shane Moran.

Gerald J. Haga (argued), of Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, for defendant and appellee Valley Memorial Homes.

NEUMANN, Justice.

¶1 Daniel Hougum appealed from a summary judgment dismissing his action against Valley Memorial Homes (VMH), Sears Inc., and Shane Moran. We hold Hougum failed to raise disputed factual issues to support his claim against Moran and Sears for intrusion upon seclusion. We also hold Hougum raised disputed factual issues about whether VMH terminated him for lawful activity off its premises in violation of the North Dakota Human Rights Act. We affirm in part, reverse in part, and remand for further proceedings.

I

¶2 On December 16, 1994, Moran, a Sears loss prevention officer, observed an unidentified individual, later determined to be Hougum, masturbating in an enclosed toilet stall in a mens public restroom at a Sears store in Grand Forks. The restroom had three enclosed stalls separated by two metal partitions. Each stall had a locking metal door with a narrow gap between the door and the frame to accommodate hinges and latches for the door. The stall partitions and doors partially blocked the inside of the stall from view, but an occupant's feet and shins normally would be visible from the restroom's common area. There was a hole approximately 1.5 inches in diameter drilled in the shared partition between the middle stall and the stall furthest from the restroom entrance.

¶3 Hougum used the middle stall in the restroom. Moran was on duty when he entered the restroom to relieve himself, and he occupied the stall furthest from the entrance. According to Moran, he thought no one else was in the restroom, and while reaching for toilet paper, he noticed movement through the hole, which was located about four to five inches directly above the toilet paper dispenser in his stall, and inadvertently observed an unidentified individual masturbating for "maybe ten seconds ... [p]ossibly more or less." Moran left the restroom and called the Grand Forks Police Department from an adjacent pay phone.

¶4 After police officers arrived at the store, they informed Moran the conduct he observed could be charged as disorderly conduct and indicated he could make a citizen's arrest. Moran executed a citizen's arrest form, and the police entered the restroom and arrested the individual, who they then determined was Hougum, for disorderly conduct. According to Hougum, without counsel's assistance, he pled guilty to disorderly conduct on December 20, 1994, and his plea was reported in the Grand Forks Herald. Hougum alleged he withdrew his guilty plea on January 6, 1995, and the charge was dismissed with prejudice on January 25, 1995.

¶5 Meanwhile, Hougum's employer, VMH, learned about the Sears incident. Hougum was an ordained minister and was hired by VMH as a staff chaplain in 1980. On December 23, 1994, VMH representatives met with Hougum to discuss the Sears incident and his job with VMH. According to VMH, it was concerned about the effect of the Sears incident on his pastoral relationship with its residents. VMH also expressed concern about Hougum's work performance and his commitment to his duties as chaplain. After the December meeting, VMH placed Hougum on a leave of absence, and he agreed to undergo an evaluation. On January 19, 1995, VMH formally terminated Hougum's employment. According to Hougum, a VMH manager told him the termination was due to the Sears incident.

¶6 Hougum sued Moran and Sears for invasion of privacy and intentional and negligent infliction of emotional distress. Hougum also sued VMH for violation of the North Dakota Human Rights Act, wrongful termination, breach of contract, and intentional and negligent infliction of emotional distress. The trial court granted summary judgment dismissing Hougum's claims, and he appealed.

II

¶7 We review this case under the summary judgment standards of N.D.R.Civ.P. 56. Summary judgment is a procedure for deciding an action without a trial if, after viewing the evidence in the light most favorable to the party opposing the motion and giving that party the benefit of all favorable inferences reasonably drawn from the evidence, there is no genuine dispute as to either the material facts or the inferences to be drawn from the undisputed facts, or if only a question of law is involved. Hanson v. Cincinnati Life Ins., 1997 ND 230, p 10, 571 N.W.2d 363.

¶8 Although a party seeking summary judgment bears the initial burden of establishing there are no genuine issues of material fact, a party resisting summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Miller v. Medcenter One, 1997 ND 231, p 15, 571 N.W.2d 358. Kummer v. City of Fargo, 516 N.W.2d 294, 296-97 (N.D.1994). Rather, the resisting party must present competent admissible evidence by

                affidavit or other comparable means which raises a disputed issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other documents containing evidence raising an issue of material fact.  Id. If no evidence raising a disputed issue of material fact is presented, it is presumed the evidence does not exist.  Miller, 1997 ND 231, p 15, 571 N.W.2d 358.   Disputes of fact become questions of law if reasonable persons can draw only one conclusion from the evidence.  Hanson, 1997 ND 230, p 11, 571 N.W.2d 363
                

III

MORAN AND SEARS

A

¶9 Hougum contends the trial court erred in dismissing his claim against Moran and Sears for invasion of privacy. Hougum urges this Court to recognize a tort claim for invasion of privacy under the intrusion upon seclusion formulation of the Restatement (Second) of Torts §§ 652A and 652B (1977).

¶10 Restatement (Second) of Torts § 652A (1977) outlines four forms for the tort of invasion of privacy:

"(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.

"(2) The right of privacy is invaded by

"(a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or

"(b) appropriation of the other's name or likeness, as stated in § 652C; or

"(c) unreasonable publicity given to the other's private life, as stated in § 652D; or

"(d) publicity that unreasonably places the other in a false light before the public, as stated in § 652E."

¶11 Restatement (Second) of Torts § 652B (1977) describes the elements for an action for unreasonable intrusion upon seclusion:

"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."

¶12 This Court has not decided whether a tort action exists in North Dakota for invasion of privacy. See American Mut. Life Ins. Co. v. Jordan, 315 N.W.2d 290, 295-96 (N.D.1982); City of Grand Forks v. Grand Forks Herald, Inc., 307 N.W.2d 572, 578 n. 3 (N.D.1981); Volk v. Auto-Dine Corp., 177 N.W.2d 525, 529 (N.D.1970); See also Nelson v. J.C. Penney Co., Inc., 70 F.3d 962, 967 (8th Cir.1995) rehearing and suggestion for rehearing en banc denied, 75 F.3d 343, 347 (8th Cir.1996). Claims for invasion of privacy are recognized in some form in virtually all jurisdictions. Restatement (Second) of Torts § 652A, Reporter's Note in 1981 Appendix; W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 117 at 851 (5th ed.1984). See also Lake v. Wal-Mart Stores, Inc., 566 N.W.2d 376, 378 (Minn.Ct.App.1997) review granted by Minnesota Supreme Court September 18, 1997 (identifying Minnesota as one of three states refusing to recognize tort of invasion of privacy).

¶13 Here, assuming without deciding a claim for intrusion upon seclusion exists in North Dakota, we conclude Hougum failed to raise disputed issues of material fact to support such a claim.

¶14 Under the Restatement, a claim for intrusion upon seclusion ¹ requires (1) an intentional intrusion by the defendant, (2) into a matter the plaintiff has a right to keep private, (3) which is objectionable to a reasonable person. Restatement (Second) of Torts § 652B; see Prosser and Keeton at § 117, pp. 854-56; 62A Am.Jur.2d Privacy § 48 (1990). Under § 652B, a defendant must intentionally intrude upon the seclusion of another. Lineberry v. State Farm Fire & Cas. Co., 885 F.Supp. 1095, 1098 (M.D.Tenn.1995); Bailer v. Erie Ins. Exch., 344 Md. 515, 687 A.2d 1375, 1381 (1997); New Summit Assocs. v. Nistle, 73 Md.App. 351, 533 A.2d 1350, 1354 (1987); Harkey v. Abate, 131 Mich.App. 177, 346 N.W.2d 74, 76 (1983); Snakenberg v. Hartford Cas. Ins. Co., 299 S.C. 164, 383 S.E.2d 2, 6 (1989). Generally, there are two primary factors for analyzing a claim for intrusion upon seclusion: (1) the means used for the intrusion, and (2) the defendant's purpose for obtaining the information. Prosser and Keeton at § 117, p. 856.

¶15 In tort claims for intrusion upon seclusion in a public restroom, the intrusion generally involves a preconceived or planned intrusion by surveillance equipment, or by surreptitious observations. See Elmore v. Atlantic Zayre, Inc., 178 Ga.App. 25, 341 S.E.2d 905, 906-07 (1986); Harkey, 346 N.W.2d at 75. Cf. New Summit Assocs. v. Nistle, 73 Md.App. 351, 533 A.2d 1350, 1354 (1987) (absent evidence named defendants, or their agents, actually...