ICU Investigations, Inc. v. Jones

• Decision Date: 30 June 2000
• Citation: 780 So.2d 685
• Court: Alabama Supreme Court
• Parties: I.C.U. INVESTIGATIONS, INC. v. Charles R. JONES.

780 So.2d 685

I.C.U. INVESTIGATIONS, INC. v. Charles R. JONES.

1981714.

Supreme Court of Alabama.

June 30, 2000.

Order Overruling Rehearing September 1, 2000.

Jack R. Thompson, Jr., of Kracke, Thompson & Ellis, P.C., Birmingham, for appellant.

Lister H. Proctor and J. Bradley Proctor of Proctor & Vaughn, Sylacauga, for appellee.

BROWN, Justice.

A jury found in favor of Charles R. Jones on his invasion-of-privacy claim, awarding him $100,000 against the defendant I.C.U. Investigations, Inc. ("ICU"). ICU appeals, arguing that the court erred in denying its motion for a judgment as a matter of law on that claim.

Jones was employed by Alabama Power Company ("APCo") as a groundman and winch-truck driver. While working on February 26, 1990, he suffered an electric shock and fell from the bed of the truck, dislocating and fracturing his left shoulder. Following his injury, he underwent five operations for problems with his shoulder, neck, back, and ribs. Jones sued APCo for workers' compensation benefits; APCo disputed the extent of his disability.

In preparation for the workers' compensation trial, APCo hired ICU, an investigation firm, to watch Jones's daily activities. ICU was owned and operated by Kevin Hand. Hand and another investigator for ICU, Johnson Brown, went to Clay County to monitor Jones's activities. ICU investigated Jones for 11 or 12 days during February and March 1998.¹ Jones lived in a mobile home at the intersection of Highway 77 and County Road 79; the front of his residence faced County Road 79. Jones testified that his mobile home was approximately 200 yards from Highway 77 and a "lot closer" to County Road 79. The front yard was visible from both Highway 77 and County Road 79. When watching Jones at his home, Hand would videotape from a motor vehicle parked on the shoulder of Highway 77 or County Road 79.² Neither Hand nor Brown entered onto Jones's property. When Hand or Brown recorded Jones's activities in the nearby town of Wadley, they filmed from a vehicle parked on a public street or in a parking lot.

On at least four occasions, Hand taped Jones urinating in his front yard. Hand testified that when he videotaped Jones's activities, he often watched with his naked eye; thus, he said only once had he suspected that Jones was urinating. At the end of each day's surveillance or soon thereafter, Hand copied the tapes and sent the copies to APCo's attorney.

When Jones learned that Hand had videotaped him urinating in his yard, Jones filed another lawsuit against APCo, adding as defendants ICU and Hand. He alleged that APCo and ICU had been negligent or wanton in hiring and supervising their employees, and he alleged that all three defendants had invaded his privacy. APCo, ICU, and Hand each moved for a summary judgment. The court granted APCo's motion, but denied ICU and Hand's motions. Jones later dismissed Hand.

After Jones rested his case, ICU moved for a judgment as a matter of law ("JML") on the invasion-of-privacy claim. The trial court denied the motion. ICU renewed its motion for a JML at the close of all the evidence. The motion was again denied. At the close of all the evidence, the judge, the jury, and the attorneys for each side visited Jones's property to view the location of the videotaping; they then returned to the courtroom for closing arguments and the trial judge's oral charge. The trial court submitted only the invasion-of-privacy claim to the jury. The jury returned a verdict in favor of Jones on the invasion-of-privacy claim, awarding him $75,000 in compensatory damages and $25,000 in punitive damages. On March 3, 1999, ICU filed a renewed motion for a JML, or, in the alternative, for a new trial or an order requiring a remittitur. The trial court did not rule on the motion, and the motion was denied by operation of law, Rule 59.1, Ala. R. Civ. P.

ICU argues that the court erred in denying its motion for a JML on Jones's invasion-of-privacy claim. We have stated, in regard to review of a motion for a JML and a renewed motion for a JML:

"[T]his Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present `substantial evidence' in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).

"Furthermore, a jury verdict is presumed to be correct, and that presumption is strengthened by the trial court's denial of a motion for a new trial. Cobb v. MacMillan Bloedel, Inc., 604 So.2d 344 (Ala.1992). In reviewing a jury verdict, an appellate court must consider the evidence in the light most favorable to the prevailing party, and it will set aside the verdict only if it is plainly and palpably wrong. Id."

Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala.1999)

.

In Johnson v. Corporate Special Services, Inc., 602 So.2d 385 (Ala. 1992), this Court addressed the law applicable to invasion-of-privacy claims:

"This Court recognizes that the wrongful intrusion into one's private activities constitutes a tort known as the invasion of privacy. Alabama Electric Co-operative, Inc. v. Partridge, 284 Ala. 442, 445, 225 So.2d 848, 851 (1969). This Court in Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (1961), following W. Prosser, Law of Torts, pp. 637-39 (2d ed.1955), set out the `four distinct wrongs' of the tort of invasion of privacy:

"`1) the intrusion upon the plaintiff's physical solitude or seclusion; 2) publicity which violates the ordinary decencies; 3) putting the plaintiff in a false, but not necessarily defamatory, position in the public eye; and 4) the appropriation of some element of the plaintiff's personality for a commercial use.'

"See Hogin v. Cottingham, 533 So.2d 525, 528 (Ala.1988).

"The tort of invasion of privacy may occur both where there is a public and commercial use or publication and where there is a wrongful intrusion into one's private activities or solitude or seclusion. Hogin, 533 So.2d at 530, citing Norris, 272 Ala. at 176, 132 So.2d at 322-23. There are two standards the Court uses to find whether there has been a tort of invasion of privacy:

"`1) If there has not been public or commercial use or publication, then the proper standard is whether there has been an "intrusion upon the plaintiff's physical solitude or seclusion," or a "wrongful intrusion into one's private activities in such manner so as to outrage or to cause mental suffering, shame or humiliation to a person of ordinary sensibilities"; and 2) if there has been public or commercial use or publication of private information, then the proper standard is whether there has been "unwarranted publicity," "unwarranted appropriation or exploitation of one's personality," publication of private affairs not within the legitimate concern of the public, an intrusion into one's "physical solitude or seclusion," the placing of one in a "false but not necessarily defamatory position in the public eye," or an "appropriation of some element of [one's] personality for commercial use."'

"Hogin, 533 So.2d at 530-31

(citations omitted). (Emphasis added.) See also, Smith v. Doss, 251 Ala. 250, 37 So.2d 118 (1948)."

602 So.2d at 387.

Like Johnson, this case requires that we first determine the purpose for the investigation and whether "`[t]he thing into which there is intrusion or prying [is], and [is] entitled to be, private.'" Hogin, 533 So.2d at 531 (quoting W. Prosser & W. Keeton, The Law of Torts 855 (5th ed.1984)). In Alabama Electric Co-operative, Inc. v. Partridge, 284 Ala. 442, 445, 225 So.2d 848, 851 (1969), this Court noted, with approval, that plaintiffs making personal-injury claims "`must expect reasonable inquiry and investigation to be made of [their] claim[s] and [that] to this extent [their] interest in privacy is circumscribed.'"

The key issue in Jones's workers' compensation case was the extent of his injury. Jones, therefore, should have expected a reasonable investigation regarding his physical capacity. In fact, Jones testified that he was aware that APCo might investigate the validity of his workers' compensation claim and that the investigation might involve surveillance. We conclude that the purpose for the investigation was legitimate; thus, we must consider whether the means used in the investigation was offensive or objectionable. Johnson, 602 So.2d at 387.

Hand watched Jones and taped his activities while Jones was outside his home, in his front yard, where he was exposed to public view. Indeed, Jones's front yard was located at the intersection of two public roads. At no time did Hand enter or tape activities conducted inside Jones's own home. Because the activities Jones carried on in his front yard could have been observed by any passerby, we conclude that any intrusion by ICU into Jones's privacy was not "wrongful" and, therefore, was not actionable.

The trial court should have granted ICU's motion for a JML on Jones's...