Johnson v. K Mart Corp.

• Decision Date: 13 January 2000
• Docket Number: No. 1-98-2172.,1-98-2172.
• Parties: Earnest JOHNSON et al., Plaintiffs-Appellants, v. K MART CORPORATION, Defendant-Appellee (Confidential Investigative Consultants, Inc., Defendant).
• Court: United States Appellate Court of Illinois

723 N.E.2d 1192

311 Ill. App.3d 573

243 Ill.Dec. 591

Earnest JOHNSON et al., Plaintiffs-Appellants, v. K MART CORPORATION, Defendant-Appellee (Confidential Investigative Consultants, Inc., Defendant).

No. 1-98-2172.

Appellate Court of Illinois, First District, Fourth Division.

January 13, 2000.

Johnson, Jones, Snelling, Gilbert & Davis, Thomas E. Johnson & Phillip H. Snelling; Miner, Barnhill & Galland, George F. Galland, Jr., for Appellant.

Seyfarth, Shaw, Fairweather & Geraldson, Lawrence C. DiNardo & Kristin E. Michaels, for Appellee.

Justice HALL delivered the opinion of the court:

I. BACKGROUND

This case involves K mart Corporation's (defendant's) use of private investigators at its distribution center in Manteno, Illinois. Plaintiffs are 55 current or former employees of K mart Corporation. The claims against Confidential Investigative Consultants, Inc., were dismissed. Summary judgment was granted in favor of defendant.

On appeal, plaintiffs contend that: (1) defendant invaded their privacy through an unauthorized intrusion upon their seclusion; (2) defendant invaded their privacy by publicizing private facts concerning them; (3) defendant intentionally inflicted emotional distress upon them; and (4) defendant violated the Private Detective, Private Alarm, Private Security, and Locksmith Act of 1993 (225 ILCS 446/1 et seq. (West 1996)). For the foregoing reasons, we affirm in part and reverse in part and remand with instructions. The following facts are relevant to this appeal. Plaintiffs are or were employed at defendant's distribution center (center), in Manteno, Illinois. Defendant's center receives, stores, and supplies merchandise. The center is a 1.5 million-square-foot warehouse. Approximately 500 persons are employed at the center.

During the summer of 1992, the center began receiving merchandise valued at several million dollars. Since its opening, the center has experienced theft, vandalism, and sabotage. Defendant also had concerns about the sale and use of drugs at the center.

In August 1992, an on-site security audit of the center was conducted. Confidential Investigative Consultants, Inc. (CIC), was interviewed to determine if it could provide undercover investigative services to monitor acts of vandalism and drug use at the center. CIC was a licensed investigative security company located in Chicago, Illinois. CIC performed undercover investigative and security work. Ed Gunther, vice president of CIC, and George McElroy, general manager of the center, met twice in August 1992, regarding CIC's ability to perform an undercover investigation.

Gunther and McElroy agreed that an undercover investigator posing as an employee would be placed in the center. Periodic reports detailing the investigator's observations were to be sent to a post office box registered in CIC's name and located in Frankfort, Illinois, to maintain confidentiality. McElroy requested that CIC's investigation be discussed with him only.

CIC sent Al Posego (Posego), an undercover investigator, to the center. Posego posed as a janitor at the center. In his deposition, Posego stated that he was specifically told that the focus of defendant's concern was theft, sabotage, safety, and drug use. Posego held a "blue card," a permit issued by the State of Illinois which signifies that an individual has been trained in investigative and security work.

In November 1992, Janet Posego (Ms. Posego), Posego's wife, began working as an undercover investigator for defendant. Ms. Posego posed as an employee in the repack department. Ms. Posego also held a blue card from the State of Illinois. In her deposition, Ms. Posego stated that her role as undercover investigator at the center was to gather information on theft and drug use.

The Posegos submitted handwritten reports to CIC by mail every few days. These reports were then forwarded to defendant. The Posegos wrote the reports from memory based on the events they observed and conversations they participated in or overheard. The reports contained information including, but not limited to: (1) employee family matters (i.e., the criminal conduct of employees' children, incidents of domestic violence and impending divorces); (2) romantic interests/sex lives (i.e., sexual conduct of employees in terms of number/gender of sexual partners); (3) future employment plans (i.e., which employees were looking for new jobs and which employees were planning to quit without giving notice); (4) complaints about defendant (i.e., the quality of the company and employee's view that defendant was "screwing people up"); and (5) personal matters and private concerns (i.e., employee's prostate problems, paternity of employee's child, characterization of certain employees as alcoholics because they drank "frequently").

In early 1993, McElroy informed Chad Yager, the center's loss control manager, of the presence of the undercover investigators at the center. Yager began overseeing the investigation. The first copies of the investigative reports received by Yager contained information regarding union activity at the center. Yager then told CIC that he did not want information regarding union activity in the reports. Such references were then edited. At this point, John Gemmaka, the director of human resources, was made aware of the investigation.

In February 1993, defendant terminated Gemmaka based on allegations unrelated to this appeal. After Gemmaka's termination, Gemmaka exposed the undercover investigative operation to one of the plaintiffs, Lewis Hubble. Hubble subsequently researched Posego's background and confronted Posego about his status as an undercover investigator. Posego admitted that he and Ms. Posego were private investigators posing as employees for the purposes of observing theft and drug use at the center.

Posego informed Gunther that his role as an undercover agent had been exposed. Gunther then notified defendant. By April 1993, CIC's operation had been terminated.

In 1993, Local 705 of the International Brotherhood of Teamsters began organizing a campaign about the Manteno distribution center. A few weeks prior to the election, teamster officials contacted employees regarding the undercover investigation that had been conducted at the center. Teamster officials then met with employees and disclosed copies of the reports to them. The investigative reports were not received from any representative of defendant. According to union officials, the reports were received from an anonymous source.

The parties cross-motioned for summary judgment. Summary judgment was granted in favor of defendant. This appeal followed.

II. ANALYSIS

A. Standard of Review

In summary judgment cases, a reviewing court conducts a de novo review of the evidence. Espinoza v. Elgin, Joliet & Eastern Railway Co., 165 Ill.2d 107, 113, 208 Ill.Dec. 662, 649 N.E.2d 1323 (1995). The reviewing court must construe all evidence strictly against the movant and liberally in favor of the nonmoving party. Espinoza, 165 Ill.2d at 113, 208 Ill.Dec. 662, 649 N.E.2d 1323. Where the pleadings, depositions, and affidavits show that there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law. First of America Trust Co. v. First Illini Bancorp, Inc., 289 Ill.App.3d 276, 283, 224 Ill.Dec. 63, 681 N.E.2d 45 (1997). If reasonable persons could draw different inferences from undisputed facts, summary judgment should be denied. Smith v. Armor Plus Co., 248 Ill.App.3d 831, 839, 187 Ill.Dec. 625, 617 N.E.2d 1346 (1993).

B. Intrusion Upon Seclusion

Plaintiffs contend that defendant invaded their privacy by intruding upon their seclusion. As a preliminary matter, we note that the Illinois Supreme Court has never explicitly recognized a cause of action for intrusion into seclusion. Dwyer v. American Express Co., 273 Ill.App.3d 742, 745, 210 Ill.Dec. 375, 652 N.E.2d 1351 (1995). In Lovgren v. Citizens First National Bank, 126 Ill.2d 411, 128 Ill.Dec. 542, 534 N.E.2d 987 (1989), the supreme court discussed this tort as articulated by the Restatement (Second) of Torts (1977) and Prosser & Keeton on Torts (W. Keeton, Prosser & Keeton on Torts § 117 (5th ed.1984)), but stated that its discussion did not imply a recognition of the action by the court. Lovgren, 126 Ill.2d at 416-17,128 Ill.Dec. 542,534 N.E.2d 987. There is a conflict among the appellate court districts as to whether the intrusion into seclusion tort is actionable in Illinois. Lovgren, 126 Ill.2d at 417-18,128 Ill.Dec. 542,534 N.E.2d 987. This conflict has not been resolved. Lovgren, 126 Ill.2d at 417,128 Ill.Dec. 542,534 N.E.2d 987. In 1979, this district declined to recognize a cause of action for intrusion upon seclusion. See Kelly v. Franco, 72 Ill.App.3d 642, 28 Ill. Dec. 855, 391 N.E.2d 54 (1979). This court noted that the law in Illinois was inconsistent on this issue and held that even if it were to recognize the cause of action, the plaintiff's allegations were insufficient to support a cause of action for unreasonable intrusion upon seclusion. Kelly, 72 Ill. App.3d at 646-47,28 Ill.Dec. 855,391 N.E.2d 54.

The third district recognized the intrusion upon seclusion tort in Melvin v. Burling, 141 Ill.App.3d 786, 95 Ill.Dec. 919, 490 N.E.2d 1011 (1986). In Melvin, the court set out four elements that a plaintiff must plead and prove to state a cause of action for intrusion upon seclusion: (1) an unauthorized intrusion or prying into the plaintiff's seclusion; (2) an intrusion that is offensive or objectionable to a reasonable person; (3) the matter upon which the intrusion occurs is private; and (4) the intrusion causes anguish and suffering. Melvin, 141 Ill.App.3d at 789, 95 Ill.Dec. 919, 490 N.E.2d 1011. See also the second district case of Benitez v. KFC National Management Co., 305 Ill.App.3d 1027, 239 Ill.Dec. 705, 714 N.E.2d 1002 (1999), recognizing a cause of action for unreasonable intrusion upon the...