Lewis v. Dayton Hudson Corp.

• Citation: 128 Mich.App. 165,38 A.L.R.4th 948,339 N.W.2d 857
• Decision Date: 19 October 1983
• Docket Number: Docket No. 64957
• Parties: Kevin LEWIS, Plaintiff-Appellant, v. DAYTON HUDSON CORPORATION, d/b/a J.L. Hudson's Company, a foreign corporation, Defendant-Appellee. 128 Mich.App. 165, 339 N.W.2d 857, 38 A.L.R.4th 948
• Court: Court of Appeal of Michigan (US)

Page 857

339 N.W.2d 857

Kevin LEWIS, Plaintiff-Appellant, v. DAYTON HUDSON CORPORATION, d/b/a J.L. Hudson's Company, a

foreign corporation, Defendant-Appellee.

Docket No. 64957.

128 Mich.App. 165, 339 N.W.2d 857, 38 A.L.R.4th 948

Court of Appeals of Michigan.

Submitted June 6, 1983.

Decided Aug. 16, 1983.

Released for Publication Oct. 19, 1983.

[128 MICHAPP 166] James R. Pearson, Lansing, for plaintiff-appellant.

Smith, Haughey, Rice & Roegge by Lance R. Mather, Grand Rapids, for defendant-appellee on appeal.

Before DANHOF, C.J., and ALLEN and HANSEN, ^* JJ.

DANHOF, Chief Judge.

Plaintiff appeals as of right from [128 MICHAPP 167] an order of the trial court dismissing his invasion of privacy claim pursuant to GCR 1963, 117.2(3).

The pertinent facts involved in this case are not in dispute. Plaintiff was shopping in the men's clothing department of one of defendant's stores. Plaintiff was employed as an undercover police officer and was required to carry a firearm concealed on his person at all times. While he was shopping at defendant's store, one of defendant's security officers became suspicious that plaintiff might be a shoplifter. When plaintiff took some clothing into one of the store's fitting rooms, the security officer followed him.

Two mirrors were located in the fitting rooms. On each mirror was a sticker which informed customers: "This area under surveillance by Hudson's personnel". The fitting rooms were equipped with louvred doors which did not lock and which did not extend all the way to the floor. In addition, there was a grille located in the ceiling from which persons in the fitting rooms could be observed. Access to the observation area was by a ladder located in a storeroom behind the fitting rooms.

When plaintiff entered the fitting room, the security officer watched him from the overhead observation area where he saw plaintiff remove his firearm and place it on a chair. The security officer contacted another employee who called the police.

By the time the police arrived, plaintiff had returned to the main area of the store where a police officer pointed a gun at plaintiff and told him not to move. The officer did not at first accept plaintiff's explanation that he was an undercover police officer. It was not until other police officers arrived that plaintiff was removed to a non-public area of the store where his identification was examined and he was permitted to leave.

[128 MICHAPP 168] Plaintiff commenced this action alleging invasion of privacy, false imprisonment and intentional infliction of emotional distress. The trial court granted defendant's motion for summary judgment with respect to the invasion of privacy claim. The remaining two claims were voluntarily dismissed with prejudice.

The tort of invasion of privacy has been divided into four separate types of claims. See Prosser, Torts (4th ed.), Sec. 117, p 804. The four are: (1) intrusion upon plaintiff's seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and, (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. Beaumont v. Brown, 401 Mich. 80, 95, 257 N.W.2d 522 (1977).

The only form of these four which is involved in this case is intrusion upon plaintiff's seclusion. It has been held that this type of invasion of privacy is analogous to a trespass. McCormick v. Haley, 37 Ohio App.2d 73, 307 N.E.2d 34 (1973). However, it is unnecessary to show physical invasion onto a person's property. Eavesdropping upon private conversations by wiretaps or spying into windows of a private home have been held to be actionable. Souder v. Pendleton Detectives, Inc., 88 So.2d 716 (La.App.1956); Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958).

In Michigan, this tort has been discussed in Earp v. Detroit, 16 Mich.App. 271, 167 N.W.2d 841 (1969). In Earp, supra, plaintiff claimed that defendant, his employer, intruded upon his seclusion when it sought information from the police about plaintiff which led to plaintiff's discharge. The Court held that in order to maintain an action for [128 MICHAPP 169] this type of tort, plaintiff must show that there was: (1) an intrusion by defendant; (2) into a matter which plaintiff has a right to keep private; (3) by the use of a method which is objectionable to the reasonable person. Earp, supra, pp. 276-277, 167 N.W.2d 841. See also Bradshaw v. Michigan National Bank, 39 Mich.App. 354, 356, 197 N.W.2d 531 (1972); DeMay v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881). Although the Court in Earp, supra, recognized the existence of this form of tort, it noted that the right to be free from intrusion is not absolute. It held that such a right does not extend so far as to subvert those rights which spring from social conditions, including business relations. Earp, supra, 16 Mich.App. p. 276, 167 N.W.2d 841.

Turning to the facts of the present case, we are in agreement with plaintiff that there are many circumstances in which conduct of the kind defendant was involved in would constitute an unwarranted invasion of privacy. For example, in People v. Abate, 105 Mich.App. 274, 278, 306 N.W.2d 476 (1981), in a criminal prosecution brought pursuant to M.C.L. Sec. 750.539d; M.S.A. Sec. 28.807(4), the Court held that defendant's installation of a two-way mirror over the women's restroom of his roller skating rink constituted an unwarranted intrusion into an area where defendant's customers had a legitimate expectation of privacy. See also People v. Dezek, 107 Mich.App. 78, 84, 308 N.W.2d 652 (1981). However, in spite of the foregoing, we do not believe that under the circumstances of this case the conduct of defendant's security officer constituted an unwarranted invasion of plaintiff's privacy.

It has been recognized that retailers in this country face a shoplifting epidemic of dynamic proportions. See Bonkowski v. Arlan's Dep't Store, 383 Mich. 90, 103-104, 174 N.W.2d 765 (1970); Bruce v. Meijers Supermarkets, Inc., 34 Mich.App. 352, [128 MICHAPP 170] 355, 191 N.W.2d 132 (1971). Fitting rooms which retailers provide for their customers are particularly suited to concealment of stolen property. In In re Deborah C, 30 Cal.3d 125, 177 Cal.Rptr. 852, 635 P.2d 446 (1981), the California Supreme Court was faced with a similar claim in the context of a criminal case involving a claim of illegal search and seizure. The court held that it was not unreasonable for store security personnel to view patrons in fitting rooms from an adjacent corridor through which customers and salesclerks frequently passed. The court noted that there were large gaps above and below the fitting room doors which provided an obvious view into each fitting room. In holding that no reasonable expectation of privacy existed, the court stated the following:

"Though designed perhaps to give minimal protection to modesty, the doors hardly could promote any reasonable feeling that all actions and objects behind them were insulated from public observation.

* * *

"One who uses a dressing room is entitled to the modicum of privacy it appears to afford." 30 Cal.3d 137, 139, 177 Cal.Rptr. 858, 859, 635 P.2d 452, 453.

Although it is conceded that the nature of the surveillance involved in this case was more intrusive than that which was involved in In re Deborah C, supra, it must be kept in mind that, unlike the situation presented in that case and in People v. Abate, supra, in the present case signs were posted in the fitting rooms informing customers that the area was under surveillance. Although plaintiff claims that he cannot recall whether he saw the signs, he does not dispute defendant's [128 MICHAPP 171] claim that the signs were prominently located and plain to see.

The only case which we were able to locate which discussed the expectation of privacy a store customer is legitimately entitled to where such signs are located in a fitting room was Gillett v. State, 588 S.W.2d 361 (Tex.Cr.App., 1979). Gillett, supra, involved a criminal prosecution for shoplifting. Defendant was observed entering a fitting room with a sweater. There were signs posted on the mirror of the fitting room...