Miller v. Brooks

• Decision Date: 02 July 1996
• Docket Number: No. COA95-407,COA95-407
• Citation: Miller v. Brooks, 472 S.E.2d 350, 123 N.C.App. 20 (N.C. App. 1996)
• Court: North Carolina Court of Appeals
• Parties: Terry Stuart MILLER, Plaintiff, v. Gregory F. BROOKS, Michael Craig Hite, Brooks Investigations, Inc., Annette K. Miller and Pierino "Pat" Massaroni, Defendants.

Page 350

472 S.E.2d 350

123 N.C.App. 20

Terry Stuart MILLER, Plaintiff, v. Gregory F. BROOKS, Michael Craig Hite, Brooks Investigations, Inc., Annette K. Miller and Pierino "Pat" Massaroni, Defendants.

No. COA95-407.

Court of Appeals of North Carolina.

July 2, 1996.

Gabriel Berry & Weston, L.L.P. by M. Douglas Berry, Greensboro, for plaintiff-appellant.

Yates, McLamb & Weyher, L.L.P. by Andrew A. Vanore and Beth Y. Smoot, Raleigh, for defendants-appellees Gregory F. Brooks, Michael Craig Hite, Brooks Investigations, Inc., and Pierino "Pat" Massaroni.

Dotson & Kirkman by John W. Kirkman, Jr., Greensboro, for defendant-appellee Annette K. Miller.

LEWIS, Judge.

Plaintiff appeals an order granting summary judgment to all defendants on all of his claims.

Evidence presented at the summary judgment hearing tends to show the following: In December 1986, plaintiff Terry Miller purchased a lot at 2400 Buck Lane. On 14 February 1987 he married defendant Annette K. Miller. The couple built a house on the Buck Lane lot and lived in it, but the property remained titled solely in plaintiff's name. On 1 August 1990, defendant Annette Miller moved out of the house and into an apartment. On 29 January 1991, the Millers entered into a separation agreement which provided that plaintiff Terry Miller had sole possession of the Buck Lane house. In February 1992, the couple attempted a reconciliation during which defendant Miller moved back into the Buck Lane residence. This reconciliation attempt failed and she moved out after a few days. Plaintiff has testified in his affidavit and in a previous criminal trial that the couple agreed that he would have exclusive possession and control of the Buck Lane house and that defendant Miller would not return unless she was invited or he was present. She returned her key.

In February 1993, defendant Annette Miller made arrangements with defendant Gregory Brooks, a private investigator with defendant Brooks Investigations, Inc., for a surveillance camera to be placed in the Buck Lane residence. Brooks hired defendants Massaroni and Hite to assist. On 5 February 1993, Brooks contacted a locksmith who met defendants Miller, Brooks, and Massaroni at the house and made a key to the house. On or about 16 or 17 February 1993, when plaintiff was not home, defendants Massaroni and Brooks entered the Buck Lane house, altered the wiring, and installed a hidden videotape camera in the bedroom ceiling.

On 17 February 1993, plaintiff returned home and discovered a pile of dust or dirt on the floor indicating that someone had been in his house. He engaged a private detective who helped him locate and remove the camera and videotape. They watched the videotape which showed pictures of plaintiff in his bedroom, getting undressed, taking a shower and going to bed. The tape also showed defendants Brooks and Hite in plaintiff's bedroom. After discovering the camera, plaintiff became fearful for his life, moved out of his house temporarily, and carried a loaded shotgun in his car. He suspected he was being investigated by federal officials and went into hiding. Later, defendants Miller, Massaroni, and Hite went to the house to change the videotape and discovered that the camera and tape had been removed.

In mid-February 1993, defendant Miller, representing herself as a resident, asked the local post office to hold the mail for 2400 Buck Lane. Afterwards, she regularly picked up plaintiff's mail at the post office, sorted through and discarded portions of it, and placed the remainder in plaintiff's mailbox. Defendant Massaroni picked up the mail for her once. Postal employees discovered that defendant Miller was not living at the Buck Lane house and contacted plaintiff.

Upon concluding that the defendants were involved, plaintiff filed this action on 27 July 1993 seeking a declaratory judgment and compensatory and punitive damages for invasion of privacy, intentional infliction of emotional distress, trespass, and damage to real property. On 7 April 1994, plaintiff amended his complaint adding defendant Massaroni and asserting additional claims for invasion of privacy. Defendants answered and moved to dismiss under N.C.R. Civ. P. 12(b)(6). Judge Allen heard defendants' motions to dismiss as motions for summary judgment and, on 21 December 1994, granted summary judgment to all defendants on all of plaintiff's claims.

Plaintiff has assigned error to the grant of summary judgment on his claims for invasion of privacy, trespass, damage to real property, intentional infliction of emotional distress, and a declaratory judgment. Since plaintiff has not presented argument on the dismissal of his declaratory judgment claim, this issue is abandoned on appeal. Rules App.Proc., Rule 28(a).

Plaintiff alleges that defendants invaded his privacy by their intentional and highly offensive intrusion upon his seclusion, solitude, or private affairs. In his first and eighth causes of action, plaintiff asserts that defendants violated his privacy by breaking into his home, installing a hidden video camera in his bedroom, and taking pictures of him while in his bedroom. He asserts that they performed these acts wilfully, intentionally, maliciously, and in reckless disregard and indifference to his privacy rights. In his seventh cause of action, plaintiff asserts that defendants Miller, Massaroni, and Brooks Investigations, Inc., through its agent Massaroni, wilfully, intentionally, and maliciously invaded his privacy by intercepting and opening his mail without authorization.

This appeal requires us to decide whether North Carolina recognizes the tort of invasion of privacy by intrusion into the seclusion, solitude, or private affairs of another ("intrusion tort").

In Renwick v. News and Observer Publishing Co.; Renwick v. Greensboro Daily News, 310 N.C. 312, 312 S.E.2d 405, cert. denied, 469 U.S. 858, 105 S.Ct. 187, 83 L.Ed.2d 121 (1984), then Mr. Justice Mitchell, writing for the majority, stated:

The tort of invasion of privacy is now recognized, in one or more of its forms, in a majority of jurisdictions.... It is generally recognized that:

The right of privacy, as an independent and distinctive legal concept has two main aspects: (1) the general law of privacy, which affords a tort action for damages resulting from an unlawful invasion of privacy, and (2) the constitutional right of privacy which protects personal privacy against unlawful governmental invasion.

The general law of the right of privacy, as a matter of tort law, is mainly left to the law of the states....

Id. at 321, 312 S.E.2d at 411.

In Renwick, the majority listed four types of privacy torts recognized in American jurisdictions. These are: (1) appropriation of a plaintiff's name or likeness for a defendant's advantage; (2) intrusion upon a plaintiff's seclusion, solitude, or private affairs; (3) public disclosure of embarrassing private facts about a plaintiff; and (4) publicity that places a plaintiff in a false light in the public eye. Id. at 322, 312 S.E.2d at 411 (citing W Prosser, Handbook of the Law of Torts § 117 (4th Ed.1971)).

Our Supreme Court has held that a right of privacy exists in North Carolina and has recognized the first type of privacy tort, i.e., invasion of privacy by the unauthorized appropriation of a plaintiff's photographic likeness for a defendant's advantage as part of an advertisement or commercial enterprise. Id. (discussing Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938)). However, the Court has refused to recognize the third type, invasion of privacy by disclosure of private facts, see Hall v. Post, 323 N.C. 259, 372 S.E.2d 711 (1988), or the fourth type, invasion of privacy by placing a plaintiff in a false light before the public. See Renwick, 310 N.C. at 322, 326, 312 S.E.2d at 411, 413.

In Smith v. Jack Eckerd Corp., 101 N.C.App. 566, 400 S.E.2d 99 (1991), we defined the intrusion tort as follows:

"[o]ne 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."

Smith, 101 N.C.App. at 568, 400 S.E.2d at 100 (quoting Restatement (Second) of Torts § 652B). However, in Smith, the intrusion complained of was not so highly offensive to a reasonable person as to constitute an invasion of privacy. See Smith, 101 N.C.App. at 569, 400 S.E.2d at 100.

The level of offensiveness here is infinitely higher than that complained of in Smith. Here, plaintiff's forecast of the evidence shows that defendants invaded his home, indeed, his bedroom, and placed a hidden video camera in his room which recorded pictures of him undressing, showering, and going to bed. Plaintiff's evidence also shows that defendant Annette Miller intercepted, sorted through, and threw away some of his mail and that defendant Massaroni picked up plaintiff's mail for her on one occasion. Acts of physically invading a person's home and opening his personal mail are wrongs protected by this tort. See Restatement (Second) of Torts § 652B, Comment b. (1977); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 117, at 854-56 (5th ed.1984). Plaintiff had every reasonable expectation of privacy in his mail and in his home and bedroom. A jury could conclude that these invasions would be highly offensive to a reasonable person.

Unlike the privacy torts based on public disclosure of private facts and false light publicity, the intrusion tort does not implicate the First Amendment concerns addressed in Renwick and Hall. See generally Renwick, 310 N.C. at 323-26, 312 S.E.2d at 412-14; Hall, 323 N.C. at 265-69, 372 S.E.2d at 714-17. Recognition of this tort also does not duplicate other tort claims. An offensive physical contact is not required for the intrusion tort as it is for battery. Cf. McCracken v. Sloan, 40...