Nader v. General Motors Corp.

• Court: New York Court of Appeals
• Writing for the Court: FULD; BREITEL; SCILEPPI, BERGAN and GIBSON, JJ., concur with FULD; BREITEL
• Citation: 307 N.Y.S.2d 647,255 N.E.2d 765,25 N.Y.2d 560
• Decision Date: 08 January 1970
• Parties: , 255 N.E.2d 765 Ralph NADER, Respondent, v. GENERAL MOTORS CORPORATION, Appellant, et al., Defendants.

Page 647

307 N.Y.S.2d 647 25 N.Y.2d 560, 255 N.E.2d 765 Ralph NADER, Respondent,
v.
GENERAL MOTORS CORPORATION, Appellant, et al., Defendants. Court of Appeals of New York. Jan. 8, 1970.

Page 649

[255 N.E.2d 767] [25 N.Y.2d 562] Simon H. Rifkind, New York City, Martin Kleinbard, Rye, and Allan Blumstein, New York City, for appellant.

[25 N.Y.2d 563] Alfred W. Gans, Stuart M. Speiser and Paul D. Rheingold, New York City, for respondent.

FULD, Chief Judge.

On this appeal, taken by permission of the Appellate Division on a certified question, we are called upon to determine the reach of the tort of invasion of privacy as it exists under the law of the District of Columbia.

The complaint, in this action by Ralph Nader, pleads four causes of action against the appellant, General Motors Corporation, and three other

Page 650

defendants allegedly acting as its agents. [25 N.Y.2d 564] The first two causes of action charge an invasion of privacy, the third is predicated on the intentional infliction of severe emotional distress and the fourth on interference with the plaintiff's economic advantage. This appeal concerns only the legal sufficiency of the first two causes of action, which were upheld in the courts below as against the appellant's motion to dismiss (CPLR 3211, subd. (a), par. 7).

The plaintiff, an author and lecturer on automotive safety, has, for some years, been an articulate and severe critic of General Motors' products from the standpoint of safety and design. According to the complaint--which, for present purposes, we must assume to be true--the appellant, having learned of the imminent publication of the plaintiff's book 'Unsafe at any Speed,' decided to conduct a campaign of intimidation against him in order to 'suppress plaintiff's criticism of and prevent his disclosure of information' about its products. To that end, the appellant authorized and directed the other defendants to engage in a series of activities which, the plaintiff claims in his first two causes of action, violated his right to privacy. ¹

Specifically, the plaintiff alleges that the appellant's agents (1) conducted a series of interviews with acquaintances of the plaintiff, 'questioning them about, and casting aspersions upon (his) political, social * * * racial and religious views * * *; his integrity; his sexual proclivities and inclinations; and his personal habits' (Complaint, par. 9(b)); (2) kept him under surveillance in public places for an unreasonable length of time (par. 9(c)); (3) caused him to be accosted by girls for the purpose of entrapping him into illicit relationships (par. 9(d)); (4) made threatening, harassing and obnoxious telephone calls to him (par. 9(e)); (5) tapped his telephone and eavesdropped, by means of mechanical and electronic equipment, on his private conversations with others (par. 9(f)); and (6) conducted a 'continuing' and harassing investigation of him [25 N.Y.2d 565] (par. 9(g)). These charges are amplified in the plaintiff's bill of particulars, and those particulars are, of course, to be taken into account in considering the sufficiency of the challenged causes of action. (See Bolivar v. Monnat, 232 App.Div. 33, 34, 248 N.Y.S. 722, 725; see, also, 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3211.43.)

The threshold choice of law question requires no extended discussion. In point of fact, the parties have agreed--at least for purposes

Page 651

of this motion--that the sufficiency of these allegations is to be determined under the law of the District of Columbia. The District is the jurisdiction in which most of the acts are alleged to have occurred, and it was there, too, that the plaintiff lived and suffered the impact [255 N.E.2d 768] of those acts. It is, in short, the place which has the most significant relationship with the subject matter of the tort charged. (See, e.g., Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1.)

Turning, then, to the law of the District of Columbia, it appears that its courts have not only recognized a common-law action for invasion of privacy but have broadened the scope of that tort beyond its traditional limits. (See Pearson v. Dodd, 133 U.S.App.D.C. 279, 410 F.2d 701; Afro-American Pub. Co. v. Jaffe, 125 U.S.App.D.C. 70, 366 F.2d 649; Peay v. Curtis Pub. Co., D.C., 78 F.Supp. 305; see, also Bloustein, Privacy as an Aspect of Human Dignity, 39 N.Y.U.L.Rev. 962, 977; Prosser, Privacy, 48 Cal.L.Rev. 383, 389 et seq.) Thus, in the most recent of its cases on the subject, Pearson v. Dodd (133 U.S.App.D.C. 279, 410 F.2d 701, Supra), the Federal Court of Appeals for the District of Columbia declared (p. 704):

'We approve the extension of the tort of invasion of privacy to instances of Intrusion, whether by physical trespass or not, into spheres from which an ordinary man in a plaintiff's position could reasonably expect that the particular defendant should be excluded.' (Italics supplied.)

It is this form of invasion of privacy--initially termed 'intrusion' by Dean Prosser in 1960 (Privacy, 48 Cal.L.Rev. 383, 389 et seq.; Torts, § 112)--on which the two challenged causes of action are predicated.

Quite obviously, some intrusions into one's private sphere are inevitable concomitants of life in an industrial and densely [25 N.Y.2d 566] populated society, which the law does not seek to proscribe even if it were possible to do so. 'The law does not provide a remedy for every annoyance that occurs in everyday life.' (Kelley v. Post Pub. Co., 327 Mass. 275, 278, 98 N.E.2d 286, 287.) However, the District of Columbia courts have held that the law should and does protect against certain types of intrusive conduct, and we must, therefore, determine whether the plaintiff's allegations are actionable as violations of the right to privacy under the law of that jurisdiction. To do so, we must, in effect, predict what the judges of that jurisdiction's highest court would hold if this case were presented to them. (See, e.g., Cooper v. American Airlines, 2 Cir., 149 F.2d 355, 359, 162 A.L.R. 318, per Frank, J.) In other words, what would the Court of Appeals for the District of Columbia say is the character of the 'privacy' sought to be protected? More specifically, would that court accord an individual a right, as the plaintiff

Page 652

before us insists, to be protected against any interference whatsoever with his personal seclusion and solitude? Or would it adopt a more restrictive view of the right, as the appellant urges, merely protecting the individual from intrusion into 'something secret,' from snooping and paying into his private affairs?

The classic article by Warren and Brandeis (The Right to Privacy, 4 Harv.L.Rev. 193)--to which the court in the Pearson case referred as the source of the District's common-law action for invasion of privacy (410 F.2d, at p. 703)--was premised, to a large extent, on principles originally developed in the field of copyright law. The authors thus based their thesis on a right granted by the common law to 'each individual * * * of determining, ordinarily, to what extent his thoughts, sentiments and emotions shall be communicated to others' (4 Harv.L.Rev., at p. 198). Their principal concern appeared to be not with a broad 'right to be let alone' (Cooley, (Cooley, Torts (2d ed.), p. 29) but, rather, with the right to protect oneself from having one's private affairs known to others and to keep secret or intimate facts about oneself from the prying eyes or ears of others.

In recognizing the existence of a common-law cause of action for invasion of privacy in the District of Columbia, the Court of Appeals has expressly adopted this latter formulation of the [25 N.Y.2d 567] nature of the right. (See, e.g., Afro-American Pub. Co. [255 N.E.2d 769] v. Jaffe, 125 U.S.App.D.C. 70, 366 F.2d 649, 653, Supra.) Quoting from the Restatement, Torts ( § 867), the court in the Jaffe case (366 F.2d, at p. 653) has declared that '(l)iability attaches to a person 'who unreasonably and seriously interferes with another's interest in Not having his affairs known to others. '' (Emphasis supplied.) And, in Pearson, where the court extended the tort of invasion of privacy to instances of 'intrusion,' it again indicated, contrary to the plaintiff's submission, that the interest protected was one's right to keep knowledge about oneself from exposure to others, the right to prevent 'the obtaining of the information by improperly intrusive means' (410 F.2d, at p. 704; emphasis supplied). In other jurisdictions, too, the cases which have recognized a remedy for invasion of privacy founded upon intrusive conduct have generally involved the gathering of private facts or information through improper means. (See, e.g., Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239, 11 A.L.R.3d 1288; Ford Motor Co. v. Williams, 108 Ga.App. 21, 132 S.E.2d 206; LeCrone v. Ohio Bell Tel. Co., 120 Ohio App. 129, 201 N.E.2d 533; see, also, Bloustein, Privacy as an Aspect of Human Dignity, 39 N.Y.U.L.Rev. 962, 972. But cf. Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340.)

It should be emphasized that the mere gathering of information about a particular individual does not give rise to a cause of action

Page 653

under this theory. Privacy is invaded only if the information sought is of a confidential nature and the defendant's conduct was unreasonably intrusive. Just as a common-law copyright is lost when material is published, so, too, there can be no invasion of privacy where the information sought is open to public view or has been voluntarily revealed to others. (See Forster v. Manchester, 410 Pa. 192, 189 A.2d 147; Tucker v. American Employers' Ins. Co., 171 So.2d 437, 13 A.L.R.3d 1020 (Fla.App.); see, also, Prosser, Torts (3d ed.), p. 835; Restatement, 2d, Torts, Tent. Draft No. 13, § 652B, comment C.) In order to sustain a cause of action for invasion of privacy, therefore, the plaintiff must show that the appellant's...