Polay v. McMahon

• Decision Date: 13 June 2014
• Docket Number: SJC–11460.
• Citation: 468 Mass. 379,10 N.E.3d 1122
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Jane T. POLAY & another v. Joseph S. McMAHON.

468 Mass. 379

10 N.E.3d 1122

Jane T. POLAY & another¹

v.Joseph S. McMAHON.

SJC–11460.

Supreme Judicial Court of Massachusetts, Middlesex.

Submitted Feb. 6, 2014.

Decided June 13, 2014.

Phillip M. Eliopoulos (Angelique M. Eliopoulos with him) for the plaintiffs.

Richard M. Moynihan, Boston, for the defendant.

Alex G. Philipson, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

The genesis of this case is an escalating series of disputes between neighbors who live across the street from each other in Lowell. The plaintiffs, Jane T. Polay and William Morse, brought suit against the defendant, Joseph S. McMahon, alleging (1) abuse of process, (2) malicious prosecution, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) invasion of privacy. McMahon filed a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974), and a special motion to dismiss pursuant to the anti-SLAPP statute, G.L. c. 231, § 59H. A judge of the Superior Court allowed the motion to dismiss as to all claims; he also allowed the special motion to dismiss with respect to the abuse of process and malicious prosecution claims, but denied the special motion as to the other three claims. Having partially succeeded on his special motion to dismiss, McMahon moved for costs and attorney's fees pursuant to G.L. c. 231, § 59H, and the judge granted the motion. The plaintiffs appealed, challenging only the dismissal of their invasion of privacy and intentional infliction of emotional distress claims, and the award of attorney's fees. We reverse the dismissal of the invasion of privacy claim, remand the issue of attorney's fees in light of our decision, and otherwise affirm.²

Background. The plaintiffs' verified complaint contains the following allegations. Around April, 2008, McMahon and other neighbors entered into a common plan to harass the plaintiffs. On April 4, McMahon met with certain identified neighbors to discuss taking concerted action against the plaintiffs. After the meeting, McMahon filed what the plaintiffs allege was a false police report averring that Morse was stalking him.

In December, 2009, McMahon filed another false police report, in which he alleged that Morse had parked his car in such a way as to prevent McMahon from pulling out of his driveway. Upon arrival of the police, McMahon began verbally attacking the plaintiffs, and officers ordered McMahon back inside his house. McMahon also filed “countless” other false reports against the plaintiffs, including one in which he alleged that Polay committed an assault and battery against McMahon's son by attempting to push the son off his bicycle.

On or about August 13, 2010, in reliance on these false police reports, McMahon sought and was granted a harassment prevention order against the plaintiffs. McMahon thereafter filed several criminal complaints against the plaintiffs for alleged violations of the harassment prevention order, each of which was dismissed. A judge of the District Court subsequently vacated the harassment prevention order after a hearing, concluding that the conduct alleged in support of the initial complaint did not rise to the level of harassment.

Sometime around January 27, 2011, McMahon installed several video cameras in his house, which were pointed at the plaintiffs' property. On May 30, 2011, McMahon installed an additional camera, also directed at the plaintiffs' property. As alleged by the plaintiffs, these cameras record the plaintiffs' house on a continuous basis, and enable McMahon to see into the windows of the plaintiffs' home.

The complaint alleges that McMahon undertook all of these actions against the plaintiffs in order to cause them distress and drive them out of the neighborhood; that McMahon's conduct did cause the plaintiffs “extreme discomfort and distress”; and that “the emotional distress suffered by the [p]laintiffs was severe and of such a nature that no reasonable person could be expected to endure it.” ³

Discussion. 1. Motion to dismiss. We review the allowance of a motion to dismiss de novo. Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164, 4 N.E.3d 270 (2014). In so doing, “[w]e accept as true the facts alleged in the plaintiffs' complaint as well as any favorable inferences that reasonably can be drawn from them.” Id. However, “[w]e do not regard as ‘true’ legal conclusions cast in the form of factual allegations.” Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 n. 6, 907 N.E.2d 213 (2009), citing Schaer v. Brandeis Univ., 432 Mass. 474, 477–478, 735 N.E.2d 373 (2000). To survive a motion to dismiss, the factual allegations must “ ‘plausibly suggest [and] (not merely [be] consistent with)’ an entitlement to relief.” Galiastro v. Mortgage Elec. Registration Sys., Inc., supra at 164–165, 4 N.E.3d 270, quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008).

a. Invasion of privacy. The plaintiffs contend that they have alleged sufficient facts to support a claim of invasion of their right of privacy under G.L. c. 214, § 1B.⁴ “To sustain a claim for invasion of privacy, the invasion must be both unreasonable and substantial or serious.” Nelson v. Salem State College, 446 Mass. 525, 536, 845 N.E.2d 338 (2006). See Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 409 Mass. 514, 517–518, 567 N.E.2d 912 (1991) ( Schlesinger ). Most of our jurisprudence under that statute has involved public disclosure of private facts, but a plaintiff also may support a claim of invasion of privacy by showing that a defendant has intruded unreasonably upon the plaintiff's “solitude” or “seclusion.” See Ayash v. Dana–Farber Cancer Inst., 443 Mass. 367, 382 n. 16, 822 N.E.2d 667 (2005); Schlesinger, supra at 517 & n. 4, 519–521, 567 N.E.2d 912; Amato v. District Attorney for the Cape & Islands Dist., 80 Mass.App.Ct. 230, 240, 952 N.E.2d 400 (2011). “The right which the plaintiffs claim was infringed upon is their right to be left alone.” Ellis v. Safety Ins. Co., 41 Mass.App.Ct. 630, 637, 672 N.E.2d 979 (1996) ( Ellis ). See Schlesinger, supra at 517, 567 N.E.2d 912.

Generally, whether an intrusion qualifies as unreasonable, as well as either substantial or serious, presents a question of fact. See Ellis, supra at 638, 672 N.E.2d 979; Walker v. Jackson, 952 F.Supp.2d 343, 353–354 (D.Mass.2013). “[T]he Legislature appears to have framed the statute in broad terms so that the courts can develop the law thereunder on a case-by-case basis, by balancing relevant factors ... and by considering prevailing societal values and the ability to enter orders which are practical and capable of reasonable enforcement.” Schlesinger, supra at 519, 567 N.E.2d 912. Factors that we have considered in assessing whether there has been an intrusion that is unreasonable, as well as substantial or serious, include the location of the intrusion, the means used, the frequency and duration of the intrusion, and the underlying purpose behind the intrusion. See id. at 519–522, 567 N.E.2d 912; Ellis, supra at 637–638, 672 N.E.2d 979. See also W.L. Prosser & W.P. Keeton, Torts § 117, at 856 (5th ed. 1984) (Prosser & Keeton) (two most important factors are means used and underlying purpose). Thus, in Ellis, supra, the plaintiffs survived summary judgment on their intrusion claim by producing evidence that the defendant insurance investigator waited in front of their home, made numerous telephone calls to their home and work, followed them extensively, and acted out of a racially motivated purpose to harass.

In determining whether a defendant committed an unreasonable intrusion, we balance the extent to which the defendant violated the plaintiff's privacy interests against any legitimate purpose the defendant may have had for the intrusion. See Webster v. Motorola, Inc., 418 Mass. 425, 431–434, 637 N.E.2d 203 (1994); O'Connor v. Police Comm'r of Boston, 408 Mass. 324, 330, 557 N.E.2d 1146 (1990); Bratt v. International Business Machs. Corp., 392 Mass. 508, 520–521, 467 N.E.2d 126 (1984). Here, the plaintiffs allege that McMahon installed several video cameras directed at their property, that these cameras can see through their windows into the interior of their home, that the cameras record their home on a continuous basis, and that McMahon installed the cameras in order to cause them extreme discomfort and distress and drive them out of the neighborhood.⁵

“Nowhere are expectations of privacy greater than in the home, and ‘[i]n the home ... all details are intimate details....' ” Commonwealth v. Balicki, 436 Mass. 1, 12 n. 14, 762 N.E.2d 290 (2002), quoting Kyllo v. United States, 533 U.S. 27, 37, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). See Restatement (Second) of Torts § 652B, comment b (1977) (defendant may intrude on plaintiff's seclusion by looking into plaintiff's windows). Moreover, even where an individual's conduct is observable by the public, the individual still may possess a reasonable expectation of privacy against the use of electronic surveillance that monitors and records such conduct for a continuous and extended duration. Cf. Commonwealth v. Rousseau, 465 Mass. 372, 382, 990 N.E.2d 543 (2013); Commonwealth v. Balicki, supra at 11–13, 762 N.E.2d 290 (use of video and still cameras to document search of home exacerbated its intrusiveness). Considered in light of these factors, McMahon's alleged motive to harass converts his video surveillance of the interior of the plaintiffs' home into an unreasonable intrusion. See Ellis, supra at 638, 672 N.E.2d 979; 1 J.T. McCarthy, The Rights of Publicity and Privacy § 5:99, at 709 (2013) (“when surveillance aims to frighten or torment a targeted person, there is an unreasonable intrusion upon privacy”); Prosser & Keeton, supra at § 117, at 856 (surveillance may qualify as unreasonable intrusion if done for improper purpose)...