Soliman v. The Kushner Companies Inc., A-5397-10T2; Appellate Division; opinion by Fuentes, P.J.A.D.; decided and approved for publication October 17, 2013. Before Judges Fuentes, Graves and Harris. On appeal from the Law Division, Bergen County, L-2581-08. [Sat below: Judge +.] DDS No. 2702-xxxx [36 pp.]

This appeal involves four consolidated lawsuits brought by employees of tenants and members of their families, including minors, against the landlord and managers of a commercial office building, as well as a number of other companies responsible for installing and maintaining video monitoring and recording equipment intentionally concealed inside smoke detectors in four public bathrooms. Plaintiffs allege intentional and negligent infliction of emotional distress, common-law invasion of privacy, and invasion of privacy under N.J.S.A. 2C:58D-1(b). They seek common-law compensatory damages, punitive damages under the Punitive Damages Act, and statutory damages under N.J.S.A. 2C:58D-1(c).

The managers of the office building installed this surveillance equipment in 2003, ostensibly in response to complaints of vandalism and damage to bathroom facilities. Defendants claimed the cameras were positioned to monitor or focus only on the “common area” of the bathrooms, where the washbasins are located. Defendants claim the cameras were not placed to monitor the toilet stalls and therefore did not invade or violate plaintiffs’ expectation of privacy.

Defendants claimed the video surveillance equipment lay dormant for four years and monitoring of the bathrooms began in 2007, and only functioned for three days. This monitoring operation came to an abrupt end when a tenant employee discovered video monitors displaying a live video feed of the four bathrooms. This employee reported his discovery to the local police department. The responding police officers confirmed the existence of the video surveillance operation, and disconnected the camera lenses concealed inside the smoke detectors. An investigator from the Bergen County Prosecutor’s Office took custody of the computer equipment. After an investigation, law enforcement authorities decided not to file criminal charges.

The Law Division granted defendants’ motions for summary judgment and dismissed plaintiffs’ cause of action as a matter of law. The motion judge accepted defendants’ factual claims as to the nature and scope of the video surveillance operation, and found plaintiffs did not have a reasonable expectation of privacy in the areas of the bathrooms outside the toilet stalls, where the washbasins are ordinarily located.

Held: Relating to defendants’ use of bathroom surveillance cameras, the order dismissing the counts in plaintiffs’ complaint that are grounded on invasion of privacy is reversed.

The appellate panel finds the trial court erred in dismissing plaintiffs’ complaints as a matter of law. A rational jury could find defendants’ actions violated plaintiffs’ reasonable expectations of privacy.

Based on plaintiffs’ factual contentions, the privacy interest at stake here is freedom from “intrusion” or prying into inherently nonpublic areas where there is a reasonable gender-specific expectation of privacy. Consistent with the approach endorsed by the Supreme Court in Rumbauskas v. Cantor, a plaintiff in a cause of action predicated on the tort of invasion of privacy, grounded in the subcategory of “invasion of intrusion on the plaintiff’s physical solitude or seclusion,” which includes the characteristics of unconsented prying, may recover compensatory damages for “personal hardships,” similar in kind and scope to those codified in N.J.S.A. 10:5-3, if plaintiffs can show a causal link between defendants’ intrusion and these “personal hardships.” As a threshold issue, plaintiffs here must show that defendants’ actions to clandestinely monitor their activities in a gender-restricted bathroom is subject to liability, because it is the type of intrusion that a reasonable person would find to be highly offensive.

Even assuming a good-faith motive, a rational jury could find that the approach adopted by defendants here is per se unreasonable because: the clandestine nature of the surveillance operation negated the deterrent effect defendants allegedly sought to create; acts of vandalism to bathrooms do not justify the installation of a covert video surveillance system to monitor inherently private areas like bathrooms; and although all areas of a bathroom are deemed private, bathrooms intended to be used exclusively by women and girls are inherently more susceptible to invasion-of-privacy claims. Plaintiffs can present evidence to a jury that women and girls use public bathrooms, including areas outside the toilet stalls, with the reasonable expectation that their private grooming activities will only be visible to fellow female users who may be present at the time; and both men and women may have used the so-called quasi-public areas of the bathrooms to perform personal grooming or other private activities when no one else was visibly present that they would have otherwise refrained from performing even in the presence of members of their own gender.

Based on these plausible findings, plaintiffs may be entitled to compensatory relief under both common-law principles of privacy and pursuant to the specific cause of action for invasion of privacy authorized by the Legislature under N.J.S.A. 2A:58D-1. Depending on whether the jury awards compensatory damages, plaintiffs have also presented sufficient evidence to preserve the right to seek an award of punitive damages under the PDA’s definition of “actual malice.”

The evidence presented is sufficient to withstand defendants’ summary judgment challenge on the claims grounded on the tort of invasion of privacy. The appellate panel reverses and remands for trial before a jury on this issue. The appellate panel affirms, however, the court’s dismissal of plaintiffs’ claims based on intentional and negligent infliction of emotional distress.

For appellants — Gerald H. Baker (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins; Lawrence M. Simon and Mark J. Cintron on the brief). For respondents: High Tech Installations et al. — Derek A. Ondis (Romando, Zirulnik, Sherlock & DeMille); The Kushner Companies Inc. et al. — Stuart J. Polkowitz (Mautone & Horan and Brach Eichler; Polkowitz and James J. Horan on the briefs).