Private Investigator's Actions Lead To Invasion Of Privacy Claim

Howard & Howard Attorneys, P.C.
One Technology Plaza, Suite 600
Peoria, IL  61602-1350
Telephone:  (309) 672-1483
Facsimile:  (309) 672-1568
Email:  MLied@howardandhoward.com

In Burns v. Masterbrand Cabinets, Inc. et al., 369 Ill. App. 3d 1006 (4th Dist. 2007) app'l den. 224 Ill.2d 572, James Burns filed a complaint alleging that he sustained a work injury.  Burns had filed a claim with the Illinois Industrial Commission for workers' compensation benefits.  Masterbrand retained codefendant Gallagher Bassett Services, Inc.  to adjust the claim and to manage the workers' compensation case.

In his complaint, Burns alleged that Gallagher retained codefendant Metro Private Investigations, Inc. to perform personal surveillance of Burns.  On November 13, 2002, an employee of Metro, John Kennedy, approached Burns's mobile home and sought entry under the false pretense that Kennedy was looking for a missing juvenile.  Burns alleged that Kennedy was holding a picture of a young girl when he approached his home.  Once inside, Kennedy asked Burns questions about the missing juvenile.

This was a trick.  Kennedy used a hidden camera in a fanny pack to record Burns. Kennedy later said only video, but no audio, was recorded.  On December 17, 2002, Kennedy testified in Burns's workers' compensation case with regard to his physical limitations.  The visit to Burns's home was the basis for Kennedy's testimony. 

Burns's complaint made several claims, including that Kennedy's intrusion was highly offensive and that he sustained anguish and suffering as a direct cause of Kennedy's entrance into his home.

The trial court granted defendants' motion to dismiss the counts in Burns's complaint alleging defendants committed the tort of "intrusion upon seclusion" of another.  Burns appealed.  The courts of appeal in Illinois had been in disagreement about whether such an invasion of privacy claim existed.

The Court of Appeals for the Fourth District had historically refused to recognize such a claim.  The Supreme Court of Illinois has not expressly addressed whether the tort of "intrusion upon seclusion" is viable.  However, the relevant case law revealed that the other appellate districts in Illinois had decided that the tort of "intrusion upon seclusion" is actionable in Illinois.  The Fourth District joined these other courts in recognizing the "intrusion upon seclusion" claim.

Burns had alleged the four necessary elements of the claim in his complaint:  (1) an unauthorized intrusion or prying into the plaintiff's seclusion, (2) the intrusion must be offensive or objectionable to a reasonable man, (3) the matter upon which the intrusion occurs must be private, and (4) the intrusion causes anguish and suffering.  The appellate court also acknowledged a different definition, which says, "One 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."

Under the circumstances, the trial court should not have dismissed the complaint.  The court of appeals reversed and remanded the case for further proceedings.

MasterbrandCabinets is not the first company to have legal troubles because of the actions of private investigators.  In Johnson v. K-Mart Corp., 311 Ill. App. 3d 573 (1st Dist. 2000), the employer believed employees were stealing, vandalizing merchandise, using and distributing drugs, and sabotaging operations in the distribution center.  The company hired two private investigators to pose as employees.  The investigators periodically submitted reports to the general manager of the center.

Despite instructions provided by the employer, the investigators included in their reports information about employees' children's criminal conduct, incidents of domestic violence, upcoming divorces, employee sexual conduct, plans to leave K-Mart's employment, complaints about the company, and employee health problems.  While the employer had no business purpose for receiving this type of information, it failed to instruct the investigators to exclude such personal information from their reports.  On the employees' invasion of privacy claim, based on intrusion on seclusion, the trial court granted K-Mart summary judgment.  The trial court found there was no unauthorized intrusion because the employees had voluntarily disclosed this personal information in their conversations with the faux-employee/investigators.  The court of appeals reversed, finding that these disclosures were not truly voluntary because they were induced by deceptive means.  The appellate court found that the employees had a reasonable expectation of privacy in conversations with coworkers and therefore a question of fact arose as to whether the unauthorized intrusion alleged would be offensive or objectionable to a reasonable person.

Private investigators can be a helpful tool for business.  However, it is important to assure that the investigation does not cross over the line to create an invasion of privacy.