In a published decision, a unanimous panel of the Appellate Division rejected “the notion that plaintiffs – in alleging an invasion of privacy in an office building’s bathroom – could only claim the presence of a hidden recording device by demonstrating their images were actually captured.” Jaime Friedman et al. v. Teodoro Martinez et al., case number A-4896-15T1. In so doing, the panel rejected a lower court ruling and allowed plaintiffs to survive summary judgment on the basis of more circumstantial evidence.

The plaintiffs in Friedman alleged that a janitor placed hidden recording devices in a women’s restroom and recorded private activities for six months to a year. The police recovered footage of about eight hours of such illicit surveillance. The plaintiffs, sixty women, sued the janitor and his employer, as well as the owner of the building and the company managing the building. Each plaintiff alleged that she had used that women’s restroom while the hidden camera had been activated.

In discovery, the trial court required each plaintiff to identify one or more images of herself on the recovered recording. Thirty-five of the plaintiffs were unable to do so. As to those plaintiffs, the trial court granted defendants’ summary judgment.

In discovery, the trial court required each plaintiff to identify one or more images of herself on the recovered recording. Thirty-five of the plaintiffs were unable to do so. As to those plaintiffs, the trial court granted defendants summary judgment.

The Appellate Division vacated this ruling. The panel noted that at its core, the intrusion-of-seclusion tort “protects against acts that interfere with a person’s mental well-being,” and that a hidden camera recording activities in a restroom is one such act. Hence, “an injury results from the mere learning of an intrusion notwithstanding the lack of recordings. Consequently, we hold that the cause of action is maintainable even if the victim cannot demonstrate she was ever recorded.”

Per the panel, it is enough that a plaintiff “provide evidence supportive of a finding that a recording device was present when she was in a secluded area, such as a restroom, where a reasonable expectation of privacy may be assumed,” and such evidence could include circumstantial evidence supporting such an inference. The Appellate Division noted that the evidence at hand was sufficient to survive summary judgment. The evidence showed that the defendant janitor had been secretly recording the room in question for six months to a year; that he had captured illicit images of dozens of victims; that the plaintiffs in question worked in offices close enough to support the occasional use of the restroom; and that each confirmed she did so during the relevant time period.

The panel left open the prospect that the lack of direct evidence may impact available damages. The case is remanded for further proceedings.