The plaintiff, a Gloucester County Sherriff’s Officer, married his wife in 2000. Villanova v. Innovative Investigations, Inc., ___ N.J. Super. ___ (App. Div. 2011). In 2007, the plaintiff’s wife hired the defendants, Innovative Investigations, Inc., and its principal, Richard P. Leonard, to investigate her suspicions that the plaintiff was having an affair. Leonard suggested to the plaintiff’s wife that she install a GPS device in a family vehicle that the plaintiff drove so that his movements could be monitored. She purchased a GPS device and put it in the glove compartment of a GMC Yukon-Denali, which she jointly owned with the plaintiff.
The device was in the Denali for about forty days in July and August 2007. The plaintiff’s wife acknowledged that she received reports from the GPS provider about the movements of the Denali, but there was nothing in the record presented to the Appellate Division concerning the locations identified in those reports. Further, there was nothing in the record to establish that the plaintiff’s wife shared any of that information with the defendants.
The plaintiff filed for divorce in May 2008. (A divorce judgment was ultimately entered in September 2009.) During the divorce proceedings, the plaintiff’s wife admitted that she put the GPS device in the Denali. The plaintiff then asserted a violation of his right to privacy claim against her in the divorce action, and he also asserted a similar claim against the defendants. The judge handling the divorce action determined that the privacy claim against the defendants was not properly part of the divorce action and dismissed the claim in a manner that preserved the plaintiff’s right to later prosecute it in a separate action in the Law Division. As part of the resolution of the divorce proceeding, the plaintiff waived his privacy claim against his wife. The plaintiff then pursued his privacy violation claim against the defendants in the Law Division. The trial court granted summary judgment to the defendants.
The Appellate Division affirmed, holding that “the placement of a GPS device in plaintiff’s vehicle without his knowledge, but in the absence of evidence that he drove the vehicle into a private or secluded location that was out of public view and in which he had a legitimate expectation of privacy, does not constitute the tort of invasion of privacy.” The Appellate Division started its analysis by focusing on the right of privacy afforded by the New Jersey Constitution and the tort of the invasion of privacy. As to the invasion of privacy tort, four different types of interests are protected: 1) intrusion into one’s solitude or seclusion; 2) public disclosure of private facts; 3) placing a plaintiff in a false light in the public eye; and 4) appropriation of the plaintiff’s name of likeness. The plaintiff claimed that his wife intruded upon his solitude and privacy by placing the GPS device in his glove compartment, and he further alleged that the defendants violated his right to privacy by suggesting that course of action.
The Appellate Division explained that a defendant is subject to liability for invading a plaintiff’s solitude or seclusion if the intrusion is highly offensive and only if the intrusion is into a private place. As to that issue, the Appellate Division stressed that “there is no direct evidence in this record to establish that during the approximately forty days the GPS device was in the Denali glove compartment the device captured a movement of plaintiff into a secluded location that was not in public view, and, if so, that such information was passed along by Mrs. Villanova to defendants.”
The court then rejected the plaintiff’s argument that such an inference could be drawn from the report of defendants’ to establish that the plaintiff’s wife passed along such information. The court reviewed the defendants’ report of the surveillance of the plaintiff. As part of the investigation, Leonard attempted to locate the woman who the plaintiff was suspected of having an affair with, and he attempted to follow the plaintiff on several occasions but the plaintiff was able to determine that he was being followed and was able to evade the surveillance. After further analyzing the report, the Appellate Division concluded that “[e]verything described in this report occurred on public roadways and in plain view of the public. There is nothing in this report that could support an inference that any surveillance of plaintiff extended into private or secluded locations that were out of public view and in which plaintiff had a legitimate expectation of privacy.” Accordingly, the Appellate Division affirmed the trial court’s determination that the defendants were entitled to summary judgment.