Tuesday, July 12, 2011

Intrusion upon seclusion: A new tort?

Any rights we may have to seclusion are highlighted by the recent First District case of Lawlor v. North American Corporation of Illinois, ___ Ill.App.3d ___, ___ N.E.2d ___ (March 24, 2011) (2011 WL 1205479). This very interesting and fact-driven case involves Kathleen Lawlor, a former sales employee of North American Corporation of Illinois, who, after she terminated her employment, learned that her former employer had surreptitiously obtained her telephone records without consent using nefarious means or “pretexting.” The employer suspected unlawful competition. North American hired Probe, an investigator, who, in turn, retained Discover who had no difficulty in obtaining details on all of Kathleen Lawlor’s phone calls made both during and after her employment with North American.

A jury verdict was returned in favor of Lawlor on her intrusion upon seclusion claim for $65,000.00 in compensatory damages and $1,750,000.00 in punitive damages. The trial judge, acting under the discretionary powers granted to him by 735 ILCS §5/2-1207, determined that the punitive damages were excessive and entered a remittitur. The Appellate Court, Justice Lavin presiding, declared that the trial court abused his discretion in reducing the punitive damages and reinstated the original award for North American’s reprehensible conduct. Although most of the case involved the circumstances under which punitive damages can be awarded, for our purposes it’s good to review the nature and extent of the tort identified as “intrusion upon seclusion” in the opinion.*

Intrusion upon seclusion is, of course, a form of invasion of privacy as enunciated in Melvin v. Burling, 141 Ill.App.3d 786, 490 N.E.2d 1011 (3rd Dist., 1986). Melvin traces the history of this tort to an article written by the former Supreme Court Justice, Louis Brandeis (Warren and Brandeis, The Right to Privacy, 4 Harvard Law Review 193 (1890)). Dean Prosser expanded the tort with court approval in his treatise (D. Prosser, Torts, Sec. 112, 3.Ed., 1963). Historically, Illinois first recognized the right to privacy cause of action in Eick v. Perk Dog Food Co., 347 Ill.App. 293, 106 N.E.2d 742 (1952). Early privacy cases refer to the tort as “appropriation”. The Illinois Supreme Court ventured into the area of privacy law in Leopold v. Levin, 45 Ill.2d 434, 259 N.E.2d 250 (1970) (although recognizing right to privacy, convicted killer of Bobby Franks, Leopold was unsuccessful in his suit for the book fictionalizing his life in “Compulsion”). The first case that actually used the words “intrusion upon seclusion” appears to have been Bureau of Credit Control v. Scott, 36 Ill.App.3d 1006, 345 N.E.2d 37 (1976) (Individual harassed by credit bureau filed suit sounding in intentional infliction of mental distress and invasion of privacy by unreasonable intrusion upon her seclusion and solitude). In Bureau of Credit Control, the Fourth District Appellate Court ruled that the plaintiff had stated a cause of action for severe emotional distress, but since she already had a remedy for that tort, there was no need to grant her a separate remedy for invasion of privacy, i.e., intrusion upon seclusion.

The history of this tort continues in Bank of Indiana v. Tremunde, 50 Ill.App.3d 480, 365 N.E.2d 295 (1977). The Fifth District stated that although it could find no reported cases for “unreasonable intrusion upon seclusion,” on the basis of Leopold it assumed that the Supreme Court would recognize the tort as a separate cause of action. In Kelly v. Franco, 72 Ill.App. 642, 391 N.E.2d 54 (1st Dist., 1979), the First District affirmed the trial court’s order dismissing the “intrusion” count finding that Illinois did not recognize a cause of action for invasion of privacy except for the unlawful use of an individual’s name or likeness.

Melvin v. Burling, supra, breathed new life into the intrusion theory by citing the Leopold case, while casting aside the negative language in Bureau of Credit Control. The complaint in Melvin was found to have sufficiently stated facts to support a cause of action for intrusion upon seclusion predicated upon the invasion of privacy doctrine. Nothing was said about limitation of a cause of action only to “unauthorized use of an individual’s name or likeness for commercial purposes” as enunciated in Kelly v. Franco.

The Illinois Supreme Court revisited the intrusion tort in Lovgren v. Citizen’s First National Bank of Princeton, 126 Ill.2d 411, 534 N.E.2d 987 (1989). One of the counts in the Lovgren Complaint sought recovery for intrusion and the Court, after reviewing its decision in Leopold, found that although the facts in this case presented a case of a possible violation of privacy, they did not rise to the level of the tort of intrusion upon seclusion (534 N.E.2d 988). Lovgren recounts the fact that the Restatement of Torts adopted Professor Prosser’s “intrusion” as one of four branches of privacy torts [Restatement (2nd) of Torts, 625(b) at 378 (1977)]. The Lovgren decision points out that the essence of this tort is not publication or publicity, but “highly offensive prying into the physical boundaries or affairs of another person.” In ruling that the defendant’s conduct did not come within the classification of this branch of invasion of privacy, the Supreme Court states that discussion of “intrusion” “as enunciated in the Restatement and by Prosser does not imply a recognition by this Court of such a cause of action”. The opinion then notes that there is a conflict in the appellate districts as to whether the unreasonable intrusion into the seclusion should be recognized in this state as a separate tort, but ultimately the Court found it unnecessary to resolve the differences in the various Appellate Court districts in this case.

The First District following Melvin clearly holds that the “intrusion” count has legs and can stand alone as a branch of right to privacy as demonstrated in the later case of Johnson v. K-Mart, 311 Ill.App.3d 573, 723 N.E.2d 1192, 1996 (1st Dist., 2000).

Fast forward to the Fourth District case of Burns v. MasterBrand Cabinets, Inc., 369 Ill.App.3d 1006, 874 N.E.2d 72 (4th Dist., 2007) where the Court there notes that since its decision in Bureau of Credit Control, all four of the other appellate districts have explicitly recognized the tort of intrusion upon seclusion. Benitez v. KFC National Management Co., 305 Ill.App.3d 1027, 714 N.E.2d 1002 (2nd Dist., 1999) (female employee of fast food restaurant recovery for invasion of privacy for spying on female employees through the ceiling of the women’s bathroom) also found a split between the districts on recognition of the tort. Benitez finalizes its opinion finding nothing in Leopold or Lovgren to suggest that our Supreme Court would not recognize such a claim and the fact that the elements of that tort may overlap with other torts is not reason to reject it as a separate self-standing viable cause of action. Having specifically recognized this new tort as intrusion upon seclusion of another, it held that the one-year Statute of Limitations for defamation would not apply to this cause of action (714 N.E.2d 1007).


Notwithstanding the lack of endorsement or approval from the Illinois Supreme Court, there is sufficient Appellate Court approval for intrusion upon seclusion in Illinois. This is perhaps why the defense in Lawlor did not even argue the existence or viability of the cause of action during the trial. Now we are all refreshed as to the nature of the tort, and we can readily separate it from the other branches of the invasion of privacy arena. Woe be the employer who surreptitiously obtains an employee’s personal phone records.

*The case also notable for its agency findings hotly contested in the trial court.  The trial court also found Lawlor guilty of breach of fiduciary duty in a counterclaim, but the Appellate Court reversed that finding on a manifest weight argument.  My thanks to Nancy Temple, the successful plaintiff’s attorney for some trial court background.


1 comment:

Michael W. Huseman said...

Supreme Court opinion here: