NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-0654-10T2 KENNETH R. VILLANOVA, Plaintiff-Appellant, v. INNOVATIVE INVESTIGATIONS, INC., and RICHARD P. LEONARD, Defendants-Respondents. ________________________________________________________________ Argued May 2, 2011 - Decided July 7, 2011 Before Judges Lisa, Sabatino and Alvarez. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1018-09. Charles J. Sprigman, Jr., argued the cause for appellant. Marc C. Pakrul argued the cause for the respondents (Tompkins, McGuire, Wachenfeld & Barry, LLP, attorneys; Mr. Pakrul and Richard F. Connors, Jr., of counsel and on the brief; John P. Marzolla, on the brief). The opinion of the court was delivered by LISA, P.J.A.D. Plaintiff, Kenneth R. Villanova, appeals from an August 27, 2010 Law Division order, which granted summary judgment in favor of defendants and thus resulted in dismissal of his complaint.
APPROVED FOR PUBLICATION July 7, 2011 APPELLATE DIVISION

The

order

also

denied

plaintiff's

cross-motion

for

summary

judgment.

Plaintiff's claim was for intentional or negligent It stemmed from events that His wife hired

invasion of his right of privacy.

occurred in relation to his divorce proceedings.

defendants, Innovative Investigations, Inc., and its principal Richard P. Leonard, to investigate plaintiff's suspected

infidelities.

In the course of doing so, Leonard suggested to

Mrs. Villanova that she place a global positioning system (GPS) device in one of the family She vehicles did so. to assist In in tracking summary

plaintiff's

whereabouts.

granting

judgment, the trial court found that, accepting the facts in the light most favorable to plaintiff, he failed to make out a prima facie case of the tort of invasion of privacy. On appeal, plaintiff first argues that the tort of invasion of privacy exists in this State. Defendant does not dispute Plaintiff then argues a violation to set of his

that contention, and we agree as well. that right (1) of defendants' privacy, actions the constituted court

(2)

trial

failed

forth

adequate findings of fact and conclusions of law in rendering its decision, and (3) he presented sufficient facts to withstand summary judgment and allow the case to proceed to determination by a jury.

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We find plaintiff's arguments unpersuasive.

We hold 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. Accordingly, we affirm. I. Plaintiff and Mrs. Villanova were married in 2000.

Plaintiff filed a divorce action on May 13, 2008, and a divorce judgment was ultimately entered on September 3, 2009. Plaintiff

is a Gloucester County Sheriff's Officer, and at all relevant times worked in the warrant unit of the sheriff's department. Applying the Brill1 standard, these are the pertinent facts. Suspecting her husband of infidelity, Mrs. Villanova retained defendants in 2007 to investigate the issue. In the course of

that arrangement, Leonard suggested that Mrs. Villanova purchase and install a GPS device on a family vehicle regularly driven by plaintiff in order to track his movements. device through the internet and placed She purchased the it in the glove

compartment of a GMC Yukon-Denali, which was jointly owned by the parties.

This vehicle was insured only for personal use,

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).

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not work-related activity. premiums out of a joint

Mrs. Villanova paid the insurance account held by her and plaintiff.

Plaintiff was the primary user of the vehicle. Plaintiff certified that, in addition to his primary

personal use of the vehicle within the family, the vehicle "was often utilized by me to check out the presence of fugitives and/or others on whom I have responsibility of service of

[c]ourt documents including warrants." parties' cross-motions for summary

At oral argument on the judgment, the judge

expressed his skepticism about that asserted fact, noting that it is standard practice for law enforcement officers, while

engaged in police activities, to avoid use of their personal private vehicles or to display any other personal identifiers. Plaintiff's counsel explained plaintiff's asserted use of the Denali in his law enforcement activities as follows: Because of the activities that he has, if he is going from Point A to Point B, and he knows they are going to pick up somebody later that day, if he rides by in his own personal vehicle to see if the vehicle is out there of the person, and that's, what you would find if you had testimony in front of you. . . . . That -- he didn't take the vehicle on raids or pickups. That's not our assertion and you will not hear that.

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In

the

divorce

action,

Mrs.

Villanova

acknowledged

her

placement of the GPS device in the Denali glove compartment. Plaintiff asserted a right of privacy violation against her in the divorce action. He also amended the divorce complaint to However, the Family expand the divorce He

add a similar claim against defendants. Part judge found to it inappropriate the claim that to

proceedings therefore

include them

against action,

defendants. though

dismissed

from

clearly

preserving plaintiff's right to assert a separate action against them in the Law Division. Ultimately, in the final resolution

of the divorce action, plaintiff waived his right of privacy claim against Mrs. Villanova, but the final judgment of divorce made clear that plaintiff's claim against defendants was "not extinguished/[a]ffected Villanova]." The GPS device remained in the Denali for about forty days, from approximately July 14, 2007 to August 24, 2007. deposition testimony, Mrs. Villanova acknowledged In her from by this waiver against [Mrs.

that,

time to time, she obtained reports over the internet from the GPS provider regarding the movements of the Denali. There is

nothing in the record before us, however, that specifies the locations revealed by those reports. Further, there is nothing

in this record that expressly establishes that Mrs. Villanova

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passed on any of the information from these reports, either in general or in detail, to defendants. Defendants contend that the tracking of a vehicle driving on public roadways or other areas in which the public is

allowed, cannot constitute an invasion of privacy, because the driver of the vehicle has no expectation of privacy in those circumstances. Plaintiff counters that individuals sometimes

drive their vehicles to locations that are not within public view, such as a private parking garage, an impound yard, or a stretch of a lonely beach. Although these hypothetical

circumstances might well exist, there is nothing in this record to suggest that any such incident ever occurred during the time the GPS device was in place. confidential activities. nature However, of as his we Plaintiff further points to the job-related described, law his enforcement use of his

have

personal vehicle in that regard was limited to drive-bys on public streets. II. Before analyzing plaintiff's right-of-privacy argument, we briefly address several arguments made by defendants. They

contend that plaintiff's claims are barred by the doctrines of res judicata and waiver. We summarily reject this argument. It

is plain to us that plaintiff's right to bring this separate Law

A-0654-10T2

Division action against defendants was preserved in the divorce proceedings. Defendants also argue that we should reject

plaintiff's claims because he has made no prima facie showing of a duty they owed to him. to the negligence count. all issues on appeal. need not discuss it. plaintiff's claim was This argument, however, pertains only Thus, it would not be dispositive of

In light of our ultimate disposition, we In the same vein, defendants contend that properly dismissed on summary judgment This is

because he made no prima facie showing of damages.

because plaintiff sought no medical or psychiatric treatment or advice and merely made the bald assertion that the presence of the GPS device in his vehicle caused him substantial in and this the with

permanent regard

emotional to

distress. negligence could

Defendants'

arguments

pertain tort

principles. summary

Whether judgment

intentional

count

survive

respect to damages is not as clear and has not been adequately briefed by the parties. Nevertheless, because of our ultimate

disposition, we need not address the issue. We now turn to the substantive issues that are pivotal to this appeal. Summary "'genuine trial.'" judgment of should material 142 be granted where there is no at v.

issue Brill,

fact N.J.

requiring at 530

disposition Ledley

supra,

(quoting

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William Penn Life Ins. Co., 138 N.J. 627, 642 (1995)).

"A trial

court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any Twp.

particular

deference."

Manalapan

Realty

v.

Manalapan

Comm., 140 N.J. 366, 378 (1995).

Accordingly, appellate courts

review motions for summary judgment de novo and apply the same standard as the trial court. Prudential Prop. & Cas. Ins. Co.

v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). When deciding a motion for summary judgment, the court must determine whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party."

Brill, supra, 142 N.J. at 540.

Summary judgment must be granted

if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

The New Jersey Constitution provides: "All persons are by nature free and independent, among and have certain of natural enjoying and and

unalienable

rights,

which

are

those

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defending

life

and

liberty,

of

acquiring,

possessing,

and

protecting property, and of pursuing and obtaining safety and happiness." N.J. Const. art. 1, par. 1. This provision

guarantees individuals the right of privacy.

Doe v. Poritz, 142

N.J. 1, 89 (1995). "The right of privacy has been defined as 'the right of an individual to be . . . protected from any wrongful intrusion into his [or her] private life which would outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.'" Burnett v. Cnty. of Bergen,

402 N.J. Super. 319, 332 (App Div. 2008) (quoting McGovern v. Van Riper, 137 N.J. Eq. 24, 32 (Ch. 1945), aff'd 137 N.J. Eq. 548 (E. & A. 1946)), rev'd, in part, on other grounds, 198 N.J. 408 (2009). As a tort, invasion of privacy encompasses "four distinct kinds of invasion of four different interests of the plaintiff." Rumbauskas v. Cantor, 138 N.J. 173, 179 (1994) (quoting William L. Prosser, The Law of Torts 112 (3d ed. 1964)). These are:

(1) intrusion (e.g., intrusion on plaintiff's physical solitude or seclusion, as by invading his or her home, illegally searching, eavesdropping, or prying into personal affairs); (2) public disclosure of private facts (e.g., making public private information about plaintiff); (3) placing plaintiff in a false light in the public eye (which need not be defamatory, but must be something that would be objectionable to the ordinary reasonable person); and (4)

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appropriation, for the defendant's benefit, of the plaintiff's name or likeness. [Id. at 180.] Plaintiff alleges that by placing a GPS tracking device in his vehicle Mrs. Villanova intruded upon his solitude and

seclusion, thus violating his privacy.

He further contends that

defendants violated his privacy by suggesting Mrs. Villanova's course of action. As we will explain, this record simply does

not establish that any invasion of plaintiff's right of privacy occurred. Therefore, we need not dwell on the threshold issue

of whether defendants' mere suggestion that Mrs. Villanova place the device in plaintiff's vehicle constituted a culpable act in this context. "'One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his [or her]

private affairs or concerns, is subject to liability to the other for invasion of his [or her] privacy, if the intrusion would be highly offensive to a reasonable person.'" Figured v.

Paralegal Technical Servs., Inc., 231 N.J. Super. 251, 256 (App. Div. 1989) (quoting Restatement (Second) of Torts 652B

(1977)), appeal dismissed, 121 N.J. 666 (1990).

The comments in

the Restatement reveal that a defendant is only liable if he or she intrudes into a private place. Torts 652B comment c (1977). Restatement (Second) of

10

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As we have stated, 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. Plaintiff urges

that we find, for summary judgment purposes, that an inference could reasonably be drawn from defendants' report to establish such a fact through circumstantial evidence. That report, encompassing just over two pages, was issued by defendants on August 28, 2007. It was accompanied by an

invoice of the same date, charging Mrs. Villanova for twentyseven hours of "[c]ontinuous surveillance of Kenneth Villanova, Jr."2 The report, signed by Leonard, reveals that defendants

began their investigation by conducting a name search for the Plaintiff urges us to find that defendants engaged in "continuous" surveillance of him during the approximately forty days the GPS device was in place. The suggestion is that defendants were monitoring plaintiff's movements on a twentyfour hours per day, seven days per week basis during this period. This would further have the potential to bolster a suggestion that plaintiff might have driven the Denali into some private area during these many hours during this approximately six week period. However, the invoice reflects that only a total of twenty-seven hours were devoted to this task over the entire six weeks, and the report describes what defendants did during those twenty-seven hours. Defendants' surveillance therefore was clearly not continuous.
2

11

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woman with whom plaintiff was suspected of having an affair. They found the woman's most recent address as well as some prior addresses. address. left. On June 14, 2007, Leonard drove to the most recent After waiting several hours and seeing no activity, he

He went there on several subsequent visits, again finding At one point, he knocked on the door, but received The residence had a for-sale sign in front of the Thus, there was apparently uncertainty as to whether

no activity. no answer. property.

the woman still lived there. Leonard also stated that on several occasions he and his staff attempted to search the "Heritage Road area" because it was a previous address and a current address of the woman's family, although not specifically of the woman with whom

plaintiff was suspected of having an affair. Leonard further described in the report that he attempted to place plaintiff under surveillance as he left his house on several occasions. to follow On one occasion, but it he was utilized apparent two that

investigators

plaintiff,

plaintiff was aware that he was being followed. Leonard then explained that, after speaking with Mrs.

Villanova and "having [her] obtain a tracker device to document [her] husband's vehicle movements, we attempted to follow him on July 28, 2007, a Saturday." This was about two weeks after the

12

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GPS device was placed in the Denali glove compartment. this single sentence, plaintiff argues that a

From

reasonable

inference can be drawn that Mrs. Villanova was passing along the information received from the GPS service to defendants.

Perhaps that is so. way suggests that

However, what follows in the report in no any such information, if received by

defendants, led them to any private location. What follows is simply a recitation that on July 28, 2007, the investigators went to the Heritage Road area and pulled into a particular driveway, where they remained for several minutes. The report noted that the character of this location made it virtually detected. impossible to conduct surveillance without being

The report continued:

"Upon leaving the Heritage

Road area, leaving the driveway, a female was viewed inside your husband's driving." vehicle in the passenger's side with your husband

They followed the vehicle for a time, lost sight of

it for about seven minutes, and then resumed following it. Leonard explained that it was obvious to him that plaintiff knew he was being followed. He attempted to continue the

surveillance but was pulled over by local police officers, first in an unmarked vehicle, and then followed up with a marked

vehicle.

The officers questioned Leonard about what he "was Leonard identified himself

doing and who [he] was following."

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as a private investigator and asserted that, "by law, [he] did not have to provide that information." In response, "[o]ne

officer stated that he thought he should go through [Leonard's] files that [Leonard] had on hand." supervisor to come to the location. their "which questioning [he] did The and and instructed our Leonard then asked for a The officers then ceased to leave the area was Mrs.

Leonard of

handling concluded

this

matter to

discontinued."

report

that,

pursuant

Villanova's instructions, defendants discontinued all handling of the matter. Everything described in this report occurred on public

roadways and in plain view of the public. this report that of could support extended an into

There is nothing in inference private or that any

surveillance

plaintiff

secluded

locations that were out of public view and in which plaintiff had a legitimate expectation of privacy. The record contains, for example, no deposition of Leonard, in which he could have been specifically asked such questions. The record does contain portions of the transcript of Mrs.

Villanova's deposition.

She was never asked whether she passed

along to defendants any of the information she received from the GPS company. She had apparently provided through discovery

thirty pages of hard copy of the reports she had received from

14

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the

GPS

company,

and

those

thirty

pages

were

marked

for

identification at the deposition.

However, the record does not

contain any of those pages, and thus they can provide no basis to establish that plaintiff was ever counsel tracked asked in Mrs. a private

location.

Further,

plaintiff's

Villanova

whether anyone else had a copy of those GPS reports, to which she responded "[o]nly my attorney." From all of this, a factfinder might, at the very most, infer that Mrs. Villanova verbally passed on to defendants

information from the GPS company's reports and that defendants used that information as a basis for proceeding on July 28, 2007 to the Heritage Road area. However, there is nothing to

establish that any possible invasion of plaintiff's privacy and seclusion ever occurred. was in a location where Such a finding would require that he he had a reasonable expectation of

privacy.

The fact that such an eventuality could have occurred

is not sufficient to establish a cause of action for the tort of invasion of privacy. A simple illustration is helpful to our analysis. Suppose

Mrs. Villanova placed the device in her husband's vehicle at 2:00 p.m. while the vehicle was parked in the driveway of the family home; then, at 2:30 p.m., plaintiff drove on public

streets to a local convenience store, purchased a newspaper, and

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returned home in a matter of minutes; and then, at 3:00 p.m., either Mrs. Villanova had a change of heart and removed the device without her husband ever knowing about it, or,

alternatively, he discovered the device and removed it himself. We do not think a tort of invasion of privacy would have been committed. Although the events here intermittently covered

about forty days, what happened was legally no different. There is no liability under this tort theory "for observing [a plaintiff] or even taking his [or her] photograph while he [or she] is walking on a public highway, since he [or she] is not then in seclusion, and his [or her] appearance is public and open to the public eye." comment c (1977). "A Restatement (Second) of Torts 652B traveling in an automobile on

person

public thoroughfares has no reasonable expectation of privacy in his [or her] movements from one place to another." United

States v. Knotts, 460 U.S. 276, 281, 103 S. Ct. 1081, 1085, 75 L. Ed. 2d 55, 62 (1983). Our de novo review of the motion record satisfies us that summary judgment was properly granted in favor of defendants. We are further satisfied that the judge's findings of fact and conclusions of law were adequately expressed. Affirmed.

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