Furman v. Sheppard

MURPHY, Chief Judge. This appeal from the Circuit Court for Anne Arundel County presents the question of whether invasion of privacy claims can be asserted against a trespasser who observes nothing more than what could be seen by persons who were not trespassing. 1 Appellants Irving, Jill, and Sarah Furman (hereinafter referred to as “the Furmans”) present the following question for our review: ⁷² Did the Circuit Court err in granting the motion to dismiss for the invasion of privacy claims when an investigator trespassed onto a private club to videotape appellants sailing on their yacht? Background The Furmans were members of the Maryland Yacht Club in Pasadena, Maryland at a time when Irving Furman (husband to Jill and father to Sarah) was the plaintiff in a personal injury case. It is undisputed that the Maryland Yacht Club is a private club, “surrounded by an electronic security fence, and conspicuously posted with ‘Trespassers will be Prosecuted’ signs.” In addition, “the gate to the club can only be opened by a magnetic card.” Appellants filed a complaint in the Circuit Court for Anne Arundel County, asserting that on September 20, 1997, appellee 2 Hubert Austin Sheppard (1) drove to the yacht club, (2) waited until a club member opened the gate, (3) then drove onto the grounds before the gate closed, (4) “parked his vehicle in a separate parking lot reserved for guests, overlooking the member parking lot and pier areas,” and (5) videotaped the appellants without their consent.

Copies of the videotapes were sent to the other appellees. According to appellants, “the tape was also published and circulated to parties unknown in the court system, and to various individuals at the [appellees’] various offices.” Appellants alleged that appellees had (1) intruded upon their seclusion; (2) placed them in a false light; and (3) publicized private facts about them. 3 Appellees filed motions ⁷³ to dismiss each count of the complaint. After a hearing, those motions were granted and this appeal followed, in which appellants contend that the complaint contained enough facts to survive a motion to dismiss. Discussion I. Invasion of Privacy Claims A. Intrusion Upon Seclusion According to appellants, because (1) the yacht club was not a public place, and (2) the investigator trespassed onto an area in which the appellants had a reasonable expectation of privacy, an actionable intrusion occurred.

We disagree. Maryland has adopted the following definition of intrusion: The intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns that would be highly offensive to a reasonable person. Pemberton v. Bethlehem Steel Corp., 66 Md.App. 133, 163 , 502 A.2d 1101 (1986), citing Restatement of Torts 2d, § 652B. To determine whether the surveillance constituted an actionable intrusion under Maryland law, we ask whether there has been an intrusion into a private place or the invasion of a private seclusion that the plaintiff has thrown about his person or affairs.

There is no liability for observing him in public places since he is not then in seclusion. Id. If surveillance is “conducted in a reasonable and non-obtrusive manner, it is not actionable.” Id., citing McLain v. Boise Cascade Corporation, 271 Or. 549 , 533 P.2d 343 (1975); Forster v. Manchester, 410 Pa. 192 , 189 A.2d 147 (1963); Ellenberg v. Pinkerton’s, Inc., 130 Ga.App. 254 , 202 S.E.2d 701 (1973). ⁷⁴ The fact that Mr. Sheppard made the observations while trespassing at appellants’ private club does not establish a violation of any reasonable expectation of privacy. Not every trespass constitutes an unreasonable search or intrusion.

A trespass “becomes relevant only when it invades a defendant’s reasonable expectation of privacy.” McMillian v. State, 85 Md.App. 367, 394 , 584 A.2d 88 (1991), vacated on other grounds, 325 Md. 272 , 600 A.2d 430 (1992). The McMillian Court noted that “an individual’s reasonable expectation of privacy reaches its zenith in the home.” Id. On the other hand, business and commercial enterprises generally are not as private as a residence ... although a club operated for a select clientele may not be public, the fact that the premises are maintained as a club with a membership policy is not conclusive in favor of the club. Failure to enforce limitations on admittance would warrant the conclusion that the persons operating the club had no reasonable expectations of privacy.

Id. In Dye v. State, 650 P.2d 418 (Alaska App.1982), a fish biologist trespassed onto a ship to observe Dye’s commission of alleged- illegal acts. The Alaskan appellate court accepted the appellant’s arguments that (1) this trespass did constitute a search, and (2) appellant had a subjective expectation of privacy in the boat. The court held, however, that the appellant’s subjective expectation of privacy was not one that society was prepared to accept as objectively reasonable because the only evidence observed ... was in the process of being moved onto the deck where it would have been in plain view.

Id. at 421-422 . Dye was cited with approval in Burnett v. Municipality of Anchorage, 678 P.2d 1364 (Alaska App.1984), which in turn was cited with approval in Pemberton v. Bethlehem Steel Corp., 66 Md.App. 133 , 502 A.2d 1101 . ⁷⁵ Appellant’s involvement in a personal injury lawsuit further lessened his expectation of privacy. 4 A personal injury claimant should reasonably expect reasonable inquiry and investigation to be made of her claim and to this extent her interest in privacy is circumscribed ... there is much social utility to be gained from these investigations. It is in the best interests of society that valid claims be ascertained and fabricated claims be exposed. Forster v. Manchester, 410 Pa. 192, 197 , 189 A.2d 147 (1963).

The appellant in Manchester was the plaintiff in a personal injury suit, whose actions on a boat were in the public view. The Supreme Court of Pennsylvania noted that appellant’s activities could be observed by passers by. To this extent appellant has exposed herself to public observation and therefore is not entitled to the same degree of privacy that she would enjoy within the confines of her own home. Id.

The surveillance conducted by Mr. Sheppard involved nothing more than observations of appellants while they were on or near a yacht situated in a public waterway and in open view of the public. As the circuit court noted, appellants were performing acts which were in public view to other members of the club and to people boating in the water. Working on a boat may be important to a tort suit, when the ability of Plaintiff to do heavy work is at issue, but it is scarcely such as would be an intrusion on Plaintiffs right to seclusion. In McLain v. Boise Cascade Corporation, 271 Or. 549 , 533 P.2d 343 (1975), the appellant sued his employer for invasion of privacy and trespass because, after appellant had asserted a worker’s compensation claim, the employer hired an investigator who trespassed onto plaintiffs property and ⁷⁶ conducted surveillance