A look at peephole litigation.

Millions of tourists place their trust in the guardians of our homes away from home--the nation's innkeepers. Much to the shock and dismay of these guests, who entrust their lives, privacy, and most personal activities to the care of the roadside hotel, they may be providing unwitting entertainment for perverse and deviant hosts. For, in some cases, guest rooms have been equipped with secret peepholes designed for spying on the private activities of their patrons.

Most hotel guests concerned with safety are relieved when they learn a hotel room has a peephole for them to see who is at the door. Many of these guests suffer a rude awakening, however, when they learn that some peepholes are not used for looking out but for looking in. Courts are forcing hotel owners and operators to recognize the duty of care and privacy owed to patrons victimized in places where they are supposed to feel safe.(1) This article describes factors counsel should consider when representing a plaintiff in a peephole case.

As in all cases, the attorney should include responsible parties as defendants. The most obvious party is the hotel owner and operator. Under common law, innkeepers owe a higher standard of care than simple due care to their guests and can be liable for even slight negligence.(2)

But perhaps the best party to bring into the case is the national or international franchisor, especially in states recognizing joint and several liability. The franchisor who is made a party to an action will immediately contend that there is no principal-agent relationship between the franchisee and the franchisor and that it has merely leased its name to the franchisee. The sine qua non of a principalagent relationship, however, is the principal's right to control the agent's day-to-day operations. Therefore, counsel should review the licensing agreement, operating manuals, and other printed materials distributed to franchisees to determine the degree of control held by the franchisor.(3)

For example, in Jolly v. Julian A. Ott & Associates, Inc., and Holiday Inns, Inc., which was tried by these authors, the licensing agreement between Holiday Inn and the franchisee said that Holiday Inn "retained the right to make regular inspections of all the licensee's facilities" and that the franchised facility had to strictly comply with the Holiday Inn operating manual.(4) The agreement and the defendants' actions clearly showed an agency relationship between Holiday Inn and the other defendants.

Legal Theories

Before bringing a case, counsel must consider all causes of action that could ultimately render the most fair and complete remedy for the plaintiffs. The most obvious theory is invasion of privacy, although this is not always easy to prove to a judge or jury. Alternative theories such as negligence, breach of warranty, intentional or negligent infliction of emotional distress, plus any related statutory violations should be included to avoid dismissal if the privacy claim fails.

The reason invasion of privacy is often difficult to prove is that the plaintiff must show the defendant acted willfully and either knew or should have known the result of its actions.(5)

In Snakenberg v. Hartford Casualty Insurance Co., the South Carolina Court of Appeals established a four-part test for determining whether an invasion of privacy has occurred. The elements include (1) an intrusion, (2) into that which is private, (3) that is substantial and unreasonable enough to be legally cognizable, and (4) that is intentional.(6) If the plaintiff is able to prove these required elements, damages resulting from the unwanted invasion of privacy are established as a matter of law.(7)

Under this test, counsel has the burden of proving the peepholes were installed to allow spying on the private moments of others without their knowledge or consent. This will establish that the defendants' actions interfered with the plaintiff's interest in solitude or seclusion to an extent highly offensive to a reasonable person.(8)

In some jurisdictions, when the intrusion is committed, the tort of invasion of privacy is complete. In actions involving peepholes where intrusion is the basis for the invasion of privacy claim, actual use of the peepholes is not a required element. This eliminates the need to show that someone's eyeball was next to the peephole.

Other jurisdictions require establishing a plaintiff actually saw a person's eyeball through the peephole before recovering damages for the invasion. Lack of this evidence has resulted in complete dismissal of the complaint. Still other jurisdictions disagree, finding the tort of invasion of privacy is complete when the peephole is made--satisfying the intrusion element--regardless of whether it is actually used or not.(9)

The South Carolina Court of Appeals has defined the term "intrusion" as any watching, spying, prying, besetting, overhearing, or similar conduct.(10) Just as the installation of listening devices constituted an intrusion without the necessity of actual eavesdropping in Hamberger v. Eastman,(11) intrusion in a peephole case occurs when the peephole is made, not when it is discovered or used.

A Michigan court reached a similar conclusion in Harkey v. Abate. This case involved a woman and her daughter who sued after discovering see-through panels in the restroom of a skating rink.(12)

Holding that the plaintiffs were not required to find an actual eyeball on the other side of the peephole to recover for invasion of privacy, the court said that "the installation of the hidden viewing devices alone constitutes an interference with that privacy which a reasonable person would find highly offensive. And though the absence of proof that the devices were utilized is relevant to the question of damages, it is not fatal to plaintiff's case."(13)

Similarly, in New Summit Associates Limited Partnership v. Nistle, the Maryland Court of Special Appeals followed the Harkey court in holding that "the intentional act that exposed the private place intruded upon the appellee's seclusion."(14) The intrusion in Nistle was in the form of two circular marks scratched on the bathroom mirror in the appellee's apartment.

The woman later discovered it was possible to see most of the interior of her bathroom through these two holes from the back of her mirror, which was exposed in the adjacent apartment. Since the court determined the intrusion to be the actual making of the holes, she was not required to show anyone had observed her through the holes.

Typically, invasion of privacy victims do not incur appreciable special damages. As noted by Professor Edward Prosser in his treatise on torts, "There is a general agreement that the plaintiff need not plead or prove special damages, in that in this respect the action [for invasion of privacy] resembles one for libel or slander per se."(15) Actual damages, therefore, include unliquidated general damages for embarrassment, humiliation, and anger at the possibility of being spied on.

For example, the Snakenberg court concluded that if the four elements needed to prove the cause of action for wrongful intrusion into personal affairs were proven, general damages in some amount are established as a matter of law.(16) Recovery is not limited to compensatory damages alone, however, and the injured party can recover any special damages that might naturally flow from the tort. Also, actual damages may not be as substantial as the punitive damages warranted by the defendant's actions. Punitive damages can be awarded in the invasion of privacy case on the same basis as in other torts where a wrongful motive or state of mind appears.(17)

Alternative Theories

A good alternative theory to follow is common law negligence. The standard elements of negligence require the plaintiff to demonstrate (1) a duty or obligation to a particular standard of conduct toward another, (2) breach of that duty, (3) proximate causation, and (4) injury.(18)

Although a hotel proprietor is not the insurer of guests' safety against improper acts of third persons, any owner of premises open to the public for business must exercise reasonable care to ensure the safety of people on the premises for business purposes. The owner can be liable for physical harm to guests caused by the accidental, negligent, or intentional harmful acts of third persons if the owner fails to exercise reasonable care to discover such acts are occurring or are likely to occur.

Counsel might also explore holding the premises owner and operator liable for negligent failure to inspect the premises for peepholes and then remove them or to warn the parties that peepholes exist. Evidence supporting these allegations is easily obtained through a request for production of documents. Almost all major hotel franchisors require routine inspections to ensure the franchisee is keeping the hotel up to certain standards.

Breach of warranty is another sound alternative. The premises owner and operator warrants the expectation of safety and privacy to its guests, both impliedly and expressly.(19) Implied warranties exist because patrons, such as hotel guests, expect reasonable security will be provided during their stay and do not reasonably anticipate the presence of peepholes in the walls or behind mirrors.(20)

Also, most hotel owners advertise nationwide the friendliness, high standards, and safety of their facilities. These advertisements may constitute an express warranty by the owner to the patron that is actionable for breach.

A favorite fallback cause of action is always the infliction of emotional distress claim. This claim is often the better choice between the two types of distress actions. This is because the negligence action is based on a defendant-created foreseeable risk of physical injury to the plaintiff through physical impact or the threat of it.(21) In most invasion of privacy cases, proving physical impact or its threat might be difficult, but it is possible using expert witnesses.

With this cause of action, commonly referred to in South Carolina as the tort of outrage, the plaintiff must show that the defendant's conduct was so extreme and outrageous that it caused severe emotional distress.(22) Accompanying this conduct must also be intent or recklessness, which can be shown easily once intent is established through the invasion of privacy claim.

Trial Tips

The best way to convince the jury of the defendants' wrongdoing is to put jury members on both sides of the peephole. This will help counter the often disingenuous excuses the defense uses to explain the presence of peepholes in hotels: the peepholes (1) did not exist, (2) were actually construction holes made years before discovery, (3) were far too small to see through, or (4) were never used.(23)

Pictures taken from the service corridor can illustrate that someone had obviously been there. In Jolly, photos of cigarette butts and soiled tissues left near the peepholes demonstrated this. Also, the use of a micro-surveillance camera can show the layout and interior of a seemingly private hotel room as seen through a peephole.

Not only do the photographs and the video confirm the presence of the peepholes, they also show the jury how easy it is to spy on hotel guests. Use of a scale model of a service corridor with to-scale peepholes and scratched mirrors is another way for jurors to put themselves in the position of the peepers and of those being viewed.

Often, the testimony of a knowledgeable expert witness can make the case. A criminologist specializing in the study of sex crimes such as voyeurism can demonstrate the serious nature of the wrong through statistical evidence linking voyeurism to serial murders and rapes. Another helpful expert is an architect knowledgeable in hotel construction who has analyzed the hotel's building plans. The architect can rebut the defendants' contentions that the peepholes were made incidental to construction or were not intentionally made.

It has been said that "no industry that serves the American public is richer in history, grander in scope, or more important in function, than the innkeeping industry."(24) This subject, therefore, presents a situation to which jurors can relate. Counsel should consider this and the strategies mentioned above when handling a peephole case.

Notes

(1)KENNETH L. PRESTIA, CHOCOLATES FOR THE PILLOWS, NIGHTMARES FOR THE GUESTS xiv-xv, 97-118 (1993).

(2)See 40 AM. JUR. 2D Hotels, Motels, and Restaurants [section]111 (1968).

(3)Phoebe Carter, Annotation, Franchisor's Tort Liability, for Injuries Allegedly Caused by Assault or Other Criminal Activity on or Near Franchise Premises, 2 A.L.R. 5th 369, 379 (1992).

(4)No. 90-CP-08-1476 (S.C., Berkeley County Ct. C.P. Feb. 27, 1992).

(5)Snakenberg v. Hartford Casualty Ins. Co., 383 S.E.2d 2 (S.C. Ct. App. 1989).

(6)Id. at 6.

(7)Id.

(8)RESTATEMENT (SECOND) OF TORTS [section]652B (1977).

(9)Harkey v. Abate, 346 N.W.2d 74 (Mich. Ct. App. 1983); Snakenberg, 383 S.E.2d 2; Hamberger v. Eastman, 206 A.2d 239 (N.H. 1964); New Summit Associates Limited Partnership v. Nistle, 533 A.2d 1350 (Md. Ct. Spec. App. 1987).

(10)Snakenberg, 383 S.E.2d 2.

(11)206 A.2d 239, 242.

(12)346 N.W.2d 74, 76.

(13)Id. at 76.

(14)533 A.2d 1350, 1354.

(15)EDWARD PROSSER, THE LAW OF TORTS [section]117, at 815 (4th ed. 1971).

(16)383 S.E.2d 2, 6.

(17)PROSSER, supra note 15.

(18)Jolly, No. 90-CP-08-1478; Nistle, 533 A.2d 1350.

(19)See 40 AM. JUR. 2D Hotels, Motels, and Restaurants [sections]58, 61, 81.

(20)See Peters v. Holiday Inns, Inc., 278 N.W.2d 20 (Wis. 1979) (although plaintiff brought this action based in negligence, the court set forth implied warranties that are given to patrons through national hotel advertising and that give rise to an expectation that reasonable security will be provided).

(21)Ryckeley v. Callaway, 412 S.E.2d 826 (Ga. 1992); Kinard v. Augusta Sash & Door Co., 336 S.E.2d 465, 467 (S.C. 1985); but see Ford v. NCNB Corp., 408 S.E.2d 738, 741 (N.C. App. 1991).

(22)Bell v. Dixie Furniture Co., Inc., 329 S.E.2d 431, 433 (S.C. 1985) (declaring one element of tort of outrage to be conduct so extreme and outrageous as to be obnoxious and utterly intolerable in civilized society).

(23)Jolly, No. 90-CP-08-1476.

(24)PRESTIA, supra note 1, at xiii.