The Volokh Conspiracy
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"Someone Going Through Your Underwear Without Permission" May Be "Highly Offensive"
Even when you're not wearing it.
In N.A.S. v. Morada-Haute Furniture Boutique LLC, plaintiff alleged that:
Plaintiff … hired Defendants, Morada and its co-founders Odenstein and Hernandez, to provide interior design services and to manufacture rugs and furnishings for a residence in Miami. Morada represented to Plaintiff that it is the owner of six factories in Italy and manufactures its goods there, including high-end furniture and rugs. Plaintiff filed this lawsuit claiming that things did not go well after that. Though Morada purported to perform under the agreement, certain items were late or missing; furniture dimensions were wrong; carpets and fabrics were stained; rugs fell apart inexplicitly; paint and cabinets were different than represented; Morada did not manufacture the goods itself as represented; and certain imported goods were noncompliant with U.S. law.
After Defendants were notified of these issues, they asked for a key to the Miami residence to fix what they could. Based on certain representations, including agreeing not to take videos or photos of the residence, Plaintiff provided one of the Defendants the key. Plaintiff later noticed that "on multiple occasions that all exterior doors were being forced open [and] locks were disabled because the keys and latches had tape over them so the locking system could not function." She also noticed that a maid service was present, that her personal items were moved, closets were rifled through, the kitchen was rearranged, and the refrigerator contained non-occupant items.
After Morada denied any knowledge of these issues, it hired a five-person photography crew and sent them to the Miami residence without Plaintiff's knowledge or approval. Plaintiff discovered the crew in the residence, and "she found all exterior doors were jammed open and not closable, no Morada representative was on-site, and there was professional staging of $60,000.00 of items not owned by Plaintiff in the Miami residence." Plaintiff later found out that Defendants secretly conducted other photoshoots of the Miami residence without her approval….
The court concluded that this was enough to state a claim for invasion of privacy through intrusion on seclusion (though of course without deciding whether the allegations were correct):
Plaintiff's allegations specifically claim that Defendants intruded into the Miami residence and the intrusion was highly offensive to the reasonable person. For instance, Plaintiff alleges that the intrusion included "the physical invasion of the Miami residence via the presence of a multiparty camera crew and staging crew conducting a photoshoot without authorization, as well as the intrusion into Plaintiff's personal affairs, including moving and rifling through Plaintiff's toiletries, underwear, pillows, beds, prescription drugs and personal items." These are sufficient and plausible allegations to sustain a claim for invasion of privacy through intrusion upon seclusion. Whether any material damages may flow from such a claim is a matter for the trier of fact.
Defendants counter this showing by arguing that this was not a highly offensive intrusion so the claim should fail. But this too is clearly a question for a jury to answer, not the Court at this stage of litigation. And the Court does not agree that someone going through your underwear without permission (if true) is per se not highly offensive. At the very least a reasonable juror could certainly conclude that such an intimate adventure is highly offensive. Hence Plaintiff has established the elements for a proper invasion of privacy (intrusion upon seclusion) claim ….
The magistrate judge's report and recommendations (which I quote above) was filed Aug. 24 and adopted by the district court Oct. 12, but were just posted on Westlaw.