On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1018-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Sabatino and Alvarez.
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.
The order also denied plaintiff's cross-motion for summary judgment. Plaintiff's claim was for intentional or negligent invasion of his right of privacy. It stemmed from events that occurred in relation to his divorce proceedings. His wife hired 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 vehicles to assist in tracking plaintiff's whereabouts. She did so. In granting summary 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 that contention, and we agree as well. Plaintiff then argues that (1) defendants' actions constituted a violation of his right of privacy, (2) the trial court failed to set 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.
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.
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 Brill*fn1 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. She purchased the device through the internet and placed 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,not work-related activity. Mrs. Villanova paid the insurance premiums out of a joint 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]court documents including warrants." At oral argument on the parties' cross-motions for summary 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 ...