On March 23, 2018, the Appellate Division in Friedman v. Martinez reversed partial summary judgment that was entered in 2014 against thirty-five of sixty women alleging invasion of privacy in an office restroom. The plaintiffs filed suit against a janitor, his employer, and property managers and owners, claiming their privacy was invaded when the defendant janitor placed and maintained hidden surveillance equipment in a women’s restroom in an office building in Somerset. The women alleged that the equipment remained in the restroom from approximately six months to a year. Approximately eight hours of secretive recordings were discovered when police searched the janitor’s devices at the office building and at his residence.

The trial court granted partial summary judgment to dismiss the claims of thirty-five of the plaintiffs who were unable to show their images could be found in the eight hours of recovered recordings. The Appellate Division reversed that decision, holding that a cause of action can still be maintained even if the victim cannot demonstrate she was ever recorded.

The absence of available surveillance footage may affect a plaintiff’s case when seeking damages, but it is not fatal to the claim itself. The Appellate Court reasoned that an injury logically results from learning of such an intrusion, despite a lack of actual recordings, and to hold otherwise would excuse the conduct of those who might have deleted or destroyed images before being caught. The elements of an invasion of privacy claim include showing privacy was invaded in a secluded area where the plaintiff would have a reasonable expectation of privacy, and that the intrusion would be highly offensive to a reasonable person. In this case, it was enough for the plaintiffs to demonstrate they worked in the building and occasionally utilized the restroom that was subject to surveillance.