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04/13/95 CAROL HALL v. INPHOTO SURVEILLANCE CO.

April 13, 1995

CAROL HALL, INDIVIDUALLY, AND CAROL HALL AND CARL HALL, AS HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
INPHOTO SURVEILLANCE CO., PHILLIP A. MCLAUGHLIN, AND SCOTT A. JACKSON, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from Circuit Court of Sangamon County. No. 91L175. Honorable Stuart H. Shiffman, Judge Presiding.

As Corrected May 9, 1995. Petition for Rehearing Denied and Released for Publication May 15, 1995. As Corrected May 31, 1995.

Honorable Frederick S. Green, J., Honorable James A. Knecht, P.j., Honorable Robert J. Steigmann, J., Concurring

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

Plaintiffs Carol Hall (Carol) and Carl Hall brought suit against defendants InPhoto Surveillance Company and its agents, Phillip McLaughlin and Scott Jackson, charging them with "intentional violation of plaintiffs' right to privacy" predicated on surveillance activities conducted near plaintiffs' rural residence. Summary judgment was granted to defendants after the trial court found plaintiffs had no evidence to support their claim that the surveillance activities were objectively unreasonable. Plaintiffs appeal from the adverse summary judgment determination. Defendants cross-appeal from the denial of their motion for attorney fees under Supreme Court Rule 137. Official Reports Advance Sheet No. 26 (Dec. 22, 1993), R. 137, eff. Feb. 1, 1994.

The events giving rise to the lawsuit began with back surgery performed on Carol on February 21, 1990, at St. John's Hospital (St. John's). The surgeon allegedly fused the wrong disc, which necessitated a subsequent operation. Anticipating litigation, but before plaintiffs filed suit, St. John's hired defendants to conduct surveillance of Carol. Two counts of the original complaint, which was never amended, charged defendants with the following:

"3. On or about August 23, 1990, Defendant, InPhoto Surveillance Company, by and through its agents and employees, Phillip A. McLaughlin and Scott A. Jackson, entered Plaintiffs' property for the purpose of photographing Plaintiffs through Plaintiffs' bedroom window in an attempt to determine the accuracy and allegations of disability on the part of the Plaintiff, Carol Hall.

4. This use of Plaintiffs' photographic images was unauthorized and Plaintiffs at no time have consented to be photographed by Defendants' agents and employees.

5. The use of photographs taken of Plaintiffs through their bedroom window by Defendants' agent and employees was willful and wanton, and was an intentional violation of Plaintiffs' right to privacy.

6. Defendants use of photographs taken of Plaintiffs has caused Plaintiffs mental anguish.

7. The photographing of Plaintiffs and the use of photographs taken of Plaintiffs has violated and destroyed the rights of privacy which Plaintiffs are legally entitled to."

Following discovery, defendants filed their summary judgment motion relying on the following evidence. McLaughlin and Jackson, private investigators employed by InPhoto, drove by plaintiffs' rural farm residence on August 22, 1990, for the purpose of locating the farmhouse and making a preliminary choice of a vantage point from which to conduct surveillance. They returned very early the next morning. Jackson positioned himself across the road from plaintiffs' property so that he could see the front and side of the house. His location made it possible for him to see plaintiffs' bedroom windows, which were not covered by curtains. He dressed in camouflage fatigues and had a video camera which he set up on a tripod. Jackson stated that when he first saw Carol, she had walked into the yard of the farm. She carried two buckets of material which she threw into a hogpen. Jackson attempted to turn on the video camera to photograph her, but it malfunctioned.

Jackson testified in his deposition that he was never able to operate the video camera, never took any pictures of anyone, never trespassed on plaintiffs' property, never looked in plaintiffs' bedroom windows, and never saw plaintiffs inside their house. Carol discovered Jackson when she saw him across the road. When confronted by Carol's husband, Jackson stated he was a wildlife photographer. The police were summoned, but they and the State's Attorney, after questioning, declined to arrest defendants because they concluded no laws had been broken and no trespass committed.

In their depositions, both plaintiffs admitted they had no evidence any photographs were taken, defendants ever trespassed upon their property, or defendants looked into their bedroom windows. In granting summary ...


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