RONALD M NASTAL V HENDERSON & ASSOCIATES INVESTIGATIONS INC
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JANUARY 25, 2005
RONALD M. NASTAL AND
IRENE NASTAL, HIS WIFE,
Plaintiffs-Appellees,
v
No. 125069
HENDERSON & ASSOCIATES
INVESTIGATIONS, INC., A MICHIGAN
CORPORATION, NATHANIAL STOVALL
AND ANDREW CONLEY,
Defendants-Appellants.
_______________________________
BEFORE THE ENTIRE BENCH
TAYLOR, C.J.
In this case, where plaintiff Ronald M. Nastal1 alleges
stalking by private investigators conducting surveillance,
we
granted
leave
to
consider
if,
and
when,
such
surveillance falls within the safe harbor in the stalking
statute
that
purpose.”
1
exempts
“conduct
MCL 750.411h(1)(c).
that
serves
a
legitimate
The circuit court concluded
Plaintiff Irene Nastal’s
consortium, which is derivative.
Ronald Nastal as “plaintiff.”
claim is for loss of
Therefore, we refer to
that
surveillance
could
serve
a
legitimate
purpose
but
that, here, there was a genuine issue of material fact
regarding whether the defendants’ surveillance continued to
serve a legitimate purpose after it had been discovered.
It
thus
determined
that
the
viability
of
plaintiff’s
stalking claim depended upon a factual determination by the
jury.
The Court of Appeals affirmed the circuit court’s
ruling on that issue.
2
We conclude that surveillance by
licensed private investigators that contributes to the goal
of
obtaining
information,
as
permitted
by
the
Private
Detective License Act, MCL 338.822(b)(i)-(v), is conduct
that serves a legitimate purpose.
In the present case,
plaintiff failed to establish a genuine issue of material
fact
that
serving
plaintiff
the
such
conduct
purpose,
observed
the
here
complained
notwithstanding
investigators
of
ever
the
following
ceased
fact
him.
that
We
therefore reverse the judgment of the Court of Appeals and
remand this case to the circuit court for entry of summary
disposition in defendants’ favor.
I.
FACTS AND PROCEDURAL HISTORY BELOW
Following a 1997 accident in which a tractor-trailer
collided with plaintiff Ronald Nastal’s car, Nastal sued
2
Nastal v Henderson & Associates Investigations,
unpublished opinion per curiam of the Court of Appeals,
decided October 30, 2003 (Docket No. 241200).
2
the
tractor-trailer’s
operator
and
owner,
asserting
negligence by the driver and seeking damages for a closed
head injury.
Defense of the action was undertaken by the
owner’s insurance carrier, Citizens Insurance Company of
America (Citizens).
In
the
course
neurosurgery
of
discovery,
evaluations
neuropsychological
expert
neuropsychological
were
concluded
and
undertaken.
that
The
Nastal
was
not
suffering any residual deficits as a result of a brain
injury and that he instead possessed a personality disorder
known
as
“somatoform
pain
disorder”
that
caused
him
to
perceive symptoms as being worse than can be objectively
determined.
The neurosurgery evaluation, undertaken at the
behest of Nastal’s employer, concluded that, although he
had
previously
been
diagnosed
with
a
remote
mild
head
injury, the injury had been totally resolved and Nastal was
able
to
return
to
work.
Moreover,
the
physician
who
conducted that evaluation opined that Nastal appeared to be
suffering
from
depression
and
examination.
3
recommended
a
psychiatric
The action was referred to case evaluation pursuant to
MCR 2.403,3 and the panel returned an award of $450,000 for
plaintiff.
Citizens
excessive.
rejected
the
award,
deeming
it
Citizens also decided to again have plaintiff’s
medical records reviewed, refer plaintiff to Dr. Leon Quinn
for a psychiatric examination, and have an investigation
and
surveillance
of
Nastal
performed
to
monitor
his
activities.
On June 8, 1999, Citizens’ adjuster, Penny Judd, sent
a
fax
to
Henderson
(Henderson),
requesting
a
a
surveillance
&
Associates
licensed
private
background
of
Investigations,
investigation
check,
activities
The
particulars
plaintiff.
Inc.
firm,
check,
and
of
the
how
surveillance was to be conducted were left to Henderson.
Conducting the first surveillance on Wednesday, June
30, 1999, Andrew Conley, one of Henderson’s investigators,
followed
Nastal
as
he
drove
from
his
home.
After
surveilling him for forty-five minutes, Conley, because of
the way Nastal began to drive, thought Nastal may have been
attempting
to
determine
Conley’s vehicle.
if
he
was
being
followed
by
Following that, Nastal parked his car
and entered a medical facility.
3
Conley, unsure if Nastal
Case evaluation was referred to as mediation at the
time it was conducted in the action. MCR 2.403, 2000 Staff
Comment.
4
was aware of the surveillance, waited outside in his car in
a parking lot across the street.
When Nastal did come out,
he came over to Conley’s car and asked Conley if he was
following
replied
him.
by
Conley
denied
thereafter,
shouting
evidently
that
profanities
alerted
by
he
at
the
was,
and
him.
Nastal
Shortly
personnel
of
the
medical facility, the local police appeared and spoke to
Conley and Nastal.
Nastal, agitated and cursing, repeated
his concerns that he was being followed and that Conley had
untruthfully denied following him.
The officer told Nastal
to calm down and shortly thereafter Conley left to call his
supervisor,
Gregory
Henderson.
Gregory
Henderson
instructed Conley to terminate the surveillance for that
day
because,
as
both
Gregory
Henderson
and
Conley
testified, when the subject of surveillance has discovered
the surveillance, there is little purpose in continuing it
at that time because the subject will not act unaffectedly
or naturally.
A week later, on July 6, 1999, Conley and another
investigator,
Nathaniel
Stovall,
followed
Nastal
separate cars as he drove to a number of locations.
in
After
Nastal returned home later in the day, Conley and Stovall
parked their cars in separate places near his house to
observe his activities.
Nastal apparently noticed Conley
5
and Stovall and called the police.
Conley testified that
he not only did not speak to the police officers that day,
but also was unaware of their presence, and further had no
indication that Nastal had called them or was aware of the
reactivated surveillance.
Stovall testified that he spoke
to the police officers and was told, not that Nastal had
called, but that someone in the neighborhood had called to
report
a
suspicious
vehicle.
Stovall
indicated
that
a
police inquiry of this sort is a frequent occurrence when
doing surveillance and, accordingly, it did not cause him
to
necessarily
think
that
Nastal
was
aware
of
the
surveillance.
On July 7, 1999, Henderson informed Judd that their
surveillance had revealed that Nastal had been active, and
that
Nastal
surveillance.
had
confronted
Although
Conley
Judd
was
on
the
first
concerned
day
that
of
Nastal
might alter his activities because he was aware of the
surveillance, she authorized further surveillance.
On
July
8,
1999,
an
uneventful
surveillance
conducted because plaintiff stayed at home all day.
informed
of
this,
Judd
stated
that,
because
Nastal
was
When
had
confronted Conley at the beginning of the week and might
suspect that he was being followed, surveillance should be
discontinued for a few weeks.
6
Gregory Henderson described
this period of nonsurveillance as a "cooling off" period,
and
indicated
that
it
is
usually
employed
by
private
investigators when they are concerned that the subject of
their surveillance has detected their presence.
Twenty-two days later, on July 31, 1999, Conley and
Stovall, again in separate cars, followed Nastal to a mall.
While so engaged, both Conley and Stovall indicated that
Nastal got behind Conley’s car and appeared to be trying to
write down Conley’s license plate number.
Further, once in
the parking lot of the mall, plaintiff also turned in tight
circles and appeared to by trying to get behind Stovall’s
car.
Gregory Henderson, when made aware of this by a call
from Conley, told both investigators to not terminate the
surveillance because neither man could confirm that Nastal
was actually aware that a surveillance was being conducted.
Yet later, when Nastal began to attempt to evade Conley and
Stovall, Henderson told Conley and Stovall to terminate the
surveillance for that day because he believed it was no
longer productive.
Dr. Quinn’s report was received in Citizens’ mailroom
on Friday, July 30, 1999, but read by Judd early the next
week.
In the report, Dr. Quinn concluded that Nastal was
primarily
there
suffering
were
from
undoubtedly
a
depressive
more
factors
7
disorder
than
just
and
that
the
1997
accident causing his depression.
that
plaintiff
be
referred
to
He further recommended
a
psychiatrist
or
mental
health clinic for treatment and that any surveillance being
conducted be discontinued.
He later explained that the
recommendation to discontinue surveillance was based on his
concern that the continued surveillance could make Nastal
angry.
On August 4, 1999, Gregory Henderson called Judd and
informed
her
that
Nastal
had
again
detected
Conley
and
Stovall’s presence during the fourth surveillance on July
31, 1999.
Judd told Gregory Henderson to stop conducting
surveillance on the basis of Quinn’s recommendation and her
belief
that
the
surveillance
was
not
proving
to
be
productive.
Over a year later on September 19, 2000, plaintiff
filed a civil action alleging, among others, a claim of
civil stalking pursuant to MCL 600.2954 against Henderson,
Conley,
and
disposition
Stovall.
pursuant
Defendants
to
MCR
moved
2.116(C)(7),
for
summary
arguing
that
surveillance serves a legitimate purpose pursuant to MCL
750.411h(1)(c) and, thus, that one engaged in it cannot be
guilty
of
stalking.
They
asserted
that
plaintiff’s
stalking claim was barred because of immunity granted by
law.
They also asserted that Nastal had failed to state a
8
claim on which relief could be granted, MCR 2.116(C)(8),
and that, in any event, even assuming surveillance could in
some circumstances be transformed into stalking, Nastal had
produced no genuine issue of material fact on that point,
MCR 2.116(C)(10).
that
even
if
In the alternative, defendants asserted
Nastal
were
emotionally
distressed
by
the
actions of defendants, which constitutes a requirement of
the statute, MCL 750.411h(1)(c), the requirement that the
actions also would have emotionally distressed a reasonable
person could not be shown because no reasonable litigant
could
claim
that
pretrial
discovery
is
emotionally
distressing.
The
circuit
court
denied
defendants’
motion
on
the
basis of its determination that defendants’ surveillance
initially served a legitimate purpose but that a genuine
issue
of
material
surveillance
plaintiff
fact
continued
discovered
it.
existed
to
regarding
serve
The
that
court
whether
purpose
did
not
the
after
address
defendants’ alternative argument.
On appeal, the Court of Appeals affirmed the trial
court’s ruling on that issue, concluding that a genuine
issue of material fact existed regarding the legitimacy of
the surveillance after plaintiff confronted Conley during
the first surveillance because, as the Court of Appeals
9
interpreted the record, it had been conceded by defendants
that surveillance can serve no purpose after the subject
discovers
it.
The
panel
also
rejected
defendants’
alternative argument on the basis that the issue whether a
reasonable person would have suffered emotional distress as
a result of defendants’ surveillance was a question for the
trier of fact.
We granted defendants leave to appeal.
470 Mich 869
(2004).
II.
STANDARD OF REVIEW
We review de novo the grant or denial of a motion for
summary disposition.
Kreiner v Fischer, 471 Mich 109, 129;
683 NW2d 611 (2004).
Questions of statutory interpretation
are also reviewed de novo.
When
interpreting
Id.
statutes,
our
primary
goal
give effect to the intent of the Legislature.
is
to
In re MCI
Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).
In doing so, our first step is to review the language of
the statute itself.
Id.
The words used by the Legislature
are given their common and ordinary meaning.
Veenstra v
Washtenaw Country Club, 466 Mich 155, 160; 645 NW2d 643
(2002);
MCL
8.3a.
If
the
statutory
language
is
unambiguous, we must presume that the Legislature intended
the meaning it clearly expressed and further construction
10
is neither required nor permitted.
Sun Valley Foods Co v
Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
Defendants moved for summary disposition pursuant to
MCR
2.116(C)(7),
(8),
and
(10),
but
the
circuit
court
relied on MCR 2.116(C)(10) in denying defendants’ motion.
A
motion
under
MCR
2.116(C)(10)
sufficiency of the complaint.
109,
120;
consider
597
NW2d
the
817
tests
the
factual
Maiden v Rozwood, 461 Mich
(1999).
affidavits,
The
trial
pleadings,
court
must
depositions,
admissions, and other evidence submitted by the parties,
MCR 2.116(G)(5), in the light most favorable to the party
opposing the motion.
proffered
evidence
Maiden, supra at 120.
fails
to
establish
a
Where the
genuine
issue
regarding any material fact, the moving party is entitled
to judgment as a matter of law.
MCR 2.116(C)(10), (G)(4).
Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314
(1996).
III.
ANALYSIS
In the early 1990s, the Legislature sought to address
the inadequacy of existing criminal law, common-law causes
of action, and court-ordered personal protection orders in
protecting those who are maliciously followed, harassed, or
intimidated by stalkers.
Therefore, in 1992, it followed
the lead of approximately two dozen other states that had
11
enacted legislation specifically aimed at stalking and the
special
problems
and
circumstances
surrounding
it
by
criminalizing the offenses of stalking, MCL 750.411h, and
aggravated stalking, MCL 750.411i.
The Legislature also
simultaneously amended the Revised Judicature Act to give a
victim of stalking a civil action against the stalker,
MCL
600.2954, with the elements of civil stalking being the
same as those in the criminal statutes,
MCL 600.2954(1).
Stalking is defined in MCL 750.411h(d), which states:
“Stalking” means a willful course of conduct
involving repeated or continuing harassment of
another individual that would cause a reasonable
person
to
feel
terrorized,
frightened,
intimidated, threatened, harassed, or molested
and that actually causes the victim to feel
terrorized, frightened, intimidated, threatened,
harassed, or molested.
Accordingly,
under
Michigan
civil
and
criminal
law,
stalking constitutes a willful course of conduct whereby
the victim of repeated or continuous harassment actually
is,
and
a
reasonable
person
would
be,
caused
to
feel
terrorized, frightened, intimidated, threatened, harassed,
or molested.
In defining harassment, the Legislature stated:
“Harassment” means conduct directed toward a
victim that includes, but is not limited to,
repeated or continuing unconsented contact[4] that
4
“Unconsented contact” is defined as:
12
would cause a reasonable individual to suffer
emotional distress and that actually causes the
victim to suffer emotional distress. Harassment
does
not
include
constitutionally
protected
activity or conduct that serves a legitimate
purpose. [MCL 750.411h(1)(c).]
Thus, there must be two or more acts5 of unconsented contact
that actually cause emotional distress to the victim and
[A]ny contact with another individual that
is
initiated
or
continued
without
that
individual's consent or in disregard of that
individual's expressed desire that the contact be
avoided or discontinued.
Unconsented contact
includes, but is not limited to, any of the
following:
(i)
Following or appearing within the
sight of that individual.
(ii)
individual in
property.
Approaching or confronting that
a public place or on private
(iii)
Appearing at that individual's
workplace or residence.
(iv)
Entering
property owned, leased,
individual.
(v)
telephone.
Contacting
onto or remaining on
or occupied by that
that
individual
(vi)
Sending
mail
or
communications to that individual.
by
electronic
(vii)
Placing an object on, or
delivering an object to, property owned, leased,
or
occupied
by
that
individual.
[MCL
750.411h(1)(e).]
5
MCL 750.411h(1)(a).
13
would also cause a reasonable person such distress.
In any
event, however, conduct that is constitutionally protected
or serves a legitimate purpose cannot constitute harassment
or, derivatively, stalking.
It
is
that
safe
harbor
of
“conduct
that
serves
legitimate purpose” that is the linchpin of this case.
750.411h
does
not
itself
legitimate purpose.”
define
“conduct
that
a
MCL
serves
a
Accordingly, because these are terms
of common usage, we give them their plain and ordinary
meaning
City
of
by
consulting
Pontiac,
dictionary
Horace
Mich
456
definitions.
755-756;
NW2d
744,
575
v
762
(1998).
The Random House Webster’s College Dictionary (2001)
defines “serve” as “to answer the purpose,” “to be in the
service of; work for,” “to answer the requirements of,” or
“to
contribute
to;
promote.”
It
further
defines
“legitimate,” in part, as “according to the law; lawful,”
“in
accordance
standards,”
“in
with
established
accordance
with
rules,
the
valid,” “justified, genuine.” Id.
laws
principles,
or
or
reasoning;
Thus, given the plain
and ordinary import of the terms used by the Legislature,
we
conclude
legitimate
that
purpose”
the
phrase
means
“conduct
conduct
14
that
that
serves
contributes
to
a
a
valid
purpose
that
would
otherwise
be
within
the
law
irrespective of the criminal stalking statute.
The
pursuant
defendants
to
“obtain[]
MCL
here,
private
338.821
information
with
et
investigators
seq.,
reference
are
to
licensed
authorized
any
of
to
the
following”:
(i)
Crimes or wrongs done or threatened
against the United States or a state or territory
of the United States.
(ii)
The
identity,
habits,
conduct,
business,
occupation,
honesty,
integrity,
credibility,
trustworthiness,
efficiency,
loyalty,
activity,
movement,
whereabouts,
affiliations, associations, transactions, acts,
reputation, or character of a person.
(iii)
The
location,
disposition,
recovery of lost or stolen property.
or
(iv) The cause or responsibility for fires,
libels, losses, accidents, or damage or injury to
persons or property.
(v)
Securing evidence to be used before a
court,
board,
officer,
or
investigating
committee. [MCL 338.822(b).]
Accordingly, surveillance,6 when it is conducted to obtain
evidence concerning a party’s claim in a lawsuit, is valid
6
See Random House Webster’s College Dictionary (2001),
which defines “surveillance” as “a watch kept over someone
or something, esp. over a suspect, prisoner, etc.”, and
Black’s Law Dictionary (6th ed), which defines it as
“Oversight,
superintendence,
supervision.
Police
investigative technique involving visual or electronic
observation or listening directed at a person or place
(e.g., stakeout, tailing of suspects, wiretapping).
Its
objective is to gather evidence of a crime or merely to
accumulate intelligence about suspected criminal activity.”
15
and
well
within
the
law.
Indeed,
once
involved
in
litigation, such as here, it is even more reasonable, in
fact predictable, in a state such as Michigan that has a
“strong historical commitment to a far-reaching, open and
effective discovery practice,” Daniels v Allen Industries,
Inc,
391
Mich
surveillance
398,
to
403;
secure
216
or
NW2d
even
(1974),7
762
lead
to
evidence
that
is
permitted “in order to narrow the range of disputed issues
which
might
otherwise
judicial resources.”
needlessly
waste
the
parties’
and
Id. at 406, 412.
It is only when the surveillance ceases to serve or
contribute
to
the
purpose
of
securing
the
information
permitted by MCL 338.822(b) that conduct would be outside
the statutory safe harbor of MCL 750.411h(1)(c) and a civil
action for stalking could be maintained.
Here,
the
circuit
court
and
the
Court
of
Appeals
incorrectly concluded that there was a genuine issue of
material fact concerning whether defendants’ surveillance
ceased to serve a legitimate purpose once Nastal discovered
it.
There is no testimony to this effect.
7
Rather, Conley,
See also Dorris v Detroit Osteopathic Hosp, 460 Mich
26, 36; 594 NW2d 455 (1999), and Domako v Rowe, 438 Mich
347, 359; 475 NW2d 30 (1991). Discovery was liberalized in
the General Court Rules of 1963 and opened even more
expansively in the Michigan Court Rules of 1985.
Domako,
supra at 359.
16
Stovall, and Gregory Henderson stated that once the subject
of surveillance discovers that he is being observed, and
the
person
performing
the
surveillance
knows
that
the
subject has detected his presence, any further surveillance
of the subject at that particular time may serve no further
purpose
because
the
subject
may
modify
his
activities.
Yet, as the testimony of both Gregory Henderson and Judd
shows, they believed that further surveillance conducted at
later times, especially after a cooling off period, could
produce information useful to the case.
evidence
to
rebut
this
testimony
Nastal produced no
as
required
by
MCR
2.116(G)(4) and, therefore, failed to satisfy his burden of
establishing that a genuine issue of material fact existed
regarding
whether
defendants’
serve a legitimate purpose.
disposition
Maiden,
in
supra
improperly
favor
at
denied
of
120.8
surveillance
continued
to
In such circumstances, summary
the
moving
party
Accordingly,
defendants’
the
motion
is
required.
trial
for
court
summary
disposition and the Court of Appeals improperly affirmed
that denial.
8
The dissent would reverse the burden of proof
requirement and call on the defendants to establish a
legitimate purpose rather than requiring the plaintiff to
create a genuine issue of material fact regarding the
elements of his cause of action.
In so holding, it is
inconsistent with MCR 2.116(G)(4) and Maiden, supra.
17
IV.
Surveillance
by
a
CONCLUSION
licensed
private
investigator
is
conduct that serves a legitimate purpose as long as the
surveillance
obtaining
serves
or
information,
contributes
as
permitted
to
the
purpose
of
by
MCL
338.822(b).
Thus, surveillance conducted for and contributing to such
purposes is beyond the stalking statute.
The conduct at
issue in this case served a legitimate purpose even after
plaintiff observed the private investigators following him.
Accordingly,
the
judgment
of
the
Court
of
Appeals
is
reversed and the case is remanded to the circuit court for
the entry of summary disposition in defendants’ favor.
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
18
S T A T E
O F
M I C H I G A N
SUPREME COURT
RONALD M. NASTAL and IRENE NASTAL,
Plaintiffs-Appellees,
v
No. 125069
HENDERSON & ASSOCIATES
INVESTIGATIONS, INC., NATHANIEL
STOVALL and ANDREW CONLEY,
Defendants-Appellants.
_______________________________
CAVANAGH, J. (dissenting).
The majority’s analysis in this case is flawed for one
basic reason—it simply misapplies the law to the facts.
This
misapplication
conclusion
that
is
results
contrary
in
to
the
majority
the
words
reaching
used
by
a
the
Legislature in the stalking statute, MCL 750.411h(1)(c).
The majority errs because it does not truly examine whether
defendants’ conduct served a legitimate purpose.
believe
that
a
genuine
issue
of
material
Because I
fact
exists
regarding whether the conduct at issue served a legitimate
purpose, I respectfully dissent.
The civil stalking statute, MCL 600.2954, creates a
civil cause of action for victims of stalking as defined by
the criminal stalking statute, MCL 750.411h.
“Stalking” is
defined as “a willful course of conduct involving repeated
or continuing harassment of another individual that would
cause a reasonable person to feel terrorized, frightened,
intimidated,
threatened,
harassed,
or
molested
and
that
actually causes the victim to feel terrorized, frightened,
intimidated,
threatened,
750.411h(1)(d).
harassed,
“Harassment”
is
or
molested.”
defined
as
MCL
“conduct
directed toward a victim that includes, but is not limited
to, repeated or continuing unconsented contact that would
cause a reasonable individual to suffer emotional distress
and that actually causes the victim to suffer emotional
distress.” MCL 750.411h(1)(c).
further
states,
Notably, MCL 750.411h(1)(c)
“Harassment
does
not
include
constitutionally protected activity or conduct that serves
a legitimate purpose.”
(Emphasis added.)
Because the statutory language at issue in this case
is clear and unambiguous, we must enforce the statute as
written and follow its plain meaning, giving effect to the
words chosen by the Legislature.
283, 286; 681 NW2d 348 (2004).
People v Barbee, 470 Mich
Thus, to give effect to the
words of the stalking statute, once a legitimate purpose is
established,
defendant’s
purpose.
the
essential
conduct
at
question
issue
serves
must
be
that
how
the
legitimate
In this case, the legitimate purpose was for
2
defendants
insurance
to
provide
company
plaintiff’s
information
that
claim.
hired
The
that
them
would
in
examination,
assist
the
defending
against
therefore,
entails
looking at how defendants’ conduct served that legitimate
purpose.
After plaintiff filed his underlying lawsuit, Citizens
Insurance Company of America hired defendant Henderson &
Associates Investigations, Inc. (Henderson), to conduct an
“activities
check”
activities
on
check
plaintiff.
was
activities entailed.
to
The
determine
purpose
what
of
the
plaintiff’s
During one instance of surveillance,
defendant Andrew Conley, a private investigator working for
Henderson,
followed
restaurant
and
therapist.
and
he
then
plaintiff
to
from
plaintiff’s
his
house
appointment
to
with
a
his
Plaintiff noticed that he was being followed,
spoke
to
his
therapist
about
the
incident.
Plaintiff and his therapist went outside where plaintiff
asked Conley if he was following plaintiff.
was not.
Conley said he
Plaintiff did not believe this and became upset;
he also wrote down the license plate number of the car
Conley was driving.
Conley then drove off and parked about
one hundred to three hundred yards away before ultimately
terminating
this
the
incident
surveillance.
is
how
the
The
private
3
critical
question
investigator’s
in
actions
served
the
legitimate
purpose
of
gathering
information
about plaintiff to be used to defend against plaintiff’s
lawsuit.
then
For example, how does following plaintiff and
lying
to
plaintiff
about
being
followed
serve
the
legitimate purpose of gathering information?
In some cases, following a person and lying about it
to the person being followed may indeed be conduct that
serves a legitimate purpose.
For example, if an undercover
police officer is conducting surveillance of a suspect and
is then confronted by the suspect, the police officer may
lie
so
that
the
undercover
operation
is
not
disclosed.
However, in this case, defendants contend that plaintiff
should not have been frightened by being followed because
plaintiff
repeatedly
was
a
party
argued
to
that
a
lawsuit.
“[a]
Defendants
have
person
would
reasonable
understand that he’s going to be under surveillance if that
person
files
a
lawsuit.”1
Therefore,
I
question
what
legitimate purpose was served by following plaintiff and
then lying to plaintiff and telling him that he was not
being followed.
If plaintiff should already know that he
may be followed because he is a party to a lawsuit, I fail
1
Again, during oral argument, defendants argued “that
a reasonable person who would be a plaintiff in a personal
injury lawsuit, he or she has an opportunity to know in
fact that at some point during the litigation it may become
an issue where he or she is placed under surveillance.”
4
to see how admitting to plaintiff that he is being followed
because
of
the
investigation.
pending
lawsuit
would
hamper
the
I understand the importance of wanting to
be as secretive as possible about the actual surveillance,
but once plaintiff realized that someone was following him,
I do not see how, in this case, the legitimate purpose was
served by lying.
Defendants
cannot
have
it
both
ways.
Defendants
cannot argue that lying to plaintiff is critical in this
case
to
keep
ascertain
the
needed
surveillance
information.
a
secret
so
Defendants
they
have
can
already
argued that plaintiff—by virtue of filing a lawsuit—should
have
known
therefore,
that
he
should
following him.
was
not
likely
have
been
to
be
afraid
followed
to
see
and,
someone
Therefore, defendants must explain how, in
this case, following plaintiff and then lying to him about
it served a legitimate purpose.
In
another
instance,
plaintiff
was
aware
of
being
followed, and he detailed defendants’ conduct in following
him
in
and
out
of
traffic.
Another
time,
plaintiff
realized he was being followed when he came out of his
doctor’s office.
He telephoned his wife and she did not
believe him when he told her, “half crying,” that he was
being
followed.
Because
plaintiff
5
was
so
afraid,
plaintiff’s
wife
was
forced
to
come
home.
When
she
arrived, there were two cars parked near their home.
After
dressing
home,
like
the
plaintiff
and
leaving
her
plaintiff’s wife realized that the two cars were following
her,
apparently
because
the
drivers
incident
of
thought
they
were
following her husband.
During
the
final
investigators
followed
circles
parking
in
a
plaintiff
lot
surveillance,
as
he
attempting
to
drove
private
around
in
down
the
write
license plate numbers of the cars the investigators were
driving.
They continued to follow plaintiff as he drove
through traffic trying to “lose” the men who were following
him.
right
They drove through yellow lights and made an illegal
turn
to
follow
plaintiff.
One
of
the
private
investigators stated that it was clear plaintiff was trying
to get away from them, but they continued to follow him
anyway.
It
is
important
to
note
that
at
no
time
did
defendants ever admit to plaintiff that they were indeed
following him or tell him why he was being followed.
As stated, the issue is whether the conduct engaged in
by defendants served a legitimate purpose.
It is important
to not merely examine the conduct at issue in a vacuum.
Therefore,
it
is
defendants’
conduct
not
enough
to
merely
was
appropriate
because
6
argue
they
that
had
a
legitimate
purpose
to
provide
plaintiff’s underlying lawsuit.
information
related
to
Applying the statute in
this manner disregards the words chosen by the Legislature
and
results
generalized
in
the
exemption
appropriate
majority
for
analysis
essentially
private
providing
investigators.
requires
more
The
than
oversimplification adopted by the majority.
a
the
In following,
“tailing,” sleuthing, or surveilling, is there no limit on
an
investigator’s
investigator’s
tactics?
conduct—no
I
matter
think
how
not.
A
private
outrageous—is
not
excused merely because he is gathering information for a
client.
There
must
be
some
professional
standards
that,
when violated, remove the investigator from the “legitimate
purpose” shield.
A proper application of the law indicates that whether
defendants’ conduct served a legitimate purpose presents a
genuine issue of material fact.
Accordingly, because a
reasonable juror could find that the conduct did not serve
a legitimate purpose, I must respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly
7
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