Post 9/11, Eyes Everywhere... but Bathrooms Remain Somewhat Sacred

This from today's Law.com:


The Law of Decoy Cameras in Restrooms

Via the Legal As She Is Spoke blog, I see that patrons of the bathroom in the Circle K convenience store in Yuba County, Calif., are not happy about a surveillance camera aimed straight at the toilet area.

Customers such as Robert Donaldson told CBS13 that they were shocked to emerge from the stall to see an electronic eye pointed right at them. Donaldson fears he will end up seeing his trip to the bathroom on YouTube someday. Circle K, however, says the camera is merely a decoy ... [MORE]

Sphere: Related Content
Posted by Bruce Carton on January 28, 2011 at 05:05 PM | Permalink | Comments (0)


American courts unquestionably take a very dim view of cameras in restrooms, as the following case, decided by the appeals division of the New York Supreme (trial) Court in December demonstrates:

Supreme Court, Appellate Division, Second Department, New York.
Natalia SAWICKA, et al., respondents,
v.
Pete CATENA, et al., appellants.

Dec. 14, 2010.

Background: Female former employees of plumbing and heating company brought action against their former employer, seeking to recover damages for intentional infliction of emotional distress and constructive discharge. The Supreme Court, Kings County, Partnow, J., upon jury verdict on issue of liability finding employer at fault, entered judgment in favor of employees and against employer. Employer appealed.


Holdings: The Supreme Court, Appellate Division, held that:
(1) employer's conduct was unquestionably outrageous and extreme and caused employees' emotional distress, and
(2) employer deliberately made employees' working conditions so intolerable that reasonable person in employees' position would have felt compelled to resign, as supported constructive discharge claim.

Affirmed.


West Headnotes

[1] KeyCite Citing References for this Headnote

115 Damages
115III Grounds and Subjects of Compensatory Damages
115III(A) Direct or Remote, Contingent, or Prospective Consequences or Losses
115III(A)2 Mental Suffering and Emotional Distress
115k57.50 Labor and Employment
115k57.55 k. Sex and gender. Most Cited Cases

Male employer's conduct in installing video camera in workplace restroom in order to surreptitiously view and record female employees while they used restroom was conduct which was unquestionably outrageous and extreme, and caused employees' emotional distress, as required for employees to sustain claim for intentional infliction of emotional distress against employer.

[2] KeyCite Citing References for this Headnote

115 Damages
115III Grounds and Subjects of Compensatory Damages
115III(A) Direct or Remote, Contingent, or Prospective Consequences or Losses
115III(A)2 Mental Suffering and Emotional Distress
115k57.19 Intentional or Reckless Infliction of Emotional Distress; Outrage
115k57.21 k. Elements in general. Most Cited Cases

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.

[3] KeyCite Citing References for this Headnote

78 Civil Rights
78II Employment Practices
78k1123 k. Constructive discharge. Most Cited Cases

Employer deliberately made female employees' working conditions so intolerable, by installing video camera in restroom, that reasonable person in employees' position would have felt compelled to resign, as supported employees' constructive discharge claim.

*666 Mischel & Horn, P.C., New York, N.Y. (Scott T. Horn of counsel), for appellants.

Michael G. O'Neill, New York, N.Y., for respondents.

*667 REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

In an action, inter alia, to recover damages for intentional infliction of emotional distress and constructive discharge, the defendants appeal from a judgment of the Supreme Court, Kings County (Partnow, J.), dated June 29, 2009, which, upon a jury verdict on the issue of liability finding them at fault, upon the denial of their motion pursuant to CPLR 4401 for judgment as a matter of law, and upon a jury verdict on the issue of damages finding that the plaintiff Natalia Sawicka sustained damages in the principal sum of $100,000 and was entitled to punitive damages in the principal sum of $250,000, and that the plaintiff Agnieszka Bednarczyk-Kaluta sustained damages in the principal sum of $150,000 and was entitled to punitive damages in the principal sum of $250,000, is in favor of the plaintiff Natalia Sawicka and against them in the principal sum of $350,000, and is in favor of the plaintiff Agnieszka Bednarczyk-Kaluta and against them in the principal sum of $400,000.

ORDERED that the judgment is affirmed, with costs.

The plaintiffs Natalia Sawicka and Agnieszka Bednarczyk-Kaluta (hereinafter Kaluta) alleged, inter alia, that they were employed by the defendant Avanti Plumbing & Heating, Inc. (hereinafter Avanti), that the defendant Pete Catena was the owner and principal agent of Avanti, and that Catena installed a video camera in Avanti's restroom taping the plaintiffs' use of the restroom. The plaintiffs commenced this action against Avanti and Catena to recover damages for, inter alia, intentional infliction of emotional distress and constructive discharge.

The Supreme Court properly denied the defendants' motion pursuant to CPLR 4401 for judgment as a matter of law. Affording the plaintiffs every favorable inference from the evidence submitted, there was a rational process by which the jury could find in favor of the plaintiffs ( see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346).

[1] [2] “ ‘One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress' ” ( Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699, quoting Restatement [Second] of Torts § 46[1]; see Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86). Here, Catena's conduct in installing a video camera in a workplace restroom in order to surreptitiously view and record the plaintiffs while they used the restroom is conduct which is unquestionably outrageous and extreme ( see generally Dana v. Oak Park Marina, 230 A.D.2d 204, 208-209, 660 N.Y.S.2d 906; see also Adams v. Oak Park Marina, 261 A.D.2d 903, 904, 689 N.Y.S.2d 828; Salamone v. Oak Park Marina, 259 A.D.2d 987, 988, 688 N.Y.S.2d 362). The evidence was sufficient, as a matter of law, to establish that this caused the plaintiffs severe emotional distress ( see Hering v. Lighthouse 2001, LLC, 21 A.D.3d 449, 451, 799 N.Y.S.2d 825; see also Plunkett v. NYU Downtown Hosp., 21 A.D.3d 1022, 1023, 801 N.Y.S.2d 354; Garcia v. Lawrence Hosp., 5 A.D.3d 227, 228, 773 N.Y.S.2d 59; Massaro v. O'Shea Funeral Home, 292 A.D.2d 349, 351, 738 N.Y.S.2d 384).

[3] The plaintiffs' claims that they were subjected to a hostile work environment, based on sex, which led to their constructive discharge, were supported by evidence that Catena deliberately made their working conditions so intolerable by installing a video camera in the restroom, that a reasonable person in their position would have felt compelled to resign ( see *668 Matter of Eastport Assoc., Inc. v. New York State Div. of Human Rights, 71 A.D.3d 890, 897 N.Y.S.2d 177; Matter of Hilal v. New York State Div. of Human Rights, 57 A.D.3d 898, 899, 869 N.Y.S.2d 613).

The defendants' remaining contentions are either unpreserved for appellate review or without merit.

N.Y.A.D. 2 Dept.,2010.
Sawicka v. Catena
912 N.Y.S.2d 666, 2010 N.Y. Slip Op. 09246

More on surveillance here: