What exactly is Intrusion upon Seclusion?
The first type of invasion of privacy—Unreasonable intrusion upon Seclusion—is the most commonly asserted cause of action out of the three. Invasion of privacy by intrusion does not require physical intrusion, publicity, or general communication to the public.[1] Rather, this cause of action concerns interference with the plaintiff's solitude, seclusion, or private affairs and concerns.[2] The intrusion must be intentional, rather than merely reckless conduct.[3]
What are some examples of Intrusion upon Seclusion?
Common examples of this form of invasion include:
- Where plaintiff is subjected to unwanted sexual advances and contact by his/her employer;[4]
- The testing of bodily fluids without proper consent;[5]
- An unauthorized entry to the plaintiff's premises;
- Electronic eavesdropping;
- Unauthorized opening of the plaintiff's mail; or
- Repeated hounding and harassment.[6]
How do I prove a claim for Unreasonable Intrusion upon Seclusion?
In order to recover for unreasonable intrusion upon seclusion, a plaintiff must prove all of the following elements by a preponderance of the evidence:
- The defendant intentionally invaded the plaintiff's privacy by [doing something];
- The invasion would be very offensive to a reasonable person;
- The plaintiff had injuries/damages/losses; and
- The invasion was a cause of the plaintiff's injuries/damages/losses.[7]
In order to determine whether an invasion is very offensive to a reasonable person, all of the evidence will be taken into consideration, including the degree of invasion, the circumstances surrounding the intrusion and the manner in which it occurred, the defendant's motives and objectives, the setting in which the intrusion occurs, and the plaintiff's expectations of privacy in that setting.[8]
Notably, there is no liability for examining public records or other information that is properly available for public inspection, or for observing or photographing a person in a public place.[9]
Where the alleged intrusion is an entry onto private property, a plaintiff must demonstrate a “possessory or proprietary” interest in the property.[10] Observation and photographs of a plaintiff's premises from a vantage point outside the perimeter of the property is not an intrusion, and neither is the use of lenses to enhance the view of what is readily visible.[11]
Conclusion
Invasion of privacy: Unreasonable Intrusion upon Seclusion is a common, yet nuanced and complex, cause of action in Colorado. At Volpe Law, our attorneys are ready to help you with your potential claim/defense: give us a call at 720-441-3328 or complete a consultation request form for more information on how we can help!
[1] CJI § 28:1, Source and Authority ¶ 4 (citing Restatement (Second) of Torts § 652B cmt. a).
[2] CJI § 28:1, Source and Authority ¶ 4 (citing Restatement (Second) of Torts § 652B cmt. b).
[3] Fire Ins. Exch. v. Sullivan, 224 P.3d 348 (Colo. App. 2009).
[4] Pearson v. Kancilia, 70 P.3d 593 (Colo. App. 2003).
[5] Doe v. High-Tech Inst. Inc., 972 P.2d 1060 (Colo. App. 1998).
[6] CJI § 28:1, Source and Authority ¶ 4 (citing Restatement (Second) of Torts § 652B cmt. b).
[7] CJI § 28:1.
[8] CJI § 28:2.
[9] Restatement (Second) of Torts § 652B cmt. c.
[10] Sundheim v. Bd. of Cty. Comm'rs, 904 P.2d 1337, 1351 (Colo. App. 1995).
[11] Id.
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