Business Law 11th Edition by Kenneth Clarkson,Roger LeRoy Miller,Gaylord Jentz,Frank Cross

تمرين 4

Anderson v. Mergenhagen
Court of Appeals of Georgia, 2007. 283 Ga.App. 546, 642 S.E.2d 105.
• Background and Facts After Dick and Karyn Anderson's marriage collapsed and they divorced, Karyn harassed Dick's new wife, Maureen, until Maureen obtained a warrant for Karyn's arrest. According to Maureen, Karyn's new boyfriend, Paul Mergenhagen, then began following Maureen. On more than a dozen occasions between mid-2003 and mid-2005, Paul took photos of, and made obscene gestures to, Maureen as she was driving in her car or walking with her children. Frightened and upset, Maureen called the police several times. Paul admitted that he had followed Maureen at least four times and had taken at least forty photos of her car. The security guard at the entrance to the Andersons' subdivision corroborated Maureen's account that Paul often lay in wait for her and that she was "visibly shaken and upset, almost to the point of tears," at least once. Maureen filed a suit in a Georgia state court against Paul, alleging, among other things, invasion of privacy. The court issued a summary judgment in Paul's favor on this charge. Maureen appealed to a state intermediate appellate court.
BARNES, Chief Judge.
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* * * The right of privacy, or the right of the individual to be let alone, is a personal right * * *. It is the complement of the right to the immunity of one's person. The individual has always been entitled to be protected in the exclusive use and enjoyment of that which is his own. The common law regarded his person and property as inviolate, and he has the absolute right to be let alone. The principle is fundamental, and essential in organized society, that every one, in exercising a personal right and in the use of his property, shall respect the rights and properties of others. * * * The right of privacy is embraced within the absolute rights of personal security and personal liberty, "to be let alone," to live a life of seclusion or to be free of unwarranted interference by the public about matters [with] which the public is not necessarily concerned, or to be protected from any wrongful intrusion into an individual's private life which would outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. [Emphasis added.]
With regard to the tort of intrusion upon seclusion or solitude, which is the claim made here, * * * the "unreasonable intrusion" aspect involves a prying or intrusion, which would be offensive or objectionable to a reasonable person, into a person's private concerns.* * *
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* * * Traditionally, watching or observing a person in a public place is not an intrusion upon one's privacy. However, Georgia courts have held that surveillance of an individual on public thoroughfares, where such surveillance aims to frighten or torment a person, is an unreasonable intrusion upon a person's privacy.
In cases holding that public surveillance did not establish a privacy violation, we have found that the surveillance was reasonable in light of the situation. For example, reasonable surveillance of a residence from a public road to investigate a husband's disability claim constituted no intrusion upon his wife's seclusion or solitude, or into her private affairs. The surveillance of the husband at his house and on public roads also did not establish a privacy violation. Reasonable surveillance is recognized as a common method to obtain evidence to defend a lawsuit. It is only when such is conducted in a vicious or malicious manner not reasonably limited and designated to obtain information needed for the defense of a lawsuit or deliberately calculated to frighten or torment the plaintiff, that the courts will not countenance it.* * *
In this case, [Maureen] Anderson alleges that her privacy was violated when [Paul] Mergenhagen followed her repeatedly in the car and took numerous photographs of her and her car. While * * * a driver may have no cause of action for mere observation or even for having her photograph taken, a relatively harmless activity can become tortious with repetition * * *. [R]epeatedly following a woman, who was pregnant for part of that time and was frequently alone or with her small children, photographing her at least 40 times, repeatedly causing her to become frightened and upset, to flee to her home, and to call the police seeking help, creates a jury question as to whether the defendant's actions amounted to a course of hounding the plaintiff that intruded upon her privacy.
• Decision and Remedy The state intermediate appellate court reversed the grant of summary judgment to Paul on Maureen's invasion of privacy claim. The court remanded the case for trial on the issue of whether the defendant followed and photographed the plaintiff so frequently as to amount to an intrusion into her privacy.
• What If the Facts Were Different Suppose that Dick and Karyn had two children and Dick had been awarded custody of them. If Paul had been watching Maureen to determine her fitness to care for the children, would the result in this case have been different Explain.
• The Legal Environment Dimension To succeed on a claim of intrusion into an individual's affairs or seclusion, should a plaintiff have to prove a physical intrusion Why or why not