As technology progresses, the use of it rears its head during divorce cases. One such form of technology is the use of a GPS in a spouses vehicle. In a reported (precedential) opinion decided on July 7, 2011, in the case of Villanova vs. Innovative Investigations, the Appellate Division affirmed a trial court’s granting of summary judgment, effectively dismissing a husband’s invasion of privacy claim.
In this case, the wife , in the midst of divorce proceedings, hired a private investigator to follow her husband. The private investigator later suggested that the wife put a GPS device in the family vehicle driven by the husband and she did. She later used the findings in the divorce case. During the divorce case, the husband amended his divorce pleading to seek invasion of privacy damages against the wife. He also tried to add the defendant’s in this case, the private investigator as a defendant in the divorce case but the court would not allow that. The husband ultimately abandoned his tort claim against the wife in their settlement but reserved his rights to pursue his claim against the private investigator.
The invasion of privacy claim in the case against the private investigator was ultimately dismissed because the court found that there is no expectation of privacy driving over public roads.
The court noted that:
There is no liability under this tort theory "for observing [a plaintiff] or even taking his [or her] photograph while he [or she] is walking on a public highway, since he [or she] is not then in seclusion, and his [or her] appearance is public and open to the public eye." Restatement (Second) of Torts §652B comment c (1977). "A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his [or her] movements from one place to another." United States v. Knotts, 460 U.S. 276, 281, 103 S. Ct. 1081, 1085, 75 L. Ed. 2d 55, 62 (1983).
The result may have been different if the husband could have proven that he was tracked to a private or secluded location that was out of public view and in which he had a legitimate expectation of privacy but the husband could not prove that that had occurred. In an unusual piece of writing for an appellate opinion, the court provided a hypothetical to illustrate the point. as follows:
The fact that such an eventuality could have occurred is not sufficient to establish a cause of action for the tort of invasion of privacy.
A simple illustration is helpful to our analysis. Suppose Mrs. Villanova placed the device in her husband’s vehicle at 2:00 p.m. while the vehicle was parked in the driveway of the family home; then, at 2:30 p.m., plaintiff drove on public streets to a local convenience store, purchased a newspaper, and returned home in a matter of minutes; and then, at 3:00 p.m., either Mrs. Villanova had a change of heart and removed the device without her husband ever knowing about it, or, alternatively, he discovered the device and removed it himself. We do not think a tort of invasion of privacy would have been committed. Although the events here intermittently covered
about forty days, what happened was legally no different.
Now, should people going through a divorce take this as a green light to start placing GPS devices in their spouse’s vehicle. Perhaps not. There have been some that have argued and some judges have found that that conduct would amount to domestic violence – perhaps harassment or stalking. Of course, that begs the question of how the alleged victim could demonstrate the requisite fear or be alarmed, if the did not know of the placement of the GPS and similarly, how it would be stalking if the person did not know that the GPS was recording their movements.
I have no doubt that there will be more to come on this.