United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC F. MELGREN, District Judge.
Plaintiff Jessica Benson sued her former employer, Terry Bryan; his pet grooming business, Pampered Paws, LLC; and its veterinarian of record, Jonathan Austin, alleging that Defendants installed a concealed camera in the storage room of the business to watch her tan naked. Benson asserts invasion of privacy and outrage claims. Specifically, Benson claims that Defendants intentionally intruded upon her seclusion and intentionally, recklessly, or negligently caused her emotional distress. On September 30, 2014, this Court presided over a bench trial to determine as to Defendant Austin-the only remaining defendant-liability and damages. Austin had announced that he would not appear to contest the trial, but he did not confess judgment or stipulate to a damage award. Following the brief bench trial, the Court took the matter under advisement. The Court now makes the following findings of fact and conclusions of law and, for the reasons discussed below, enters judgment for Defendant Austin.
I. Findings of Fact
Defendant Bryan opened Pampered Paws, a pet boarding and grooming business, in 2006. Bryan located Pampered Paws in a building that he owned. The building also contained his other business, Pressure Washers Unlimited. Dividing the two businesses was a vacant workshop area, including a room that Bryan used for storage. In the storage room, Bryan kept various boxes of items that he and his sons received when his grandmother died in July 2012, as well as a tanning bed.
In August 2012, Bryan hired Jessica Benson to work part-time at Pampered Paws. After Benson began work, Bryan informed Benson that he owned a tanning bed that he kept in the storage room in the garage area next to Pampered Paws. Bryan told Benson that she, like other Pampered Paws employees and Bryan's family, had his permission to use the tanning bed. Bryan requested, however, that Pampered Paws employees use the tanning bed only when not scheduled to work and, if after business hours, to notify Bryan before tanning.
On September 18, 2012, Defendants Bryan and Austin agreed that Austin would install a camera in the storage room next to Pampered Paws. Austin, a veterinarian of twenty-plus years, worked with Bryan and Pampered Paws on a limited basis as the facility's veterinarian of record. As Pampered Paws associated veterinarian, Austin conducted annual inspections and provided other state-required oversight, but he received no profits from the Pampered Paws business. As professional acquaintances, Bryan and Austin occasionally exchanged favors. That day, Austin agreed to meet Bryan at Pressure Washers Unlimited to help Bryan-who has limited mobility from having undergone five back surgeries-move a pressure washer for a job that evening. On the return drive, Bryan and Austin discussed Bryan's concern that someone stole family heirlooms from the storage room between his businesses. Austin suggested that Bryan use a camera to monitor the property in his storage room. Bryan agreed.
After returning from the pressure washing job, Bryan directed Austin to an available camera in the storage room and then exited the storage room to do other work. In Bryan's absence, Austin positioned the camera "the best [he] could in a place [he] thought was concealed and would be a good place to monitor someone coming and going" from the storage room. Austin located the camera on top of a box, beneath a drop-leaf table, covered by a towel with a slit for the camera lens. Austin used an extension cord to plug the camera in to a power outlet because otherwise he "couldn't get the camera far enough in the room to get the angle it needed to have to see the door." Though Austin was aware that the storage room contained a tanning bed, Austin and Bryan never discussed the possibility of people undressing or tanning in the storage room. Austin denied placing the camera with the desire to see anyone naked or use the tanning bed. And Bryan never indicated to Austin that he intended to use the camera to watch others naked. Austin installed the camera for the stated purpose of helping Bryan protect his grandmother's possessions. After placing the camera, Austin left and never returned to the location. Austin never tested the camera, observed its live video feed, or enabled it to record.
The day after Austin installed the camera, September 19, 2012, Benson visited the storage room to tan. She was not scheduled to work that day. Without notifying Bryan, Benson arrived at Pampered Paws during mid-afternoon, business hours. Benson previously had used the tanning bed about three or four times, so she felt comfortable arriving to tan that afternoon. Benson entered the unlocked storage room, locked the doors, undressed entirely, and started tanning. About five to fifteen minutes later, Benson looked past her feet in the tanning bed and noticed a camera that resembled other cameras used throughout Pampered Paws. Benson was not aware whether the camera was on or recording, but she determined that "it appeared to be hidden in a specific position... to see exactly everything in the tanning bed from [her] feet up." Scared but seeking to avoid alerting anyone who might be viewing her or her awareness of the camera, Benson closed her legs, got out of the tanning bed, dressed, and left the room. After briefly speaking with a coworker who also knew nothing about the camera, Benson returned to the room and confirmed that the camera was plugged in. Benson temporarily unplugged the camera to take pictures with her cellphone of "every angle [she] could so that you could see exactly what [the camera] was looking at and how it was positioned and [that] it looked like it was hidden." Bryan was absent from the business all day.
A few hours later, Benson reported the incident to police. The intake officer who received Benson's report noted that she appeared "distraught, almost in tears, " horrified "at the thought she may have been videotaped." Benson provided the officer the pictures that she took with her cellphone. Benson was certain she did not touch or move the camera when she "finagled" her way behind it to take pictures. She reported to the intake officer, however, that "the camera felt warm to the touch." No officer investigated further the extent to which Benson touched or possibly moved the camera.
The next day, September 20, 2012, officers visited Pampered Paws and its adjoining workshop. Bryan voluntarily met the officers at his business and accompanied them during their investigation. Officers discovered the camera in the location reported-beneath a table, covered by a towel, pointed away from the door, and facing the tanning bed. The wireless camera transmitted live video to a monitor down the hallway in Bryan's office. Officers who observed the monitor during the investigation noted that the camera showed only the full body of a person lying in, and the legs of an individual walking around, the tanning bed. Bryan indicated to officers that he had the camera installed the day before to monitor his property. After collecting and analyzing evidence from Bryan's office, officers found no evidence of recordings from the storage-room camera.
Benson attributes multiple harms to the incident. She considers the event to have violated her expectation of "full privacy"-that she could tan, as invited, "completely alone" in a room without anyone entering or viewing her. She never gave permission to be photographed or videotaped while tanning. The perceived invasion of her privacy has caused her tremendous anxiety. She now avoids tanning. But when required to tan for special occasions, she wears a swimsuit and is vigilant for cameras. Additionally, Benson quit her job at Pampered Paws immediately following the incident. Concerned about working for "another male boss that would be creepy like [Bryan], " she temporarily returned to her previous job. But she struggled to balance necessary part-time employment, school obligations, and her anxiety. As her concern for providing for herself increased, her concentration on school decreased. Her grades and mood worsened, contributing to a sense that she was disappointing her family. Eventually, Benson lost her school loan, leaving her unable to afford her classes.
II. Conclusions of Law
Initially, the Court must decide whether the preceding facts demonstrate that Defendant Austin is liable for intruding on Benson's seclusion and causing her emotional distress. If the Court finds Austin liable, it will then need to determine Benson's damages and allocate those damages among Defendants. Because Benson has failed to meet her burden of proof to establish that Austin acted with the requisite intent to make him liable, the Court need not consider Benson's damages.
Benson alleges that Austin intentionally intruded upon her seclusion and intentionally or recklessly caused her emotional distress. A federal court sitting in diversity will apply the substantive rules of the forum state. Under Kansas law, one will be liable for an invasion of the right of privacy of another if he "intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another" and "the intrusion would be highly offensive to a reasonable man." A court will impose liability for the intentional infliction of emotional distress or outrage, as it is sometimes called, if plaintiff proves that: (1) defendant's conduct was "intentional or in reckless disregard of plaintiff;" (2) defendant's conduct ...