Hamberger v. Eastman

New Hampshire Supreme Court · Torts

TortsPrivacyIntrusion upon seclusionprivacyintrusion upon seclusionright to be let aloneeavesdroppingbedroom bugging

Facts

The plaintiffs, a married couple, alleged an invasion of privacy involving intrusion into the privacy of their bedroom. The opinion treats the alleged conduct as the equivalent of bugging or electronic eavesdropping in the plaintiffs' bedroom. The defendant argued the pleadings were insufficient because they did not allege that anyone actually listened to or overheard sounds or voices from the bedroom. The defendant also argued that privacy was not violated absent publication in written or printed form.

Issue

Does New Hampshire recognize as a tort the intrusion upon a person's physical and mental solitude or seclusion? More specifically, do allegations of bedroom bugging or similar intrusion state a claim even without allegations of actual listening, overhearing, or publicity to third persons?

Rule

Intrusion upon the plaintiff's physical and mental solitude or seclusion is a distinct tort within the law of privacy. It is not limited to physical entry, but extends to eavesdropping by wiretapping, microphones, and similar devices. Liability exists when the defendant unreasonably and seriously interferes with another's interest in solitude or seclusion in a manner that would be offensive to persons of ordinary sensibilities, and the tort does not require publicity, publication, or communication to third persons.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Maine, Elena Cruz rented an apartment from Harbor Gate Properties. After noticing unusual wiring behind a bedroom vent, she discovered that the landlord had hidden a small listening device there, but she has no evidence that anyone ever listened to anything the device captured.

If Harbor Gate moves to dismiss Elena's privacy claim on the ground that she did not allege anyone actually listened or that any information was shared with others, how should the court rule?

Explanation. The majority recognized intrusion upon physical and mental solitude or seclusion as a distinct privacy tort. It expressly rejected the argument that the plaintiff must allege anyone actually listened or overheard, and also rejected any requirement of publicity, publication, or communication to third persons for this form of privacy invasion. The hidden bedroom listening device itself alleges an offensive intrusion sufficient to survive dismissal.