January 25, 2011

Surveillance of Home by Neighbor Is Not Invasion of Privacy by Intrusion

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January 25, 2011

The Indiana Court of Appeals today issued a decision arising out of a neighborly dispute gone very badly. In Curry v. Whitaker, Case No. 49A02-1004-CC-39, one neighbor sued another for invasion of privacy, based on the surveillance that was going on of the first neighbor’s home. The Court held that this could not amount to invasion of privacy by intrusion.

In this case, the plaintiffs were next door neighbors of the defendants. The defendant-wife filed a police report alleging that the plaintiff-husband sent her threatening emails in her capacity as the Homeowners’ Association (HOA) President and that he told people in the neighborhood that he carried a gun. The defendant-wife later filed another police report that the plaintiff-husband was throwing cigarette butts onto the defendants’ property. The defendants then installed two surveillance cameras on their home. One of the cameras was aimed at the common yard between the two homes, part of the plaintiffs’ front yard, the plaintiffs’ driveway, and the corner of the plaintiffs’ garage. A surveillance camera captured a person who the defendant-husband thought looked like the plaintiff-husband damaging a home security sign that was located on the defendants’ property. The defendants showed the video of the incident to a police officer, who could not identify the vandal. Andrew and Grace then showed the tape to another police officer, who was an HOA board member, and said that they wanted to pursue charges against the plaintiff-husband. Probable cause for misdemeanor criminal mischief was found, and the plaintiff-husband was arrested and charged with criminal mischief. Following a bench trial, however, he was acquitted.

The plaintiffs filed a complaint against the defendants alleging three counts: (1) invasion of privacy by intrusion; (2) invasion of privacy by false light; and (3) intentional infliction of emotional distress. The defendants moved for summary judgment on those claims and the trial court granted that motion.

On appeal, the Court described that an invasion of privacy by intrusion only happens when there is some intrusion into the plaintiff’s private physical space. The defendants neither entered the plaintiffs’ property nor aimed their cameras inside the plaintiffs’ home; rather, they simply videotaped “outside areas can be observed by anyone passing by or living near” the plaintiffs’ house. Because the defendants did not enter the plaintiffs’ physical space, there was no liability for invasion of privacy by intrusion.

The court then held that the defendants’ conduct, as a matter of law, was not “so extreme in degree as to go beyond all possible bounds of decency and should be regarded as atrocious and utterly intolerable in a civilized society” and, therefore, affirmed the grant of summary judgment on the claim for intentional infliction of emotional distress.

The Court affirmed the grant of summary judgment on the plaintiffs’ claim for invasion of privacy by false light as well, largely because the plaintiffs did not designate much evidence in their favor.

One of the primary lessons to take from this case is that effective advocacy begins with following the rules. In its first footnote, the Court identifies “several violations of the Indiana Appellate Rules committed by” the plaintiffs. The Court later criticizes the evidence designated by the plaintiffs in response to the motion for summary judgment. It is impossible to tell how much, if any, the non-compliance with the Rules affected the judges’ decision, but the best practice would be to strictly comply with the Rules at all times.


  1. You cannot maintain a claim for invasion by privacy by intrusion if the defendant does not physically invade your personal space.

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