“Someone Going Through Your Underwear Without Permission” May Be “Highly Offensive”

N.A.S. v. Morada-Haute Furniture Boutique LLCPlaintiff alleged:

Plaintiff … hired Defendants, Morada and its co-founders Odenstein and Hernandez, to provide interior design services and to manufacture rugs and furnishings for a residence in Miami. Morada claimed to Plaintiff it owns six factories in Italy, where it manufactures high-end furniture as well as rugs. Plaintiff filed the lawsuit alleging that everything did not turn out as planned. Morada claimed that it would perform according to the agreement. But, there were some issues. Morada’s furniture dimensions weren’t correct. There were also problems with carpet and fabric colors. Morada was not the manufacturer of the goods as stated. Additionally, Morada imported certain goods which were incompatible with U.S. law.

When Defendants received notice of the issues, they requested keys to the Miami residence so they could fix them. Plaintiff gave one of the defendants the key based on several representations. This included agreeing to not take photos or videos of the house. Plaintiff discovered later that exterior doors had been forced open “multiple times” [and]Locks were not functional due to tape covering keys and latches.  Also, she noticed that the maid service was present. She was moved and her belongings were rearranged.

Morada claimed that it knew nothing about these problems and hired five people to photograph the residence. Plaintiff was not informed or allowed to approve. Plaintiff found the crew at the Miami residence and discovered that all the exterior doors had been left open. Plaintiff also noticed that no Morada representatives were present. Additionally, $60,000 was spent on professional staging for items in the Miami home.  Plaintiff later found out that Defendants secretly conducted other photoshoots of the Miami residence without her approval….

According to the court, this sufficed for a claim against invasion of privacy via intrusion upon seclusion.

Plaintiff claims that the Defendants invaded the Miami home and were highly offensive to the average person. Plaintiff claims the intruders entered the Miami residence by way of “the presence of a multiparty crew of cameramen and staging crew performing a photoshoot for Plaintiff without permission, along with the intrusion into Plaintiffs personal affairs such as moving through Plaintiffs’ toiletries and underwear, pillows and beds and taking prescription drugs. These allegations are strong and credible enough to justify a claim of invasion of privacy by intrusion upon isolation. The trier of facts will decide if there are any material damages.

The defendants countered this argument by saying that it was not an offensive intrusion and the claim should be dismissed. However, this is an issue that the jury will have to decide and not this Court. The Court disagrees that someone examining your underwear without consent (if it is true), is not considered highly offensive. A reasonable juror would conclude that this intimate activity is at the most highly offensive. Hence Plaintiff has established the elements for a proper invasion of privacy (intrusion upon seclusion) claim ….

The report and recommendations of the magistrate judge were filed Aug. 24, adopted by the court on Oct. 12, and are just available at Westlaw.