Nader v. General Motors Corp.

McGivern, J.

The plaintiff, an author and a lecturer on automotive. safety, by his activities has become a gadfly to the automobile manufacturers. The defendant General Motors, learning of the imminent publication of his book, “ Unsafe At Any Speed ”, authorized other defendants to undertake a thorough unveiling of him. The scrutiny and the surveillance of the plaintiff, carried on by the defendants’ operatives, were characterized by such uninhibited gusto that the culmination was an apology tendered him before a Senatorial Investigating Committee. This, however apparently was not sufficient to assuage the plaintiff or his honor. He has brought suit for invasion of his right of privacy, for the intentional infliction of mental suffering and for the tortious interference with his prospective economic advantages.

Defendant General Motors moved to dismiss the first and second causes of action predicated upon an invasion of plaintiff’s common-law right of privacy as also plaintiff’s fourth cause of action predicated upon interference with economic advantages for legal insufficiency. Special Term has denied relief and permitted these causes of action to stand. With this disposition we agree, albeit not for precisely the same reasons.

Treating these causes in seriatim, we uphold the first cause of action. Although it may be true that until the present there does not seem to be any District of Columbia precedent permiting a cause of action for invasion of the right of privacy, aside from the making public of facts pertaining to a subject’s private life, the absence of an exact precedent is no bar to the relief. That the right of privacy forms a part of the law of the District of Columbia, and that an action for its invasion is maintainable there, there can be no doubt. (See Dodd v. Pearson, 279 F. Supp. 101 [1968]; Afro-Amer. Pub. Co. v. Jaffe, 366 F. 2d 649 [1966]; Peay v. Curtis Pub. Co., 78 F. Supp. 305 [1948]; also the early case Bernstein v. National Broadcasting Co., 129 F. Supp. 817 [U. S. Dist. Ct., D. C., 1955], affd. 232 F. 2d 369 [1956], cert. den. 352 U. S. 945.) Special Term was apt when it said (57 Misc 2d 301, 304): “ recent cases from the District of Columbia, cited by plaintiff, appear to make explicit reference to the right to be free from intrusion into one’s private life as a facet of the general right of privacy ”. And from these precedents it may also be elicited that the complaint before us is maintainable, involving as it does an aspect of plaintiff’s general right of privacy. In any event, we cannot say the door is closed. In so holding we are not creating a ‘ ‘ new right of recovery ’ ’ or “ extensions of tort liability into unexplored areas ”, as the minority apprehends. We are but recognizing what has gone before. As was said in Santiesteban v. Goodyear Tire & Rubber Co. (306 F. 2d 9, 11 [C. A. 5th, 1962]): “ However, these Florida authorities demonstrate that the right of privacy is recognized in Florida as it is in an overwhelming number of jurisdictions in this country.” (Emphasis supplied.) Nor are the difficulties of ascertaining what courts may do sufficient grounds for declining to exercise jurisdiction of a case otherwise properly brought. (Meredith v. Winter Haven, 320 U. S. 228, 234.)

The activities complained of: the shadowing, the indiscriminate interviewing of third persons about features of his intimate life, the wiretapping and eavesdropping, the prying into his bank accounts, taxes, the alleged accosting by young women and the receipt of threatening phone calls, all are within the purview of-these cases (supra). As the United States Court of Appeals for the District of Columbia said in the Afro-Amer. case (pp. 653-654): “A common law action for invasion of privacy is maintainable in the District of Columbia * * * It represents a vindication of the right of private personality and emotional security, the essence of the interest protected being aptly summarized in Judge Cooley’s perceptive phrase, ‘ the right to be left alone ’ * * * Different patterns of interference are reflected in the cases, and a variety of sub-doctrines [of the right of privacy] have evolved.” Thus, these courts in the District of Columbia have never categorically held that unauthorized publications of private facts alone will give rise to a right of privacy action. Bather, they-are replete with repetitious indorsements of the Restatement, Torts (§ 867) and Prosser, Torts (2d ed., pp. 635, 638, 642) indicating an ever burgeoning approach to this field of the law. Indeed, in view of the broad and sweeping language of these cases, we can do no other but hold that the District of Columbia cases not only give welcome to a classical common-law action for invasion of privacy but also to the “ sub-doctrines ” of intrusion into one’s seclusion or solitude as an actionable tort. And since we are not dealing with the laws of the Medes and the Persians, the lack of an exact precedent is no reason for turning the plaintiff out of court when receiving his action will further the bringing of the law into harmony with the known practices of our modern society.

It is to be noted that the latest draft of the Restatement (Tentative Draft No. 13), Torts (§ 652B) (April 27, 1967) agrees with this view:

“ § 652B. Intrusion upon seclusion. One who intentionally intrudes, physically pr otherwise, upon the solitude or seclusion of another, or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable man.” Particularly is this so, when the defendant General Motors has already conceded wrongdoing. ‘ ‘ A rule which so incongruously shields conceded wrongdoing bears a heavy burden of justification.” (Badigian v. Badigian, 9 N Y 2d 472, 475, Fuld, J., dissenting.)

Considering the second cause of action, relevant to New York activities of General Motors and the presence in New York of the defendant Gillen, his associates, and Fidelifacts, we likewise conclude it to be maintainable. It is substantially the same as the first cause of action, except for the excision of the charges pertaining to the use of girls for enticement into illicit relationships and the making of threatening telephone calls, contained respectively in subdivisions (d) and (e) of paragraph 9. And since in their respective briefs in this court defendant concedes and plaintiff acquiesces in the applicability of the District of Columbia Law to the second cause of action, and since counsel for General Motors has reaffirmed this concession in oral argument, we similarly uphold the second cause of action. Judged by District law, untrammeled by the New York Civil Rights statute, which would preclude the action, we must accept the second cause of action. In any event, District law should apply. (Babcock v. Jackson, 12 N Y 2d 473; Bernstein v. National Broadcasting Co., 129 F. Supp. 817, affd. 232 F. 2d 369, cert. den. 352 U. S. 945, supra.) In the latter case after reviewing possible choices of forum the District Court said (p. 825): “ The tort of invasion of privacy being a personal injury, the question whether plaintiff has a cause of action on the facts stated by him should be determined by the law of the jurisdiction where he sustained the injury, or, as expressed in § 377 of the Restatement, Conflict of Laws (1934), ‘the state where the last event necessary to make an actor liable for an alleged tort takes place. ’ The injury in these cases is the humiliation and outrage to plaintiff’s feelings, resulting from the telecast. The last event necessary to make the defendant liable was not the final act in publication of the telecast, as plaintiff argues, but the reaction of the telecast on his own sensibilities. ’ ’

The plaintiff herein was a District resident, the principal obtrusions and impact of the activities occurred there, and all “ the grouping of contacts ” relate to the District. Thus, there is no need of passing on the constitutional ground assigned by the court at Special Term for sustaining the second cause of action. In any event, if there is any serious question as to the proper choice of law, which there is not in this case, such choice would be a matter “ to be determined by the court upon the trial proof and before submitting the basic issues framed by the pleadings to the jury ” as a question of law, not the subject of summary disposition here sought by way of a motion to dismiss for alleged insufficiency. (Anderson v. A/S Berge Sigval Bergesen, 29 A D 2d 756, 757, affd. 22 N Y 2d 944.)

Finally, turning to the fourth cause of action, founded on a deprivation of sales, we also affirm Special Term and sustain the cause. The special damages pleaded may be lean and spare, but they are identifiable. The objections 'raised are premature and are subject to proof at trial. Furthermore, following completion of ¡disclosure proceedings, the stipulation between the parties permitted the serving of ’ a supplemental bill of particulars.

Thus, we would affirm the action of Special Term and deny the motion to dismiss.