Summers v. Bailey

United States Court of Appeals,

Eleventh Circuit.

No. 94-8722.

Cheryl W. SUMMERS, Individually and as assignee of Charles T.
Perry, Plaintiff-counter-defendant-Appellant,

v.

Claude W. BAILEY, Defendant-counter-claimant-Appellee.

June 27, 1995.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:90-CV-1920-RLV), Robert L. Vining, Jr.,
Chief Judge.

Before CARNES and BARKETT, Circuit Judges, and GIBSON*, Senior
Circuit Judge.

BARKETT, Circuit Judge:

Cheryl Summers appeals the district court's grant of summary

judgment in this tort action. She argues that the court erred in

rejecting her claims for malicious abuse of process, malicious use

of process, intentional infliction of emotional distress, and

invasion of privacy. We affirm the grant of summary judgment on

the first three claims,1 but reverse the district court's

determination that Summers' allegations of invasion of privacy are

insufficient to state a cause of action.

I.

In 1986, appellant Cheryl Summers purchased a supermarket and

leased property in Newton County, Georgia, from appellee Claude

*
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
1
We affirm without discussion, discovering no error with the
district court's factual findings and conclusions of law. See
11th Cir. Rule 36-1.
Bailey. She and her husband ran the market through their

corporation, Food Fare, Inc. In 1988, in the midst of bankruptcy

proceedings, Summers negotiated to sell the market to Charles

Perry. Bailey did not approve of the sale, and according to

Summers, he threatened and harassed both her and Perry, causing the

sale to fall through. Summers alleges further that in an effort to

win back his store without having to pay for it, Bailey tried to

ruin her business,2 and stalked, harassed and intimidated her.

In her deposition, Summers testified that during the summer of

1988,3 Bailey would appear at her grocery store and exhibit a large

hand gun which he carried, would park outside of the store for

hours watching her, and would tell her and her customers that he

wanted her out of the store. In her affidavit, she stated that in

August and September 1988, Bailey would follow her in his truck as

she ran errands, and that in September and October he alternately

parked his truck on her property, parked near her residence, and

parked in the woods by her house, following her as she departed

from her home. She stated that this constant following and

stalking frightened her.

II.

We review the district court's grant of summary judgment de

2
Bailey admitted at his deposition that he circulated a
petition urging customers to boycott the store, and that he
distributed two-year-old advertisement flyers, after crossing out
the expiration date.
3
Because Summers filed her complaint on August 30, 1990, and
the statute of limitations to bring an invasion of privacy action
is two years, all acts alleged must have occurred after August
30, 1988. See Jones v. Hudgins, 163 Ga.App. 793, 295 S.E.2d 119,
121-122 (1982).
novo, and resolve all reasonable doubts about facts in favor of

Summers, the non-moving party. Hale v. Tallapoosa County, 50 F.3d

1579, 1581 (11th Cir.1995).

In a landmark privacy case, the Georgia Supreme Court

concluded that personal liberty includes not only freedom from

physical restraint, but also the legal right "to be let alone."

Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 71

(1905). Under current Georgia law, the concept of invasion of
4
privacy encompasses four loosely related but distinct torts.

Summers predicates her privacy claim on two of these torts,

alleging that Bailey intruded into her private affairs and placed

her in a false light.5

The tort of intrusion involves an unreasonable and highly

offensive intrusion upon another's seclusion. Georgia courts have

long recognized the form of invasion consisting of intrusion upon

physical solitude or seclusion analogous to a trespass in

plaintiff's home or other quarters, such as hospital or hotel

rooms.6 Georgia courts have extended the principle beyond physical

4
The four torts include: (1) intrusion upon plaintiff's
seclusion or solitude, or into her private affairs; (2) public
disclosure of embarrassing private facts about the plaintiff;
(3) publicity which places the plaintiff in a false light in the
public eye; and (4) appropriation, for the defendant's
advantage, of the plaintiff's name or likeness. Yarbray v.
Southern Bell Tel. & Tel. Co., 261 Ga. 703, 409 S.E.2d 835, 836
(1991); Cabaniss v. Hipsley, 114 Ga.App. 367, 151 S.E.2d 496,
500 (1966).
5
We find no evidence to support Summers' false light claim,
and although the district court did not address this tort
specifically in granting summary judgment, we affirm the ruling
as to this claim.
6
For a review of cases, see Kobeck v. Nabisco, Inc., 166
Ga.App. 652, 305 S.E.2d 183, 185 (1983) (citing Cabaniss, 151
intrusion to include prying and intrusions into private concerns,

such as eavesdropping by microphone7 and peering into the windows

of a home.8 The Georgia Supreme Court recognized this extension in

Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 409 S.E.2d

835 (1991), stating: "The "unreasonable intrusion' aspect of the

invasion of privacy involves a prying or intrusion, which would be

offensive or objectionable to a reasonable person, into a person's

private concerns." Id. at 837 (citing W. Page Keeton et al.,

Prosser & Keeton on the Law of Torts § 117, at 855-56 (5th ed.

1984); Adams & Adams, Georgia Law of Torts § 29-3, at 342-43

(1989)).

Traditionally, watching or observing a person in a public

place is not an intrusion upon one's privacy. However, Georgia

courts have held that surveillance of an individual on public

thoroughfares, where such surveillance aims to frighten or torment

a person, is an unreasonable intrusion upon a person's privacy.9

S.E.2d at 500); Peacock v. Retail Credit Co., 302 F.Supp. 418,
422-23 (N.D.Ga.1969), aff'd per curiam, 429 F.2d 31 (5th
Cir.1970), cert. denied, 401 U.S. 938, 91 S.Ct. 927, 28 L.Ed.2d
217 (1971).
7
McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga.App. 92,
2 S.E.2d 810 (1939).
8
Pinkerton Nat'l Detective Agency, Inc. v. Stevens, 108
Ga.App. 159, 132 S.E.2d 119 (1963).
9
See Pinkerton v. Stevens, 132 S.E.2d at 120 (overt and
extended surveillance by detective agency on behalf of insurer,
which frightened and harassed plaintiff, violated plaintiff's
right of privacy). See also Ellenberg v. Pinkerton's, Inc., 130
Ga.App. 254, 202 S.E.2d 701, 704 (1973) (Reasonable surveillance
of residence from public road by insurance company is common
method to obtain evidence to defend a lawsuit. "It is only when
such is conducted in a vicious or malicious manner not reasonably
limited and designated to obtain information needed for the
defense of a lawsuit or deliberately calculated to frighten or
 Summers' factual allegations, which we take in the light most

favorable to her, and which fall within the two-year limitation

period, suggest not only a physical intrusion onto her residential

property, but an offensive, frightening and unreasonable

surveillance of her private affairs. Thus, we find that Summers

has alleged sufficient facts to state a cause of action for

invasion of privacy premised upon intrusion, and presented

sufficient evidence upon which a factfinder could reasonably find

in her favor. Accordingly, we reverse the judgment of the district

court on this claim, and remand for further proceedings consistent

with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

torment the plaintiff, that the courts will not countenance it.")
(emphasis added).