Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JANUARY 25, 2005
RONALD M. NASTAL AND
IRENE NASTAL, HIS WIFE,
Plaintiffs-Appellees,
v No. 125069
HENDERSON & ASSOCIATES
INVESTIGATIONS, INC., A MICHIGAN
CORPORATION, NATHANIAL STOVALL
AND ANDREW CONLEY,
Defendants-Appellants.
_______________________________
BEFORE THE ENTIRE BENCH
TAYLOR, C.J.
In this case, where plaintiff Ronald M. Nastal1 alleges
stalking by private investigators conducting surveillance,
we granted leave to consider if, and when, such
surveillance falls within the safe harbor in the stalking
statute that exempts “conduct that serves a legitimate
purpose.” MCL 750.411h(1)(c). The circuit court concluded
1
Plaintiff Irene Nastal’s claim is for loss of
consortium, which is derivative. Therefore, we refer to
Ronald Nastal as “plaintiff.”
that surveillance could serve a legitimate purpose but
that, here, there was a genuine issue of material fact
regarding whether the defendants’ surveillance continued to
serve a legitimate purpose after it had been discovered.
It thus determined that the viability of plaintiff’s
stalking claim depended upon a factual determination by the
jury. The Court of Appeals affirmed the circuit court’s
2
ruling on that issue. We conclude that surveillance by
licensed private investigators that contributes to the goal
of obtaining information, as permitted by the Private
Detective License Act, MCL 338.822(b)(i)-(v), is conduct
that serves a legitimate purpose. In the present case,
plaintiff failed to establish a genuine issue of material
fact that the conduct here complained of ever ceased
serving such purpose, notwithstanding the fact that
plaintiff observed the investigators following him. We
therefore reverse the judgment of the Court of Appeals and
remand this case to the circuit court for entry of summary
disposition in defendants’ favor.
I. FACTS AND PROCEDURAL HISTORY BELOW
Following a 1997 accident in which a tractor-trailer
collided with plaintiff Ronald Nastal’s car, Nastal sued
2
Nastal v Henderson & Associates Investigations,
unpublished opinion per curiam of the Court of Appeals,
decided October 30, 2003 (Docket No. 241200).
2
the tractor-trailer’s operator and owner, asserting
negligence by the driver and seeking damages for a closed
head injury. Defense of the action was undertaken by the
owner’s insurance carrier, Citizens Insurance Company of
America (Citizens).
In the course of discovery, neuropsychological and
neurosurgery evaluations were undertaken. The
neuropsychological expert concluded that Nastal was not
suffering any residual deficits as a result of a brain
injury and that he instead possessed a personality disorder
known as “somatoform pain disorder” that caused him to
perceive symptoms as being worse than can be objectively
determined. The neurosurgery evaluation, undertaken at the
behest of Nastal’s employer, concluded that, although he
had previously been diagnosed with a remote mild head
injury, the injury had been totally resolved and Nastal was
able to return to work. Moreover, the physician who
conducted that evaluation opined that Nastal appeared to be
suffering from depression and recommended a psychiatric
examination.
3
The action was referred to case evaluation pursuant to
MCR 2.403,3 and the panel returned an award of $450,000 for
plaintiff. Citizens rejected the award, deeming it
excessive. Citizens also decided to again have plaintiff’s
medical records reviewed, refer plaintiff to Dr. Leon Quinn
for a psychiatric examination, and have an investigation
and surveillance of Nastal performed to monitor his
activities.
On June 8, 1999, Citizens’ adjuster, Penny Judd, sent
a fax to Henderson & Associates Investigations, Inc.
(Henderson), a licensed private investigation firm,
requesting a background check, activities check, and
surveillance of plaintiff. The particulars of how the
surveillance was to be conducted were left to Henderson.
Conducting the first surveillance on Wednesday, June
30, 1999, Andrew Conley, one of Henderson’s investigators,
followed Nastal as he drove from his home. After
surveilling him for forty-five minutes, Conley, because of
the way Nastal began to drive, thought Nastal may have been
attempting to determine if he was being followed by
Conley’s vehicle. Following that, Nastal parked his car
and entered a medical facility. Conley, unsure if Nastal
3
Case evaluation was referred to as mediation at the
time it was conducted in the action. MCR 2.403, 2000 Staff
Comment.
4
was aware of the surveillance, waited outside in his car in
a parking lot across the street. When Nastal did come out,
he came over to Conley’s car and asked Conley if he was
following him. Conley denied that he was, and Nastal
replied by shouting profanities at him. Shortly
thereafter, evidently alerted by the personnel of the
medical facility, the local police appeared and spoke to
Conley and Nastal. Nastal, agitated and cursing, repeated
his concerns that he was being followed and that Conley had
untruthfully denied following him. The officer told Nastal
to calm down and shortly thereafter Conley left to call his
supervisor, Gregory Henderson. Gregory Henderson
instructed Conley to terminate the surveillance for that
day because, as both Gregory Henderson and Conley
testified, when the subject of surveillance has discovered
the surveillance, there is little purpose in continuing it
at that time because the subject will not act unaffectedly
or naturally.
A week later, on July 6, 1999, Conley and another
investigator, Nathaniel Stovall, followed Nastal in
separate cars as he drove to a number of locations. After
Nastal returned home later in the day, Conley and Stovall
parked their cars in separate places near his house to
observe his activities. Nastal apparently noticed Conley
5
and Stovall and called the police. Conley testified that
he not only did not speak to the police officers that day,
but also was unaware of their presence, and further had no
indication that Nastal had called them or was aware of the
reactivated surveillance. Stovall testified that he spoke
to the police officers and was told, not that Nastal had
called, but that someone in the neighborhood had called to
report a suspicious vehicle. Stovall indicated that a
police inquiry of this sort is a frequent occurrence when
doing surveillance and, accordingly, it did not cause him
to necessarily think that Nastal was aware of the
surveillance.
On July 7, 1999, Henderson informed Judd that their
surveillance had revealed that Nastal had been active, and
that Nastal had confronted Conley on the first day of
surveillance. Although Judd was concerned that Nastal
might alter his activities because he was aware of the
surveillance, she authorized further surveillance.
On July 8, 1999, an uneventful surveillance was
conducted because plaintiff stayed at home all day. When
informed of this, Judd stated that, because Nastal had
confronted Conley at the beginning of the week and might
suspect that he was being followed, surveillance should be
discontinued for a few weeks. Gregory Henderson described
6
this period of nonsurveillance as a "cooling off" period,
and indicated that it is usually employed by private
investigators when they are concerned that the subject of
their surveillance has detected their presence.
Twenty-two days later, on July 31, 1999, Conley and
Stovall, again in separate cars, followed Nastal to a mall.
While so engaged, both Conley and Stovall indicated that
Nastal got behind Conley’s car and appeared to be trying to
write down Conley’s license plate number. Further, once in
the parking lot of the mall, plaintiff also turned in tight
circles and appeared to by trying to get behind Stovall’s
car. Gregory Henderson, when made aware of this by a call
from Conley, told both investigators to not terminate the
surveillance because neither man could confirm that Nastal
was actually aware that a surveillance was being conducted.
Yet later, when Nastal began to attempt to evade Conley and
Stovall, Henderson told Conley and Stovall to terminate the
surveillance for that day because he believed it was no
longer productive.
Dr. Quinn’s report was received in Citizens’ mailroom
on Friday, July 30, 1999, but read by Judd early the next
week. In the report, Dr. Quinn concluded that Nastal was
primarily suffering from a depressive disorder and that
there were undoubtedly more factors than just the 1997
7
accident causing his depression. He further recommended
that plaintiff be referred to a psychiatrist or mental
health clinic for treatment and that any surveillance being
conducted be discontinued. He later explained that the
recommendation to discontinue surveillance was based on his
concern that the continued surveillance could make Nastal
angry.
On August 4, 1999, Gregory Henderson called Judd and
informed her that Nastal had again detected Conley and
Stovall’s presence during the fourth surveillance on July
31, 1999. Judd told Gregory Henderson to stop conducting
surveillance on the basis of Quinn’s recommendation and her
belief that the surveillance was not proving to be
productive.
Over a year later on September 19, 2000, plaintiff
filed a civil action alleging, among others, a claim of
civil stalking pursuant to MCL 600.2954 against Henderson,
Conley, and Stovall. Defendants moved for summary
disposition pursuant to MCR 2.116(C)(7), arguing that
surveillance serves a legitimate purpose pursuant to MCL
750.411h(1)(c) and, thus, that one engaged in it cannot be
guilty of stalking. They asserted that plaintiff’s
stalking claim was barred because of immunity granted by
law. They also asserted that Nastal had failed to state a
8
claim on which relief could be granted, MCR 2.116(C)(8),
and that, in any event, even assuming surveillance could in
some circumstances be transformed into stalking, Nastal had
produced no genuine issue of material fact on that point,
MCR 2.116(C)(10). In the alternative, defendants asserted
that even if Nastal were emotionally distressed by the
actions of defendants, which constitutes a requirement of
the statute, MCL 750.411h(1)(c), the requirement that the
actions also would have emotionally distressed a reasonable
person could not be shown because no reasonable litigant
could claim that pretrial discovery is emotionally
distressing.
The circuit court denied defendants’ motion on the
basis of its determination that defendants’ surveillance
initially served a legitimate purpose but that a genuine
issue of material fact existed regarding whether the
surveillance continued to serve that purpose after
plaintiff discovered it. The court did not address
defendants’ alternative argument.
On appeal, the Court of Appeals affirmed the trial
court’s ruling on that issue, concluding that a genuine
issue of material fact existed regarding the legitimacy of
the surveillance after plaintiff confronted Conley during
the first surveillance because, as the Court of Appeals
9
interpreted the record, it had been conceded by defendants
that surveillance can serve no purpose after the subject
discovers it. The panel also rejected defendants’
alternative argument on the basis that the issue whether a
reasonable person would have suffered emotional distress as
a result of defendants’ surveillance was a question for the
trier of fact.
We granted defendants leave to appeal. 470 Mich 869
(2004).
II. STANDARD OF REVIEW
We review de novo the grant or denial of a motion for
summary disposition. Kreiner v Fischer, 471 Mich 109, 129;
683 NW2d 611 (2004). Questions of statutory interpretation
are also reviewed de novo. Id.
When interpreting statutes, our primary goal is to
give effect to the intent of the Legislature. In re MCI
Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).
In doing so, our first step is to review the language of
the statute itself. Id. The words used by the Legislature
are given their common and ordinary meaning. Veenstra v
Washtenaw Country Club, 466 Mich 155, 160; 645 NW2d 643
(2002); MCL 8.3a. If the statutory language is
unambiguous, we must presume that the Legislature intended
the meaning it clearly expressed and further construction
10
is neither required nor permitted. Sun Valley Foods Co v
Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
Defendants moved for summary disposition pursuant to
MCR 2.116(C)(7), (8), and (10), but the circuit court
relied on MCR 2.116(C)(10) in denying defendants’ motion.
A motion under MCR 2.116(C)(10) tests the factual
sufficiency of the complaint. Maiden v Rozwood, 461 Mich
109, 120; 597 NW2d 817 (1999). The trial court must
consider the affidavits, pleadings, depositions,
admissions, and other evidence submitted by the parties,
MCR 2.116(G)(5), in the light most favorable to the party
opposing the motion. Maiden, supra at 120. Where the
proffered evidence fails to establish a genuine issue
regarding any material fact, the moving party is entitled
to judgment as a matter of law. MCR 2.116(C)(10), (G)(4).
Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314
(1996).
III. ANALYSIS
In the early 1990s, the Legislature sought to address
the inadequacy of existing criminal law, common-law causes
of action, and court-ordered personal protection orders in
protecting those who are maliciously followed, harassed, or
intimidated by stalkers. Therefore, in 1992, it followed
the lead of approximately two dozen other states that had
11
enacted legislation specifically aimed at stalking and the
special problems and circumstances surrounding it by
criminalizing the offenses of stalking, MCL 750.411h, and
aggravated stalking, MCL 750.411i. The Legislature also
simultaneously amended the Revised Judicature Act to give a
victim of stalking a civil action against the stalker, MCL
600.2954, with the elements of civil stalking being the
same as those in the criminal statutes, MCL 600.2954(1).
Stalking is defined in MCL 750.411h(d), which states:
“Stalking” means a willful course of conduct
involving repeated or continuing harassment of
another individual that would cause a reasonable
person to feel terrorized, frightened,
intimidated, threatened, harassed, or molested
and that actually causes the victim to feel
terrorized, frightened, intimidated, threatened,
harassed, or molested.
Accordingly, under Michigan civil and criminal law,
stalking constitutes a willful course of conduct whereby
the victim of repeated or continuous harassment actually
is, and a reasonable person would be, caused to feel
terrorized, frightened, intimidated, threatened, harassed,
or molested.
In defining harassment, the Legislature stated:
“Harassment” means conduct directed toward a
victim that includes, but is not limited to,
repeated or continuing unconsented contact[4] that
4
“Unconsented contact” is defined as:
12
would cause a reasonable individual to suffer
emotional distress and that actually causes the
victim to suffer emotional distress. Harassment
does not include constitutionally protected
activity or conduct that serves a legitimate
purpose. [MCL 750.411h(1)(c).]
Thus, there must be two or more acts5 of unconsented contact
that actually cause emotional distress to the victim and
[A]ny contact with another individual that
is initiated or continued without that
individual's consent or in disregard of that
individual's expressed desire that the contact be
avoided or discontinued. Unconsented contact
includes, but is not limited to, any of the
following:
(i) Following or appearing within the
sight of that individual.
(ii) Approaching or confronting that
individual in a public place or on private
property.
(iii) Appearing at that individual's
workplace or residence.
(iv) Entering onto or remaining on
property owned, leased, or occupied by that
individual.
(v) Contacting that individual by
telephone.
(vi) Sending mail or electronic
communications to that individual.
(vii) Placing an object on, or
delivering an object to, property owned, leased,
or occupied by that individual. [MCL
750.411h(1)(e).]
5
MCL 750.411h(1)(a).
13
would also cause a reasonable person such distress. In any
event, however, conduct that is constitutionally protected
or serves a legitimate purpose cannot constitute harassment
or, derivatively, stalking.
It is that safe harbor of “conduct that serves a
legitimate purpose” that is the linchpin of this case. MCL
750.411h does not itself define “conduct that serves a
legitimate purpose.” Accordingly, because these are terms
of common usage, we give them their plain and ordinary
meaning by consulting dictionary definitions. Horace v
City of Pontiac, 456 Mich 744, 755-756; 575 NW2d 762
(1998).
The Random House Webster’s College Dictionary (2001)
defines “serve” as “to answer the purpose,” “to be in the
service of; work for,” “to answer the requirements of,” or
“to contribute to; promote.” It further defines
“legitimate,” in part, as “according to the law; lawful,”
“in accordance with established rules, principles, or
standards,” “in accordance with the laws or reasoning;
valid,” “justified, genuine.” Id. Thus, given the plain
and ordinary import of the terms used by the Legislature,
we conclude that the phrase “conduct that serves a
legitimate purpose” means conduct that contributes to a
14
valid purpose that would otherwise be within the law
irrespective of the criminal stalking statute.
The defendants here, private investigators licensed
pursuant to MCL 338.821 et seq., are authorized to
“obtain[] information with reference to any of the
following”:
(i) Crimes or wrongs done or threatened
against the United States or a state or territory
of the United States.
(ii) The identity, habits, conduct,
business, occupation, honesty, integrity,
credibility, trustworthiness, efficiency,
loyalty, activity, movement, whereabouts,
affiliations, associations, transactions, acts,
reputation, or character of a person.
(iii) The location, disposition, or
recovery of lost or stolen property.
(iv) The cause or responsibility for fires,
libels, losses, accidents, or damage or injury to
persons or property.
(v) Securing evidence to be used before a
court, board, officer, or investigating
committee. [MCL 338.822(b).]
Accordingly, surveillance,6 when it is conducted to obtain
evidence concerning a party’s claim in a lawsuit, is valid
6
See Random House Webster’s College Dictionary (2001),
which defines “surveillance” as “a watch kept over someone
or something, esp. over a suspect, prisoner, etc.”, and
Black’s Law Dictionary (6th ed), which defines it as
“Oversight, superintendence, supervision. Police
investigative technique involving visual or electronic
observation or listening directed at a person or place
(e.g., stakeout, tailing of suspects, wiretapping). Its
objective is to gather evidence of a crime or merely to
accumulate intelligence about suspected criminal activity.”
15
and well within the law. Indeed, once involved in
litigation, such as here, it is even more reasonable, in
fact predictable, in a state such as Michigan that has a
“strong historical commitment to a far-reaching, open and
effective discovery practice,” Daniels v Allen Industries,
Inc, 391 Mich 398, 403; 216 NW2d 762 (1974),7 that
surveillance to secure or even lead to evidence is
permitted “in order to narrow the range of disputed issues
which might otherwise needlessly waste the parties’ and
judicial resources.” Id. at 406, 412.
It is only when the surveillance ceases to serve or
contribute to the purpose of securing the information
permitted by MCL 338.822(b) that conduct would be outside
the statutory safe harbor of MCL 750.411h(1)(c) and a civil
action for stalking could be maintained.
Here, the circuit court and the Court of Appeals
incorrectly concluded that there was a genuine issue of
material fact concerning whether defendants’ surveillance
ceased to serve a legitimate purpose once Nastal discovered
it. There is no testimony to this effect. Rather, Conley,
7
See also Dorris v Detroit Osteopathic Hosp, 460 Mich
26, 36; 594 NW2d 455 (1999), and Domako v Rowe, 438 Mich
347, 359; 475 NW2d 30 (1991). Discovery was liberalized in
the General Court Rules of 1963 and opened even more
expansively in the Michigan Court Rules of 1985. Domako,
supra at 359.
16
Stovall, and Gregory Henderson stated that once the subject
of surveillance discovers that he is being observed, and
the person performing the surveillance knows that the
subject has detected his presence, any further surveillance
of the subject at that particular time may serve no further
purpose because the subject may modify his activities.
Yet, as the testimony of both Gregory Henderson and Judd
shows, they believed that further surveillance conducted at
later times, especially after a cooling off period, could
produce information useful to the case. Nastal produced no
evidence to rebut this testimony as required by MCR
2.116(G)(4) and, therefore, failed to satisfy his burden of
establishing that a genuine issue of material fact existed
regarding whether defendants’ surveillance continued to
serve a legitimate purpose. In such circumstances, summary
disposition in favor of the moving party is required.
Maiden, supra at 120.8 Accordingly, the trial court
improperly denied defendants’ motion for summary
disposition and the Court of Appeals improperly affirmed
that denial.
8
The dissent would reverse the burden of proof
requirement and call on the defendants to establish a
legitimate purpose rather than requiring the plaintiff to
create a genuine issue of material fact regarding the
elements of his cause of action. In so holding, it is
inconsistent with MCR 2.116(G)(4) and Maiden, supra.
17
IV. CONCLUSION
Surveillance by a licensed private investigator is
conduct that serves a legitimate purpose as long as the
surveillance serves or contributes to the purpose of
obtaining information, as permitted by MCL 338.822(b).
Thus, surveillance conducted for and contributing to such
purposes is beyond the stalking statute. The conduct at
issue in this case served a legitimate purpose even after
plaintiff observed the private investigators following him.
Accordingly, the judgment of the Court of Appeals is
reversed and the case is remanded to the circuit court for
the entry of summary disposition in defendants’ favor.
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
18
S T A T E O F M I C H I G A N
SUPREME COURT
RONALD M. NASTAL and IRENE NASTAL,
Plaintiffs-Appellees,
v No. 125069
HENDERSON & ASSOCIATES
INVESTIGATIONS, INC., NATHANIEL
STOVALL and ANDREW CONLEY,
Defendants-Appellants.
_______________________________
CAVANAGH, J. (dissenting).
The majority’s analysis in this case is flawed for one
basic reason—it simply misapplies the law to the facts.
This misapplication results in the majority reaching a
conclusion that is contrary to the words used by the
Legislature in the stalking statute, MCL 750.411h(1)(c).
The majority errs because it does not truly examine whether
defendants’ conduct served a legitimate purpose. Because I
believe that a genuine issue of material fact exists
regarding whether the conduct at issue served a legitimate
purpose, I respectfully dissent.
The civil stalking statute, MCL 600.2954, creates a
civil cause of action for victims of stalking as defined by
the criminal stalking statute, MCL 750.411h. “Stalking” is
defined as “a willful course of conduct involving repeated
or continuing harassment of another individual that would
cause a reasonable person to feel terrorized, frightened,
intimidated, threatened, harassed, or molested and that
actually causes the victim to feel terrorized, frightened,
intimidated, threatened, harassed, or molested.” MCL
750.411h(1)(d). “Harassment” is defined as “conduct
directed toward a victim that includes, but is not limited
to, repeated or continuing unconsented contact that would
cause a reasonable individual to suffer emotional distress
and that actually causes the victim to suffer emotional
distress.” MCL 750.411h(1)(c). Notably, MCL 750.411h(1)(c)
further states, “Harassment does not include
constitutionally protected activity or conduct that serves
a legitimate purpose.” (Emphasis added.)
Because the statutory language at issue in this case
is clear and unambiguous, we must enforce the statute as
written and follow its plain meaning, giving effect to the
words chosen by the Legislature. People v Barbee, 470 Mich
283, 286; 681 NW2d 348 (2004). Thus, to give effect to the
words of the stalking statute, once a legitimate purpose is
established, the essential question must be how the
defendant’s conduct at issue serves that legitimate
purpose. In this case, the legitimate purpose was for
2
defendants to provide information that would assist the
insurance company that hired them in defending against
plaintiff’s claim. The examination, therefore, entails
looking at how defendants’ conduct served that legitimate
purpose.
After plaintiff filed his underlying lawsuit, Citizens
Insurance Company of America hired defendant Henderson &
Associates Investigations, Inc. (Henderson), to conduct an
“activities check” on plaintiff. The purpose of the
activities check was to determine what plaintiff’s
activities entailed. During one instance of surveillance,
defendant Andrew Conley, a private investigator working for
Henderson, followed plaintiff from his house to a
restaurant and then to plaintiff’s appointment with his
therapist. Plaintiff noticed that he was being followed,
and he spoke to his therapist about the incident.
Plaintiff and his therapist went outside where plaintiff
asked Conley if he was following plaintiff. Conley said he
was not. Plaintiff did not believe this and became upset;
he also wrote down the license plate number of the car
Conley was driving. Conley then drove off and parked about
one hundred to three hundred yards away before ultimately
terminating the surveillance. The critical question in
this incident is how the private investigator’s actions
3
served the legitimate purpose of gathering information
about plaintiff to be used to defend against plaintiff’s
lawsuit. For example, how does following plaintiff and
then lying to plaintiff about being followed serve the
legitimate purpose of gathering information?
In some cases, following a person and lying about it
to the person being followed may indeed be conduct that
serves a legitimate purpose. For example, if an undercover
police officer is conducting surveillance of a suspect and
is then confronted by the suspect, the police officer may
lie so that the undercover operation is not disclosed.
However, in this case, defendants contend that plaintiff
should not have been frightened by being followed because
plaintiff was a party to a lawsuit. Defendants have
repeatedly argued that “[a] reasonable person would
understand that he’s going to be under surveillance if that
person files a lawsuit.”1 Therefore, I question what
legitimate purpose was served by following plaintiff and
then lying to plaintiff and telling him that he was not
being followed. If plaintiff should already know that he
may be followed because he is a party to a lawsuit, I fail
1
Again, during oral argument, defendants argued “that
a reasonable person who would be a plaintiff in a personal
injury lawsuit, he or she has an opportunity to know in
fact that at some point during the litigation it may become
an issue where he or she is placed under surveillance.”
4
to see how admitting to plaintiff that he is being followed
because of the pending lawsuit would hamper the
investigation. I understand the importance of wanting to
be as secretive as possible about the actual surveillance,
but once plaintiff realized that someone was following him,
I do not see how, in this case, the legitimate purpose was
served by lying.
Defendants cannot have it both ways. Defendants
cannot argue that lying to plaintiff is critical in this
case to keep the surveillance a secret so they can
ascertain needed information. Defendants have already
argued that plaintiff—by virtue of filing a lawsuit—should
have known that he was likely to be followed and,
therefore, should not have been afraid to see someone
following him. Therefore, defendants must explain how, in
this case, following plaintiff and then lying to him about
it served a legitimate purpose.
In another instance, plaintiff was aware of being
followed, and he detailed defendants’ conduct in following
him in and out of traffic. Another time, plaintiff
realized he was being followed when he came out of his
doctor’s office. He telephoned his wife and she did not
believe him when he told her, “half crying,” that he was
being followed. Because plaintiff was so afraid,
5
plaintiff’s wife was forced to come home. When she
arrived, there were two cars parked near their home. After
dressing like the plaintiff and leaving her home,
plaintiff’s wife realized that the two cars were following
her, apparently because the drivers thought they were
following her husband.
During the final incident of surveillance, private
investigators followed plaintiff as he drove around in
circles in a parking lot attempting to write down the
license plate numbers of the cars the investigators were
driving. They continued to follow plaintiff as he drove
through traffic trying to “lose” the men who were following
him. They drove through yellow lights and made an illegal
right turn to follow plaintiff. One of the private
investigators stated that it was clear plaintiff was trying
to get away from them, but they continued to follow him
anyway. It is important to note that at no time did
defendants ever admit to plaintiff that they were indeed
following him or tell him why he was being followed.
As stated, the issue is whether the conduct engaged in
by defendants served a legitimate purpose. It is important
to not merely examine the conduct at issue in a vacuum.
Therefore, it is not enough to merely argue that
defendants’ conduct was appropriate because they had a
6
legitimate purpose to provide information related to
plaintiff’s underlying lawsuit. Applying the statute in
this manner disregards the words chosen by the Legislature
and results in the majority essentially providing a
generalized exemption for private investigators. The
appropriate analysis requires more than the
oversimplification adopted by the majority. In following,
“tailing,” sleuthing, or surveilling, is there no limit on
an investigator’s tactics? I think not. A private
investigator’s conduct—no matter how outrageous—is not
excused merely because he is gathering information for a
client. There must be some professional standards that,
when violated, remove the investigator from the “legitimate
purpose” shield.
A proper application of the law indicates that whether
defendants’ conduct served a legitimate purpose presents a
genuine issue of material fact. Accordingly, because a
reasonable juror could find that the conduct did not serve
a legitimate purpose, I must respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly
7