Illinois Supreme Court Recognizes Claim For Invasion of Privacy and Holds Employer Responsible For Acts of Non-Employee Private Investigator

The Illinois Supreme Court has issued an opinion in Lawlor v. North American Corporation of Illinois, Case No. 112530 (Oct. 18, 2012), holding that (a)  the tort of intrusion upon seclusion is recognized in Illinois and (b) held that an employer liable for the torts of a non-employee private investigator because the investigator was acting as the employer’s agent.  

Defendant North American hired a private investigator to determine whether Lawlor, a former employee of North American, had violated a covenant not to compete contained in her employment contract with the company.  The private investigator assessed the Lawlor’s cell and home telephone records without her permission, causing her emotional distress.

The Court first recognized that existence of a tort that had never been expressly recognized by the High Court in Illinois.  The Court adopted Section 652B of the Restatement (Second) of Torts, which  provides as follows: “One who intentionally intrudes, physically or 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 person.”

The Court also held that under the facts of this case the employer could be held liable for the acts of the private investigator.   After discussing the general rules that permit employers to be held liable for the acts of independent contractors, the Court said as follows:

we cannot say when all of the evidence is considered, together with all reasonable inferences from the evidence in the light most favorable to Lawlor, that there was a total failure or lack of evidence to support the jury’s determination that Probe was
acting within its scope of authority as North American’s agent when Probe requested that Discover, as a subagent, obtain Lawlor’s phone records. We recognize that there was no direct evidence that North American knew how the phone records were acquired by investigators. The jury could reasonably infer, however, that North American was aware that Lawlor’s phone records were not publicly available, and that by requesting such records from Probe and providing DiLuigi, Probe’s president, with Lawlor’s personal information, North American was setting into motion a process by which investigators would pose as Lawlor to obtain the material.

The discussion about the liability of independent contractors reminds us that there are lots of ways to hold one who hires an independent contractor liable for the actions of the independent contractor.  For those of you who practice in Tennessee, the decision that gives the best overview of the law in this area is Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 42 (Tenn. Ct. App. 2005).


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